Janus and the Private Sector

Published September 29th, 2017 -  - 09.29.1710

Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.”  There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector.  Here’s how he puts it:

One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.

But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors.  In order for the Court to extend a First Amendment prohibition on agency fees to private sector employers it would have to completely overturn decades of state action doctrine.  It would have to conclude that there is state action simply because the law permits (not mandates) two private parties to enter into a contract.  And, to be clear, this is what the NLRA does: no employer is ever required to enter into an agency fee clause (or any other clause); in fact, the statute is explicit that it “does not compel either party to agree to a proposal or require the making of a concession.”  The idea that court enforcement of private contracts makes those private contracts state action is not the current law.  Nor, would it seem, is the grant of exclusive bargaining status sufficient to convert private unions into state actors, a point I made here.

Some one, let’s say the National Right to Work Committee, undoubtedly will continue to press the claim that private sector collective bargaining agreements are the product of state action.  But to agree with them, the Court would have to rewrite state action law and vastly expand the forms of private activity subject to constitutional oversight.  That’s a move that would have profound implications across nearly all fields of constitutional doctrine.  It might also have policy implications that would give a number of Justices serious pause.  Justice Kennedy, for example, in his public employee opinions, warns against “constitutionalizing the employee grievance.” If private sector collective bargaining agreements are state action, we’d be constitutionalizing a lot more than grievances in the private sector; we might be constitutionalizing the whole employment relationship.

Stern is right that we might get national right-to-work in the private sector. But, at this point, such a development is more likely to come from Congress than from the Court.

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