Is Janus the End of the Battle or the Start of a Guerrilla War?

This week I wrote about the filing of Janus v AFSCME and the efforts of teacher unions to prepare for the loss of agency fees. Most of those preparations involve cost-cutting and warnings of staff reductions. But I suspect there are other plans in the works as well.

The first clue is the union legal strategy to battle right-to-work laws by claiming they are unconstitutional takings under the Fifth Amendment. The idea that unions have property rights over a member’s money is a novel one, but it does require a pivot in legal strategy for those assigned to defend those laws in court.

Similar strategies could be pending if the Supreme Court outlaws agency fees for public sector unions. The California Teachers Association already crafted a bill that would have required districts to allow the union to deliver a 30-minute sales pitch to teachers about the benefits of membership. Attendance would have been mandatory.

United Federation of Teachers president Michael Mulgrew told his executive board this week that the state union had already created a “waiver bill” in case Janus was decided against the unions. He provided no further details.

It’s also possible that the unions will run with a scheme suggested by – of all people – Justice Sonia Sotomayor during the Friedrichs oral arguments.

Justice Sotomayor claimed that the California Teachers Association was “a state entity,” which puzzled the attorneys and at least one of the other justices. She continued:

“When recognized as the exclusive bargaining representative, a union assumes an official position in the operational structure of a school.” So it seems to me that ­­– and California tells the union what topics it can negotiate on, it requires them to do training, and in the end it accepts their recommendations with respect to the issues of employment at its own will, meaning the State is creating the union as part of the employment training and other responsibilities…. Why can’t they assess all of their employees a tax for that contribution?

In other words, since the union would no longer be able to charge agency fees, why not have a government agency do it under its power to tax, and then pass the money to the union?

I’m not a constitutional scholar, but it seems to me this would actually run afoul of the Fifth Amendment, and put the union on both sides of the argument.

The immediate post-Janus future of public sector unions will certainly contain retrenchment and a marshalling of resources, but we will also see a barrage of litigation and unusual legislative workarounds in states where union power is still formidable. Keep your powder dry.

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