Life after Janus – POLITICO
With help from Ted Hesson and Renuka Rayasam
LIFE AFTER JANUS: Public employee unions were dealt an entirely expected but nonetheless massive blow Wednesday when the Supreme Court ruled 5-4 in Janus v. AFSCME that they may no longer collect mandatory “fair share” or “agency” fees from non-members to cover their portion of the cost of collective bargaining. The court ruled broadly for the plaintiffs, requiring the unions to adopt an “opt in” system to join up and pay dues rather than merely allowing workers to opt out of doing so. “Nobody out there is going to be paying money to a public sector union unless they affirmatively want to,” said Charlotte Gardner, a law professor at Seattle University.
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Plaintiff Mark Janus and his lawyers say their next step is to ensure that the ruling is implemented. “We’re going to have make sure states and unions respect this decision,” said Jacob Huebert, a lawyer for Mark Janus from the Liberty Justice Center. “If they’re imposing unfair unconstitutional barriers, we’ll be prepared to challenge that in court.” AFSCME President Lee Saunders said on a phone call with reporters that the union was ready to make “the necessary adjustments” to fee collection.
Does Janus invite future challenges to unions? In his decision, Justice Samuel Alito wrote that designating any union an exclusive workplace representative “substantially restricts the rights of individual employees” and was “a significant impingement on associational freedoms that would not be tolerated in other contexts.” Alito, Garden said, may be seeding the ground for plaintiffs who might wish to challenge the constitutionality of exclusive bargaining rights.
We’ve been here before.. Back in 2012, the conservative justice questioned the legality of fair-share fees, writing in Knox v. Service Employees that “acceptance of the free-rider argument as a justification for compelling non-members to pay a portion of union dues represents something of an anomaly” and that enrolling workers automatically in unions unless they opted out “represents a remarkable boon to unions.” Alito quoted repeatedly from Knox in yesterday’s case. “Janus isn’t the first time that Alito has opined on the viability of Abood,” said Sharon Block, a former Obama DOL official now working at Harvard University. “He put that marker down before. I think you have take him very seriously.”
The planned retirement of Justice Anthony Kennedy, and his likely replacement by a more conservative jurist, only increases the likelihood of future legal challenges to labor rights. “Alito is playing a little bit of a long game here,” said Dan Epps, former clerk to Justice Kennedy and now associate professor of law at Washington University in St. Louis. “He seems quite hostile to unions generally.”
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DEMOCRATS’ ANTI-JANUS BILL: Democratic lawmakers and union leaders will introduce legislation today to shore up public employee unions in the aftermath of Janus. The bill, sponsored by Sen.
The bill doesn’t address federal employees, whose unions are barred from bargaining collectively over wages and benefits (and, even before Janus, were also barred from charging non-members mandatory fair-share fees). If passed, the bill would override various state laws aimed at weakening public sector unions, such as those that require frequent recertification elections. More than 30 Democratic senators already back the bill, including Senate Minority leader Chuck Schumer. It also has backing from House Democratic leaders. Read the text here.
DOD FIELDS REQUEST FOR FAMILY BEDS: The Defense Department announced Wednesday that DHS requested assistance to house up to 12,000 migrant family members, and asked the department to identify any available facilities. The Homeland Security Department seeks housing for at least 2,000 people within 45 days, with the possibility of adding more beds as needed.
“The facility will be housed at a military base, but it’s not clear yet which one,” the Associated Press reported. “Defense Secretary Jim Mattis said Monday that two bases had been identified to house migrants: Goodfellow Air Force Base near San Angelo, Texas, and Fort Bliss in El Paso, Texas, which comprises more than 1 million acres in Texas and New Mexico.” If such facilities aren’t available, DHS requested that DOD identify available land to build “semi-separate, soft-sided camp facilities” that can shelter up to 4,000 people at three separate locations.
The announcement followed a federal judge’s order late Tuesday that the Trump administration reunite families separated at the border within 30 days. That ruling, combined with, President Trump’s executive order last week requiring families to be detained together, creates a thorny legal challenge. The 1997 Flores Settlement Agreement and subsequent rulings limit to 20 days the time that children may be kept in detention. In addition, the housing must include “air conditioning, libraries, private showers, plus medical, dental and mental health facilities,” according to the AP. “[The Flores] rules also state there must be freedom of movement within the facility during the day.”
The preferred locations would be in Texas, Arizona, New Mexico or California. These state, DOD says, could most easily comply with a requirement in the Flores settlement that minors be detained in the same geographic area where they were captured. More here.
HOUSE DEFEATS TRUMP-BACKED IMMIGRATION BILL: “The House delivered a massive defeat to a Republican immigration bill Wednesday, despite President Donald Trump’s last-minute push for the legislation and weeks of negotiation between GOP lawmakers,” POLITICO’s Rachael Bade and Louis Nelson report. The 121-301 vote reflected opposition from all Democrats and dozens of Republicans, who feared the right would label it an amnesty bill, “even though it aligned with Trump’s immigration proposal and received an all-caps Twitter endorsement from the president earlier in the day.” More here.