The Unions Keep Rigging the Rules as Workers Sue Them

Unions2The public employee unions have not been at all contrite since their 41 year run of legalized theft came to an abrupt halt. On June 27th, the Supreme Court overturned 1977’s abysmal Abood v. Detroit Board of Education decision and ruled for Mark Janus, thus freeing government workers from all forced union payments. But, ahead of the SCOTUS decision – pretty much a forgone conclusion – the union wheels were already grinding away, notably in California where a bevy of bills that attempt to re-rig the rules in favor of organized labor are currently going through the legislative process.

California’s creepy AB 119, already law, gives government unions access to all workers’ personal contact information and requires new hires to attend a mandatory union “orientation” meeting, during which a captive audience is harangued about the joys of union membership. A companion bill, AB 2970, would prohibit government agencies from publicly disclosing information about the new employee orientations. Some organizations like the Freedom Foundation and the Mackinac Center, you see, are trying to counter the union spin by contacting public employees. Like all good totalitarians, however, the unionistas are doing their utmost to stifle free speech.

In another anti-free speech, Big Brotherly move, the unions are behind an attempt to expand existing law that prohibits an employer from “deterring or discouraging public employees from becoming or remaining members of an employee organization.” AB 2017 would broaden the definition of “public employer” and also prohibit public employers from deterring or discouraging prospective public employees “from becoming or remaining members of an employee organization.”

In a direct slap at taxpayers, SB 1085 would grant leaves of absence, without loss of compensation or other benefits, to allow unionized employees to do union business on work time. Moreover, as provided in this bill, the worker would have a right of reinstatement to the same position and work location held before the leave, “or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification.” While the union would have to compensate the state for any work done for the union, this law clearly could be extremely disruptive to the workplace and quite costly to taxpayers.

SB 550 stipulates that if there is a dispute alleging an employer’s failure to provide wages, benefits, or working conditions and it winds up in court, the employer, if he loses, must pay the union’s attorney’s fees and any other expenses incurred. But the “loser pays” provision only applies to the employer, not the union.

There is much more that the California legislature has been doing to give government unions perks that none of the rest of us could ever dream of. The California Policy Center’s Ed Ring has posted a detailed list of the new and proposed legislation, as has the law firm of Lozano Smith. They can be accessed here and here.

On the other side of the coin, there is worker-initiated litigation, most of which was set in motion before the Janus decision was handed down. In fact, as of this writing there are class action law suits against teachers unions in seven states, including three in California. All the litigation revolves around educators who never wanted any part of a union, but were forced to pay “agency fees” – about two-thirds of a full dues payment – because the union-friendly law in 22 states said they had to. One of the California cases is typical, where six current and former teachers allege that despite refusing to join the union because they disapproved of its political advocacy and collective-bargaining activities, they were still forced to pay a fee to the California Teachers Association as a condition of employment.

And it’s not just the teachers unions that are under fire. Hamidi et al v. SEIU Local 1000, filed by the National Right to Work Legal Defense Foundation (which litigated the Janus case) could force the union to refund money taken from 40,000 California state workers dating back to 2012. The money had been seized from employees who wanted to have no union involvement but were forced to pay some money to them nevertheless. The lawsuit, which includes suing for return of the forced dues payments as well as for compensatory damages, could cost the union $100 million.

While the Janus ruling ended Abood, the door has opened to a new world in which unions are desperately trying to recapture their former status as a very special interest. But at the same time, workers are fed up with union privilege and are determined to fight to get monies forcibly taken from them by an organization they never wanted any part of.

The wheel is in spin and will remain in motion for some time to come.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Court Case Could Free Public Employees from Unions

Supreme CourtThe U.S. Supreme Court will hear arguments in the Janus v AFSCME case on February 26, with a decision scheduled to be announced in June. If successful, it would free public employees in 22 states from having to pay any money to a union as a condition of employment.

Many union leaders are beside themselves with the thought that their days of collecting forced dues payments may well be numbered. And in an attempt to convince anyone who will listen to them, the lies and whines are flowing like raw sewage. Perhaps Numero Uno on the BS meter is Mr. Eric Heins, president of the California Teachers Association. In the current issue of California Educator, the union’s magazine, Heins spews some whoppers that would make Richard Nixon and Bill Clinton blush.

“They want to use the Supreme Court to take away the freedom of working people to join in strong unions.” Blatant crock. The case is about giving working people a choice to be a part of a union.

“A decision in Janus to strip public employees of their collective bargaining rights in the workplace moves us further in the wrong direction.” Uh, nice bait and switch. The case has nothing to do with collective bargaining; it’s about the Constitutionally-guaranteed freedom of association for workers.

“No other organization exists to protect California’s children the way CTA does – in the classroom and beyond.” Okay, technically not a lie, but it’s a distinction without a difference. In his opinion, CTA, which has burdened the Golden State with tenure, seniority and dismissal statutes so onerous that firing a pedophile is almost impossible, is “protecting children.” No, the union is there to preserve teachers’ jobs at any cost…whether they deserve preservation or not. The children you pay lip service to – not to mention taxpayers you profess to champion – are hardly “protected” by your union.

Other unions have also ramped up their rhetoric as the oral argument date nears. The American Federation of Teachers, stressing precedent, is invoking the 1977 Abood ruling, which allows for forced dues. Using the stare decisis argument, the union adopted a resolution “urging the court to reaffirm its long-standing position rather than imposing a national ‘right to work’ landscape.” Surely the union would admit that using a prior ruling as the basis to justify a law is not always the right and just thing to do. For example, AFT wouldn’t have been caught dead using stare decisis to support Plessy v Ferguson, which advanced the “separate but equal” doctrine for public facilities, including schools, when  Brown v. Board of Education, which claimed that separate educational facilities are inherently unequal, challenged the 58 year old ruling in 1954.

In the “whine” category, one meme that keeps popping up is the unions’ insistence that they will become insolvent without compelled dues. AFSCME President Lee Saunders called Janus a political attack against union finances. To be sure the unions will take a financial hit, but if it doesn’t have anything to offer to a worker, it should lose business or even fold up. Think Edsel.

In the “misdirection” department, Slate writer Mark Joseph Stern deserves to be singled out for chutzpah. He asserts that the claim made by Janus that the First Amendment flatly prohibits the government from compelling Americans to subsidize speech with which they disagree is bogus. He writes, “… this happens all the time: Tax revenue, for instance, is frequently used to promote messages that a taxpayer does not endorse, yet nobody seriously believes that taxes are unconstitutional.”

What Stern conveniently omits is that the union is not a government entity, but rather a private corporation. For better or worse, making people pay for services they neither asked for nor want is a “privilege” we reserve for government. In other words, while I must pay state and federal taxes, I don’t have to pay the Auto Club a fee because they say they provide certain necessary services. I am not forced to fork over money to the NRA because the pro-Second Amendment group advocates for me. AAA and NRA are private entities but, unlike unions, are not allowed to coerce money from unwilling individuals.

Given the originalist majority on the Supreme Court, Mark Janus should be successful in his attempt to continue in his job as a child support specialist at the Illinois Department of Healthcare and Family Services without being made to pay one red cent to any union to keep his job. And a union will then have to convince him (and several million other government employees) that it’s in his best interest to join up. What a concept.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Never Mind Never Trump

To do a brief full disclosure, I was a national director of the Super PAC which created the Draft Ben Carson for President movement and, after he officially announced his candidacy, the Super PAC (2016 Committee) supporting that candidacy. After Carson withdrew I wanted to support Marco Rubio, but he imploded shortly after Carson, so for about a nano-second I was the congressional district chairman for Ted Cruz in my Glendale, CA based congressional district.

That means Donald Trump was my fourth choice for president. He is now my first choice, indeed the only choice that makes any sense. He is the only choice that gives hope that America and her traditional freedoms will not be thrown down the rat hole represented by putting another Democrat in the Oval Office on January 20, 2017.

Since Trump clinched the nomination thousands of trees and millions of electrons have been sacrificed to document the nascent (for UCLA grads that means “new”) “Never Trump” movement among Republicans. There are some well-meaning activists, supporters of one or more of the other 147 GOP candidates for president, among the Neverland folks.  Many newbies to the political process among them, their disappointment is palpable and understandable. They get a pass. What is not excusable is, for lack of a better definition, the “conservative establishment” types who are spearheading and cheerleading for the NeverTrump, Neverland crusaders.

I know most of the NeverTrump/Neverland folks. I’ve worked with some of them. A smaller group of them I consider friends. That said, with very few exceptions the NeverTrump leadership (largely confined to the East Coast) consists of navel gazing, thumb sucking narcissists. Most of them have never run for office or been in a hands-on position in a winning political campaign. I wouldn’t trust them to win a municipal water board campaign in California.

But they are “very important people” and “deep thinkers” – just ask them. In fact, you don’t need to ask them, they’ll tell you…over and over again. They are mad as Hell that the Republican primary voters did not follow instructions. So to punish the GOP plebeians who disobeyed orders and nominated someone outside the acceptable Conservative Caste, these conservative “leaders” are willing to turn the country, and most importantly the Supreme Court, over to Hillary/Bernie/Joe, all of whom would govern as Obama’s third term.

As my dear old friend John Nolan used to say, “stupid, stupid, stupid. I am so tired of stupidity!” (Side note to personal and political friends, John Nolan was Pat’s father).

I am hardly blind to Donald Trump’s deficiencies as the ideal conservative or even ideal Republican. But neither am I blind to the fact that one – and only one – issue truly matters for the future of the country, and that is the future of the Supreme Court of the United States.

Like it or not SCOTUS is where the action is in re: determining the future direction of American governance. For the past 40 years, from Roe v. Wade through Kelo (eminent domain) to gay “marriage” and Obamacare, the left has won its most significant victories in SCOTUS – victories it could never have won at the ballot box. Sadly but truly, SCOTUS has had and will continue to have much more influence on America than any majority in Congress.

The next president is likely to have at last two and perhaps four appointments to SCOTUS. Given the current 4–4 balance in SCOTUS, the next president will set the ideological balance for the next 20–30 years, and that ideological majority will form America’s politics, mores and future … until most of you reading this column are dead.

We cannot be sure what kind of appointees we’d get from President Trump, but we most certainly can be sure what we’d get from Hillary/Bernie/Joe – far left ideologues who would pave the way for America’s descent into a dark, extended nightmare of socialist tyranny.

My NeverTrump-Neverland friends rightfully point out that there’s no assurance that Trump’s appointees would be stellar conservative constitutionalists. They are right of course. SCOTUS appointments are notoriously fickle. Hence Ronald Reagan’s huge mistake in putting Sandra Day O’Connor  on the bench juxtaposed with George H.W. Bush’s enormous favor to America in adding Clarence Thomas to the Court. So who was the better conservative in that trade-off?

Here’s the exercise I want Trump deniers to do. Pick a number between one and one hundred, said number representing what you think are the odds that President Trump would put good judges on SCOTUS. Then pick a similar number for Hillary/Bernie/Joe. This is a trick question, as it really doesn’t matter what number you chose for Trump. His number is going to be bigger than the Democrats’ number, which is zero. That is game, set and match for me.

There are many other issues on this topic worthy of discussion, and I will do my best in future columns to do justice to both the pro and anti Trump viewpoints. I will close with a quote from the always wise Dennis Prager, who recently wrote: “I just don’t understand how anyone who understands the threat the left and the Democrats pose to America will refuse to vote for the only person who can stop them.”

Bill Saracino is a member of the Editorial Board of CA Political Review. 

SCOTUS declines to review CA asset seizure practice

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

The U.S. Supreme Court declined to take on a 15-year-old case challenging California’s asset seizure practices.

The justices decided “they would not hear a long-running lawsuit that contends the state does not do enough to notify the rightful owners before seizing their assets,” the San Francisco Chronicle reported. “Under the state’s law, accounts can be seized if a bank or retirement fund has lost track of the owner for three years. But lawyers who sued called the state’s system a ‘recipe for abuse’ because many people are unaware that their assets or those of a relative are being held by the state.”

The suit put the court’s interpretation of fundamental constitutional rights at stake. “Lead plaintiff Chris Taylor filed the class action at issue back in 2001, taking aim at California’s Unclaimed Property Law, which provides for the conditional transfer to the state of unclaimed property such as savings accounts or shares of stock,” Courthouse News reported. “Taylor accused state controller Betty Yee of violating due-process rights by transferring property to the state without providing the potential owners adequate notice.”

“During the intervening years, the challenge brought several amendments to the law’s notice procedures. Chief among them, California now notifies potential owners before the state transfers the unclaimed property, not after.”

Room for abuse

But the state has not changed its passive stance on money “which they freely admit they owe to someone (or that person’s heirs if they are deceased) but are unable to deliver because they can’t find them,” as HotAir noted. Other states, the site observed, had reason to watch the case closely. As CNN Money has calculated, “States, federal agencies and other organizations collectively hold more than $58 billion in unclaimed cash and benefits. That’s roughly $186 for every U.S. resident. The unclaimed property comes from a variety of sources, including abandoned bank accounts and stock holdings, unclaimed life insurance payouts and forgotten pension benefits.”

Critics have charged that governments take advantage of the perverse incentive to keep people in the dark about what they’re owed. California alone has amassed some $8 billion in unclaimed assets, according to the Los Angeles Times; “from this fund, it takes about $450 million a year to add to the state budget,” the paper reported.

Future hopes

Two justices did offer Taylor and his supporters a small consolation prize. In a concurring opinion, Justices Samuel Alito and Clarence Thomas recommended that the court consider “in a future case” how proactive states should be in similar situations.

“As advances in technology make it easier and easier to identify and locate property owners, many states appear to be doing less and less to meet their constitutional obligation to provide adequate notice” prior to seizure, Alito reasoned. “Cash-strapped states undoubtedly have a real interest in taking advantage of truly abandoned property to shore up state budgets. But they also have an obligation to return property when its owner can be located.” Alito said “the convoluted history” of Taylor’s suit “makes it a poor vehicle for reviewing the important question it presents[.]”

Legislative divisions

More broadly, asset forfeiture laws have become a target for reformers in both political parties, with bills attracting controversy in states across the country. Last year, a divided Legislature in Sacramento saw Senate Bill 443 sail through the Senate but sink in the Assembly. State Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, “would have reformed the state’s asset forfeiture regulations to require that police and prosecutors actually convict citizens of crimes before seizing ownership of their assets to spend on themselves,” as Reason magazine noted. Between the Senate’s vote and the Assembly’s, state police and prosecutors mobilized effectively to prevent the bill from becoming law.

Originally published by CalWatchdog.com

SCOTUS Showdown: Obama’s Dysfunctional Relationship With Congress

SCOTUSbuilding_1st_Street_SEAfter this week’s news that Republican Senate leaders will not even consider any Supreme Court nominee until a new president is in office, current President Obama is taking it to the streets in an effort to get his yet unnamed pick approved. Or at least to make some much-needed political hay.

In a guest column on the acronymically-named SCOTUSblog, Obama makes his case that he will do his constitutional duty by naming an appointment and he expects the Senate will do the same by giving the Obama nominee a fair hearing and, at least in Obama’s world, the thumbs up in an up-or-down vote.

The president’s implication is that he is fulfilling his duty while a Republican Senate contingent which has clearly stated it will not act on a Supreme Court replacement for Justice Scalia until the next president is in office, would be guilty of a dereliction of duty. If you read between the lines, it almost could be an admonition straight out of Gilbert and Sullivan: “He has done his duty. I will do mine. Go ye and do yours.”

Obama talks about his putative nominee’s virtuous qualities: fierce independence; understanding the role of the judiciary in interpreting, not making law; a keen intellect; faultless integrity. Of course. But let’s cut through the crap. At this stage it’s all political posturing. On both sides.

And in some ways, the president’s predicament reminds me of situations faced by the kids in my high school forensics class who after getting busted by the teacher for some infraction or other were faced with detention or another equally odious punishment. In such situations, Bonnie Miller’s response was invariably the same: “Sorry, hon, you did it to yourself.”

In the past, we have heard criticisms from the White House when Congress passed bills which the president had signaled he would veto. On such occasions it was as if one could hear in the background of the White House declarations Seinfeld’s Larry Thomas deliver one of his lesser-known classic lines with gusto: “Please, you’re wasting everyone’s time.” The president would then go on to veto the bill in question with a slight head-shake, as if to say “kids will be kids.”

On a number of occasions, if the president wanted to be spared the inconvenience of a veto, he got his Senate acolytes to use the filibuster. In this way, for example, he was able to see his recent Iran deal sail through, despite majority opposition in both houses of Congress. While the deal was voted down by the House, it failed to get an up-or-down vote in the Senate.

At that time, of course, it was the Republican Senate leadership which decried the Democrats’ use of the filibuster. As a key element of American foreign policy, the Iran deal, they claimed, deserved a full hearing and an up-or-down vote. The Democrats not only responded with the “waste of time” argument, but also suggested that the use of the filibuster was simply yet another way in which – through their duly elected Senators – the people of the United States were speaking. Sorry, Republicans, you didn’t have the votes. Next!

Now that the shoe is on the other foot, Democrats are crying “Foul!” and trying parse the differences between their own use of the filibuster and the Republicans’ unwillingness to consider any Obama SCOTUS nominee, which is in itself a form of filibuster.

“Ah, but the filibuster is often used when it comes to legislation. It is unprecedented when it comes to Supreme Court nominees.”

This is sheer nonsense, and it is all political game-playing within the wacky, arcane set of rules the Senate in all its old-school glory sets for itself. When you change those rules, as for instance when the Democrats under then-Majority Leader Harry Reid used the “nuclear option” to eliminate the filibuster for lower court nominees, don’t be surprised when the new rules are used against you if ever that shoe moves feet. And be even less surprised when the existing rules are used against you. You’re all playing by the same rules, unless, of course, you change them.

Let me make it clear: I personally believe the Republicans in the Senate should give any Obama nominee a hearing (though I do not feel their “advise and consent” role obligates them to an up-or-down vote). If anything, the Republicans are playing within those old-school rules which allow them to make a decision without actually voting on it. They are not changing the rules, as the Democrats did when they used the nuclear option.

Now it is the president who is on notice that his nominee has no chance of clearing the Senate, as the Senate exercises its constitutionally mandated “advise and consent” role. In this case of reversed fortunes, it is the Senate which effectively is threatening a veto. And yet, just as the Republicans in Congress don’t always pay heed to the president’s veto threat when it comes to legislation, the president himself seems undeterred by the Senate’s veto threat.

It’s a classic game of political chicken. This time the Republicans will want to frame the matter as one of the American People’s right to decide the matter through the upcoming presidential election; they will want to paint the president as “wasting time.”  The president will want to paint the Republicans as “obstructionist” and “derelict in their duties.” Each side will attempt to inflict the maximum amount of political damage on the other in this election year.

In a sense, the president is reaping what he has sowed through his inability to reach across the aisle during his 7+ years in office. Ultimately, the SCOTUS showdown and game-playing are nothing more than a symptom of his dysfunctional relationship with the Republicans in Congress, which has been exacerbated by his own abuse of executive orders. In short: how can Republicans in Congress trust the president to pick a justice who understands the Supreme Court’s constitutionally mandated role when he himself doesn’t seem to understand his own?

Just as Republicans shouldn’t be surprised when the president follows through with a threatened veto, so should the president not be surprised when the Senate, led by the Republicans, exercises its veto. The immortal words of Bonnie Miller seem to ring truer than ever before.

John Mirisch has served on the Beverly Hills City Council since 2009.  He is currently Vice Mayor and will become Mayor next month.  In a previous turn as Mayor he created the Sunshine Task Force to increase transparency and public engagement in local government.

Comity is Dead – A Reflection on the Supreme Court Vacancy

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

We began this drama with Republicans suggesting there will be no action on any Obama nomination, followed by Democratic outrage.

I have been convinced all along that the Senate will not go down that path; it would be too easy for the Democrats to portray inaction as a willful refusal to do a task required by the Constitution, and thus even worse than the government shutdown.  That could cost the GOP control of the Senate in November, which will be decided by a handful of races, most likely the open seats in Nevada and Florida.

But a vote by the 54 GOP Senators to reject the nomination is more likely and far more justifiable. Senate Judiciary Chair Charles Grassley signaled in his interview on Tuesday that he would consider holding hearings, at least hinting at that strategy.

THE 2016 ELECTION

Despite the many predictions that the court vacancy and deadlock will be a winning issue for Democrats this year, the issue may benefit Republicans just as much. In the opening primaries, the energy on the right was very high (see record turnout in Iowa), and conservatives have long emphasized the importance of the court majority as the last line of defense of their views.  And in general, the side that fears losing something it now has will always be the most passionate – and that is the conservatives. A new liberal justice could, among other things, overturn the Second Amendment right to gun ownership. But it seems unlikely that replacing Scalia with a like-minded jurist would lead to the end of abortion rights or other existing freedoms.

Republicans need to talk about the context behind their strategy. President Obama spent all of 2015 expanding the reach of the Imperial Presidency beyond anything Richard Nixon ever did. His foreign policy initiatives, such as restoration of relations with Cuba, are more defensible, given that presidents have their greatest power in foreign affairs, but he is on shakier ground with his domestic “orders.” His immigration policy and coal rules represent a much broader assertion of new powers, and are being challenged in the lower federal courts, with mixed results so far.

The president believes he has a mandate to enact his views, and despite losing a net of 69 House and 14 Senate seats since 2009, he has basically said, “I’m doing what I believe in because Congress will not act.”

The Senate response is then to reciprocate by voting no on any nominee, which is an explicitly granted constitutional power. It is the same kind of maximalist posture that the president has been employing for a year. So we can say with certainty that comity among the branches of government is dead.

Republicans also need to bring up the history. Democratic politicians insist that a president has the right to have a qualified nominee confirmed. Yet while there has been occasional mention of the 1968 rejection by a Democratic Senate of Abe Fortas, everyone seems to have forgotten the 1987 nomination of Robert Bork, which was rejected on ideological grounds by a Democratic Senate.

THE POLITICS OF SELECTION

If any nominee is doomed, that means candidates for the most prestigious and important legal body in the world are now being weighed and measured on how they will boost election turnout among certain groups – e.g., will Hillary Clinton get a larger boost in key states from an African American or a Latino nominee? That is a sad state of affairs indeed.

This has led many to predict that an African American woman will be chosen. Names floated include Attorney General Kamala Harris and Judge Ketanji Brown Jackson of the federal District Court in D.C. And if it were up to me, I might push for Justice Leondra Kruger of the California Supreme Court, who used to work in the Obama administration.

However, the early leader in the speculation derby was Attorney General Loretta Lynch, who has the advantage of having been fully vetted by the Senate.

But court watchers have noted a problem. We know Senate Judiciary will ask for every conceivable piece of information on a nominee, in the hopes of finding something that will make a rejection easy. And the incumbent AG may have internal documents that directly address discussions of or investigations into Benghazi, the email servers or the Clinton Foundation.

If such documents exist, they might reflect unfavorably on Secretary Clinton, or might make it appear DoJ has shown favoritism in its investigations. Justice would then have to choose between withholding the material, giving the Senate a reason to reject Lynch, or releasing it, at a potential cost to Mrs. Clinton.

The other choice facing the president is moderate or firebrand? Most seem to think he will avoid the firebrands – no Sen. Elizabeth Warren types – as that offers the best chance of political success.

Choosing a nominee known to stand for overturning 5-4 decisions that absolutely infuriate the left, especially the Heller case establishing an individual right to gun ownership and the Citizens United decision on campaign spending, will help motivate and turn out core Democrats. But an activist nominee eager to overturn recent rulings could be more easily rejected as someone who lacked the appropriate judicial temperament.

The alternative approach would be to nominate a judge whose views are less known and/or more moderate, and who ideally has already been confirmed. While her defeat would be less motivating to the Bernie Sanders demographic, it would allow Democrats to attack the GOP all year as rejecting a qualified woman for purely political reasons (and perhaps throw in accusations of racism as well). That does seem like a winning strategy for the president. But who knows? If there’s one thing we can count on this election cycle, it’s that what we think we know turns out to be wrong.

Lawrence Molton is an attorney and political consultant in the San Francisco Bay Area.

Mainstream Misdirection in SCOTUS Search

 

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

Antonin Scalia’s death has begun a new Supreme Court battle. And much of it will be expressed in terms of whether nominees are “mainstream” or not.

Senator Charles Schumer already demonstrated this pattern. In 2007, he said any Bush nominee “must prove … that they are in the mainstream rather than we have to prove that they are not,” but has now doubled down in the opposite direction, saying, “many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff.”

Why so much mainstream rhetoric? To be in it sounds good; to be out of it sounds bad. But it rests on a distorting analogy.

The analogy equates mainstream to “normal,” or majority, views. They are then further equated to “correct” views. But while majorities choose representatives, our Constitution was far from majority rule (“mob rule,” to many founders). It put many choices off-limits to political determination, and subjected others to very stringent standards. In short, it defended liberty against government encroachment. This is especially critical in evaluating justices, whose primary role is preserving the Constitution against majority abuses.

The analogy presumes a speaker’s mainstream evaluation is accurate. But where the mainstream is and how far from its supposed center is acceptable are indefinable.

The core issue is not, then, about being in the current mainstream, but where that mainstream should be. Advocating respecting the Constitution as written, as Scalia was famous for, focused on that.

That is, the mainstream may be in the wrong place. It has clearly changed in our country, but only because some were out of the previous mainstream. Men being created equal, with inalienable rights against government abuse, is far from the once mainstream belief in the divine right of kings. And our Bill of Rights freedoms to speak, write and worship as we choose, and to have our property protected from government predation, were not always mainstream.

Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally enumerated banks, arguing for re-routing it toward its original course: “A limited Constitution…can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”  Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter…to guard the Constitution and the rights of individuals.”

If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is acceptable means anyone acting to undo such policies would be outside today’s mainstream, though not that of our founders. As Jefferson said, “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and…breaks up the foundations of society.”

In fact, “out of the mainstream” nominees are the only ones who might resist further expanding government encroachment or even reclaim eviscerated freedoms once taken for granted. In contrast, those recently advocated as mainstream have enabled “new and improved” encroachments.

Expanding the divide between the Constitution and current interpretation increasingly threatens our founders’ mainstream belief in liberty and the Constitution they designed to defend it. Consequently, advocates for the modern mainstream are opposing the mainstream that made America great. That is why Antonin Scalia fought vigorously for our founders’ understanding. It is also why Americans don’t need more justices from the modern mainstream, but more from its original channel.

Gary M. Galles is a Research Fellow at the Independent Institute and a Professor of Economics at Pepperdine University. His books include Lines of Liberty (2015), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Free Speech Rights on the Line as SCOTUS Hears Friedrichs Case

Rebecca FriedrichsIn less than one week the U.S. Supreme Court will begin to hear arguments in the case Friedrichs v. California Teachers Association, to determine whether unions can force public employees to fund speech through collective bargaining with which they might disagree. The case could result in a landmark decision impacting the First Amendment rights of millions of public sector workers nationwide. The California Policy Center joins hundreds of other organizations and millions of individual activists in urging the Supreme Court to rule in favor of the plaintiffs.

If the justices rule in favor of Friedrichs, the decision would not only take away government union’s ability to get public employees who do not pay them fired in the half of the states – most definitely including California – which do not have right-to-work, but would allow public workers to opt out of their union without needing to renew their objection every year. Here in California, the decision, which is expected in June 2016, would impact well over 1 million state and local public employees who are currently unionized.

The Friedrichs case rests on the argument that anything and everything that public employee unions negotiate is inherently political. We couldn’t agree more. To state an obvious example, negotiations between unions and elected officials over public employee pensions and pay are arguments over how elected officials should use public money – an inherently political question. Conceding to demands for higher salaries during an economic downturn – or at any time, for that matter – is a political choice. When public employees make more, either other services are cut, or taxes are increased. These are political decisions, not mere employer/employee issues.

While how public agencies spend taxpayers’ money is obviously a matter of public policy, the work rules negotiated by government unions also are inherently political. Union negotiated rules governing California’s system of public education provide examples of this in the form of “lifetime tenure” – awarded after less than two years in the classroom, dismissal procedures that make it nearly impossible to fire incompetent teachers, and “last in first out” layoff policies that reward seniority over merit. Conscientious teachers can be forgiven for believing these union rules, among others, are public policy decisions, inherently political, that have harmed California’s children. Yet they are forced to pay to support the unions who negotiated these rules.

The Friedrichs case, despite an avalanche of well-funded propaganda from unions, is not about whether or not unions even belong in the public sector. The point of the Friedrichs case, again, is that everything that public sector unions negotiate for is inherently political. And because they are inherently political, public employees should not be forced to fund these unions if they don’t want to, because that is a violation of their First Amendment free speech rights. You don’t have to restrict the scope of your argument to the explicitly political activities of government unions to make this case. Because everything government unions do, everything they fight for, affects government policy.

As a result, members of government unions should not be merely permitted to opt-out of the acknowledged “political” portion of their union dues, the amounts spent on political campaigns and lobbyists. They should be allowed to opt-0ut of paying all of it, including the so-called “agency fee.” And because these unions have made the “opt-out” process a difficult bureaucratic ordeal, where members can only opt-out during a certain limited time each year, and have to do that over and over again, year after year, paying union dues should instead depend on an “opt-in” process. This would mean the government unions themselves would have to obtain affirmative consent, year after year, in order to continue to collect dues from government workers.

Government unions are not just inherently political in everything they do. Their agenda is inherently in conflict with the public interest. Unlike private unions, government unions elect their own bosses. Unlike private unions, government unions can demand pay and benefits without having nearly the same concerns about how that may impact the financial health of their organization. And unlike private unions, government unions run the government bureaucracy, which means they can more easily intimidate their opponents. For these reasons, perhaps the Friedrichs case doesn’t go far enough. But it’s a very good start.

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Ed Ring is the executive director of the California Policy Center.

On Health Care, Obama worked the Refs and Got His Way

Former Lakers coach Phil Jackson says he finds referees “a very interesting group of people.”

If you’re a basketball fan, you’ll remember that Jackson has used plainer words about referees, and this has cost him a lot of money over the years. During the 2009 NBA Finals he was fined $25,000 for complaining about “bogus” calls. The following year he was fined $35,000 twice in two weeks.

Why did he complain so publicly?

Jackson may have hinted at the answer in a recent video for a youth sports organization. “It’s an impossible game to referee,” he said. “It’s totally impossible. There’s a foul on every play. You have to decide what you’re going to call and what you’re not going to call, who you’re going to attack and who you’re not going to attack.”

So those costly criticisms may have been an investment in helping the officials make better decisions in the future.

The president of the United States happens to be a basketball fan. Maybe he’s seen this trick work a few times.

Speaking in Germany after the G7 summit on June 8, President Obama lectured the U.S. Supreme Court on how to interpret the Affordable Care Act. “It should be an easy case,” he said, “Frankly, it probably shouldn’t even have been taken up.”

The next day the president spoke again about the law, describing a pre-Obamacare America where parents who didn’t have money could only “beg for God’s mercy” to save their child’s life. But thanks to the health care law, he said, a woman has thrown away her wheelchair, an autistic boy now can speak, a barber was cured of cancer. The president said miracles are happening in hospitals every day. “This is now part of the fabric of how we care for one another,” he concluded. “This is health care in America.”

On June 25, the U.S. Supreme Court upheld the administration’s interpretation of the health care law, which Chief Justice John Roberts said was necessary to avoid “a calamitous result.” Who would want to be blamed for preventing “miracles”?

Although the justices are insulated from politics by lifetime appointments, they strive to maintain the public’s respect for the institution of the Supreme Court. They can’t put their orders into effect without the aid of elected officials. The judiciary has “neither force nor will, but merely judgment,” Alexander Hamilton explained in the Federalist Papers.

It’s this vulnerability—the Supreme Court’s reliance on the esteem of the public—that Obama attacked in 2010 during his nationally televised State of the Union address. The president slammed the justices, some of whom were seated right in front of him, for their ruling in a campaign finance case.

Longtime political experts were startled by the breach of protocol, but basketball fans would not have been.

With his remarks in Germany, Obama signaled that he was ready to denounce the Supreme Court, perhaps for decades, if the justices blew the whistle on the IRS rule that went around the literal wording of the Affordable Care Act. Sure enough, the call went his way.

Presidents have done this kind of thing before. Franklin Roosevelt famously threatened to pack the court with more justices in order to get the majority he needed to uphold the New Deal. But it was the other Roosevelt, Teddy, who best explained this Progressive technique.

“I may not know much about law,” TR thundered in 1912, “but I do know one can put the fear of God into judges.”

Phil Jackson would have been fined a million dollars for that remark.

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Reach the author at Susan@SusanShelley.com or follow Susan on Twitter: @Susan_Shelley.

SCOTUS’ Decision To Hear Friedrichs Case Has Unions In A Tizzy

Rebecca FriedrichsOn June 30th, the Supreme Court decided to hear Friedrichs v. California Teachers Association et al, a case that could seriously change the way the public employee unions (PEUs) do business. If the plaintiffs are victorious, teachers, nurses, sanitation workers, etc. would be able to work without the financial burden of paying union dues. The responses to the Court’s decision from the teachers unions and their friends have ranged from silly to contradictory to blatantly dishonest.

In a rare event, leaders of the NEA, AFT, CTA, AFSCME and SEIU released a joint statementexplaining that worker freedom would be a catastrophe for the Republic. Clutching their hankies, they told us that, “big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance.” And then, with an obvious attempt at eliciting a gasp, “…the Supreme Court has chosen to take a case that threatens the fundamental promise of America.” (Perhaps the labor bosses misunderstood the wording of the preamble to the Constitution, “In order to form a more perfect union….” No, this was not an attempt to organize workers.) While the U.S. is not without its problems, removing forced unionism will hardly dent the “fundamental promise of America.”

The California Federation of Teachers, which typically is at the forefront of any class warfare sorties, didn’t disappoint. The union claims on its website that the activity of union foes “has resulted in a sharp decline in median wages for working people and the decline of the middle class alongside the increasing concentration of income and wealth in the hands of the one per cent.” But wait a minute – the unions are the most potent political force in the country today and have been for a while. According to Open Secrets, between 1989-2014, the much maligned one-percenter Koch Brothers ranked 59th in political donations behind 18 different unions. The National Education Association was #4 at $53,594,488 and the American Federation of Teachers was 12th at $36,713,325, while the Kochs spent a measly $18,083,948 during that time period. Also, as Mike Antonucci reports, the two national teachers unions, NEA and AFT, spend more on politics than AT&T, Goldman Sachs, Wal-Mart, Microsoft, General Electric, Chevron, Pfizer, Morgan Stanley, Lockheed Martin, FedEx, Boeing, Merrill Lynch, Exxon Mobil, Lehman Brothers, and the Walt Disney Corporation, combined.”

So the question to the unions becomes, “With your extraordinary political clout and assertion that working people’s wages and membership in the middle class are declining, just what good have you done?”

Apparently very little. In fact, the National Institute for Labor Relations Research reports that when disposable personal income – personal income minus taxes – is adjusted for differences in living costs, the seven states with the lowest incomes per capita (Alaska, California, Hawaii, Maine, Oregon, Vermont, and West Virginia) are forced-union states. “Of the nine states with the highest cost of living-adjusted disposable incomes in 2011, Iowa, Kansas, Nebraska, North Dakota, South Dakota, Texas, Virginia and Wyoming all have Right to Work laws.” Overall, the cost of living-adjusted disposable income per capita for Right to Work states in 2011 “was more than $36,800, or roughly $2200 higher than the average for forced-unionism states.”

But the most galling and downright fraudulent union allegations about Friedrichs concern the “free rider” issue. If the case is successful, public employees will have a choice whether or not they have to pay dues to a union as a condition of employment. (There are 25 states where workers now have this choice, but in the other 25 they are forced to pay to play.) The unions claim that since they are forced to represent all workers, that those who don’t pay their “fair share” are “freeloaders” or “free riders.” The unions would have a point if someone was sticking a gun to their collective heads and said, “Like it or not, you must represent all workers.” But as Iwrote recently, the forced representation claim is a big fat lie. Heritage Foundation senior policy analyst James Sherk explains:

The National Labor Relations Act (NLRA) allows unions that demonstrate majority support to negotiate as exclusive representatives. If they do so they must negotiate fairly on behalf of all employees, including those who do not pay dues. However unions may disavow (or not obtain) exclusive representative status and negotiate only for their members. Nothing in the National Labor Relations Act forces exclusive representation on unwilling unions.(Emphasis added.)

Mike Antonucci adds:

The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves. Making people pay for services they neither asked for nor want is a ‘privilege’ we reserve for government, not for private organizations. Unions are freeloading on those additional dues.

If there are still any doubters, George Meany, the first president of the AFL-CIO, whose rein began in 1955 and continued for 24 years, told Congress:

When a union has exclusive recognition with a federal activity or agency, that union is required to represent all workers in that unit, whether or not those workers are members of the union. We do not contest this requirement. We support it for federal service, just as we support it in private industry labor-management relations.

While the NLRA applies only to private employee unions, the same types of rules invariably govern PEUs. Passed in 1976, California’s Rodda Act allows for exclusive representation and it’s up to each school district and its local union whether or not they want to roll that way. However, it is clearly in the best interest of the union to be the only representative for teachers because it then gets to collect dues from every teacher in the district. It’s also easier on school boards as they only have to deal with one bargaining entity. So it is really a corrupt bargain; there is no law foisting exclusivity on any teachers union in the state.

So exclusive representation is good for the unions and simplifies life for the school boards, but very bad for teachers who want nothing to do with organized labor. It is also important to keep in mind that the Friedrichs case is not an attempt to “bust unions.” This silly mantra is a diversionary tactic; the case in no way suggests a desire to do away with unions. So when organized labor besieges us with histrionics about “the promise of America,” the dying middle class, free riders etc., please remind them (with a nod to President Obama), “If you like your union, you can keep your union.” In this case, it’s the truth.

Originally published by Unionwatch.org

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.