In Janus, Collective Bargaining is the new Broccoli

by Michael C. Dorf

Today's decision in Janus v. State, County, and Municipal Employees was completely predictable, given that the eight-justice Court divided evenly on ideological grounds on this question; anyone who thought Justice Gorsuch would ride to the rescue of public sector unions should consider buying a certain bridge I'm selling. Yet, if the outcome was predictable, Justice Alito's reasoning for the majority is nonetheless revealing. Here I'll note the key points of contact between Janus and what I regard as the weakest argument accepted by the conservative justices in NFIB v. Sebelius (the Obamacare case).

Over four decades ago, in the Abood case, the SCOTUS issued a compromise ruling. Public-sector unions could charge non-union members of the collective bargaining unit for the costs associated with representing them in collective bargaining and other workplace-related activities but not for the union's external "ideological" activities, because to charge for the latter would violate the non-union members' right not to speak. In Janus, the Court overruled the portion of Abood that allows charging non-union members for bargaining-related activities.

To see what's wrong with the Janus opinion, recall the argument that conservatives (in academia, on the Court, and elsewhere) leveled against the so-called individual mandate of the Affordable Care Act. If the government can require someone to purchase health insurance, it can require someone to purchase broccoli, they said. "Congress could address the diet problem" of unhealthy Americans, CJ Roberts said in the portion of his opinion that rejected Commerce Clause power for the ACA, "by ordering everyone to buy vegetables."

Why was this supposed to be a killer hypo? After all, vegetables are considerably less expensive than health insurance, so this seems like an analogy going in the wrong direction. The key is what's implicit: CJ Roberts and the ACA opponents who dreamt up this hypothetical were conflating a mandate to purchase broccoli (or other vegetables) with a mandate to eat broccoli. And of course, a law requiring people to eat broccoli would be unconstitutional, not chiefly because it falls outside the Commerce Clause but because it violates the substantive due process right to bodily integrity. It's the mirror image of Rochin v. California, which invalidated pumping a suspect's stomach for evidence of crime.

But an obligation to purchase an item is not the same as an obligation to use the item. And one sees the same conflation in Janus.

Justice Alito gives various examples of circumstances in which it would be uncontroversially unconstitutional for the government to compel speech. He then borrows the shared intuitions generated by those examples in support of the much more controversial claim that charging non-union members for the union's activities "raises similar First Amendment con­cerns." I agree that it raises related concerns, but, as Justice Kagan notes in dissent, given the ubiquity of speech as an element of action, there are important dissimilarities that Justice Alito overlooks.

Although collective bargaining involves speech, it is hardly pure speech. It is fundamentally an economic transaction facilitated by speech. Consider by analogy the purchase of a big-ticket item like a home or a car. Buyer and seller will negotiate using spoken words. They will sign many forms containing written words. Speech permeates the transaction, and yet we rightly allow pervasive regulation of car and home sales.

Accordingly, the Court needs but does not articulate a satisfactory limiting principle in Janus. There was one in Abood: ideological activities were treated as different. The Court might have said in Janus that unions were counting some ideological activities--especially lobbying--as non-ideological. That is, Janus had a plausible claim that the union was over-charging him. But to treat everything a union does as speech because it involves speech opens the door to challenges to just about all government regulation.

There is, to be sure, a limiting principle that is arguably implicit in Janus. The Court says that because public sector unions negotiate on the opposite side of government employers, the negotiations necessarily involve matters of public concern such as spending and therefore taxes. But that is only an incidental effect of the union trying to get as good a deal as possible for bargaining unit members. And free speech doctrine pervasively distinguishes between direct limits on and directly compelled speech, on the one hand, and incidental limits and compulsion, on the other.