Thursday, July 3, 2014
Forget Hobby Lobby for a Moment,Big Labor Narrowly Dodged a Bullet Monday
Justice Alito penned two eagerly awaited and significant decisions on Monday. They were both 5:4 decisions with the normal conservative-liberal split. The Hobby Lobby case received the weight of media attention. It is portrayed as a test between religion rights and a woman’s right to contraception with religion winning. That is certainly an underlying theme in the case. However, that is not the technical issue in the decision. The question presented was whether an agency regulation, DHS’ mandatory contraception rule, can trump an act of Congress, the Religious Freedom Restoration Act of 1973. The answer is a clear No! The effect of Hobby Lobby will be large, but contraception with the basic “pill” is inexpensive at stores like Walmart. Harris v Quinn, the second opinion has a much more immediate and large scale impact. Healthcare is one of America’s few, large scale growing industries. The public employee unions want their share of it. SEIU was especially avaricious. The forced unionization of caring family members seems repugnant. Family members often care for relatives who need 24 hour care, but don’t need to be hospitalized. Home healthcare is a substantial money saver for Medicaid, which otherwise would cost the government $ billions more for hospitalized care. Thus, Medicaid pays a stipend for home healthcare providers, even if they are family members. SEIU approached pliable Democratic governors, such as Jennifer Granholm of Michigan, and the corrupt Rod Blagojevich of Illinois, and convinced them to classify the homecare workers as government employees. They would then have to join SEIU under the states’ union shop rules or pay an agency fee. The states treated the homecare workers as state employees for the limited purpose of receiving Medicaid funds, but not for others. Fathers and mothers were forced to become union members to tend to their children, or pay a large “agency fee.” From 2006 into 2013 the SEIU in Michigan reaped almost $43 million dollars from the compulsory unionization. Family members are the majority of the home healthcare providers. 63% of Michigan’s homecare workers are family members or friends of the patients. Pamela Harris, the plaintiff in the Supreme Court decision, tends to her son who suffers from a rare genetic disorder. The caregivers were shocked to find that they were involuntarily unionized. They were shocked that their First Amendment rights were violated – their dues would be used to support political candidates and causes they opposed. The compulsory unionization of home healthcare workers to spread to California, Connecticut, Maryland, Missouri, Oregon, Vermont and Washington. The Supreme Court in a 5:4 opinion written by Justice Alito struck down the arrangement. The Court characterized these workers as part-time, as compared to full- fledged public employees. The homecare workers lack most of the benefits and protections of the full pledged employees. Indeed, Governor Granholm’s administration held these workers were state employees only for the purpose of unionization. The majority held it was an infringement on freedom of speech. The alternative “would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Labor dodged a bullet in Harris. The Supreme Court in the 1977 opinion of Abood v. Detroit Board of Education held that public employees can be forced to join a union. The majority in Harris did not overturn Abood, but Justice Alito referred to it as “something of an anomaly” based on a ”questionable foundation.” Elections have consequences. The Republicans swept Michigan in the 2010 Midterm elections. They repealed the unionization requirement in 2012, effective 2013. The consequences are dramatic. SEIU Healthcare Michigan boasted it was the fastest growing union in Michigan. Then the law changed. The SEIU membership dropped from 55,265 members to 10,918, a tsunami of 44,347 members. The unions placed Proposition 4 on the November 2012 general ballot. Prop 4 was a constitutional amendment which would have guaranteed the right to collective bargaining of home healthcare workers. President Obama carried Michigan in the 2012 election, but the labor sponsored Prop 4 was defeated 56-44. The Michigan legislature responded by enacting legislation that turned Michigan into a right to work state. The impact of the decision is immediate. An unknown number, but most likely over 100,000, homecare workers will probably drop their union membership, and substantially increase their take home pay if Michigan is a precedent. Yet, the public sector unions dodged a bullet. Abood was not formally overruled. If the public employee sector becomes “right to work,” then the ranks of the public employee unions will drop dramatically. Their political power is also at risk.