Are Unions a Constitutional Anomaly?

Cynthia Estlund*

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its answer is a qualified and complicated “yes.”

Unions are indeed distinct in our legal system–distinct even among private entities with public regulatory functions, which have frequently provoked constitutional controversy. On the one hand, unions are voluntary associations of workers with constitutional entitlements to freedom of expression and associational autonomy. On the other hand, unions are both regulated and regulatory actors within a statutory scheme that sets them far apart from other voluntary associations. They are subject to a sui generis constellation of rights, powers, restrictions, and duties—a quid pro quo that both constrains and empowers unions, and that is embodied in the paradigmatic case that is the central focus here, in the National Labor Relations Act, the Taft-Hartley Act, and the Landrum-Griffin Act. Whatever the wisdom of that quid pro quo—and it has been criticized from both ends of the political spectrum—it provides an essential context for adjudicating constitutional claims by and against unions.

This Article calls for reframing those constitutional claims to include both the quid and the quo of labor law—not only the alleged burdens that the labor laws impose on unions or individuals, but also any logically linked benefits or powers it confers on the claimant. If the alleged burden is logically linked to some corresponding benefit or power, the latter may offset or justify the former, and lower the level of constitutional scrutiny required. Rigorous attention to both the additions to and subtractions from unions’ entitlements under the labor laws, along with a cautious approach to the threshold question of state action, is necessary to preserve the residual yet fundamental autonomy interests of unions. The proposed analysis recasts not only the agency fee controversy and the related puzzle posed by state “right-to-work” laws, but also recurring challenges to the constitutionality of restrictions on union expression and recent efforts to bring “worker centers” under the umbrella of labor law. At the same time, it offers clues to the future of unions and labor law if the Court continues down the path foreshadowed in Harris.

* Catherine A. Rein Professor of Law, New York University School of Law. I would like to thank Craig Becker, Jeremiah Collins, Catherine Fisk, William Forbath, Jack Getman, Samuel Issacharoff, Sophia Lee, Daryl Levinson, Deborah Malamud, Marty Malin, Richard Pildes, Benjamin Sachs, Katherine Stone, and the participants in faculty workshops at the law schools of the New York University, George Washington University, and Chicago-Kent for their thoughtful comments on earlier drafts of this Article. I would also like to thank Hannah McDermott and Jesse Klinger for their excellent research assistance, and the editors of the Michigan Law Review for their careful editorial work.

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