Public Unions and the Constitutional Order – Julia D. Mahoney
Public Unions and the Constitutional Order
Julia D. Mahoney*
In Not Accountable: Rethinking the Constitutionality of Public Employee Unions, [1] Philip K. Howard sounds the alarm about the power and influence of public employee unions. In his view, American democracy “no longer works because public unions have turned the constitutional hierarchy upside down,” with government officials now answering not to voters but to public employees.[2] The results? Howard does not hold back: “Bad schools, unaccountable police, and other endemic failures of modern American government,” all of which he deems to be “impervious to reform” through the ordinary processes of political and civic engagement.[3]
Does that mean the nation is doomed to substandard education, poor public safety, and lack of basic government services? Interestingly, Howard’s answer to this question is “no.” That is because he thinks that courts, exercising their powers of constitutional interpretation and construction, can rein in the abuses of public unions.[4]
In offering this prescription, Not Accountable makes substantive and creative contributions to current debates about effective government and constitutional meaning. But it is hard not to be skeptical about Howard’s judicial remedy for what, in his diagnosis, ails the American polity. First, for courts to play the role Howard has in mind for them would require major overhauls in constitutional doctrine. And second, Howard’s arguments about the drawbacks of public unions have already found receptive audiences in members of the political branches and perhaps even among the people themselves. In sum, Howard may be placing too much faith in judges and too little in other constitutional actors.
Public Unions: A Short and Troubled History
The history of public employee unions is a short and, at least to those who follow contemporary debates about state and local governance, familiar one. Until the mid-1950s or so, public employee unionization attracted only tepid support. This was in large part due to the concern that, in President Franklin D. Roosevelt’s words, “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.”[5] Roosevelt cautioned that a public employee strike would amount to “nothing less than an intent on their part to prevent or obstruct the operations of government” and that such conduct “by those who have sworn to uphold it is unthinkable and intolerable.”[6]
In 1962, President John F. Kennedy issued Executive Order 10988, granting federal employees rights to join or form labor organizations and permitting limited collective bargaining.[7] Within a few years, New York, California, and a number of other states and major cities followed suit.[8] By the end of the 1970s, most government workers had collective bargaining rights regarding their terms of employment.[9] Membership in public employee unions continued to grow, peaking at an estimated 7.9 million in 2009.[10]
With burgeoning public union influence came serious problems, which Not Accountable lays out in detail and with clarity. There is the impact on public finances, as government negotiators have agreed to generous compensation packages out of step with what is available to private sector workers.[11] Also disturbing are workplace rules that prevent the effective management of public workers and the removal of those manifestly unsuited to their positions.[12] Perhaps most worrisome, public employee unions have become major political players, contributing massive sums to the campaigns of the actual (and prospective) public officials with whom they deal.[13] Public unions also provide extensive indirect campaign support in the form of canvassing, phone banks, and other activities.[14]
Judges to the Rescue?
One might ask: So what? If public unions have in fact turned out to be, on net, a malign force, then the legislative and executive branches can reverse course and alter or even abolish them. Howard sees things differently. The provisions of collective bargaining agreements, he contends, along with various state laws, have so “disempowered” the democratic process that a “political path toward responsible government operations is, realistically, impossible.”[15] That means it is up to the judiciary to remove the “shackles” that fetter democracy.[16] What is more, courts have the authority to undertake this mission, Not Accountable insists, because the activities of public unions contravene the Constitution.
Why? Not Accountable argues, persuasively, that a number of aspects of public union operations are in tension with core constitutional principles, including those of separation of powers, non-delegation, and the prevention of oligarchy and corruption. But it is a long way from constitutional principles to constitutional arguments that will prevail in court. To be sure, Howard does far more than invoke high-level constitutional concepts. Not Accountable devotes significant space to analyzing specific constitutional provisions and explaining how they might be harnessed in the service of constraining public unions. Thus, Article II’s language that “the executive power shall be vested in a President”[17] and that the President “shall take care that the laws be faithfully executed”[18] is put to use to support claims that the “disempowerment of executive branch officials from making personnel decisions cannot be reconciled”[19] with the Constitution and that provisions of the Civil Service Reform Act of 1978 ought to be declared invalid.[20]
Not Accountable also places substantial weight on Section Four of Article IV, which requires the United States to “guarantee to every State in this Union a Republican Form of Government.”[21] Howard argues that the “American republic no longer works as designed” on the state and local government level “because union controls disempower elected officials from managing government.”[22]
It is not that these arguments—and others articulated in Not Accountable—are frivolous. The problem for Howard is that they are not clear winners. That could change, of course. In particular, it is not hard to envision Article II jurisprudence developing in a direction friendly to Howard’s vision of executive branch authority. It is even possible that the Guarantee Clause, which, as Howard admits, to date the Supreme Court has declined to interpret or construct, instead leaving the determination of its meaning to the political branches,[23] could become a potent vehicle for the sort of constitutional limits on public unions that Not Accountable advocates.
But doctrinal evolution of the magnitude that Howard thinks is needed to safeguard the nation’s constitutional order tends to take considerable time. Given that a key theme of Not Accountable is that time may be running out, it makes sense to look beyond the courts for relief from the perceived excesses of public unions.
Beyond the Courts
Here there is good news for Howard that, at least to some degree, belies his pessimism about the efficacy of non-judicial actors. Since 2011, over a dozen state legislatures have enacted laws aimed at reducing the power of public unions.[24] In addition, as Howard himself notes, several state governors have emerged victorious from clashes with public unions, including Scott Walker in Wisconsin and Jeb Bush in Florida.[25] These developments indicate that for all their financial and political clout, public unions are far from invincible in the political arena.
There is also good news for Howard in the recent population migrations from “blue” to “red” states.[26] Simply put, the people of the United States are voting with their feet, and many are opting not to live in places with strong public unions. In short, the constitutional structure, which ensures free movement among the states, appears to be providing at least a partial solution to the problems detailed in Not Accountable.
Conclusion
Not Accountable provides a comprehensive account of the dangers and failures of public unions while making the case that these institutions are not only unwise but unconstitutional. This is a book that deserves a wide readership, for it will be of interest to all who are committed to better government. Not Accountable also serves as a bracing reminder of the gap between constitutional meaning and constitutional doctrine. That a practice contravenes the constitution does not, at least in the near term, mean that the judiciary is ready, able, and willing to supply a remedy. Those who, like Howard, look to courts to address the constitutional infirmities of public unions should recognize that they are playing a long game.
* John S. Battle Professor of Law and Joseph C. Carter, Jr. Research Professor of Law, University of Virginia School of Law.
[1] Philip K. Howard, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (2023).
[2] Id. at 158.
[3] Id. at 17. See also id. at 94 (“No matter which party is elected, no matter what its priorities, the one certainty is that government operations will not be made more efficient, or responsive . . . Public employee unions keep it that way by layers of legal armor and by the exercise of brute political force.”).
[4] See id. at 140, 146, 156.
[5] Franklin D. Roosevelt, The President Indorses Resolution of Federation of Federal Employees Against Strikes in Federal Service (August 16, 1937), reprinted in The Public Papers and Addresses of Franklin D. Roosevelt 1937, 324–326 (1941).
[6] Id.
[7] Exec. Order No. 10,988, 3 C.F.R. § 130 (1962).
[8] See Daniel DiSalvo, The Trouble with Public Sector Unions, National Affairs, Fall 2010.
[9] See Daniel DiSalvo, The Future of Public-Employee Unions, National Affairs, Spring 2020.
[10] DiSalvo, supra note 8.
[11] See Howard, supra note 1, at 71–81.
[12] See id. at 51–57 and 61–68.
[13] Id. at 35.
[14] Id. at 100, 39.
[15] Id. at 40.
[16] Id. at 146.
[17] U.S. Const. art. II. § 1.
[18] U.S. Const. art. II. § 3.
[19] Howard, supra note 1, at 138.
[20] Id. at 140.
[21] U.S. Const. art. IV, § 4.
[22] Howard, supra note 1, at 142.
[23] Id. at 142–44.
[24] See DiSalvo, supra note 9.
[25] See Howard, supra note 1, at 105–07.
[26] See Jerusalem Demsas, How Florida Beat New York, The Atl. (Feb. 9, 2023) https://www.theatlantic.com/ideas/archive/2023/02/florida-new-york-housing-population-republican-democrat/672994/.