{"id":2803,"date":"2023-06-28T12:03:58","date_gmt":"2023-06-28T16:03:58","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2803"},"modified":"2025-12-20T21:45:50","modified_gmt":"2025-12-21T01:45:50","slug":"philip-howards-not-accountable-rethinking-the-constitutionality-of-public-employee-unions","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/philip-howards-not-accountable-rethinking-the-constitutionality-of-public-employee-unions\/","title":{"rendered":"Philip Howard’s Not Accountable: Rethinking the Constitutionality of Public Employee Unions \u2013 Peter H. Schuck"},"content":{"rendered":"\n
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Philip Howard\u2019s Not Accountable: Rethinking the Constitutionality of Public Employee Unions<\/h2>\n\n\n\n

Peter H. Schuck<\/strong>*<\/a><\/p>\n\n\n\n

Philip Howard is the epitome of a public citizen. From his lofty perches as a senior partner of one of the country\u2019s most distinguished law firms and a civic leader in New York City, Howard has long practiced his strong dedication to the public interest, broadly defined. He is the author of several earlier best-selling books, most notably The Death of Common Sense: How Law is Suffocating America <\/em>(1994), as well as many opinion pieces and policy briefs on a wide variety of subjects. Howard, a patrician gadfly of boundless energy, is the founder of Common Good, a public policy advocacy group committed to the general welfare. A major commitment has been to dismantle excessive bureaucratic obstacles to the implementation of important public projects and initiatives.<\/p>\n\n\n\n

Ever audacious and energetic, Howard\u2019s new book, Not Accountable<\/em>, targets his elegant wrath on public employee unions.[1]<\/a> They constitute a plague on the body politic, he maintains; they are excrescences that contaminate everything they touch.[2]<\/a> (If he allows for any exception to this sweeping indictment, it eluded this reader). In Not Accountable<\/em>, Howard advocates more than the weakening of these unions. Indeed, he would bar them entirely on the ground that they are flatly unconstitutional<\/em>. Here, however, is where his fine book comes up short. For although its subtitle purports to \u201crethink\u201d the constitutional question, Howard fails even to mention a counter-argument for the unions\u2019 constitutionality, much less seriously explore what such counter-arguments might be. Howard\u2019s utter certainty on the constitutional issue is the only significant flaw in an otherwise admirable, convincing, and important book. But it is a serious flaw because \u2013 as I shall argue in conclusion \u2013 the constitutional analysis of abolition is by no means straightforward.<\/p>\n\n\n\n

The stakes are certainly high. As Howard points out, 35% of public employees in America belong to unions \u2013 25% in federal government, 30% in state government, and 40% in local government, with far higher concentrations in California and other union-friendly states.[3]<\/a> Howard\u2019s bill of particulars against public employee unions is uniform; it does not differentiate among them. After all, each such union \u2013 whether representing teachers, prison guards, police officers, sanitations workers, or any other group of local government workers \u2013 suffers from the identical flaw: by definition, Howard insists, it is unaccountable to the public and for that reason alone constitutes a conspiracy against the public interest. This \u201cextortive power\u201d[4]<\/a> enables public employee unions to extract (coerce, really) \u201cabusive fiscal entitlements in public union contracts \u2013 including overstaffing, massive overtime for minor schedule changes, and pensions \u2018spiked\u2019 by rigged overtime in the last year of work.\u201d[5]<\/a> If their demands are not met, they have the power to demand resolution by a union-approved arbitrator \u2013 a unique instrument of power. In these and other union-contrived ways, Howard laments, \u201cmodern government is organized to fail.\u201d[6]<\/a><\/p>\n\n\n\n

Howard\u2019s account of when and how public employee unions first gained recognition is a bit confusing. He asserts that \u201cuntil the rights revolution of the 1960s, the idea of negotiating against the public interest was unthinkable\u201d (a dubious claim that begs the question of what constitutes \u201cthe public interest\u201d),[7]<\/a> but then immediately notes that New York\u2019s Mayor Robert Wagner \u201cauthoriz[ed] collective bargaining by executive order in 1958,\u201d with Wisconsin doing so a year later and President Kennedy issuing a permissive executive order \u201cas payback for union support\u201d in 1962.[8]<\/a> This was several years before the civil rights movement gained national attention, and Howard does not say whether Kennedy justified it as a civil rights measure.<\/p>\n\n\n\n

He denounces \u201c[t]he general indifference to inefficiency in public bargaining [which] impacts not only the cost of government but also the delivery of public services.\u201d[9]<\/a> Because the municipal unions contribute substantial money and manpower to politicians\u2019 campaigns, union interests are represented on both sides of the bargaining table. Government officials\u2019 willingness to resist union demands is compromised by the officials\u2019 divided loyalties and interests. \u201cPublic sector bargaining,\u201d Howard asserts, \u201cthus partially preempts the responsibility of officials to make tradeoffs among competing public goods.\u201d[10]<\/a> But in fact this bargaining process should make such tradeoffs even more difficult by increasing the severity of officials\u2019 constraints. In this respect, the difference between public and private goods is irrelevant.<\/p>\n\n\n\n

As it happens, I am writing this review as New York City is providing a classic illustration of Howard\u2019s indictment. The city in the final stages (perhaps) of negotiations with its largest municipal employees union, District Council 37, which represents approximately a quarter of the city\u2019s public workforce.[11]<\/a> Mayor Eric Adams has just capitulated to the union on a number of fronts, including his previously firm opposition to allowing remote working, and has also agreed to a wage package including increases far above what the city has budgeted for. The president of the Citizens Budget Commission, while oddly commending the package\u2019s balance, complains that \u201cthe city has identified no way to pay the billions in extra costs.\u201d[12]<\/a><\/p>\n\n\n\n

More generally, Howard notes that \u201c[p]ayoffs that would be unlawful in business bargaining have become a common feature of public bargaining,\u201d citing the \u201cmassive campaign donations to the politicians with whom they will then be negotiating. . . .in effect [sitting] on both sides of the bargaining table.\u201d[13]<\/a> The expansive effect of municipal unions\u2019 demands and political agendas are an important cause of city governments\u2019 inflated budgets and ambitions. After all, they have the legal authority and political power to bargain over what governments do and how they do it. They can \u201ccall upon billions of campaign funds, existing political alliances, hordes of campaign workers, and threats of shutting down government.\u201d[14]<\/a> And they oppose any reforms that would increase accountability to public needs as defined by voters and elected and appointed officials. \u201cThey make government work badly,\u201d Howard concludes, \u201cwhile also preventing reform.\u201d[15]<\/a> In this, they violate their \u201cduty of loyalty\u201d to the public,[16]<\/a> a duty arising (as Howard contends, channeling FDR) out of ordinary citizens\u2019 absence from the bargaining table.[17]<\/a><\/p>\n\n\n\n

Much of Howard\u2019s critique turns on his characterization of this duty of unionized public employees as \u201cfiduciary\u201d in nature, like that of a trustee who is legally obliged to act selflessly in all respects related to the beneficiary\u2019s interests. This analogy, however, seems inapt; a city sanitation worker\u2019s duty, after all, is simply to do his job as defined by municipal regulations. This definition may incorporate the union contract in some respects, but it is up to city officials to demand the appropriate balance between the workers\u2019 self-interest and the citizens\u2019 welfare. Neither the municipal worker nor his or her union is a fiduciary — all the more reason for the city to be especially cautious in delegating power to them.<\/p>\n\n\n\n

Howard\u2019s indictment of public employee unions for pursuing their self-interest at citizens\u2019 expense is long and damning. The most daunting aspect of their power, of course, is their alliance with politicians, including the very ones who employ and direct them. This alliance is hardly surprising for entities that, as Howard shows in a case study of the New Jersey teachers union, resemble political parties more than mere interest groups.[18]<\/a> Their death grip on city government assures that their demands will be defined largely by the government\u2019s power to accede to them by increasing taxes, floating costly bond issues, and squeezing out other, competing public interests and programs. How can this remorseless political juggernaut \u2013 exhibiting the \u201csense of entitlement that no other interest group can aspire to\u201d[19]<\/a> \u2013 be stopped? What extra-political force could possibly control it?<\/p>\n\n\n\n

Howard\u2019s answer? Judges. He is the most recent in a long line of political reformers who, desperate for institutional allies unavailable in conventional politics, turn to the courts. Whether the evil be racist power structures, segregated schools, brutalized prisons, neglectful mental hospitals, the death penalty, corrupt housing agencies, or other recalcitrant lawlessness, reformers have long sought institutional remedies from judges whose injunctive powers promise relief that self-seeking politicians will not grant. Judges (the theory goes) depend less than politicians do on the support of municipal union leaders, their rank-and-file members, and the elected officials who so often dance to the unions\u2019 tunes. Not in the unions\u2019 thrall, courts can be the leading force in Howard\u2019s war against them.[20]<\/a> Armed with the U.S. Constitution, judges can curb the unions\u2019 overwhelming domination of municipal governments. (Howard does not mention state constitutions, but they tend to contain similar if not identical provisions of this kind). His invocation of the Constitution as the only weapon that can effectively crush municipal unions is an innovative, ostensibly clean solution to the vast problems that he has revealed. [21]<\/a><\/p>\n\n\n\n

But is his account of constitutional law convincing as applied to the unions? There are good reasons to doubt this; even Howard concedes that these are \u201cconstitutional issues of first impression.\u201d[22]<\/a> His first argument is based on what he calls the inviolability of the government\u2019s sovereign power — the claim that the municipal contracts cede power to the unions that only the government is empowered to exercise. Along similar lines, he contends that government employees owe an exclusive duty of loyalty to the public, as represented by the government \u2013 a duty, however, that self-interested union contracts violate. Relatedly, Howard also maintains that the Supreme Court\u2019s decision upholding the Hatch Act, which bars political activity by public employees, thus invalidates their unions\u2019 support for particular candidates \u2013 a non sequitur<\/em>. [23]<\/a> Along much the same lines, he contends that the Constitution\u2019s guarantee of a \u201crepublican form of government\u201d prohibits such unions, and that their influence over public policies violates the Constitution\u2019s vesting of executive powers exclusively in the President.<\/p>\n\n\n\n

These constitutional arguments, however, are not convincing; indeed, they prove too much. Our political systems and election outcomes are shaped by many disparate influences that, taken together, limit public officials\u2019 freedom of action. Some of these influences are as lamentable as the municipal unions that Howard abhors. Examples include the often-decisive roles of gerrymandering; legislative incumbency; seniority in committee assignments; personal attractiveness; campaign contributions; large corporations; endorsements by religious leaders and media figures; family and other name recognition; and political party support. Factors such as these do not become unconstitutional merely because they are arguably arbitrary, disproportionate, and outcome-determinative. Ever-expanding government contracting delegates vast realms of public authority and discretion to private interests. Would the Framers have intended \u2013 as Howard, quoting Madison on the Guarantee Clause seems to suppose \u2013 that courts be empowered to invalidate these practices simply because they delegate public power to private actors to execute some government programs? I think not. Some of those delegations may be broader than Howard and others think wise. Imprudence, however, is not the same as unconstitutionality.<\/p>\n\n\n\n

Howard does not engage such issues. Indeed, he has no good theory of what distinguishes unions from the many other self-regarding entities and practices that compete for the public\u2019s allegiance, tax dollars, and political power without violating the Constitution. This deficiency in no way diminishes his main contribution: a thoroughgoing and largely convincing indictment of these unions\u2019 political power and abuses. But it does cast considerable doubt on his neat judicial remedy for categorically abolishing them. Alas, we are evidently stuck with them and their sometimes extortionate demands until public officials work up the political courage to subordinate them to the greater public interest.<\/p>\n\n\n\n

<\/a>*<\/a> Simeon E. Baldwin Professor Emeritus of Law, Yale Law School.<\/p>\n\n\n\n

[1]<\/a> Philip K. Howard, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (2023).<\/p>\n\n\n\n

[2]<\/a> As it happens, Howard\u2019s new book appears only a few months after another book analyzing the symbiotic, indeed familial, relationship among public employee unions, private interests, and political actors — there, teachers\u2019 unions. Michael Hartney, How Policies Make Interest Groups: Governments, Unions, and American Education (2022). Howard cites to Hartney\u2019s research. Howard, supra<\/em> note 1, at 103.<\/p>\n\n\n\n

[3]<\/a> Howard, supra<\/em> note 1, at 29.<\/p>\n\n\n\n

[4]<\/a> Id.<\/em> at 19.<\/p>\n\n\n\n

[5]<\/a> Id.<\/em><\/p>\n\n\n\n

[6]<\/a> Id.<\/em> at 23. The book\u2019s Forward by former Indiana governor Mitch Daniels strongly confirms this assessment.<\/p>\n\n\n\n

[7]<\/a> Id.<\/em> at 26.<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> at 27.<\/p>\n\n\n\n

[9]<\/a> Id. <\/em>at 33.<\/p>\n\n\n\n

[10]<\/a> Id.<\/em> at 34.<\/p>\n\n\n\n

[11]<\/a> Emma G. Fitzsimmons, New York City\u2019s Deal with Largest Union Would Include Remote-Work Plan<\/em>, N.Y. Times (Feb. 17, 2023), https:\/\/www.nytimes.com\/2023\/02\/17\/nyregion\/adams-remote-work-dc37.html.<\/p>\n\n\n\n

[12]<\/a> Id.<\/em><\/p>\n\n\n\n

[13]<\/a> Howard, supra <\/em>note 1, at 35 (\u201cin effect\u201d quotation quoting labor lawyer Theodore Clark).<\/p>\n\n\n\n

[14]<\/a> Id.<\/em> at 40.<\/p>\n\n\n\n

[15]<\/a> Id.<\/em> at 159.<\/p>\n\n\n\n

[16]<\/a> Id.<\/em> at 130.<\/p>\n\n\n\n

[17]<\/a> Id.<\/em> at 124.<\/p>\n\n\n\n

[18]<\/a> Id.<\/em> at 107\u201313.<\/p>\n\n\n\n

[19]<\/a> Id.<\/em> at 113.<\/p>\n\n\n\n

[20]<\/a> Id.<\/em> at Section III.<\/p>\n\n\n\n

[21]<\/a> Howard does not mention any legitimate role for the unions, although I presume that he would allow them to render gratuitous advice to government officials so long as they possess no powers of decision.<\/p>\n\n\n\n

[22]<\/a> Id.<\/em> at 22.<\/p>\n\n\n\n

[23]<\/a> Id. <\/em>at 130\u201334.<\/p>\n","protected":false},"excerpt":{"rendered":"

Philip Howard\u2019s Not Accountable: Rethinking the Constitutionality of Public Employee Unions Peter H. Schuck* Philip Howard is the epitome of a public citizen. From his lofty perches as a senior partner of one of the country\u2019s most distinguished law firms and a civic leader in New York City, Howard has long practiced his strong dedication to the public interest, broadly defined. He is the author of several earlier best-selling books, most notably The Death of […]<\/p>\n","protected":false},"author":147,"featured_media":457,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[72],"tags":[13,125],"class_list":["post-2803","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-per-curiam","tag-constitutional-law","tag-unions"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2012\/07\/HLS_JOPP_Logo.png","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-Jd","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2803","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/147"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2803"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2803\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media\/457"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2803"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2803"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2803"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}