FOLLOW-UP to, “Do ‘Right to work’ Laws Violate the Constitution’s Contracts Clause?”
Last night, in a comment to my post from Tuesday, “Do‘Right to Work’ Laws Violate the Constitution Contracts Clause?”, reader PJR wrote:
To a non-lawyer, it kinda looks like SCOTUS rejected the contracts argument in 1949, so unions would have to find someway to get the court(s) to reconsider–or is this wrong? If wrong, why the heck haven’t unions tried this? ( http://supreme.justia.com/cases/federal/us/335/525/case.html)
I began writing a response that I planned to post in the Comments section, but then realized that the post would be too long (wayyy too long) for that, and that the issue was important enough to post directly as a blog post, in follow-up to the initial post. So, here’s the follow-up in response to PJS’s comment:
Hmm. The opinion PJS links to, Lincoln Union v. Northwestern Co., from 1949, says that the Court earlier decided that the ‘right to work’ laws at issue in that case don’t violate the Contracts clause, but the opinion doesn’t elaborate except to cite, without comment, to a 1934 opinion, Home Building & Loan Assn. v. Blaisdell.
But Home Building & Loan Assn. had nothing to do with labor contracts. In that case, the Court upheld the constitutionality of a Minnesota law that required mortgage holders to grant homeowners longer periods of time to begin again to repay their mortgages after missing payments, before the mortgage company could foreclose on the house. The Court said this didn’t violate the Contracts clause because states must be allowed to address severe emergencies by requiring an altered “remedy” for completion of the contract—in that case, a longer time in which to repay the mortgage—as long as the legislation didn’t alter the ultimate amount owed.
The opinion recites the economic devastation of the Depression, and says that the Contracts clause must be interpreted to allow states some leeway to protect the state’s residents as long as the leeway wasn’t so great as to deprive the mortgage holder permanently of a property right—the right to eventual full payment of the mortgage. Then, after discussing two 1870s Supreme Court opinion that interpret the Contracts clause as absolute, the opinion says that it really is not, as long as the change is just temporary and in response to a real emergency. (This is apart from the state’s right to permanently bar contracts or provisions in contracts that violate criminal or civil law—a separate “public policy” exemption that has existed since the founding; people (including corporate people) can’t simply contract away the criminal law or certain types of civil law. Although lately the Supreme Court, in a series of 5-4 opinions, does pretty much allow corporate people to do exactly that.)
Yet, in Home Building & Loan Assoc., the Court interpreted Lincoln Union as allowing states to declare exempt from the Contracts clause pretty much anything it wants, simply by declaring it public policy in the interest of the state’s citizens. Here’s the extent of what that opinion says about the Contract clause issue:
Second. There is a suggestion though not elaborated in briefs that these state laws conflict with Art. I, 10, of the United States Constitution, insofar as they impair the obligation of contracts made prior to their enactment. That this contention is without merit is now too clearly established to require discussion. See Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 436 -439, 239, 240, 88 A.L.R. 1481, and cases [335 U.S. 525 , 532] there cited. And also Veix v. Sixth Ward Building & Loan Ass’n, 310 U.S. 32, 38 , 794; East New York Savings Bank v. Hahn, 326 U.S. 230, 232 , 70, 160 A.L.R. 1279.
After “seeing” Home Building, I can say that that conclusory statement is clearly a deeply distorted interpretation of Lincoln Union. Read Home Building. You be the justice, er, the judge, about what it says.
Ditto, and then some, for the other two referenced opinions. Veix v. Sixth Ward Building & Loan Assoc., decided in 1940, begins:
In 1928 and 1929 appellant purchased prepaid shares of the appellee, a New Jersey building and loan association, paying the pay value of $200 per share. At that time the applicable New Jersey statutes provided that shares in such an association could be withdrawn by giving such written notice as the constitution or by-laws of the association provided, not to exceed 30 days; that withdrawals should be paid in the order in which notices were received, with not more than one-half of the receipts of any month being required to be used for payment of withdrawals, without the consent of the board of directors, until the oldest unpaid claim of withdrawal had been on file for six months; that no payment should be postponed for longer than six months from the date of notice; and that any member who had given notice could sue and recover the withdrawal value if it was not paid within six months of the notice. 1
On April 22, 1932, these statutes were amended in four respects: (1) ‘total receipts’ of an association, one-half of which were required to be used for the payment of withdrawals and which had not been previously defined, were defined as income on authorized investments, dues on shares of the association which were pledged with it to secure loans, and repayments from loans; (2) if in any one month the funds required to be payable for withdrawals were insufficient to pay all requested withdrawals, withdrawing members were to receive $500 each in the order of priority until the fund for withdrawals was exhausted; (3) no withdrawals were to be paid if the funds available for payment of matured shares were insufficient to pay all matured shares, the payment of which had been requested within thirty days after maturity; (4) so long as the funds of an association were applied as required by the amendment, no member who had filed his withdrawal notice should have a right to sue for the withdrawal value of his shares. 2 In 1935 another amendment was passed providing that one-third of the ‘net receipts’ of an association were to be payable for withdrawals, with ‘net receipts’ defined as monies, other than borrowed monies, received by the association less operating expenses, payments on creditor obligations, payments for protecting the property of the association and reserves for any of these purposes. At the same time payments of withdrawals in the order in which notices had been received was continued but the payments were limited to $50 per member.
And here’s its holding, and the explanation for it:
In Home Building & Loan Association v. Blaisdell 10 this Court considered the authority retained by the state over contracts ‘to safeguard the vital interests of its people.’ The rule that all contracts are made subject to this paramount authority was there reiterated. Such authority is not limited to health, morals and safety. 11 It extends to economic needs as well. 12 Utility rate contracts give way to this power, 13 as do contractual arrangements between landlords and tenants. 14
The cases cited in the preceding paragraph make repeated reference to the emergency existing at the time of the enactment of the questioned statutes. Many of the enactments were temporary in character. We are here considering a permanent piece of legislation. So far as the contract clause is concerned, is this significant? We think not. ‘Emergency does not create (constitutional) power, emergency may furnish the occasion for the exercise of power.’ 15 We think of emergencies as suddenly arising and quickly passing. The emergency of the depression may have caused the 1932 legislation, but the weakness in the financial system brought to light by that emergency remains. If the legislature could enact the legislation as to withdrawals to protect the associations in that emergency, we see no reason why the new status should not continue. When the 1932 act was passed commercial and savings banks, insurance companies and building and loan associations were suffering heavy withdrawals. The liquid portion of their assets were being rapidly drained off by their customers, leaving the long term investments and depreciated assets as an inadequate source for payment of the remaining liabilities. An acceleration or a continuance of this tendency to withdraw available funds threatened a quick end to the ability of the institutions to meet even normal demands. Such threatened insolvency demands legislation for its control in the same way that liquidation after insolvency does. Such legislation may be classed as emergency in one sense but it need not be temporary. 16
And East New York Savings Bank v. Hahn, issued in 1945, pretty much sums it up:
Since Home Bldg. & L. Ass’n v. Blaisdell, 290 U.S. 398 , 54 S.Ct. 231, 88 A.L.R. 1481, there are left hardly any open spaces of controversy concerning the constitutional restrictions of the Contract Clause upon moratory legislation referable to the depression. The comprehensive opinion of Mr. Chief Justice Hughes in that case cut beneath the skin of words to the core of meaning. After a full review of the whole course of decisions expounding the Contract Clause-covering almost the life of this Court-the Chief Justice, drawing on the early insight of Mr. Justice Johnson2 in Ogden v. Saunders, 12 Wheat. 213, 286, as reinforced by later decisions cast in more modern terms, e.g., Manigault v. Springs, 199 U.S. 473, 480 , 26 S.Ct. 127, 130; Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 , 41 S.Ct. 465, 466, put the Clause in its proper perspective in our constitutional framework. The Blaisdell case and decisions rendered since (e.g., Honeyman v. Jacobs, 306 U.S. 539 , 59 S.Ct. 702; Veix v. Sixth Ward Ass’n, 310 U.S. 32 , 60 S.Ct. 792; Gelfert v. National City Bank, 313 U.S. 221 , 61 S.Ct. 898, 133 A.L.R. 1467; Faitoute Co. v. Asbury Park, 316 U.S. 502 , 62 S.Ct. 1129), yield this governing constitutional principle: when a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the State ‘to safeguard the vital interests of its people,’ 290 U.S. at page 434, 54 S. Ct. at page 239, 88 A.L.R. 1481, is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.
The formal mode of reasoning by means of which this ‘protective power of the state,’ 290 U.S. at page 440, 54 S.Ct. at page 241, 88 A.L.R. 1481, is acknowledged is of little moment. It may be treated as an implied condition of every contract and, as such, as much part of the contract as though it were written into it, whereby the State’s exercise of its power enforces, and does not impair, a contract. A more candid statement is to recognize, as was said in Manigault v. Springs, supra, that the power ‘which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the government to protect the … general welfare of the people, and is paramount to any rights under contracts between individuals.’ 199 U.S. at page 480, 26 S.Ct. at page 130. Once we are in this domain of the reserve power of a State we must respect the ‘wide discretion on the part of the legislature in determining what is and what is not necessary.’ Id. So far as the constitutional issue is concerned, ‘the power of the State when otherwise justified,’ Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 , 41 S.Ct. 465, 466, is not diminished because a private contract may be affected.
In other words, a state can use what is in essence its police power to limit the state the absolute right to freely contract, but only “to safeguard the vital interests of its people.” Suffice it to say that none of those three opinions gave any indication, much less outright held, that a vital interest of the people of any state was to be able to avoid payment of union dues, much less to avoid payment of lower union-administration fees, as a union-beneficiary employee in a union shop.
In any event, Lincoln Union, in pretending that Home Building and the other two New Deal era opinions say things contrary to what they actually say, dealt only with compulsory union membership, not with required non-union-member administrative fees paid to unions. That case was decided two years after passage of the Taft-Hartley Act. And Taft-Hartley itself bars required union membership, while also requiring that unions negotiate compensation and working conditions on behalf of all the employees within unionized categories, irrespective of whether the employee has chosen to join the union., and also requires the union to represent those employees in controversies between the individual employee and the employer other just as they do for union members in other words, to provide all the union benefits even to employees who opted out of union membership.
In return, that law does allow the non-union employees to be required as a provision of the collective-bargaining agreement to pay union-administration fees.
I don’t think the administrative-fee requirement is “materially” (a legalese term of art) the same as the pre-Taft-Hartley contractual agreements that barred employers from hiring people who will refuse to join the union. And, certainly, it does not involve addressing severe long-term emergency that even remotely brings it within the reach of the Home Building & Loan Assoc. public-policy exemption from a narrow Contracts Clause interpretation. So, best as I can tell—and I am NOT an expert in labor law—the Supreme Court has never actually held that state ‘right to work’ laws do not violate the Contracts Clause.
That said, although the rightwing justices normally are all for upholding the right of contract, when the shoe is on the pro-Democratic Party foot rather than the pro-Republican one (or is it the reverse? I’m not sure), they probably would not uphold that right in this circumstance. These people are the ultimate hypocrites. And stunningly, unabashedly so. And they hold a bare majority on the Court.
COOL UPDATE, here. H/T Matthew Yglesias.
Beverly, Did I read you right with regard to Taft-Hartley? If, so it would seem the unions would have an argument that the most recent law enacted in Michigan would be in violation of Taft-Hartley. Regarding the states “policing powers” and no impairment of contract, it should be noted that the state can invoke the right of protecting its citizens through the policing power mechanism. I think it is key that this only applies when the contract is between a private entity, (corporation), and the state. In the Charles River Bridge case, 1837, the court held: Public grants are to be construed strictly. In the case of The United States v. Arredondo, 6 Pet. 736, the leading case on this subject are collected together by the learned judge who delivered the opinion of the Court, and the principle recognized that, in grants by the public, nothing passes by implication. Jackson v. Lamphire, 3 Peters 289; Beatys v. The lessee of Knowles, 4 Peters 165; The Providence Bank v. Billings and Pittmen, 4 Peters 514, cited….
Note the fact that when it comes to contracts in this case, grants by the public, NOTHING passes by implication. This is contrary to contract law between private parties. Right? It would seem that what the state of Michigan is doing here is using its powers to restrict the rights of its citizens in favor of the employers they work for.
What’s hard to believe is that unions haven’t already forced rulings on every conceivable legal argument that these laws are unconstitutional. If they have not, the most obvious explanation might be that union lawyers have expected that they would lose–not because they are wrong, but because SCOTUS would rule that they are wrong. (But for the past fifty years?) Another explanation might be that unions think they have more serious, consequential problems than right-to-work laws. For example, maybe the challenges of organizing increased (including, but not limited to, the card check issue).
Nanute, regarding Taft-Hartley, no, I don’t think the Michigan law is in violation of Taft-Hartley. It may be possible to argue, under a legal doctrine known as the “preemption” doctrine, that it is, but I don’t know enough about labor law, and specifically how Taft-Hartley works, to have some idea of how strong that argument would be. The “preemption” doctrine says that when state law conflicts with federal law, the Constitution’s Supremacy clause (which says that federal law is the supreme law of the land) requires that federal law trump the conflicting state law. And, as the doctrine has developed, the “conflicts with” has broadened to mean almost anything that is, in essence, within the realm of the federal law at issue is trumped, or “preempted,” by that federal law.
But I think Taft-Hartley simply left alone the “common law” (non-statutory) right of labor unions to negotiate for a requirement that employees who opt out of joining the union still have to pay a union-administration fee. That’s different than if Taft-Hartley required states to allow it–although this does, possibly, get into the “preemption issue. If Taft-Hartley doesn’t preempt the states’ option of prohibiting unions from bargaining for that–and certainly, to date, it has not been interpreted do that–then these state ‘right to work” laws don’t violate Taft-Hartley.
Btw, “policing powers” and “police powers” are two different things. A state’s “police powers” means the state’s ability to use the force of law to coerce, prohibit, regulate, etc., upon pain of arrest, imprisonment, fine, property forfeiture, and the like. “Policing powers” is monitoring, patrolling, and that sort of thing.
The Charles River Bridge case and the other cases you cite (none of which i’d ever heard of, best as I recall, but I just googled them) only concern contracts between the state and a private party, or property transfers (grants of land) from the state to a private party. These cases are only incidentally Contract Clause cases; the plaintiffs tried unsuccessfully to claim that because the state was a party to the transaction, and therefore some legislation was involved in creating the contract and a later, conflicting contract (the Bridge case) or the property transfer (land grants), this meant that it was a Contracts Clause case. The Court said that, not so.
For several decades now, the Supreme Court has been extremely hostile to unions, PJR. Extremely. So I think you’re right on both points.
The wide-spread corporate effort to have a privatized system of justice barring people from their day in court. has occurred very quietly, as if it were nothing at all. … a loss of a glove, a filling, a set of car keys, a wife is sure to be noticed.
well, if it’s hypocrites you call them, you agree with me.
i don’t know that they need to be conscious hypocrites… though with this Court I rather suspect they are… ; I think that normal human self deception would account for most of it. once you start to rationalize you find yourself thinking, “how clever, i was right all along.”
but i don’t have much patience with legal weaseling.
seems to me that once you find exceptions to “No State shall…pass any…Law impairing the Obligation of Contracts…” you have opened a can of worms there is no closing.
All of this may just be a fact of life. “Logic” is never adequate to account for all the complications you wish you had thought of before you wrote the law.
If the people were alert to the implications of the laws, and the interpretations of the law, those laws and interpretations would be corrected fairly quickly when they begin to threaten those “unalienable rights” we thought we knew what Jefferson was talking about.
but the people are not alert, and have lost any power to correct their “representatives.”
As long as we don’t care about “due process” and “cruel and unusual punishment” applied to people who “might know where the ticking time bomb is” we will have no one to protect us when we become the subject of the State’s interest. But today, of course, “Liberty” is just another “brand” co-opted by the crazies who think they don’t want any government at all.
“…..co-opted by the crazies who think they don’t want any government at all”. Coberly
And those crazies don’t seem to recognize that the absence of government brings us the tyranny of chaos.
Of what use is historical precedence in the law if judges and courts are entitled to pick and choose the relevant case law to reference in conjunction with their current decisions. The problem is clearly highlighted by the popular “legal” concept that the law is to be interpreted. If references to prior decisions in cases described as relevant to any current case are interpretations of prior opinions how does the case law on any subject become more objective? Here’s an algorithm to use when evaluating a legal decision. Opinion X Interpretation = Erroneous Determination.
Yet again– these opinions refer only to attempts to retroactively modify existing contracts. If the Michigan law retroactively modified existing CBAs, it would be unconstitutional to the extent that it did so (absent some kind of economic exigency of the type discussed in Blaisdell).
I haven’t been able to find the text of the law, so I don’t know whether it retroactively modifies existing contracts or not. But, as far as the law’s long-term effects, that question (and, thus, this entire post) is irrelevant. Michigan is, rather obviously, permitted to prospectively prohibit the adoption of NEW union-security clauses, just as it could ban the adoption of, say, new noncompete covenants (banned in a few states, legal in most).
A state could literally declare that it is illegal to enter into any contracts within its borders, and that would be perfectly constitutional. (Axe-crazy, but constitutional.)There is no substantive “right to contract” under the Constitution, no matter how many times you claim there is one. To hold otherwise would be, as I stated earlier on the Slate thread, to invalidate vast swaths of state and federal law, including every labor standards law in existence (minimum wage, overtime, and so on).
Paul, it’s simply not true that a state could pass a law prohibiting entering into contracts within its borders. Setting aside the Contracts clause, it clearly would violate the Fourteenth Amendment’s due process clause. The right to contract is a liberty interest within the meaning of the Fourteenth Amendment. I’m pretty sure that the Supreme Court has interpreted the Contracts Clause as per se guaranteeing that right, although it might be interpreted that way in conjunction with the Fourteenth Amendment; I’m not sure. But it doesn’t matter which of the two it is. It’s clearly a constitutional right.
And like so many other constitutional rights—free speech, free association, freedom of religion, etc.—it is not absolute. With the right to contract, it depends on the nature of the particular law limiting that right. Or, more accurately, it depends on the nature of the public policy that offered for the limiting law. Laws banning noncompete covenants pass constitutional muster because individuals have a right to try to make a living in the line of work in which they have expertise or experience, and the state has an interest enabling that—which is why (I believe) all, or at least most, states have some limitations on the length and breadth of noncompete contracts. This is a classic “public policy” exception to the right to contract.
So the question is, which types of limiting laws are of a nature that falls within the public-policy exception, and which are not. Minimum-wage laws, overtime laws, and the like, clearly do; the come within the longstanding public-health-and-welfare public-policy exception recognized by the Supreme Court since the late 1930s. But if the public policy is simply a political or ideological preference, similar to, say, tax policy or spending policy, or one that is urged by lobbyists or large campaign donors who will simply gain some monetary benefit, then it cannot be justified as a public-policy exception to the constitutional right to contract. “Right-to-work” laws fall pretty clearly into that category.
i cannot see the clear distinction between “public policy” and “political or ideological preference similar to tax policy or spending policy.”
don’t get me wrong. i think the exceptions are almost certainly necessary, and the law as written was almost certainly the only way a law could be written, and is needed to protect a “basic right”
but once you grant exceptions… and you must… then it gets to be impossible to take seriously claims of “pretty clearly…”
and of course this only bothers me when the Court is pretty clearly violating basic human rights and the people don’t seem to give a damn.
Well. I should have also said that, beginning in the late 1930s, when the Supreme Court upheld the Fair Labor Standards Act, albeit a federal rather than a state statute, which was challenged under the Fifth Amendment, the Supreme Court has separated laws that affect broad-based health and welfare of the population as a special public-policy category in constitutional law. The case in which this was established upheld the child-labor prohibition in that law, expressly overturning a Supreme Court opinion from the early 1900s.
So while there are some gray areas, there are some things, even in addition to violations of the criminal law, that are pretty clearly within the public-policy exception. And, I think, some things that pretty clearly are not.