Here are my confused thoughts about the Burwell v. Hobby Lobby and Harris v. Quinn decisions. Unfortunately, I am Waldmann not Mann and don’t know anything about the law.
I will pretend that there is some logic behind the decisions. In Burwell v. Hobby Lobby the majority found that Hobby Lobby has religious freedom — that a profit making corporation is a person for the purposes of the Constitution. In Harris v. Quinn the majority found that the SEIU can not contract with the state of Illinois to pay money mostly to home health care workers and partly to the SEIU in exchange for home health care. Unions, unlike corporations, are not legal persons to the court.
My question is what stops unions from reconstituting themselves as cooperatives ? What if the SEIU were SEIU incorporated owned one member one share by the shareholders of the SEIU (the physical persons formerly known as service workers who have voted to make the SEIU their exclusive bargaining agent). Then Illinois could contract out home health care to SEIU inc which would pay what it pleases to those shareholder-employees who provide home health care in Illinois and keep what it pleases for overhead.
What possible objection could the five conservative justices have to such an arrangement ? I’m sure they would think of something, but I can’t imagine what it might be. States (and the Federal government) regularly purchase services from contractors with no requirement that all the money go directly to the shareholders and the employees who directly provide the service.
I will try to imagine an objection. It might be noted that the transition from direct employment of service workers to contracting out to SEIU inc would be a no-bid contract. I don’t think the Supreme Court can require the elected branches to contract out only via open bidding. No-bid contracting might be bad policy, but I don’t see a Constitutional issue.
OK now I will pretend that they decide that the 14th amendment (for example) mandates open bidding for all government contracts. Oh hell I will pretend that they decide that the 3rd amendment mandates open bidding for all government contracts. This changes nothing. Illinois could ask for bids from organizations which can guarantee provision of all currently provided health care starting 1 second after the contract is signed. Any firm could apply, but only SEIU inc (that is the current home health care workers) could deliver without any transitional disruptions because there is no real transition (except in the eyes of Supreme court justices who love corporations and hate unions).
This isn’t limited to SEIU and Illinois. The UAW could create UAW incorporated a cooperative owned by UAW members. Then they could all quit say Ford. Then UAW inc could offer Ford the auto building services of UAW incorporated. Free constracting in the free market has lead to the creation of many firms which provide workers to other firms (I am thinking of temp agencies). One of the points of contracting out has been to get away from unions. A firm whose employees have voted to recognise a union as exclusive bargaining agent can buy services from an un unionized firm. It seems to me that the trick used against unions can be used by unions to undo Harris V Quinn.
I’m sure this post is even less comprehensible than my usual posts. I will try to explain.
Illinois purchases home health care services from SEIU members. It also contracts a lot of work out to for profit firms. I will just pretend that, for example, it purchases art supplies from Hobby Lobby. The Supreme Court has decided that Hobby Lobby can decide what to do with its revenues even if employees or minority shareholders object. The Supreme court has also decided that their can’t be a contract between Illinois and workers whose exclusive bargaining agent is the SEIU in which the workers are paid and the SEIU is paid. To Alito et al everything would be completely different if Illinois instead paid for home health care provided by a corporation which then employs home health care workers. Then money spent on managers who don’t personally take care of people in homes would be none of the Supreme Court’s business. So why doesn’t the SEIU create SEIU incorporated ?
My ranting gets even more incoherent after the jump.
I’m pretty sure that this isn’t the reason that I find Alito’s reasoning incomprehensible. To be frank and brief, I think that today we have further redundant proof that the conservative majority of the Supreme Court presumes to rule as an oligarchy of five with no respect whatsoever for judicial restraint, federalism, the Constitution, the separation of powers, or any limit whatsoever on their power. I think the opinions taken together can be summarized as “we will do whatever we please, and you will obey us.”
I also think that their pleasure is that conservatives get what they want. One of the most extreme and outrageous passages of the Burwell v Hobby Lobby decision is “This decision concerns only the contraceptive mandate and
should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.” (infuriating pdf warning) So religious objections to contraception are protected and religious objections to transfusions and vaccination aren’t. The five justices who concurred are all Catholic so members of a denomination that (in theory) forbids contraception but has no problem with transfusions or vaccination. The decision says that a religious objection with which Pope Paul VI happens to have agreed are protected while those of Jehovah’s witnesses aren’t. Now I am pretty sure that the Catholics on the Court (also including dissenter Sotomayer) don’t take Humanae Vitae seriously (although Nancy Pelosi does). I think that it is mostly a coincidence that the decision says that the doctrine of their church is protected while the doctrines of other churches aren’t. But that happens to be exactly what Alito wrote. To me this indicates impatience with the pretence that they are interpreting the Constitution and willingness to make it obvious that they are legislating.
Finally 2 loose paragraphs: I included federalism on the list, since they presumed to declare a contract signed by the state of Illinois to be invalid. Of course it has long been obvious that no one really gives a damn about federalism and least of all does the Federalist Society. Of course almost everyone knows this.
I guess with considerable confidence that the proprietors of Hobby Lobby are evangelical Protestants not Catholics.
Now I google. Yep. I probably read that somewhere and didn’t really guess.