Are Public-Sector Unions Unconstitutional?

In a new book, noted attorney Philip K. Howard says public sector collective bargaining is dereliction of presidential, congressional duty.

AP/Gene Johnson
Members of the Seattle Education Association picket outside a school district building at Seattle. AP/Gene Johnson

Government is failing in its core responsibilities because an unelected and unaccountable group has “seized control of the operating machinery,” according to a noted attorney and author, who is proposing a challenge to the constitutionality of public sector unions.

Fifty years of collective bargaining in the public sector has created an ineffective, unresponsive, and uncooperative workforce that is violating the tenets of democracy, the founder of Common Good, Philip K. Howard, says. “Democracy is itself a process of accountability, and these union controls have made it so that no one in government, as a practical matter, is accountable,” he told the Sun.

Mr. Howard’s newest book, “Not Accountable: Rethinking the Constitutionality of Public Employee Unions,” released Tuesday, asserts that Congress and executive branch officials do not have the authority to turn over their responsibilities, particularly their power of the purse, to unelected officials. 

“The government cannot delegate its sovereign power to any private group. If I’m an elected executive and the legislature wants to give power over to someone else to make governing decisions, they can’t do that. They must retain the responsibility and be accountable to voters,” he said. 

Mr. Howard has written several books over the years on government inefficiency, including “The Death of Common Sense” and “Life Without Lawyers.” In 2017, he served on President Trump’s Strategic and Policy Forum to offer insight  on how government policy affects economic growth, job creation, and productivity. He has previously advised Vice President Gore and several governors on legal and regulatory reforms.

Currently, about 33 percent of government employees in federal, state, and local positions are unionized. That’s about 7.1 million union employees working in public jobs, including 4.6 million teachers and 357,000 members of the Fraternal Order of Police. 

Mr. Howard offers multiple examples of unaccountability in these professions, including the case of a Minneapolis police officer, Derek Chauvin, who had at least 17 complaints against him at the time he suffocated George Floyd in 2020. He shares the story of teacher unions that refused to teach, even remotely, during the pandemic, because live remote instruction was not included in their contracts.

The results on student achievement during the pandemic have been well documented, with African-American third-graders performing 17 percentile points lower than the same cohort had two years before and white third-graders scoring 9 percentile points lower.

“Some teachers just aren’t cut out for the job,” he said. “For government to work well, the people in the supervisory [position] have to be able to make choices” to terminate bad apples. 

Citing city budgets that appropriate as much as 70 percent to labor costs, Mr. Howard says mayors and municipal authorities have given away their ability to make decisions on taxing and services. Bargaining impasses are left to arbitrators, whose decisions effectively operate as legislative choices.

Worse, he says, unions are greasing the wheels with their political influence, effectively funding congressional or executive elections and then negotiating their pay with those that they helped elect. “It’s not an adversarial negotiation. It’s a payoff,” he says.

To make the constitutional case against unions, Mr. Howard cites Articles II and IV of the U.S. Constitution, which, respectively, vest executive power in the president and require a Republican form of government to be exercised by officials accountable to voters. 

He also asserts that the Civil Service Reform Act of 1978, which codified earlier executive orders requiring the president to collectively bargain with unions, is unconstitutional. 

“The Supreme Court, in many decisions, has interpreted what ‘executive power’ means and has written opinions on the extent to which Congress can limit executive power. And under those decisions the executive has the ‘exclusive and illimitable power’ of removal,” he said. “Congress can’t take that away.” 

Initiating a court claim, he said, will require finding an executive with standing who is also willing to file suit. The president could say it’s within his power under Article II to terminate the agreements. If he does so, then he would be sued by the unions and the case would go to the Supreme Court. 

“The argument is pretty simple and straightforward,” Mr. Howard said. “There is a serious governance issue here and we do need to look at this more closely.”

The New York Sun

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