Coyote Blog

Trump vs. Hawaii More Interesting Than I Thought

The Conservative and Progressive responses to the Supreme Court's Trump vs. Hawaii decision that upheld v3.0 of the travel ban are pretty predictable -- Progressive writers have argued that of course it violated the first amendment because Trump made clear any number of times that he was animated by distrust of Muslims, while Conservatives said it was clearly not just aimed at Muslims (he included Chad!) but anyway it was a bad precedent to infer intent from campaign speeches even before he was President.

What I didn't know until I read Eugene Volokh was that there are some really interesting precedents that make immigration law one of the few areas effectively outside the Bill of Rights.  I don't really like what I see in this, but it is an issue I never understood before.  You really need to read the whole thing to get the gist, but here is his summary:

The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.

Janus v. AFSCME Council 31 In An Alternate Universe

In this case, a state worker was suing to prevent a public employee union from deducting an "agency fee" from his paycheck despite the fact that he did not want to join the union.  The union argued that the employee benefited from their collective bargaining and should have to pay something for it.  Apparently the case turned on First Amendment issues -- while technically the union could not spend these agency fees on political speech, the reality is that money is fungible and at some level almost everything a public union does is political.

As a quick background, I totally support private union bargaining as a fundamental right under the First Amendment, though we could argue whether current law overly tips the power balance toward or away from unions vs. a free market.  On the other hand, I have deep, deep doubts about public sector unions, largely because there is no real bargaining going on.  In most cases, the public sector unions and the officials they are nominally bargaining with are on the same side and opposed to taxpayer interests.

So I am not unhappy to see public unions take a hit here, but addressing my concerns should be a legislative issue (as exemplified by a number of "right to work" states that have banned this practice).  But this is a judicial case and should not be dealing with legislative issues but issues of the law, and the case confuses me because I could easily see the Right and the Left arguing opposite sides on legal issues of this case given a slightly different world.  After all, requiring employees to pay these fees is a condition of employment -- wouldn't we expect Conservatives to support the right of employers to freely set the conditions of employment?  If these are too onerous, Conservatives would argue people would just not work there.  In this world, wouldn't we expect, then, Progressives to argue against such open-ended freedom for employers to set work conditions on the argument that there is a power imbalance between employer and worker -- exacerbated because the employer is the state in this case -- and they can't easily fight these onerous conditions?  Huge swaths of employment law, written mainly from the Left, are dedicated to circumscribing allowed employment conditions.