Will the fourth time be the charm? The Supreme Court has granted cert in a challenge to the forced payment of union dues by non-members, a dispute that the court has failed to resolve three times in the past. As one of the first actions the high court took on its return from recess, they agreed to hear arguments on Janus v AFSCME, and the new composition promises a resolution to the question — one way or another:

The Supreme Court agreed Thursday to hear a challenge to the so-called “fair share” fees public employee unions collect from non-members, posing a major threat to organized labor.

Unlike the past three times the court has considered similar cases, its five-member conservative majority appears poised to rule that workers opposed to union representation cannot be forced to pay for collective bargaining and other benefits.

The new case comes from Illinois and raises the same issues as a California case on which the court deadlocked, 4-4, following the death of conservative Justice Antonin Scalia in 2016.

The case provides an almost perfect parallel to Friedrichs v California Teachers Association, the first case decided — or really not — after the death of Justice Antonin Scalia in 2016. Two months afterward, the court split 4-4 on a challenge to a lower-court ruling that kept forced union “fees” deductions in place for non-union workers. The split was announced “per curiam,” with no opinion attached, and the split kept the lower court’s order in place without any precedential weight for other circuits.

The new case involves the same issues, giving the Supreme Court another shot at a conclusion:

The Illinois case involves Mark Janus, a state employee who says Illinois law violates his free speech rights by requiring him to pay fees subsidizing a union he doesn’t support, the American Federation of State, County and Municipal Employees. About half the states have similar laws covering so-called “fair share” fees that cover bargaining costs for non-members.

Janus is seeking to overturn a 1977 Supreme Court case, Abood v. Detroit Board of Education, that said public workers who refuse to join a union can still be required to pay for bargaining costs, as long as the fees don’t go toward political purposes. The arrangement was supposed to prevent non-members from “free riding,” since the union has a legal duty to represent all workers.

Forbes’ Brian Miller says it will all come down to Gorsuch — and that’s a bad sign for the unions:

In his eleven years on the federal bench, Justice Gorsuch has not had an occasion to consider the free speech rights of public employees. He has, however, taken a strong position against compelled association.

In 2013, then Judge Gorsuch authored a concurring opinion in Burwell v. Hobby Lobby when that case was before the Tenth Circuit. That case was like Janus in one important way. The owners of Hobby Lobby and others – like the Little Sisters of the Poor – were told by the Obama administration to fund access to contraceptives through their insurance policies.

Much like Mark Janus is arguing that compelled union dues require him to support activities he disagrees with, Hobby Lobby argued that the Obama administration compelled them to violate the teachings of their faith by providing financial support for activities they fundamentally opposed.

Justice Gorsuch sided with the owners of Hobby Lobby. In a concurring opinion, he justified his decision by saying, “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

That seems like a reach. There is a fundamental difference between religious belief and political ideology, one that Gorsuch intended to protect in his Hobby Lobby opinion. That doesn’t mean that Gorsuch would be likely to side with the unions — he’s probably much more inclined to go the other way — but the connection here seems pretty tenuous at best, and not all that predictive.

This does seem like a slam dunk to go 5-4, but … which way? Anthony Kennedy may have gone with the conservatives to get to the tie in Friedrichs, but who’s to say that wasn’t a strategy to force the issue to wait for a full nine-member panel for a precedential decision? Kennedy usually has an eye for stare decisis, and he’s not going to vote lightly to overturn Abood. On the other hand, Miller reminds us that it was Kennedy who sharply criticized the Abood fees during oral arguments in Friedrichs for making non-members “compelled riders” on the unions’ political agenda.

One thing we know for sure is that the court definitely wants to set precedent this time. The case will come up for argument in the winter, and it seems like a safe bet that the decision will probably come out near the end of the term as most controversial decisions do.

Outrage: State Employees Paid to Create Sick American Flag Display

By Benjamin Arie
on September 28, 2017 at 1:48pm

What a difference a day makes, eh? Yesterday, Donald Trump offered a blunt assessment on why action to waive the Jones Act for the Puerto Rico crisis was unlikely. Others pointed out that even a waiver wouldn’t really help, since shipping capacity for Puerto Rico vastly outstrips logistical capabilities for distribution in the wake of Hurricane Maria.

Today, on second thought …

At @ricardorossello request, @POTUS has authorized the Jones Act be waived for Puerto Rico. It will go into effect immediately.

— Sarah Sanders (@PressSec) September 28, 2017

BREAKING: White House announces Pres Trump has authorized waiving the Jones Act for Puerto Rico, effective immediately.

— Peter Alexander (@PeterAlexander) September 28, 2017

It’s a smart move, both politically and symbolically. Politically, the White House has had an avalanche of unfair press coverage insinuating that they haven’t paid attention to the crisis in Puerto Rico. As Teri Christoph noted, that’s far from the case; they’ve been responding to it since before Hurricane Maria hit, but Trump himself has spent more of his public time talking and tweeting about the NFL than promoting relief efforts.

Symbolically it matters too, even if it won’t change much in the short run. Trump’s suggestion that protectionism should outweigh a humanitarian crisis — especially when it involves American citizens, which is the case in Puerto Rico — was tin-eared at best. It’s not that it wasn’t rational, but that it was too coldly rational. When Americans are suffering, we put that kind of calculation aside for a while in order to get help where it’s needed, or at least leave all options open to do so.

But will this get more help to Puerto Rico during the acute crisis? Not really, no — and even if it did, it wouldn’t matter. The problem in Puerto Rico isn’t getting aid to the island, Bloomberg’s Laura Blewitt reports. The problem is a lack of resources to get it off the docks once it arrives:

Thousands of cargo containers bearing millions of emergency meals and other relief supplies have been piling up on San Juan’s docks since Saturday. The mountains of materiel may not reach storm survivors for days.

Distributors for big-box companies and smaller retailers are unloading 4,000 20-foot containers full of necessities like food, water and soap this week at a dock in Puerto Rico’s capital operated by Crowley Maritime Corp. In the past few days, Tote Maritime’s terminal has taken the equivalent of almost 3,000. The two facilities have become choke points in the effort to aid survivors of Hurricane Maria.

“There are plenty of ships and plenty of cargo to come into the island,” said Mark Miller, a spokesman for Crowley, based in Jacksonville, Florida. “From there, that’s where the supply chain breaks down — getting the goods from the port to the people on the island who need them.” …

Trucks are ready to be loaded with the goods and precious diesel for backup generators, but workers aren’t around to drive. Instead, they’re caring for families and cleaning up flood damage — and contending with the curfew.

The buildings that would receive supplies are destroyed and without electricity, Miller said. The transport companies that have staff available and diesel on hand encounter downed poles and power lines while navigating 80,000-pound tractor-trailers on delicate washed-out roads.

The Jones Act waiver won’t help get aid to Puerto Rico. The aid has been arriving all along. What is truly needed is an effort to rebuild enough transportation and power infrastructure to get the aid moved off the docks in San Juan. And right now, the US military is trying to solve those problems, rather than worry about tweets or the Jones Act. That is a direct result of White House management of the crisis, and a much better metric than Trump’s Twitter account.

However, at some point a Jones Act waiver will help Puerto Rico save some money when it’s in position to spend its own money on the rebuilding effort — but the waiver will almost certainly expire before that time comes. If Congress wants to remove this protectionist act for good policy reasons, it can do that any time. It won’t have anything to do with aid in the immediate and critical time frame, though.

Trump made the right call, politically and symbolically. Now perhaps everyone else can focus on the actual acute crises.

Update: Like I wrote … symbolic (via Fausta Wertz and Steve Eggleston, emphasis mine):

The waiver from the shipping law, which requires American-made and operated vessels to transport cargo between U.S. ports, will only last for 10 days and goes into effect immediately.

“At @ricardorossello request, @POTUS has authorized the Jones Act be waived for Puerto Rico. It will go into effect immediately,” White House press secretary Sarah Huckabee Sanders wrote on Twitter, referring to Puerto Rico Gov. Ricardo Rosselló.

Steve also points out that the waiver might lower costs marginally for charities that are moving goods to Puerto Rico, but it’s not going to have any more dramatic impact than that. Rosselló won’t be in position to do any rebuilding within that ten-day period, which makes this an utterly symbolic move.