Attorney General

Justice Department reverses course and urges Supreme Court to overrule pro-union precedent

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The U.S. Justice Department has switched positions in an amicus brief that asks the U.S. Supreme Court to overrule a 40-year-old decision that benefits unions.

The 1977 decision, Abood v. Detroit Board of Education, allows unions to charge all public employees for the cost of collective bargaining, report the Washington Post and the National Law Journal (sub. req.). The case said unions could not charge for political activities, however.

U.S. Solicitor General Neal Francisco told the Supreme Court that the government “reconsidered the question” after it agreed to hear a new case raising the issue. The prior position gave insufficient weight to the employees’ First Amendment interest, Francisco said.

The brief represents at least the third time that the Trump administration’s Justice Department has switched positions before the Supreme Court. In the other cases, the Justice Department supports upholding workplace arbitration agreements that ban class actions and the legality of Ohio’s system for purging inactive voters.

The new case is Janus v. AFSCME Council 31. The court granted cert after it split 4-4 in a prior case raising the issue.

The plaintiff in Janus is Illinois employee Mark Janus. He contends he shouldn’t have to pay mandatory union fees because union bargaining concerns political issues such as wages, pensions and benefits.

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