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Supreme Court Invalidates Public-Sector Union Agency Fees: Considerations for Congress in the Wake of Janus [July 20, 2018]
"On June 27, 2018, the Supreme Court held that 'agency fee' arrangements between a union and a government employer necessarily violate the First Amendment, overruling its 1977 decision in Abood v. Detroit Board of Education. Agency fee arrangements (sometimes called 'fair share' provisions) require employees to pay a fee to the union designated to represent their bargaining unit (i.e., an exclusive union representative) even if the employees are not members of that union. The Abood Court had held that these arrangements are constitutional insofar as the union uses the fees for 'collective bargaining activities' and not 'ideological activities unrelated to collective bargaining'--described in later cases as 'chargeable' versus 'nonchargeable' expenditures. But this term, in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), a five-member majority of the Court reversed course, holding that Abood was 'wrongly decided' and that public-sector agency fee arrangements 'violate[] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.' The case has potential implications not only for public-sector employers and workers, including those in more than twenty states that authorize public-sector agency fees, but also for other forms of compulsory fee arrangements required or authorized by Congress, the states, or other governmental entities."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-07-20
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Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I) [December 4, 2017]
"Agency shop arrangements (sometimes called 'fair share' provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The 'Abood' Court [Abood v. Detroit Board of Education, 1977], held that these arrangements do not violate the First Amendment insofar as the union uses the fees for 'collective bargaining activities' and not 'ideological activities unrelated to collective bargaining.' In its October 2015 Term, the full Court heard oral argument on whether to overrule 'Abood', but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on 'Abood' and the case law leading up to 'Janus' [Janus v. American Federation of State, County, and Municipal Employees, Council 31]. Part II then discusses the perspectives Justice Gorsuch may bring to 'Janus' and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2017-12-04
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Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II) [December 4, 2017]
"As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in 'Abood v. Detroit Board of Education' and hold that public sector agency fees violate core First Amendment principles (the Court's 'fixed star'). Earlier this Term, the Court agreed to consider the question again in the case of 'Janus v. American Federation of State, County, and Municipal Employees, Council 31'. Part II of this Sidebar begins with a brief summary of the parties' arguments in 'Janus'. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn 'Abood'. The post concludes by exploring the potential implications of the 'Janus' decision."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2017-12-04
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Facing the FACT Act: Abortion and Free Speech (Part II) [January 10, 2018]
"As explained in Part I of this Sidebar, the parties in National Institute of Family and Life Advocates (NIFLA) v. Becerra dispute whether California's Reproductive FACT Act is a viewpoint- or content-based restriction on speech subject to strict scrutiny (and thus presumptively invalid) or a professional or commercial regulation subject to less exacting scrutiny. The path the Court chooses could have implications for lawmakers both in the context of family planning or pregnancy-related services and, more broadly, in the regulation of professional and commercial activities."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-10
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Facing the FACT Act: Abortion and Free Speech (Part I) [Janurary 10, 2018]
"On November 13, 2017, the Supreme Court granted a petition to review 'National Institute of Family and Life Advocates (NIFLA) v. Becerra', a case that implicates several distinct and complex First Amendment doctrines. Specifically, the Court will consider whether a California law providing information that certain pregnancy centers must disseminate to clients violates the Free Speech Clause. The Ninth Circuit previously upheld the California law, deepening a circuit split that raises questions beyond the highly charged context of family planning and pregnancy-related services. Part I of this two-part Sidebar provides an overview of the challenged law, followed by an analysis of how the Supreme Court might categorize the speech at issue. Part II discusses the potential implications of any Supreme Court decision in 'NIFLA' for First Amendment jurisprudence and legislatures seeking to regulate in this area."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-10
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Supreme Court Agrees to Hear Constitutional Challenge to SEC Administrative Law Judges [January 16, 2018]
"On Friday, the Supreme Court granted certiorari in 'Lucia v. Securities and Exchange Commission (SEC)' to decide whether administrative law judges (ALJs) within the SEC are 'Officers of the United States' (officers) who must be appointed in accordance with the Appointments Clause of Article II of the Constitution. If the Supreme Court holds that SEC ALJs are officers, its conclusion could call into question the validity of prior decisions rendered by SEC ALJs (whose initial hiring did not comport with the Appointments Clause) and may have broader implications for ALJs in other federal agencies. This Sidebar provides an overview of the case by first discussing the Appointments Clause and the key decisions leading up to the Court's review, and then highlighting the relevant arguments and considerations before the Supreme Court."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-16
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Contraceptive Coverage Requirement and Legal Challenges Five Years After 'Hobby Lobby' [September 23, 2019]
From the Document: "When Congress enacted the Patient Protection and Affordable Care Act (ACA) in 2010, it required employment-based health plans and health insurance issuers to cover certain preventive health services without cost sharing. Those services, because of agency guidelines and rules, would soon include contraception for women. The 'contraceptive coverage requirement,' or 'contraceptive mandate' as it came to be known, was heavily litigated in the years to follow. These challenges primarily concerned (1) what types of employers and institutions should be exempt from the requirement based on their religious or moral objections to contraception; (2) what procedures the government can require for an entity to invoke a religious-based accommodation; and (3) how much authority federal agencies have to create exceptions to the coverage requirement. As originally formulated, only houses of worship and similar entities were exempt from the requirement, but the government later added an accommodation process for certain religious nonprofit organizations."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2019-09-23
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Understanding Federal Legislation: A Section-By-Section Guide to Key Legal Considerations [August 18, 2020]
From the Summary: "Federal bills are increasingly complex, making them difficult to understand for the average reader and the seasoned practitioner alike. What a congressional drafter understands to be the import of a given provision could later be discussed and interpreted in committee or on the floor of the House or the Senate. If the bill is enacted, federal agencies may then consider its meaning, either behind the scenes when evaluating their own compliance with the law or through guidance, rules, or agency orders governing third parties. If a litigant challenges an agency's interpretation of the law, a court may need to resolve the law's meaning. Although the court's ultimate goal is to effectuate Congress's intent, judges may draw on different philosophies or tools to arrive at their conclusions about what the law means. A basic awareness of the rules and presumptions that apply when construing different components of a bill can help Members and congressional staff identify potential issues with the help of legislative counsel when formulating legislation or avoid interpretive pitfalls when reviewing bills proposed by other offices."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2020-08-18
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Freedom of Association in the Wake of Coronavirus [April 16, 2020]
From the Document: "At least 42 U.S. states have issued emergency orders directing residents to 'stay at home,' with many states prohibiting gatherings of various sizes to control the spread of Coronavirus Disease 2019 (COVID-19). California's March 19th stay-at-home order effectively banned public gatherings outside of 'critical' sectors and 'essential' services. New York's March 23rd order 'canceled or postponed' 'non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events),' with a maximum penalty of $1,000 for violations added in a later order. Maryland's March 30th order prohibited '[s]ocial, community, spiritual, religious, recreational, leisure, and sporting gatherings and events . . . of more than 10 people,' with willful violators facing up to a year imprisonment and/or a maximum fine of $5,000. Texas's March 31st order directed residents to 'minimize social gatherings' except 'where necessary to provide or obtain' designated 'essential services.' In late March, some lawmakers called on the President to issue a temporary, nationwide shelter-in-place order."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2020-04-16
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Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court [October 6, 2020]
From the Summary: "On September 26, 2020, President Donald J. Trump announced the nomination of Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to the Supreme Court of the United States to fill the vacancy left by the death of Justice Ruth Bader Ginsburg on September 18, 2020. [...] This report provides an overview of Judge Barrett's jurisprudence and scholarship and discusses how the Supreme Court might be affected by her confirmation. It first explores the nominee's views on three cross-cutting issues--the role of the judiciary, constitutional construction, and statutory interpretation. The report then addresses the nominee's jurisprudence in six areas of law where the Supreme Court has been closely divided or where the nominee has issued significant opinions, particularly in cases where she disagreed with other jurists. These areas of the law were identified primarily by reviewing Judge Barrett's written judicial opinions and academic scholarship. The report concludes with a number of tables that catalog and briefly describe each of the roughly 90 majority, concurring, and dissenting opinions authored by Judge Barrett during her 35-month tenure on the federal bench."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Garcia, Michael John; Lewis, Caitlain Devereaux . . .
2020-10-06
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COVID-19 Vaccination Requirements: Potential Constraints on Employer Mandates Under Federal Law [February 10, 2021]
From the Document: "The COVID-19 [coronavirus disease 2019] pandemic has forced unprecedented workplace changes and raised a host of legal issues. Employers may struggle with how to protect workers from infection, avoid disruptions that may result from sick leave and employee quarantines, and manage potential liability if an employee contracts the virus at work. Some have noted employers' plans to encourage or require COVID-19 vaccinations for workers as they become available. Policies will undoubtedly vary. Observers expect that health care, travel, and retail businesses will more likely mandate or encourage vaccines, while those with less customer interaction and more work-at-home capacity may defer to employee choice on whether to seek vaccination. [...] This Sidebar provides a general background, in light of recent EEOC [Equal Employment Opportunity Commission] guidance and courts' prior adjudication of employer vaccine mandates, on federal antidiscrimination statutes (including the Americans with Disabilities Act [ADA] and Title VII of the Civil Rights Act of 1964) relevant to employers or lawmakers crafting vaccination requirements. In addition, the Sidebar briefly considers other laws that could constrain employer vaccine mandates, including the Religious Freedom Restoration Act (RFRA). RFRA may limit some government employers' adoption of vaccine mandates and affect future legislation governing vaccine mandates, even legislation that would compel private employers to adopt vaccine mandates or require certain categories of employees to be vaccinated. Finally, the Sidebar concludes by identifying potential legislative options for Congress to clarify how these statutes apply in pandemic circumstances."
Library of Congress. Congressional Research Service
Anderson, April J.; Killion, Victoria L.
2021-02-10
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Terrorism, Violent Extremism, and the Internet: Free Speech Considerations [May 6, 2019]
From the Document: "Recent acts of terrorism and hate crimes have prompted a renewed focus on the possible links between internet content and offline violence. While some have focused on the role that social media companies play in moderating user-generated content, others have called for Congress to pass laws regulating online content promoting terrorism or violence. Proposals related to government action of this nature raise significant free speech questions, including (1) the reach of the First Amendment's protections when it comes to foreign nationals posting online content from abroad; (2) the scope of so-called 'unprotected' categories of speech developed long before the advent of the internet; and (3) the judicial standards that limit how the government can craft or enforce laws to preserve national security and prevent violence."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2019-05-06
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