by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest Forbes column probes an effort to kill Idaho’s right-to-work law through the courts.
If the judge is on your side, you can win a case despite pathetic arguments. So if the cost of losing is near zero and the possible gain from winning is huge, why not launch a suit and see what happens?
That’s the thinking behind a case challenging Idaho’s Right to Work (RTW) statute on the grounds that the state is taking property that belongs to labor unions when it allows workers to keep their jobs even if they don’t pay the dues demanded by the union.
The theory of the suit is that Idaho’s law (and, logically, all other state RTW laws) is unconstitutional because it violates the Fifth Amendment’s provision that private property cannot be taken for public use unless just compensation is paid. As almost everyone knows, that language was included to require the government to justly compensate property owners when their land had to be taken for a public project such as a road or bridge.
But in this day of “living Constitution” jurisprudence, the words of the Constitution mean whatever a judge thinks they should mean, so perhaps the plaintiff union will find friendly judges who agree that when a state allows workers to keep their jobs without paying dues, it has “taken” their “property.”
Still, could any judge take this argument seriously?
Indeed so. In fact, it was actually suggested by a federal judge who was eager to help unions find a winning strategy against RTW. The judge, Diane Wood, who was on the Seventh Circuit panel that heard the legal challenge to Indiana’s RTW statute in Sweeney v. Pence.