The Takings Clause Protects Us, Not Union Dues

The Takings Clause is an essential protection located in the Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.” The Takings Clause protects services too, sometimes limiting the power of government to force someone to render services without just compensation. The Takings Clause does not entitle an owner of private property to recover lost profits or lost opportunities when government takes his property away, but it merely requires “just compensation” for property deprived from him.

In recent years multiple states have passed “right to work” laws to protect workers against being forced to pay union dues, and unions are attempting to invoke the Takings Clause to overturn these laws. Legal challenges have been mounted against right-to-work laws in Indiana, Wisconsin, West Virginia, and Kentucky. Right-to-work laws prohibit unions from requiring the payment of dues by workers as a condition of holding their jobs. Unions complain that right-to-work laws prevent unions from getting paid in full for their services while they negotiate collective bargaining deals for workers.

Several years ago, liberal Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit dissented from a ruling that upheld Indiana’s right-to-work law. She embraced the notion of unions invoking the Takings Clause to challenge such laws. She expressed her view in Sweeney v. Pence that right-to-work laws force unions to render services to workers without being fully compensated by dues from those workers, and thus these laws violate the Takings Clause.

But the majority in that case pointed out that right-to-work laws do not take property from anyone, including unions, but merely limit union power to require payment of fees to them for their services. Moreover, federal law provides more than adequate compensation for unions by granting them special status as exclusive bargaining representatives on behalf of workers.

This logical decision to uphold the Indiana right-to-work law has not prevented unions from pursuing their “Takings Clause” argument and challenging right-to-work in other states. This is a misuse of the Fifth Amendment, which protects us, the American People, and not Union bosses and their payrolls.

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