July 19, 2019

Most business owners understand that the government can force them to deal with a union if enough employees vote to unionize. But probably most business owners don’t think there’s any risk of the government forcing them to accept a union to represent themselves. That sounds nonsensical: Unions represent employees, not owners or managers. 

Yet that’s exactly what has happened to the owners of daycare businesses in 18 states where the government has authorized a union to serve as the “exclusive representative” of daycare providers whose clients include families that receive state subsidies for their children’s care. These states even forced daycare owners to pay fees to a union until the U.S. Supreme Court declared the collection of union fees from unwilling subsidy recipients unconstitutional in 2014. 

Katherine Miller, a daycare owner in Washington State, doesn’t want a union to speak for her. Yet the Service Employees International Union is doing so because the state has recognized it as her exclusive representative. So she filed a lawsuit challenging Washington’s law that gives the union that power, arguing that it violates her First Amendment right to choose what groups she will and won’t associate with.  

Read more about Katherine’s case and how the Goldwater Institute is supporting her effort in a new article by Goldwater Institute Senior Attorney Jacob Huebert.

The Supreme Court Got It Wrong on Administrative Agencies. Legislatures Can Get it Right.

In deciding the recent case of Kisor v. Wilkie, the U.S. Supreme Court missed a major opportunity to restore separation of powers and ensure that government agencies do not get an unfair advantage in legal cases in which they are parties.

America’s legal system grants administrative agencies extraordinary power. Under existing law, administrative agencies make rules that have the force of law, investigate alleged violations of those rules, and adjudicate those alleged violations with administrative law judges the agency itself hires.

Adding to this concentration of power in the executive branch, under a doctrine called Auer deference, if cases are brought before supposedly impartial federal courts, courts are obligated to defer to the agency’s interpretation of its own regulations.  

In the Kisor case, the Court had an opportunity to dispatch with this doctrine. Find out how they ruled — and what can be done to fix it — in a new article from Goldwater Institute Director of National Litigation Jonathan Riches.

Federal Judge: Drug Price Advertising Rule Is Illegal

A federal judge in Washington, D.C., last week declared that the Trump administration broke the law when it tried to force drug manufacturers to declare the “wholesale acquisition cost” of their medicines in their advertisements to consumers. The administration claimed this requirement would ensure greater transparency in the market for medicines and would encourage drugmakers to lower prices. 

But, as the Goldwater Institute pointed out in a comment opposing the regulation, the rule was both unconstitutional and counterproductive. There actually is no such thing as a “wholesale acquisition cost” for a medicine. The prices patients actually pay result from so many different factors—including discounts and rebates—that forcing drugmakers to specify any single price number in their ads would have actually forced them to make untrue statements, which would mislead customers. And the Constitution forbids the government from compelling businesses to say untrue things about their products.

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