[Eugene Volokh] The Limits of Textualism and the Union Agency Fee Case

Friday, I argued that there's mo First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there's generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there's no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments. Now looking close at the distinctions that the Constitutional text draws is indeed important — but we need to make sure we understand what the text actually means. And here, the enumerated taxation…

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