David Frum

06.21.12

An Obamacare Hint

Today the Supreme Court ruled in Knox v. SEIU that public sector unions could not charge non-union public employees for political activities. While the decision is being examined mainly for the free speech implications, a colleague notes that the ruling might hint that the justices are also skeptical of the legal arguments being made by advocates of Obamacare:

Today's holding in Knox v SEIU has unrecognized implications for the coming decision on the Affordable Care Act.

Ed Whelan at Bench Memos notes:

“[W]e do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” The free-rider arguments that those cases have relied on (i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities) “are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” “Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions.” It’s difficult to see the justification for an opt-out rule. Indeed, the Court seems to have accepted the opt-out approach “more as a historical accident than through the careful application of First Amendment principles.” (Slip op. at 10-13.)

The mandate in Obamacare is all about the free rider problem. Further, opting out of the market for insurance sure sounds like this. We will know soon but the language in this union dues case does not bode well for Obamacare.