While I have never supported public service unions, I have an issue with retroactive suits. If I am following the law as written/interpreted at the time of my actions, why should I be held accountable when it is changed or corrected? I understand the argument that the SCOTUS rulings are the true law but if I followed the law as enforced why am I now liable for it?
Example: I drive my care to and from work and follow all of the Federal, State and local laws (licensing, insurance, traffic control devices, etc.) but suddenly SCOTUS says that under the Clean Air Act that I drove too much. Now I am liable for the overuse of the vehicle that happened in the past.
Or for something more germane to this blog. What happens after commercial operations begin in space if SCOTUS finds that they violate US law? Are all of the companies liable for their actions in the past?
How can a citizen or company be law abiding when you are held accountable for past lawful actions just because SCOTUS rules that the government did not interpret the law correctly?
George, should we call you Mr. Strawman? The law is nowhere near so broad in its application. Did you read the whole thing?
I could, as you did, attack you personally instead of using reasoned arguments but I will instead try to elaborate on my point.
I understand that the Unions can be sued for constitutional violations because it used government power to collect fees.
My ability to drive on a highway used government power such as eminent domain and the ability to collect taxes. I know it is a stretch but what is a stretch today could be tomorrow’s reality.
As far as my commercial space operations, they used the government power of regulation in approvals and control of airspace and whatever control is applied beyond the atmosphere. Again a stretch but…
The point is that holding someone or something liable for past LEAGAL behavior only because it was it was NOW determined to be illegal can be a huge detriment to the rule of law. Why should I follow the law today when I will just be branded an outlaw latter (yes this logic has flaws but so does Antifa but yet it exists.)
Did you not read the article? More than half of the content in the article specifically addresses this question.
I have to agree with George. It’s no more the job of labor unions to anticipate and comply with future decisions of the US Supreme Court than it is the job of a business to anticipate and comply with future EPA rulings.
See JohnnyB’s post below.
Consider yourself fortunate then that I edited my response, or you would understand what ad hominem really means – your moaning about this really pissed me off. If you don’t like being called on it, then don’t build straw men. It’s a real stretch especially given the SC precedent already exists and has for years.
Mr. Tyson:
Scenario A is that coal-fired plants have to cease operations going forward, and if they continue, they will be sued for violating the civil rights of those downwind of a coal plant. That coal plants can no longer operate will put their operators and the coal miners out of business, and the investors in coal plants, including worthy parties such as widows, orphans and retirees will lose their money.
Scenario B is that operating coal-fired electric plants is not only to cease now, they were violating the civil rights of you downwind of the coal plant, those of your father, your grandfather and those of your father’s father’s father and so on for the past 150 years since Edison’s first power plant. There will be a free-for-all of lawsuits and class actions and settlements.
Coal-fired power plants and all of the people doing work associated with them and all of their investors are in a bad way in either Scenario, but is it Scenario B that you are concerned about?
Paul,
That is exactly the scenario that concerns me. If an organization is operating legally they should not be held liable for past operations with a new interpretation of the law/Constitution.
However they should be held liable if they continue with their operations after it is held that it is illegal.
I would think the Scenario would be the coal-fired electric plant unconstitutionally used a type of imminent domain statute which took your father’s and grandfather’s land for strip mining. Now SCOTUS agrees with you that the taking was unconstitutional and particularly disturbing in that it used the State as a party to the taking. So, you would like to sue to get your land back.
I’ll skip the hypothetical and go to a real scenario that disturbs me, but won’t get this treatment. It’s become obvious that some State and Municipal police forces have abused drug confiscation laws to build up their departments. They’ll take possessions on initial conviction and then retain them even when the conviction is overturned on appeal. As the article notes, because these departments are actually part of the State, they are usually protected from such lawsuits by qualified immunity. However, I think the exonerated people should get their property back, and if they don’t receive it, then the proper course is to try and obtain via suing the department.
I have the same concern, George. I think the principle of Legal When You Did It (not its real legal name) will probably be found to apply — but in the meantime the unions will find out what it’s like to be on the receiving end of The Process Is The Punishment.
That is a good point and the link addresses it but it looks like we wont know until these lawsuits play out in court, maybe even up to SCOTUS.
I’m sure tobacco companies, which sell a legal product but were subjected to tens of billions of dollars in fines for selling that legal product, would find your legal theory helpful. And thus they probably tried that theory along with everything else they could think of to avoid paying tens of billions of dollars. How’d that work out for them?
Eric, to support my point I refer you to Retroactivity and Prospectivity of Judgments in American Law, by Richard Kay, 2014.
An excerpt:
“The strong presumption is that statements of law in judgments that announce new rules or overturn old ones apply to conduct predating that judgment. This seeming inconsistency derives from the “declaratory” theory of adjudication-legislatures make new law but courts only find and declare pre-existing law.” (page 38)
In this case, the article clearly states that the unions were put on notice in 2012 that their position on the issue was shaky at best:
The Court’s opinion in Janus specifically noted that “public-sector unions have been on notice for years regarding this Court’s misgivings about Abood” and opined that, since 2012, “any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.”
Also, in this case the issue is that of constitutionality. The court isn’t declaring that past laws were inconsistent with the constitution. A strict constitutional interpretation would mean that the constitution reigns supreme over the laws. Expanded, that would mean that a person following a law that was unconstitutional (or defending their actions with an unconstitutional law) would have been violating the constitution the entire time they followed the unconstitutional law.
In this case, since the unions were put on notice, it’s not wholly unreasonable to expect that they could be retroactively fined or required to refund the collected dues.
I would just like some Transparency involved — Let the Unions open their books and justify the money that has been forced out of people’s pockets. See how much has disappeared or been spent on corruption.
Good. They should never have existed.
While I have never supported public service unions, I have an issue with retroactive suits. If I am following the law as written/interpreted at the time of my actions, why should I be held accountable when it is changed or corrected? I understand the argument that the SCOTUS rulings are the true law but if I followed the law as enforced why am I now liable for it?
Example: I drive my care to and from work and follow all of the Federal, State and local laws (licensing, insurance, traffic control devices, etc.) but suddenly SCOTUS says that under the Clean Air Act that I drove too much. Now I am liable for the overuse of the vehicle that happened in the past.
Or for something more germane to this blog. What happens after commercial operations begin in space if SCOTUS finds that they violate US law? Are all of the companies liable for their actions in the past?
How can a citizen or company be law abiding when you are held accountable for past lawful actions just because SCOTUS rules that the government did not interpret the law correctly?
George, should we call you Mr. Strawman? The law is nowhere near so broad in its application. Did you read the whole thing?
I could, as you did, attack you personally instead of using reasoned arguments but I will instead try to elaborate on my point.
I understand that the Unions can be sued for constitutional violations because it used government power to collect fees.
My ability to drive on a highway used government power such as eminent domain and the ability to collect taxes. I know it is a stretch but what is a stretch today could be tomorrow’s reality.
As far as my commercial space operations, they used the government power of regulation in approvals and control of airspace and whatever control is applied beyond the atmosphere. Again a stretch but…
The point is that holding someone or something liable for past LEAGAL behavior only because it was it was NOW determined to be illegal can be a huge detriment to the rule of law. Why should I follow the law today when I will just be branded an outlaw latter (yes this logic has flaws but so does Antifa but yet it exists.)
Did you not read the article? More than half of the content in the article specifically addresses this question.
I have to agree with George. It’s no more the job of labor unions to anticipate and comply with future decisions of the US Supreme Court than it is the job of a business to anticipate and comply with future EPA rulings.
See JohnnyB’s post below.
Consider yourself fortunate then that I edited my response, or you would understand what ad hominem really means – your moaning about this really pissed me off. If you don’t like being called on it, then don’t build straw men. It’s a real stretch especially given the SC precedent already exists and has for years.
Mr. Tyson:
Scenario A is that coal-fired plants have to cease operations going forward, and if they continue, they will be sued for violating the civil rights of those downwind of a coal plant. That coal plants can no longer operate will put their operators and the coal miners out of business, and the investors in coal plants, including worthy parties such as widows, orphans and retirees will lose their money.
Scenario B is that operating coal-fired electric plants is not only to cease now, they were violating the civil rights of you downwind of the coal plant, those of your father, your grandfather and those of your father’s father’s father and so on for the past 150 years since Edison’s first power plant. There will be a free-for-all of lawsuits and class actions and settlements.
Coal-fired power plants and all of the people doing work associated with them and all of their investors are in a bad way in either Scenario, but is it Scenario B that you are concerned about?
Paul,
That is exactly the scenario that concerns me. If an organization is operating legally they should not be held liable for past operations with a new interpretation of the law/Constitution.
However they should be held liable if they continue with their operations after it is held that it is illegal.
I would think the Scenario would be the coal-fired electric plant unconstitutionally used a type of imminent domain statute which took your father’s and grandfather’s land for strip mining. Now SCOTUS agrees with you that the taking was unconstitutional and particularly disturbing in that it used the State as a party to the taking. So, you would like to sue to get your land back.
I’ll skip the hypothetical and go to a real scenario that disturbs me, but won’t get this treatment. It’s become obvious that some State and Municipal police forces have abused drug confiscation laws to build up their departments. They’ll take possessions on initial conviction and then retain them even when the conviction is overturned on appeal. As the article notes, because these departments are actually part of the State, they are usually protected from such lawsuits by qualified immunity. However, I think the exonerated people should get their property back, and if they don’t receive it, then the proper course is to try and obtain via suing the department.
I have the same concern, George. I think the principle of Legal When You Did It (not its real legal name) will probably be found to apply — but in the meantime the unions will find out what it’s like to be on the receiving end of The Process Is The Punishment.
That is a good point and the link addresses it but it looks like we wont know until these lawsuits play out in court, maybe even up to SCOTUS.
I’m sure tobacco companies, which sell a legal product but were subjected to tens of billions of dollars in fines for selling that legal product, would find your legal theory helpful. And thus they probably tried that theory along with everything else they could think of to avoid paying tens of billions of dollars. How’d that work out for them?
Eric, to support my point I refer you to Retroactivity and Prospectivity of Judgments in American Law, by Richard Kay, 2014.
An excerpt:
“The strong presumption is that statements of law in judgments that announce new rules or overturn old ones apply to conduct predating that judgment. This seeming inconsistency derives from the “declaratory” theory of adjudication-legislatures make new law but courts only find and declare pre-existing law.” (page 38)
In this case, the article clearly states that the unions were put on notice in 2012 that their position on the issue was shaky at best:
Also, in this case the issue is that of constitutionality. The court isn’t declaring that past laws were inconsistent with the constitution. A strict constitutional interpretation would mean that the constitution reigns supreme over the laws. Expanded, that would mean that a person following a law that was unconstitutional (or defending their actions with an unconstitutional law) would have been violating the constitution the entire time they followed the unconstitutional law.
In this case, since the unions were put on notice, it’s not wholly unreasonable to expect that they could be retroactively fined or required to refund the collected dues.
I would just like some Transparency involved — Let the Unions open their books and justify the money that has been forced out of people’s pockets. See how much has disappeared or been spent on corruption.