Right to Work: Don’t Wait for the Legislature

Given the type of folks in charge of New Mexico’s two legislative chambers, there was no doubt that this year’s session would not produce sweeping economic-development initiatives based on liberating labor and capital to grow jobs and wealth in the Land of Enchantment.

But while right-to-work was dead on arrival in Santa Fe, that’s no reason for New Mexico’s local governments to fear ending compulsory unionism within their jurisdictions.

Under legislation passed over Harry Truman’s veto, states have the ability to enact laws to bar “organized labor” from compelling workers to cough up dues or “agency fees” to keep their jobs. But with progress blocked in Frankfort, in 2014, Kentucky counties began passing their own RTW ordinances. Legal squabbling inevitably ensued, with Big Labor targeting Hardin County over its 8-1 vote to go RTW. As the state’s AFL-CIO chief put the left’s conventional wisdom, RTW could only be enacted “at the state level.”

In early 2016, U.S. District Judge David J. Hale ruled against the county. But in November, his decision was overturned by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. Written by Judge David W. McKeague, the opinion found that “political subdivisions are components of the State, within the State, that exercise governmental power of the State” — ergo, local RTW ordinances are allowed.

The issue is likely to be settled by the U.S. Supreme Court one day, since it is being contested in Illinois as well. (Lincolnshire, a suburb of Chicago, went RTW in 2015, and it falls under the Seventh Circuit.) But McKeague presented some compelling arguments for “local RTW,” including two noteworthy precedents that would be tough for justices to overlook:

* “The principle is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them . . . in its absolute discretion. The exclusion of political subdivisions cannot be inferred from the express authorization to the ‘States’ because political subdivisions are components of the very entity the statute empowers.”

– Wisconsin Public Intervenor v. Mortier (1991)

* “Absent a clear statement to the contrary, Congress’ reference to the ‘regulatory authority of a State’ should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts.”

– City of Columbus v. Ours Garage and Wrecker Service (2002)

Local-government officials throughout New Mexico should seriously consider adopting their own RTW measures. As research by the Rio Grande Foundation and many other organizations shows, banning compulsory unionism is a strong economic-development tool. And with the highest unemployment rate in the nation, the need for labor freedom in our state is more urgent than ever.