Top legal scholar: Lisa Madigan is wrong on local Right-to-Work

Jacob Huebert

Senior Attorney at Liberty Justice Center, author of Libertarianism Today.

Jacob Huebert
/ Labor
April 28, 2015

Top legal scholar: Lisa Madigan is wrong on local Right-to-Work

Illinois’ attorney general claims local Right-to-Work ordinances violate federal labor laws. But she’s wrong: Federal law doesn’t preempt Illinois state law on this issue.

To help revive Illinois’ economy, Gov. Bruce Rauner has been promoting the idea that local governments should be allowed to create “employee-empowerment zones,” giving private-sector workers the right to choose whether to pay fees to a union – a right that Illinois workers currently don’t enjoy, but which most Illinoisans believe they should have.

On March 20, Illinois Attorney General Lisa Madigan issued an opinion attempting to shoot down Rauner’s proposal, claiming that local Right-to-Work ordinances would violate federal labor laws. In Madigan’s view, federal labor law allows state governments to enact statewide Right-to-Work laws but preempts local governments from passing their own laws allowing workers to opt out of union fees.

In some circles, Madigan’s opinion was treated as the last word on the issue.

“I guess that’s that,” said state Sen. Gary Forby, D-Benton, one of the legislators who requested the opinion from Madigan.

But Lisa Madigan’s opinion on federal law is merely that: one very political person’s opinion.

And now one of the nation’s top legal scholars says she’s all wrong.

At Forbes, Richard Epstein, a professor at both the University of Chicago Law School and New York University School of Law, said Madigan has fundamentally mischaracterized federal law.

Epstein explained that the U.S. Supreme Court generally presumes that federal law does not preempt state law unless one of three conditions exists: there is an explicit conflict between federal and state law; the state law would frustrate a federal program; or the federal government has completely occupied the field in question.

Epstein explained that “[n]one of these is remotely plausible” in the case of local Right-to-Work laws because “the federal government has explicitly recognized the state’s authority on this key point” by explicitly allowing states to enact Right-to-Work laws. So there is no conflict between federal and state law; there is no federal program that would be frustrated by local Right to Work; and the federal government has explicitly declined to occupy the entire field.

Whether a state adopts a statewide law or just allows local governments to adopt their own Right-to-Work laws is irrelevant. “In general,” Epstein wrote, “the federal government has no power to tell states how it is that they should divide up their powers of government.”

It also shouldn’t matter that Illinois has no state law specifically authorizing local governments to enact Right-to-Work laws (although Rauner wants such a law). The Illinois Constitution allows home-rule units to exercise any governmental power the state government has not explicitly reserved to itself. Therefore, because state law does not explicitly forbid home-rule units from adopting Right-to-Work laws, they may do so.

Perhaps Madigan has some rebuttal to Epstein’s points, but, if she does, it’s not in the opinion she issued.

This wouldn’t be the first time Madigan has been wrong on an important legal question. By our count, she has been wrong more than 50 times since 2009 – and that’s just considering cases in which she has formally taken positions in amicus briefs submitted to the U.S. Supreme Court. For example, in McDonald v. Chicago, the Supreme Court rejected Madigan’s view that state and local governments should not have to respect citizens’ Second Amendment rights. In Burwell v. Hobby Lobby Stores, Inc., the court rejected her view that corporations should not be able to assert the religious-liberty rights of their owners. In Bullcoming v. New Mexico, it rejected her view that criminal defendants should not have the right to cross-examine laboratory analysts who prepare forensic evidence against them.

So there is no reason to believe that any opinion by Madigan is necessarily correct. And in the case of local Right-to-Work laws in particular, there is no reason to believe her opinion is objective, either, given that she received $1.6 million in union campaign contributions from 2002 through 2014.

Local governments should not be afraid to pursue local Right-to-Work ordinances simply because Madigan disapproves. The federal courts will have the final say, and, as Epstein’s opinion shows, Madigan’s views should not survive serious scrutiny there.

Read Richard Epstein’s entire opinion on why local governments in Illinois can and should adopt local Right-to-Work laws.

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