The Wisconsin Right-to-Work Ruling Probably Won’t Hold Up

Right-to-work laws are terrible, so I’d like to tell you that yesterday’s decision holding Scott Walker’s version unconsitutional was sound and likely to stand up on appeal. Judge Foust is correct as a policy matter that the free-rider problem created by such laws is undesirable, and quoting Justice Scalia to make this point is a nice touch. Nonetheless, the question is not whether the law is bad policy but whether it’s constitutional, and here things are pretty problematic. Foust rules that Walker’s anti-union bill represents an unconstitutional “taking,” and that the state cannot require unions to represent non-dues payers without compensation. The law was held unconstitutional under the state, not federal, takings clause, but he still cites the federal Penn Central case as controlling what determines a regulatory taking and uses its balancing test. This is…just not a good argument:

• The statute is quite clearly not a taking under Penn Central. The standards for a regulatory taking — a taking that does not involve the state taking actual possession of private property — are very high. Regulations do not become takings merely because they impose economic burdens or have allegedly suboptimal policy effects. Foust’s argument that the right-to-work statute meets this threshold is exceedingly unpersuasive.
• The threshold for a regulatory taking should be high. To be frank, Foust is using a crank libertarian argument for progressive ends here. You may remember attempts to broadly define regulatory takings from such precedents as Richard Epstein’s argument that the entire 20th century regulatory and welfare state is unconstitutional  and the profit-taking Larry Tribe’s argument that the EPA cannot regulate carbon emissions.  Not only does this standard of regulatory taking have no plausible basis, the policy effects of this would be massively pernicious if applied with any frequency.

I’m sure Foust means well, but in all honesty his regulatory takings argument needs to be put on a barge on Lake Michigan and set on fire, which I assume the appellate courts will do. It’s a bad law, but in this case it’s a bad law that needs to be changed by electing a Democratic legislature and governor, or by amending the state constitution to actually forbid right-to-work laws.