about its medicaid program that pays for their services to persons with disabilities and this is what's case for daughter libby this violates the first amendment because the purpose of this mandatory association is inherently expressive to petition the that benefits the subjects of targeting here are the reimbursement rates given to the providers and the state now offers or pays money to the s c r you for health benefit but that is petitioning the government with regard to those saying that when it's a public set in the public it gets converted into something else yes when in the public sector when a group is petitioning the government for money that is petitioning the government over a public program here from  medicaid program it would be very little different than if the american medical association was asking for higher medicaid rates for doctors or for nurses is your argument to pendent on this be sort of a dural employee situation distinguishable on that point is that here the state is not the common law employer or the sole employer of these providers it simply pays them for their services much like a health insurer pays for the services of medical professionals but your argument of course is limited to that it goes beyond that situation yes and that that the actual bargain even on behalf of true employees is also petitioning and political in nature and for that reason a boot should be over likelihood that the union that represents these would i call them health care workers health providers care providers and is there any likelihood that they would  try to bargain for benefits for these these workers would the union attempt yes well were there any likelihood do we know anything about what the likelihood would be for certain subjects to be brought up in the bargaining with the state well one thing that has happened this is in the collective bargaining agreement is the state has agreed to give certain amounts of money to an s c r you health care fund to offer access to health benefits for those providers of the state is funding the yes you use health benefit program to that extent that they have that before the union no but you have a policeman who was dissatisfied with his wages so he makes an appointment with the commissioner police commissioner and he goes in and grosses about his wages he does this you know ten or eleven times and the commissioner finally is fed up and he tells the secretary i don't i don't want to see this man  as he finally the constitution you know is prevented petition for redress of grievances no because in that with an individual speaking it's a matter of private or an internal proprietary matter that under this court's precedents don't rise to a matter of public concern however if you had an organization petitioning a police district for wages across the board for police officers then that is a matter of public concern and would violate i really don't understand that when when when you show what if it's ten policemen who do this it's still not a matter of concern which have to be the whole place first if the line would be once you have the collective it would be stark become a matter of public concern it be the public place or seems to be it's always a matter of public concern where they're going to raise the salaries of policeman whether it's an individual policeman asking for that or or a combination of policeman or a union it's always  matter of public concern and if it is then i submit that it's unconstitutional to not give this guy in a point that the twelfth time no it's police just chief can certainly shut his door but it would be unconstitutional to force  as do or if he has a right to petition the constitutional right to petition for the redress of grievances his grievance is he's not been paid enough but in that case under our public concern test which goes within the  line that that individual grievance would not rise to a first amendment optician but to see grievances if the union had presented the grievances the salaries for policemen are not high enough but the city not asking for just his salary to be raised he wanted salaries it won't be on the cops to be raised well two points the first is the scale is what differentiates it so here you have a union petitioning a state or medicaid rates that are paid for twenty thousand some care providers like supporting a union that makes a certain kind of argument about leeches who are about benefits so just to carry on with justice scalia's example the subject matter is the exact same in the two contexts whether it's an individual different it's an individual employee yes the and it's an individual employee being forced to support that expressive activity so the question becomes what expressive activity are they being forced to support and when you're speaking of changing entire government programs for example medicaid rates across the board that is a matter of public concern that is a matter of lobbying or political but that's exactly what the individual employee in justice scalia is hypothetical is arguing for he wants wage rates to be changed across the board he knows they're not going to be changed just for him he wants higher wage rates but again under this court's private and public concern test an individual simply speaking about that usually does not rise to a matter of public concern well mr messenger i'm confused by this whole line of argumentation i didn't think there was any issue in this case about the right of the plaintiffs or any of the other affected workers to say whatever they want on their own and that they're not prohibited from doing that so there isn't any issue about that in that case i thought the issue and they could try to go to meet with anybody they want as many times as they want i suppose that that person has a perfect right to say enough is enough i don't want to meet with you for the fifth time or for the first time i thought the issue was whether they could be required to pay for somebody else to go and speak and possibly say things that they agree with yes exactly that they're being forced to support an organization here the yes you are you to speak or petition the state over its medicaid rates so the distinction is just your say so let's break this down you're not arguing that there's something wrong with a union union is there anything wrong with the state saying we're not going to negotiate with any employee who is not a member of the union yes under i'm sorry there is your honor there is not a problem with that because not all is there a problem for the state to say  the union super organize has a certain amount of costs so putting aside fair representation as could the state say this is what we're going to pay police officers one hundred dollars but we're going to pay union members one ten to reimburse them for the cost of the go she ation would that be ok yes under night the state can choose who it bargains with and if it chooses to set different ra rates is there under any limitations we're talking about medicaid reimbursement are there any limitations that would prevent differential rates and he remembers when under medicaid for the same services there may be statute i know that most medicaid programs are across the board  set rates but also constitutionally if there was a differential after agree it could be considered a penalty for the individual exercising their rights but as far as i know most medicaid programs in particular the one here it's always been a fixed rate established across the board there's messenger just to clarify what was the purpose of my earlier line of questioning it was simply to show that if you have a case it doesn't rest on the right to petition the government for redress of grievances if it rests on the first amendment you say that there is being your your your people are being required to support speech that they don't agree with sure that is you know that is an arguable position but i don't think it's even arguable that the right to petition the government for redress of grievances is involved it's the expression the being forced to support or honor so the violation as you say they're being forced to support expressive activity that expressive activity is first moment for the legion not a violation not a denial of the right to petition the government yes they're not being denied the right to petition in the sense that the state is saying they cannot petition instead they're being forced to support petitioning mr messenger i'm not sure that justice scalia is answer satisfies his own question question because here's the thing that in the workplace we've given the government a very wide degree of latitude and there is much that the government can do it can fire people people for things that they say in the workplace not for things that they say is a citizen but for things that they say in the workplace that's the fundamental lesson of car setit and of many many others of our cases so you're saying well the government and pun somebody for saying something but the government in the exact same position cannot compel somebody to say something they disagree with and i want to know what's the basis for that distinction which it seems to me is just as hard as  least it was a comprehensible argument jump in whenever you'd li the way in which home care providers petition the state i submit is not an internal proprietary matter that the government has free reign to manage and so the distinction between government acting as proprietor as you say the government can tell an employee on work time that you can't engage in certain speech if it interferes with the workplace but the way in which an individual so she's with the lobby or petition the state is not an internal private area matter so for example here the way in which susan watts and other home care providers petition the state is not internal workplace speech why isn't it i mean it is for private employers there are some private employers who think they're better off with a closed shop and they just want to deal one and they require all the people that they hire to become a member of this you and to pay union dues for representation purposes they do this as private employers because they think it is in their interest as an employer why can't the government have the same interest because when the government is involved the first amendment interests are much heightened because you're dealing with attempting to influence government all right but but don't don't tell me that there is no policy from sending a letter asking a meeting expressing their disapproval in any forum they want in any way they want to whatever policy the union is advocating is there anything that stops them from doing them no there isn't your honor however i submit that if so where is the first amendment to bridge that they can do whatever they want they can speak however they want in support positions and petitioning the state that is the first another violation and in fact i suppose i suppose the fact that you're entitled to speak against abortion would not justify the government in requiring you to give money to planned parenthood exactly or or could you make yes and actually i submit that the fact that providers do remain free to petition the state only shows that the so called labor peace interest hasn't been  here by illinois because the interest of there is to avoid competing demands from various providers here the fact that each provider doesn't fact remain free to petition the state to organizations other than yes you show that the state has gotten cheap any sort of labor peace as the state could potentially achieve within its workplace mr mess and well i mean i suppose there could be labor peace if the respondents were and that that assumes that your theory of the case is going to is is going to prevail you know even if he doesn't but isn't there labor peace let's assume that's a valid interest isn't there labor peace if one union represents these health care providers and makes negotiates a contract with the government no i submit that the labor peace interest isn't valid here because in dealing with the medicaid program the state doesn't have an interest in avoiding competing demands from rival groups regarding its policies on it that is democratic why doesn't it gets the demand from the union it recognizes that's reasonable that's the policy and then it can move forward with a policy where the state could unilaterally do that without bargaining with you mr messenger do you think the issue of exclusive representation is inextricably tied to the issue of the assessment of an agency fee can't you have the former without the latter yes you can they lease two ways the first of which is that knox of course lays out a two part test the second part test of the end of the first to satisfy that the mandatory association here exclusive representations justified by compelling interest you still go to the second of whether or not fees are necessary incident to that representation and i submit that illinois does not satisfy that test they were not you're not challenging it's confusing when you are not the very idea of exclusive representation are you saying that in the public sector it cannot be exclusive and exclusive by getting agent it's not directly challenged in this case but it becomes relevant under the first knox test an agency fee fair share the whatever it is that there is an exclusive bargaining agent and workers your clients say we don't want to be represented so that particular issue is not even on the whole serif is what i mean what strikes me is that this is i'm just going to use the word here it is a radical argument it would radically restructure the way workplaces across this country are run and let me just put it to you this way and ask if you will agree with this with this statement since one thousand forty eight since the taft hartly act there have been a debate in every state across this country about whether to be a right to work state and people have disagree and some states say yes some states say no it raises considerable heat and passion and tension as we recently saw in wisconsin and but you know these are public policy choices that states make and is it fair to say that what you're suggesting here your argument is essentially to say that for sixty five years people have been debate in the wrong question when they fact a right to work law is constitutionally compelled in the public sector yes that it is in fact well the first public sector labor law was actually one nine hundred fifty nine it was caught so it's relatively recent when you're involving with government yes our position is is that in the public sector when government is involved compulsory fees are illegal under the first amendment suppose the court were to say that on the issue of salaries there is no first that raise other concerns about governmental policies that union members might disagree with yes your honor of speaking of true employees or not speaking of medicaid providers but speaking of true employees this was discussed in aboo with respect to public school teachers and all the different aspects that the union petitions over that has to do with class sizes hours work benefits are a huge issue of course in terms of financially from a school district health benefits so there are many issues that the way the school district actually operates how about here for your employees they didn't go she ate health insurance do they they don't negotiate terminations because that's up to the individual share of how much you're getting from the state for your services and health insurance what else is negotiated that you're being asked to pay for what they with far as what they're being forced to support is the reimbursement rate the state is giving money to an s k u health care fund which many providers may or may not use the state is giving money to an s c r you member training fund to provide voluntary training to providers and also to conduct an orientation that new providers will be forced to support all those things you could argue are not part of the rep for which they should be charged and they should get their money back for those things if they're actually not not getting any benefit well i would submit that they shouldn't be forced to pay for any of this petitioning regarding how the state chooses to run this medicaid i mean what our case is saying is you can be compelled not to be a free rider to to pay for those items of bargaining that benefit you as well as everybody else but you don't you don't have to pay for stuff that is not within that description stuff that doesn't benefit you would rule that's true for true  a government grant to get to the health care where they receive a paycheck and the government withholds from the government makes the bike a contribution for employee of the state but the wage of fact finding whether it's wages or a flat reimbursement rate or a grant i don't i submit is not constitutionally relevant so for example the act was recently extended independent nurses and therapists providing home care they're paid a flat rate as opposed to an hourly what are called wage constitutionally there is no difference the bottom line is it's money from government from here on medicaid program to provide care to other individuals and i submit that doesn't create an employment relationship and any more than a doctor's privately employed by a health insurer insurance company merely because they pay for it they're not getting a pa that money is coming from the state the state is doing it as pay agent or the person with disabilities who is truly the employer i thought the state took the position that these individuals are state employees for one purpose only collective bargaining isn't that their position yes that's right in the statute your honor that story for purposes collective bargaining so if one of these individuals commits gross miska misconduct causes the death of the patient the state has no liability it's right in a statute the state said it's not does not extend vicarious liability to independent providers when you come back i'd appreciate your thinking about this but obviously you're asking this overturning case it's been the law for thirty five years i count hundreds of citations in the opinion and i guess there are millions of instances in which employees and employers and others have relied on in collective bargaining so i'd appreciate your saying a sentence or two of why we should have said x upset reasonable smith thank your arm it was the chief justice and may it please the court ten years ago the state of illinois made a decision about the best way to deliver home care services to thousands of persons with physical disabilities to state who without those services would need to live in institutional settings it made the judgment that working with the union to negotiate and implement a collective bargaining agreement for these workers that it was paying would help meet its service delivery goals for this population this group of workers which was w if your adversary says that the reimbursement rate is set by the medicaid program so why do you need a union to tell you how much to pay if it's already said there is no reimbursed that rate for these workers set by the medicaid program your honor the the amount of money they're fate is an hourly wage set in the collective bargaining agreement when the union was first recognized it was seven dollars an hour and there were no benefits because the state has chosen to work with this union it is produced a package of benefits designed to create a solution to the morale problems the recruitment problems i don't understand what you're saying if there were no were no union there would be no way to use your own or the state's judgment is that it can better make these determinations in partnership with the union in the process of negotiation gives it both tangible and intangible benefits the tangible benefits is it figures out what the priority needs of the so from from the outset it's set up the union right and the union said we want seven books  f the seven bucks an hour was what they were getting paid before the union was on the scene your honor and the senate and who picked that number he stated the state did and it showed it gave the workers the opportunity as it has every right to do to to have a majority of the people in the work force say we'd like to be represented we'd like to have somebody in the room representing us as a result they not only have a substance substantially increased the wages but they have paid health care they have paid training orientation there's a grievance system which is extremely i think automatic had something to do with how much they were reimbursed are you saying medicaid is beside the point you are in this kind of thing we're talking about the wages of basic care workers like if they were the nursing home or in a state hospital or wherever they might be the fact that you need a higher home care provider to provide home care services isn't that how much the person is compensated you have a medicaid program cooperative a government doesn't set the rates with which services are remembers the wages for these kinds of workers are set by the state of the medicaid program they're not set by the federal government sure well right that mean it's a cooperative state federal program but isn't there are you saying the wages have nothing to do with how much the the medicaid reimbursement for these types of services rather the this is these are people being employed by the state with money that has to come from the medicaid program in order to use a federal project to get people out of nursing homes into their homes and so they let the state divert money over to pay for these people to be in the home mr snow if you don't get money and say well here it is you figure out how much you want to  thought this case had something to do with the fact that medicaid was used to reimburse these employees and you're saying it has nothing to do with it all right or as i understand the coast to szell challenge in this case the source of the money the state's decision about the i don't want to know but not the challenges i want to know where the money comes from it comes from medicaid and i assume medicaid set some parameters about how much you can reimburse home care providers i'm not aware of any i understand you could negotiate whatever rates you want with the home care providers regardless of what medica says about those services to you the state of illinois i mean you have state of illinois your honor as far as i know i do i'm not aware of any limitation i expect that there may be some at some point but in terms of the the it's just me if i think that there's a i must say that i might have labored under it from your adversaries statement it appears as if there's a belief that the federal government sets a fixed amount and that's what the state has to pay whether the federal government pays you a certain amount however you seem to be saying the state can go above that about if it chooses that's the poor operative nature of this you're under the exact nature of the fun transfer from the federal government to the state may well be based on an individual's annual cost for the particular diagnosis i mean the realm of speculation here but it's very clear from this record that these decisions about how these individuals will be paid are made by the state and that they have the discretion under the program to do that and that they decided that they would have deal with the problems of recruitment and retention and morale in this workforce which is of course scattered to two tens of thousands of work sites mr smith what i don't understand is why the  union's participation in this is essential the state can say this is how much these people are being paid it's not enough we want to we want to increase it we want to increase it by ten percent twenty percent thirty percent whatever it is they need some they should have extra benefits well give them these benefits and these benefits and these benefits why do they need to have the union intervene here the state of illinois like many employers decided that a they would get that right more likely if they were dealing with a representative of the workers who told them what they care about whether it's paid vacation versus higher wages versus less hours during the week or more hours or in the week or whatever it might be it also said that because this these these decisions could be made in the process of negotiation which the workers know they have a place at the table somebody who was there looking out for their interests the workers will have a different sense of commitment and well that's fine for the workers who want the union to represent that in making these demands on me give you this example which i think gets to what the plaintiffs in this case find disturbing and let's let's say this is this involves teachers union so the teachers union is negotiating about the issue of pay and the union is opposed to any change in the tenure system it's supposed to merit pay now there's a teacher who's not a member of the union who disagrees completely with the union on these issues but this teacher and teacher is not a member of the union but still has to pay a pretty hefty agency fee maybe seven hundred dollars a year so the teacher is paying this money to the union to make an argument to the employer with which the teacher completely disagrees and if this teacher just wants to get back to a neutral position teacher is going to have to spend seven hundred dollars or maybe five hundred dollars of his or her own money  that to another we're going to zation that will present that teachers point of view to to the employer how can that be what would you say to that to that teacher that you know you have a right to be you have a right to say whatever you want on these issues but you don't have a right to be a teacher  your honor i would say that the court of correctly held over a period of boredom thirty years that that requirement is an appropriate thing which the public employer is allowed to impose because of the duty of fair representation and because of the benefits of allowing collective bargaining to proceed with the duty of fair representation imposed on the union there's justice scalia but it is leonard opinion this isn't this is not a normal sort of free rider argument this is a free argument or argument where the law requires the union to look after that teacher i'm sick sure that i get treated saying are you saying that this that the unions reluctantly except the duty of being the exclusive representative for all the employees they don't really want to do this but the law requires them to do this but because the law requires them to do this then they have to get this agency thing is that really is that realistically what happens well that is the that is the system we have your honor imagine what the world would look like if there weren't a to seriously the unions do not want to have the response of pay don't want to be in the status of the exclusive bargaining agent from the employees i'm a variation on that i mentioned there might be some union out there would love to be able to favor their members over others but the law doesn't require that if for a very good reason including a first amendment reason imagine a world in which that teacher is would be paid ten percent less as we were discussing before because that teacher has chosen not to be a full member of the union and imagine the pressure on association rights that would be created for that teacher faced with that choice you could be paid ten percent less doing the same were or you could be paid the same as everybody else but you have to fully join a union and pay for their political speech pay for everything on the on the non chargeable side of the line and you know what this court has done over the last thirty years use that distinction between chargeable and non chargeable items to balance the first amendment interests of the of the disoblige in talking about first amendment interests let me ask you this is it is certainly possible that in some situations you are right and would you think that this is a legitimate subject of collective bargaining for which the non union member has to pay is certainly not a subject of collective let's assume that it's true but assuming the school district decided let's let's assume that it's true that whatever be the unions position necessarily effects the size of government it is not the size of government a question on which there are fundamental political beliefs fundamental convictions that are being sacrificed if a nonunion member objects to this line of policy are there not other union  proposals that say that the state employees salary must be a certain percentage of the student total state expenditure is this not also involve the size of government which is a fundamental issue of political belief any outcome of a negotiation of a collective bargaining agreement devolved fabric employees will involve the expenditure of public money in a variety of ways and the outcome of that will in that limited says at least be a matter of public concern every bit as much in it but no more than when a government contractor i'm not talking about a question of public concern i'm talking about whether or not a union can take money from an employee who objects in an era where government is getting bigger and bigger and this is becoming more and more of an important issue to more people but i think it's important to understand that while there is a pinch me on the first amendment interests of any employer employee required to pay the fair share fee this isn't any government employee context in which the government has the ability when it serves its important interest as an employer to demand that its employees what you say is a fair share but that's the issue in the case if you're looking at the legitimacy of a vote for your own or look look at what you say its fair share of the objectors to the good say that it isn't look at what the union is what the what the money is being spent on in this case it's being spent on negotiating the contract which  don't go missing and help some address that problem training globus that they need for their personal safety in the workplace and health care benefits now there are maybe people who think it's each politically controversial to have to contribute to a union that does those things and nothing else but i submit to you that balance that against the interests of the speight as inflator in saying we want to have this partnership with this union this will help us do a better job reimbursement rates is an important public policy issue not simply a labor issue now let's say you have a teachers union ok they think it's a very important public issue they have a platform they engage  activities to get higher medicaid reimbursement rates is that something that a nonunion member would have to pay for or would they that were that expense be segregated out of what they must be i'm sorry your article i just hear the question one more time teacher teacher union ok yes or they have a political position on medicaid rates they spend money to advance their position if you're a teacher but you're not a member of the union you have to pay for that expanded it would seem to me your honor at something that's not within the charge have to pay for their political activity to raise medicaid rates to the extent that you're talking about it negotiation over how much you're going to be paid for providing services i think it's perfectly appropriate under the court's cases i know you want i'm sorry if i could just finish the thought so the same speech with respect to one union is a speech on a matter of public concern but with respect to another union it's not with it's on the chargeable side of the line when it has to do with the terms and conditions of employment of the of the members of the union or the nonmembers of ok so it's medicaid now is that part of the chargeable expenses or not this union wants to talk about medicaid reimbursement rates can a nonunion member be compelled to share that expense if what you mean by medicaid reimbursement rates mr chief justice is the hourly rate it's going to be paid to me to manage paid reimbursement rates that's what i mean by medicaid reimbursement rates well if that's what you're being a seems to me very clear that they should be allowed to charge with the nonmember because that person is wanting to disability in this case if this union negotiates over medicaid reimbursement rates it is chargeable yes your honor to the even though what i understood your answer to be is that medicaid reimbursement rates have nothing to do with this case the only thing that can be negotiated about in this case your honor is the terms and conditions of the playmate of these workers that is within the control of the state that's what the illinois statute says about  medicaid reimbursement rates in this limit it says that their hourly wage is going to these individuals yes the question you're being asked i think is a broader question collective bargaining with any employer meat packers and their government unions does it have a bigger mix of public policy issues and therefore should this court get into the business i'm putting it a little loaded way because i don't want to suggest the answer should this court get make that distinction and get into the business of saying when the union is true much of been laid wages hours and working conditions are too likely to affect public issues and the other ones less likely because you see the distinction the question that was added suggests you know i would like you to think about that a philosophical question or a very broad first amendment question and i'd like to hear what your answer is and the government my answer your honor would be that the fact that it is a public employee union representing public employees means that in one sense everything that is being negotiated could be viewed as a greater matter of public service on the other hand that is not a reason as a buddha hild to up the ante in terms of constitutional scrutiny to the contrary this is the government as employer dealing with its employees about the basic terms and conditions of their employment let me ask you a question about pensions that's a very big public policy issue i do you say to the young employee who is not very much concerned at this point about pensions but realizes there's a certain pot of money and it's either going to go for pensions or it's going to go for salary at the present time so that employee who's not a member of the union has to pay for the union to bargain with the state to achieve something that's contrary to that person's interests but you say that person is a free rider issue and that that person if it's not not paying their share of that that then you have two things that happened the other members of the other people in the workforce have to pay more to support the process or the union doesn't have the resources needed to be a adequate partner with the state in producing the outcome that the state has chosen to try to seek which is an outcome where the mutually beneficial lower arrangements are made that satisfy the priorities of everybody here the workers and the state in view of the clients that they serve suppose the young person thinks that the state is squandering his heritage on unnecessary and excessive payments for benefits and wages is that not a political belief of the highest order and you know that we talk about free mandatory subject to bargain and charging him for what's missing i think in this conversation your honor is that all of these burdens on people's association rights or free speech rights or whatever you want to call them arises only because somebody has chosen to come take this job working for the state on the that are served by the sacrifice what you've said over and over again in dirty a in gar said he in and whole line of cases is the government gets to have leeway as an employer when their real interest is stake and that in that situation general mr chief justice and may please the court a line drawn in a boot is sound has the force of starry decisis behind it is completely consistent with this court's first amendment jurisprudence and it requires affirm it's if i could if i could i'd like to turn to the questions that justice kennedy has raised because i do think it gets to the key issue in the case i think the key point the key takeaway in this case is that the context we are dealing with here is the government as proprietor and manager of its own operations and this court's case law has said over and over again and i think in that context two things follow first the government's interest in the effective and efficient carrying out of its own operations is entitled to very substantial weight more substantial weight than would get if you were looking at the government as sovereign regulating citizen free and second yes cus justice kennedy indeed as your honour's opinion in in car said in your honest opinion in  a recognized both times the employees first amendment interests are diminished to the extent that the government has more latitude when the government can show that the obligation it is imposing is in furtherance of the government's legitimate interests as manager of its own operations not general really did does medicaid have anything to do with this case yes let me do my best to try to clear that up mr chief justice i'm going to give you the best answer i can to your question remember medicaid of course is a joint federal state program the federal government provides funds the state provides funds here we're operating within a waiver program in which the state is given considerable latitude to set wages and set rates so long as it is saving money as compared to the institutionalization of this population my understanding is that h h s will review wage rates set to make sure that they meet very general parameters they were of the kind that were described in the douglas case that was right with a cord a couple of years ago  medicaid program right but it's not that this that but the federal government isn't approving the specific hourly wage rate as medicaid reimbursement within this program that's a judgment that the make a program leaves to the considerable discretion of the state if the if the union wants to talk about medicaid rates with the state because they would get a higher wage or could get a higher wage if medicaid reimbursement was higher is that within the they're obligated they're functioning as a union rather than a political group not as i understand it i think applying the line at leonard that that would be on the impermissible side of a line that would be effectively seeking to change public policy by changing what the legislature or the union wants to say look the only way our people are going to get higher wages is if there's a higher medicaid reimbursement rate for this service that is not within the scope of collective bargaining i think i mind standing is that that would be the question there was which side of the line of the courtroom leonard is that on i think that's probably on the on the impermissible side of the line but that's where the fight would be over where that line should be drawn not over whether the whether the state as manager of its own operations can use collective bargaining with a fair share as justice scalia mentioned earlier in a way that private routinely do i mean i do think that's the fundamental point of abood that i have it that the government has employer as manager of its own operations ought to be able to make the same kind of choice that private employers make when they think it advances we're not here making an argument that as a matter of policy states ought to adopt fair share or not the thing that matters to us is the principle of first a member of the federal government doesn't think that it needs to assess a mandatory agency fee from let's is that the court continue to recognize that the context the first amendment context of government as manager of its own operations and whatever choice united states has made many states have meet different choices in their role as manager of their own operations and under the court's established case law which abood i think is quite good example of the principle that when the government is acting to further its operations manager they get substantial latitude now there's a limit on that of course they can't use that authority so that they can't leverage that authority to affect the way citizens interact as it is in the office when one can be skeptical about whether when states do this they're doing it because it's more more efficient as an employer because some states have have tried to force private employers to have a closed shop haven't they why i think stan if there's no you know no state government interest in it there's just state interest in unions but here we are getting a lot of money from people who don't belong to the unions so would can be skeptical about whether this is really what's going on that the state really thinks it's going to be a lot easier if it has a close shop i guess what i would say about that justice scalia is that one could speculate about its motives of states like illinois one could speculate about the motives of the right to work states but i would suggest that under our federal system that states get to make those kinds of policy choices and illinois has made a policy choice as many private employers have that using collective bargaining and it is i want to stress here very narrowly tailored collective bargaining by law it can only be over wages hours and conditions of employment law the specific factual background of what occurred here provides a a basis for skepticism about illinois reason for adopting this i don't think so when one of the legislation was an act it was an actor with a very large bipartisan margin and i i just don't think it would be appropriate in the context of government as manager of its own operations to look behind and try to consider motive if this is a choice  thought the situation was that governor blagojevich got in a huge campaign contribution from the union and virtually as soon as he got into office he took out his pen and signed an executive order that had the effect of a putting what was it three point six million dollars into the union coffers whatever and it's the side that's the sequences that well i think the issue before the court is the constitutionality of the statute that was inactive subsequent to that by a large bipartisan majority and i don't think it would be appropriate to look behind the legislature's action to consider and try to evaluate its motives and i think under our federal system states get to make choices it's true not every state does it this way but many do they do so for reasons of fis management of their internal operations and that's the principle that we think is of critical importance that they may do so because of that reason you don't know what their reason is anymore the ability to and or you can say that that might be their response and they ought to have the discretion to make that choice under this court's case law that's our position with respect to that if i could make a point that i think is an important point about the free rider ration now under abood there's been some suggestion that the point of the free rider r to is to force the dissenters the nonunion members to pay up i don't think that's the right way to understand it for the free rider point that once the state has imposed the duty of fair representation then everybody's got an incentive to free ride whether  you're a union supporter or not because by operation of law you're going to get the benefit it's just a classic logic of collection action collective action problem and so the fair share requirement really is neutral and that is it's designed to ensure that the union has the funds it needs to carry out the responsibilities of the state wants it to carry out and that that could be jeopardized by supporters as well as dissidents deciding that they'd that they don't want to pay because they don't have to because the law would get them the benefit of the duty of fair representation even if they didn't now with respect to the question of whether it should be overruled i would suggest to the court that it's got a very powerful story the slices effect behind it  the constitutionality of a buddha and as i and i said i think the most important point here is that the line the court drew in a boot and a line that has stood for forty years is entirely consistent with the court's first amendment jur in the context of government as employer not as regulator of sovereigns of course of the government was acting as sovereign regulating the citizenry an obligation this kind would trigger the most exacting scrutiny is it true that is from not from the beginning there have been members this court who have questioned whether there is any principled basis for distinguishing between the chargeable and the non chargeable expenses and also have question whether as a practical matter that can be done justice marshall made that argument did not yes messenger you have four minutes remaining but i suspect you're going to answer my question so i'm going to focus and i'm sorry to do this but i think you are i suspect you cannot answer or my question about reliance with out accepting one of the following three propositions first unlike every other employee government employees have no right to organize for second they have a right to organize but they cannot bargain about wages working conditions and hours unlike any other that's the same as the first or third the courts of the united states are going to fashion using the first amendment as their weapon a new special labor  government employees and i'd remind you we have some experience on that in the one nine hundred thirty s where courts tried to do something and that's how now answer my question about reliance i believe they're the reliance interests here are in significant  it is overruled because there was all simply be that employees cannot be forced to support union representation the sly under those circumstances are pay enough to support the union efforts because the union first would control their terms of their economic conditions of employment have control over their relations their employer which creates a strong incentive for an employee to want to be on good terms with that union and also usually the union gains employer systems with becoming an say i don't have to pay the uni is going to do this stuff anyway i'm going to ride for free these other people are writing for free people could have different motives but i submit that the union has already is there any way to decide who's doing it just to save money and who's doing it on principle not that i'm aware of so so you're essentially destroying not just not just the close shop but you're destroying the ability of the union to to get money even from the people who don't agree with what it's doing will two points first exclusive representation i submit is not an impediment to gaining membership it helps the union gain voluntary support for it it's much easier for a union to ask people to support it if it has power over their terms of employment so the free rider problem with an exclusive representative is actually less than it would be if the union was a voluntary organization not as it doesn't make it worse and there's a reason that union seek exclusive representation in the federal government in the postal service and the nation's twenty four right to work states mr president we're glad you doubt that these a you said that they would no reliance interests and that's curious to me there must be thousands and thousands of contracts across the united states with fair share provisions do you doubt that these were core central provisions in the making of these contracts that if these kinds of provisions were prohibited that the agreements would look under mentally different in many ways the main difference is just the compulsory unionism clause in the agreement would be gone but otherwise the agreements would be the same you think that the union would would would would not ask for anything would not have different in would not ask for different mechanisms in order to support its own activity unions go into these contracts with the understanding that this is what's going to enable them to at once satisfy their universal obligation to employees to fairly represent them and  employer or the union wants and that the employer doesn't care if it gives away because ultimately it's money out of somebody else's pocket so you think that if we just strike these provisions in other words that that the contracts would have been negotiated in exactly the same way nothing else would have changed if i may finish please just as i believe that they probably would be very much the same extent to be different they'd be more in the favor of employees because the employer wouldn't have that leverage over the union with respect to its demand for compulsory fees thank you counsel cases submitted