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By Jack Crowe

From National Review

Washington, DC

A pliant state supreme court just rewarded Governor Tom Wolf’s massive executive overreach. Ordinary Pennsylvanians will pay the price

Pennsylvania governor Tom Wolf won a victory for his political patrons last week, when the state supreme court struck down a lower-court ruling that had effectively blocked Wolf’s attempt to unionize the state’s home-care workers by executive fiat. Like much of what goes on in state houses and state supreme courts, the development has received scant media attention, but it has significant implications.

First, some background: In 2015, Wolf issued an executive order appointing the United Homecare Workers of Pennsylvania, a partnership of the American Federation of State, County, and Municipal Employees (AFSCME) and the Service Employees International Union (SEIU), as the exclusive representative of the state’s more than 20,000 home-care workers. These workers, many of them friends or family members of those they care for, often live in the homes of their patients, providing comprehensive, round-the-clock care. Most of them are paid, either entirely or largely, with Medicaid reimbursements. Unless they choose to opt out of the newly formed union through a long, cumbersome bureaucratic process, 2 percent of their reimbursements will go straight into union pockets. Under the executive order, representatives from SEIU and AFSCME — powerful national unions that have together donated more than $4 million to Wolf’s campaigns since 2013 — were empowered to meet privately with administration officials and negotiate a “memorandum of understanding” regulating the previously private relationship between the state’s infirm and elderly and those who care for them. The rules in that document would — and, given last week’s ruling, now will — apply to all home-care workers regardless of whether they voted for unionization or decided to join the union themselves.

David Osborne of the Fairness Center, a free-market-advocacy group, filed suit challenging the executive order in 2016 on behalf of Dave Smith, whose muscular dystrophy has rendered him a quadriplegic, and his caretaker and friend of more than 27 years, Don Lambrecht. In 2016, the Pennsylvania Commonwealth Court ruled in their favor, recognizing Wolf’s usurpation of legislative authority and declaring the order unconstitutional, preventing its implementation. But last week, the Pennsylvania supreme court reversed that decision, on the grounds that the order was so impotent as to essentially be meaningless.

“Critically, the entire process set forth in the Order is voluntary, non-binding, nonexclusive, and unenforceable,” according to the majority opinion written by Justice Debra Todd, who personally received $33,500 from AFSCME and SEIU for her 2017 retention-election campaign. Todd’s argument hinges primarily on the notion that home-care workers won’t be required to join the union and can opt out of it if they so choose. She is, in essence, asserting that Wolf’s executive order simply extends protection to home-care workers, which they can then decide whether to accept.

This is farcical. According to the executive order, should a worker decide he no longer wants a union representative making his case to the Wolf administration, he must wait at least one year before officially opting out, and must navigate a protracted, bureaucratic process to do so after that. What’s more, the rules negotiated by Wolf administration officials and the union will apply to home-care workers whether they opt out of the union or not: A union official confirmed during a previous court proceeding that any worker found to have violated the rules, even at the request of his patient, could lose his right to keep working.

It’s not a stretch to suspect that the judgment of the justices in the majority in this case may have been influenced by the great deal of money they’ve received directly from the SEIU and AFSCME. In 2015 alone, the two groups donated a combined $888,451 in dues and PAC money to Pennsylvanians for Judicial Reform, a super PAC which supported all three Democratic candidates for the state supreme court that cycle. Furthermore, Todd, who wrote the majority opinion, received the aforementioned $33,500 from AFSCME and SEIU during her 2017 retention campaign. While such sums may appear insignificant to observers jaded by the massive donations endemic to electoral politics at the national level, they matter a great deal in state judicial races, which typically see just a few million votes cast.

Regardless, the state supreme court has spoken, and Osborne’s clients, Smith and Lambrecht, will now be bound by whatever terms the union representative and the Wolf administration draw up behind closed doors — a potentially disastrous intrusion considering the fragility of Smith’s day-to-day existence and his reliance on Lambrecht. Suppose, for instance, that the “memorandum of understanding” includes language limiting the number of hours Lambrecht is permitted to work. Smith would be forced to find a supplemental worker willing to provide the level of care he is accustomed to, and that search could be treacherous. “He would have to find the right kind of substitute, a substitute who was as willing as Don to care for him and who didn’t take advantage of him, and that is quite a risk for someone in Dave’s position,” Osborne tells National Review.

Even if the effective unionization of the state’s home-care workers did not represent a dramatic intrusion into the intensely personal relationship between patient and caregiver, it would have strikingly little support among the very people it was designed to help. Wolf’s executive order effectively dodged the federal requirement that fully 30 percent of workers in a certain field vote for unionization: Since workers have the theoretical ability to opt out of representation by the union, it’s not technically a union according to the Wolf administration and its judicial allies. In fact, only 2,970 Pennsylvania home-care workers voted in favor of unionization, just enough to clear the 10 percent threshold set forth in Wolf’s order. Most home-care workers who received the ballot had no idea what it was, and the few who recognized its importance were involved in the pro-union effort to begin with, according to Lambrecht.

The Wolf administration and the Pennsylvania supreme court just handed an incredible amount of power over private patient-caregiver relationships to two powerful national unions that will likely use the resulting dues money, much of which comes directly from the federal government, to help reelect them. Sound bites about working conditions and low pay aside, there is no justifying this move, and in the absence of real scrutiny, the Wolf administration hasn’t yet had to justify it. Don Lambrecht and Dave Smith deserve to be told why exactly these people they’ve never met, and whose help they didn’t ask for, will now wield such extraordinary power over their private lives.