‘Not Accountable: Rethinking the Constitutionality of Public Employee Unions’
By Philip Howard
Rodin Books, 160 pages

Americans are attempting to come to terms with the killing of Tyre Nichols at the hands of Memphis police, five of whom have been charged with murder. The explanations offered for the brutality that led to the 29-year-old’s death sound a familiar note: a police culture of violence, bad apple cops, and systemic racism, notwithstanding that the officers charged are Black. 

To this list, the author-attorney Philip Howard offers a fresh perspective. His new book, “Not Accountable: Rethinking the Constitutionality of Public Employee Unions,” argues that policing that leads to wrongful death is indicative of a bigger problem: Public sector unions have made it impossible to punish poor performers  or even manage public employees effectively.

Mr. Howard, whose previous books include “The Death of Common Sense” and “The Rule of Nobody,” asserts in “Not Accountable” that public unions are not just unfortunate but unconstitutional as well. As he puts it, the “disempowerment of democratically elected officials, and the conflict of interest by public employees mobilizing against the public good, undermine the core principles of the Constitution.”

“Accountability,” Mr. Howard asserts — whether in public schools, public health, policing, or government work generally — is “basically nonexistent in American government. Performance doesn’t matter. Many public managers tell me they’ve never seen a public employee dismissed for poor performance.” Policing is but one symptom of a larger malady.  

At the heart of this unaccountable culture, Mr. Howard finds organizations that not only protect the incompetent but demoralize the capable, corrupt the electoral system, and hamstring those managers who would better serve the public.  

Mr. Howard observes that “police unions, teachers unions, and other public sector unions have built a fortress against supervisory decisions” in the interest of outsized compensation, especially in the form of health and pension benefits largely funded by less-advantaged taxpayers.

For proof, Mr. Howard offers the death of George Floyd at the hands of Minneapolis police officers. The officer convicted in Floyd’s death, Derek Chauvin, “had a history of citizen complaints” and was known to be “tightly wound.” The city’s collective bargaining agreement with the police union, however, meant that it “lacked the authority to dismiss or even to reassign him.” 

This is not a critique being aired, but it is a trenchant one; even if rogue cops or incompetent inspectors are identified, there’s little that can be done. When it comes to public sector unions, prescription is more difficult than description. For example, New York City public schools utilize “rubber rooms,” where incompetent teachers are assigned to idle. 

“Not Accountable” is a cri de coeur, written in accessible prose with underlying heat. The author does not, however, ignore incremental improvements even as he concludes that public sector unions are incompatible with good government and must be abolished. 

Much of the supporting evidence for that position will be familiar to those who follow the travails of the public sector. Unions are essentially political organizations whose campaign contributions allow them to elect the managers with whom they will negotiate contracts. This leads to outsized benefits that help bankrupt cities and states and crowd out other vital services.   

Public union cases are no stranger to the Supreme Court. In 2018, the court held in Janus vs. AFSME that employees could not be compelled to pay union dues. Mr. Howard suggests a broader challenge. He argues that acts such as New York State’s Taylor Law — which authorized public union collective bargaining — are on their face unconstitutional. 

“In our constitutional republic,” Mr. Howard argues, “legislatures are not authorized to pass laws that gut executive power. Nor do governors and mayors have authority to abdicate or delegate their executive power, even when they want to for political gain.”

Mr. Howard makes a compelling case, but one wishes that as an attorney he would suggest a specific path forward to the abolition of public unions. One can imagine that Mr. Howard prefers not to tip his strategy in what he clearly sees as a crucial crusade that is just getting under way.