I was happy to talk to Joshua Holland for this piece on the background of why workers can’t really do all that much when the government shuts down. It’s absurd that we have a system where the government can shut down to begin with but then public sector workers have so few rights in this nation as well.
In much of the highly developed world, locking out hundreds of thousands of public servants and compelling hundreds of thousands more to work without pay would lead to strikes, because working people, including public-sector employees, enjoy far stronger protections for strikes. In several countries, the right to strike is grounded in core civil liberties—the freedom of speech and assembly. That’s not the case in the United States, where the courts have not interpreted the First Amendment to guarantee a right to strike. Extended lockouts would be impossible if they did.
Cynthia Estlund, an expert in labor law at New York University’s School of Law, says that in countries with a presumptive right to strike, public officials would have to justify any law against public workers’ striking. They would have to “draw lines between essential and non-essential personnel based on whether they actually provide critical services—things like fire safety.” If federal workers weren’t truly necessary to keep people safe, they couldn’t arbitrarily be deemed “essential workers.” Estlund noted that in Canada, “which has much of the same legal architecture that we do but recognizes a constitutional freedom of association and right to strike,” there might even be a process “to decide how many workers you need in some essential category. They would try to respect the right to strike and would look at what exceptions are justifiable rather than it being a matter of executive discretion.”
If Americans enjoyed that right, federal workers who don’t have life-or-death jobs would enjoy the ability to go on strike. But, more relevant to shutdowns, Trump would not be able to compel federal workers whose jobs make the shutdown less painful for the public to keep working jobs that aren’t truly essential. And that is precisely what happened during this latest record-shattering shutdown.
Before Trump caved last Friday, I spoke to a furloughed federal worker named Scott, who asked that The Nation not use his full name because of the “vindictive” nature of the Trump White House. This situation did not sit well with him. “One of the biggest frustrations is that we have the ability to bring so many federal employees into work during a shutdown that American citizens don’t even feel the effects,” he told me. “‘Essential employees’ are supposed to be those who are necessary to maintain the safety of this country, but it’s gotten to the point where anybody who would interact with the public, or make sure the public doesn’t feel the full effects of this is called ‘essential.’”
Scott pointed to the Food and Drug Administration’s decision to recall food inspectors during the third week of the shutdown, following news reports that food safety was being put at risk. Those food inspectors were among “tens of thousands of federal workers” the Trump regime brought back to work that week “to fulfill key government tasks, including disbursing tax refunds [and] overseeing flight safety,” according to The Washington Post. Bloomberg reported that the administration had designated the people who process permits to drill for oil offshore as “essential” workers while “programs that are out of favor with the White House—such as the Energy Star consumer ratings system—aren’t getting the same treatment.” During the last lengthy shutdown in 2013, conservatives had accused Obama of arbitrarily closing national parks in order to pressure Republicans to negotiate; this time, they remained open to the public, but with only “skeleton staffs,” and were totally trashed by the time Trump reopened the government.
Later, Scott notes that it’s not far to ask government workers to take radical actions because of the very real chance of being fired by such a labor-unfriendly government. That’s absolutely right, which is why it has to happen through the union structure if at all. It’s absolutely unfair. It also worked in this case.
Note as well that absurdity of the Court not saying the First Amendment guarantees a right to strike and compare the massive restrictions of all First Amendment rights for anything unions do to how it is applied to corporations and the wealthy. Why, it’s almost as if the justices are hacks and not neutral umpires calling balls and strikes!