And probably for good, but Wisconsin’s Right to Work law has been back in force since Tuesday evening thanks to a temporary stay. A Dane County judge blocked the implementation of the new law on the basis that it amounted to an “illegal taking” from unions — even though the law actually blocks involuntary seizure of dues and fees from workers who do not wish to participate in the union. The state court of appeals ruled that the legislature probably has the better argument, and stayed the order blocking its enforcement:

The Wisconsin Court of Appeals on Tuesday granted a stay of a Dane County Circuit judge’s decision to strike down the state’s right-to-work law, reinstating the law while an appeal is pending.

The order by the state District 3 Court of Appeals, based in Wausau, overrules a decision made earlier by Dane County Circuit Judge William Foust to not issue a stay of his own ruling throwing out the law on the grounds that the law unconstitutionally takes property from unions without compensation.

In issuing the stay, presiding Judge Lisa Stark said “we conclude the State has established there is sufficient likelihood of success on appeal to warrant the grant of the stay” and that the lower court erred in concluding unions would suffer harm if a stay were issued.

The right-to-work law prohibits unions and employers from entering into agreements that require all employees to pay fees to join a union, either in the form of membership dues or “fair share” payments for those who opt out of joining a union but are still represented by it.

The basis for the lawsuit seems especially ironic. The Constitution forbids “illegal takings,” usually meaning some sort of confiscatory regulation or statute that seizes goods or material value from a person or entity that they already have. The Fifth Amendment makes specific prohibition on “private property be[ing] taken for public use without just compensation” by government, for “public use.”

In this context, the new law doesn’t actually take property from unions, but simply allows workers the choice of whether to transfer it to unions or not. As it stood before the passage of the law, it was the unions who were allowed involuntary “takings” of private property, thanks to pro-union government action that enforced closed-shop laws, and the workers who got “taken,” so to speak. The unions are not entitled to that property without government regulation in the first place, and that policy is open to legislative choice, just as it was when closed-shop laws were first implemented.

Only a Dane County judge would find that worker income, even from non-members, belongs to the union before it belongs to the workers, and therefore conclude that right-to-work legislation is an “illegal taking.” That’s a position that has no credible basis, and its rejection is inevitable for lots of reasons. As the Journal-Sentinel’s Bill Glauber notes, one reason is the current composition of the Wisconsin Supreme Court:

Supporters of so-called right to work laws argue no one should be forced to pay union fees if they don’t want to belong to a labor group. Unions contend such contracts should be allowed because federal law requires them to represent all employees in a work unit — meaning that they all benefit from the protections and higher wages unions provide.

The case will likely end up at the state Supreme Court, which conservatives control by a 5-2 margin.

That’s not the only reason. The US Supreme Court has repeatedly upheld right-to-work laws as constitutionally valid, in both Lincoln Federal and American Sash (both from 1949), as noted by Patrick Wright nine years ago at the Mackinac Center for Public Policy. The “illegal takings” argument might be novel enough for the US Supreme Court to revisit it, but it’s such a stretch — and right-to-work so broadly entrenched and settled law — that it seems extremely doubtful. Don’t bet against Big Labor spending a ton of time and money in the attempt, though.