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Category Archives: Civil Rights
At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students. After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.
As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females. The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender. At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender. When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required. When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation. In taking the case, the U.S. Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.
While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority. Current case law is mostly bounded in the reality of current politics. Some conservatives want courts to disrupt the way things currently operate.
Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity. Congress then delegates responsibility for filling in the details to some department or agency. To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives). Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs. The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.
We knew the policy was coming. We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented. Now, we have a fustercluck of a “temporary” Arab ban policy. There are potential legal issues involved which I will discuss below. As a major cautionary note, I don’t do immigration law. Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.
Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders. While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better. Instead, we have a policy statement masquerading as a policy.
The big court story of 2016 was the February death of Justice Antonin Scalia. In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama. However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general. The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess). By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.
At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court. A win this past November would have led to a solid Democratic majority for the next two or three decades. However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues. As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners. (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.) At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet. The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters. Democratic voters may soon suffer for this failure of leadership.
Yes, Spartacus was a real man. but many of us remember instead the Kirk Douglas character from the 1960 movie, and the line “I am Spartacus” which has come to mean that many people claim to be someone who “they” are going to harm. In case you don’t know, the movie’s screenplay was written by Dalton Trumbo, who had been blacklisted by the McCarthy HUAC. President-elect John Kennedy crossed the American Legion picket lines to see the movie. It was that action that finally ended the blacklist.
A new president-elect, and the role of Antoninus is this time played by Jonathan Greenblatt, CEO of the Anti-Defamation League, a US-based international Jewish NGO. Greenblatt announced earlier this week that when and if Trump launches the Muslim registry, he will sign.
If you don’t think that the Trump administration will come for Muslims, Mexicans, hell, anyone whose skin tone is not alabaster, plus LGBQT people, disabled people, etc., is simply naive. And simultaneously they’ll come for SNAP, Medicare, Medicaid and Social Security, but I digress.
As it all sinks in….at the polls yesterday, I heard from Democrats who were voting for Trump for a variety of reasons. I have looked at the preliminary exit poll data and the turnout numbers and think I have an idea of how this happened. The final cross tabs might change things but bottom line — people who NEVER vote came out in droves. And what they voted against was the same thing that gave Britain Brexit — their hatred of modernity. So what do we do? While we organize (and re-read James Madison’s Federalist Paper #10) we wait somewhat quietly to see if in his first hundred days he DOES:
- deport massive numbers of undocumented human beings,
- ban Muslims,
- repeal the Affordable Care Act,
- add a Supreme who will vote to keep Citizen’s United, repeal gay marriage, ban all abortions even to save the life of the mother
- cut taxes for only the weathly
- leave NAFTA
- et, al.
Because if he does, THEN we know the plan.
In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree. By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular. Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies. The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices. (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years. Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)
The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics. To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much. However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election. This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split). Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines. That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review. While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.
For several weeks, Donald Trump has been spouting a lot about how, if he loses, it will because the election was “rigged.” As discussed further below, in the sense of fraud and phony votes, it is almost impossible to rig an election. However, as in the Republican primary, to the extent that the election is rigged in the sense of the rules favoring a certain candidate, the rules are almost certainly rigged in favor of Donald Trump.
The first and biggest way that the rules are rigged in favor of Donald Trump is the electoral college. As folks may remember from high school history or government class, a vote for a candidate for president is actually a vote for a slate of electors supporting the candidate. Those electors then vote in December for the candidate on whose slate they ran. A candidate needs to win 270 of the 538 electors to win. Each state has a number of electors equivalent to the state’s representation in Congress — it’s House seats plus its Senate seats. Because every state has two Senate seats, the electoral college is weighted in favor of small states. (If you have two House seats, you have twice as many electoral votes as House seats. If you have fifty House seats, you only have four percent more electoral votes than House seats.) Of the twenty-one smallest states (those with four or fewer House seats), Republicans have won twelve of the twenty-one states in the past four elections. Of the nine states that have gone Democratic in one or more of the last four elections, four are considered swing states.
In recent years, the Supreme Court has had its version of an “election rule.” The essence of this rule is that the Supreme Court does not like last second changes to the election process. Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules. Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.
On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans. This decision is surprising both because of the outcome, but also because of who wrote the opinion.
The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program. If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program). This part of the admissions process fills about 75% of the slots. If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors). Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.