For most of us who are parents, being permanently excluded from our children’s lives would be an unimaginable tragedy. Yet for non-biological parents—including many gay and lesbian parents—this outcome has long been a possibility. Because at least one member of a same-sex couple typically lacks a biological relationship to their children, the legal status of such functional, but non-biological, parents has historically often been uncertain. Even today, in some states, such parents can be deemed “legal strangers” to their children—no matter how long the parental relationship, or how much the parent and child desire to preserve it. In these circumstances, a finding of lack of parental status is the equivalent of a termination of parental rights—but without any required showing of parental deficiency, and indeed even in the face of substantial likely harm to the child.
While the stakes of such parentage rights cases are high—adjudicating rights “far more precious than any property right”—they have, unlike LGBT marriage rights, primarily been addressed outside of the constitutional domain. Even as LGBT advocates and scholars have quietly succeeded in transforming the family law landscape in many states with respect to non-biological parents, questions regarding the constitutional rights of such parents have remained mostly absent from constitutional debates about LGBT rights. Indeed, constitutional arguments have most often been raised in litigation by biological parents seeking to oppose the recognition of non-biological parents’ rights. As such, despite the outpouring of constitutional scholarship on issues of marriage equality, constitutional law as a discipline has had relatively little to say on the issue of non-biological parents’ rights.
In The Constitution of Parenthood, Douglas NeJaime takes up the work of making the case that the relationship of non-biological parents to their children ought to be afforded constitutional protection. As NeJaime notes, these constitutional arguments will not matter for all non-biological parents, some of whom already possess parental status under state family law. Thus, some non-biological parents will find relief in state family law doctrines such as equitable parenthood or, in the wake of marriage equality, the marital presumption. Others may be able to obtain a step- or second-parent adoption, affording full secure parental rights. But for those that fall outside of these family law protections—either because their state lacks them or because practical or financial considerations make them inaccessible—a backstop of constitutional protections remains vitally important.
As NeJaime observes, the idea of protecting parental bonds via substantive due process is hardly novel. Parental rights are among the oldest and most consistently affirmed substantive due process rights recognized by the Supreme Court, forming the foundation for modern substantive due process doctrine. Thus, the key question for non-biological parents is what defines the constitutional boundaries of who will be deemed a parent entitled to such protections. Is biology (or adoption) a necessary prerequisite to constitutional recognition as a parent, or is it functional parenthood that matters?
Through a careful and detailed analysis of varied threads of constitutional law doctrine, NeJaime makes the case that functional parenthood should indeed matter, and that biology or adoption is not the sine qua non of constitutionally protected parental relationships. As NeJaime points out, some of the earliest due process cases adjudicating parental rights in fact dealt with functional parents, such as extended relatives raising children. While the case law concerning the rights of biological fathers has been muddled and arguably inconsistent, it too has included an important functional component, requiring a level of functional parenting for protections to attach. Obergefell v. Hodges and Pavan v. Smith have directly recognized the rights of LGBT parents (albeit through the lens of marriage), despite recognition that such parents may lack biological relationships to their children. Even cases that are often cited against functional parents’ constitutional rights, such as the foster care case of Smith v. OFFER, are far more equivocal than they are remembered today, offering considerable support for the idea that functional characteristics matter in defining family.
NeJaime’s analysis of the relevant considerations is comprehensive, and too detailed to fully encapsulate in a short review. But one important aspect of that analysis bears emphasis, as it arises not from existing constitutional law doctrine, but rather from the longstanding family law strategies that have already succeeded in shifting understandings of parentage toward functional criteria. As NeJaime observes, while such legislative and common law reforms have typically not rested explicitly on constitutional law (though they have sometimes been constitutionally inflected), they have shifted background understandings in ways that are important to the constitutional analysis. In short, widespread shifts in understandings of what a parent is—away from biology alone, and towards functional criteria—ought to inform our understandings of what parents qualify for constitutional protections, and the centrality (or lack thereof) of biology to that determination.
NeJaime also makes clear that he does not view the constitutional argument that he develops in The Constitution of Parenthood as superseding family law approaches to protecting functional non-biological parents’ rights, but rather as complementing and integrating with them. As NeJaime observes, it is unrealistic to think that the Supreme Court will imminently take up the issue of non-biological parents’ rights and issue a sweeping holding affording such parents protections. But the Supreme Court is hardly the only constitutional adjudicator that matters, and constitutional arguments can shape the terms of the debate, even outside of the courts themselves. Thus, NeJaime envisions such arguments playing out across a host of different contexts, including state and lower federal courts, state legislatures, and law reform organizations.
In a discipline with an often almost obsessive focus on the Supreme Court, we ought to take heed of the messier, more complicated model that NeJaime puts forward for constitutional transformation. The reality is that constitutional change often happens in precisely the way that NeJaime suggests: through incremental state and lower federal court decisions, constitutionally inflected legislative change, and gradual concomitant shifts in public perceptions of the content of equality and rights. This process is often iterative, self-referential, and non-linear, and yet may lead to profound shifts in on-the-ground constitutional meaning. As scholars (including NeJaime himself, as well as other scholars, like Reva Siegel, Robert Post, and Lani Guinier) have observed, this is a much more realistic model of how effective constitutional change happens than the Supreme Court-centric model that typically takes center stage. We miss much of what is important, both as scholars and as advocates, if our focus is only on the narrow slice of constitutional lawmaking that takes place at the United States Supreme Court.
Such a multi-faceted and multi-sited account of constitutional change is not only more realistic, it is also arguably in this case more just. Parental rights are critically important, but often implicate the rights of others in ways that do not lend themselves to the “all or nothing” approach to rights that too often pervades disputes over constitutional rights. As NeJaime observes, children may have important interests that come into play in disputes involving functional parents (both for and against functional parent recognition), and there may be countervailing group-based equality concerns (such as, for example, race or class concerns in the context of foster care parents whose claims might adversely implicate the rights of minority and poor parents). Thus, NeJaime expressly contemplates that case by case adjudication, and constitutionally inflected legislative reform, may have a major role to play in protecting functional parents’ rights, permitting the type of weighing or balancing of individual circumstances that rarely is the province of United States Supreme Court decision-making.
In short, NeJaime offers a compelling case for the constitutional rights of non-biological functional parents. But both the genesis and the effectuation of this right that he envisions is far from a top-down, all or nothing constitutional rights affair. Rather, NeJaime takes seriously the insights of democratic constitutionalism (and its close cousins demosprudence and descriptive popular constitutionalism) to offer a much richer, messier account of why and how substantive due process ought to protect non-biological functional parents. His account is worth reading, both for its careful exposition of why we ought to constitutionally protect functional parents and for the roadmap it provides for thinking about functional constitutional change.
Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity
, 130 Yale L. J.
__ (forthcoming, 2020), available at SSRN
“It only takes two facing mirrors to build a labyrinth.” – J.L.Borges
A labyrinth has no easily discernible path. It leads to frustration and wasted time on the part of the uninitiated, who find themselves foiled by twists, turns, and blocked escapes. We easily imagine the bellowing roars of frustration of the mythological beast, the Minotaur, trapped in his unlighted labyrinth on the Isle of Crete. When we encounter a labyrinth, what we need is a guide to lead us from frustration with the task to a possible solution. An image comes to mind of Ariadne, daughter of the King of Minos, who provided the knowledge and the tools to allow the (admittedly ungrateful) Theseus to escape the maze.
Professors Robert C. Post and Jennifer E. Rothman provide both guidance and solution to a labyrinthine problem in their forthcoming article, The First Amendment and the Right(s) of Publicity. That problem, as suggested by the article’s title, is accommodating the interests protected by the right of publicity with those protected by the First Amendment. Post and Rothman traverse the labyrinth created by existing doctrine from two directions. First, they clarify the varied and distinct interests that the right of publicity protects, or ideally should protect. If this were the article’s only contribution, it would be a tremendously valuable one, and judges and lawyers willing to accept their guidance could begin to construct coherent doctrine. But their second contribution is to point away from the “sea of inconsistent, vague, and unhelpful First Amendment tests” cluttering current doctrine toward more stable yet nuanced analysis. (P. 29.) Along the way, they even propose four new torts, and what’s not to love about new torts?
As Post and Rothman persuasively demonstrate, much of the problem with the right of publicity is that the doctrine has focused on defendants’ conduct (namely, the appropriation or use of a name or likeness) rather than the harm or harms the tort is meant to remedy. (P. 2.) They seek to solve this problem by teasing from the caselaw the numerous distinct interests the right is designed to protect.
Post and Rothman show that that there is not one right of publicity but four. (P. 5.) The first right the tort attempts to vindicate is the right of performance. The right of performance is violated “when a defendant uses the performance of another without consent.” (P. 8.) This right was at issue in the Supreme Court’s only right of publicity decision, Zacchini v. Scripps-Howard Broadcasting, which involved the broadcast of the entire act of a human cannonball. What the Court’s decision in Zacchini protected, at least according to Post and Rothman, was not Mr. Zacchini’s identity but his performance—“a discrete set of acts in space and time.” (P. 12.) Protecting performances protects an interest akin to copyright and “encourage[s] the creation of unfixed performances that may not be copyrightable.” (P. 12.)
The second interest the right of publicity vindicates is the right of commercial value. This right allows individuals to reap commercial or market value from their identity. (P. 17.) In describing this right, Post and Rothman are careful to disclaim the proposition that the interest protected is “a generalized property right in the commercial value of one’s identity.” (P. 18.) Instead, they identify three concerns underpinning cases involving rights of commercial value. One concern, which they denominate “confusion,” arises when the use of a plaintiff’s name or likeness creates confusion about his participation with or sponsorship of the defendant or the defendant’s products or services. (P. 19.) A second concern is diminishment, namely that the defendant’s use of plaintiff’s likeness or identity in a commercial context will lessen its market value. (P. 20.) The final concern is unjust enrichment, which occurs when a defendant uses the plaintiff’s identity for advertising or marketing goods and services without compensation or consent.
The third interest the right of publicity tort advances is the right of control, which gives people “a general right to control how others use their identity.” (P. 22.) This right is “oriented toward the protection of personality rather than market damages.” (P. 22.) It encompasses a “right of informational self-determination,” a right especially likely to conflict with First Amendment interests in the free flow of information. (Pp. 21-22.)
The fourth interest implicated by the right of publicity is the right of dignity. (P. 22.) Portrayal of individuals in ways that cause them shame and humiliation threatens the integrity of their identities as persons worthy of respect within their communities, at least when these portrayals are highly offensive to reasonable people. A musician who has a song used for a political campaign without consent may experience this as a dignitary harm, as may the people whose arrest photos are posted on mugshots.com. Again, this dignitary interest is especially likely to collide with First Amendment interests, which is why Post and Rothman insist that the specification of interests involved in a particular tort action must come before decisionmakers begin the process of weighing that interest against any asserted First Amendment interest.
In fact, in a bold nod to legendary legal scholar William Prosser’s four-fold division of the right to privacy into distinct torts, they convincingly argue that the right of publicity—one of Prosser’s original four—should itself be divided into four distinct torts. (P. 4.) Recognition of these four torts would help diminish doctrinal inconsistencies and add precision to First Amendment analysis, thereby reducing the chill that current doctrine imposes on free expression.
Even so, this step is insufficient, standing alone, to properly resolve conflicts between the rights of publicity they propose and the First Amendment, because it ignores the First Amendment side of the balance. On that side, Post and Rothman contend that proper analysis requires consideration of the contexts in which appropriations of identity occur. First Amendment interests are at their zenith when appropriation occurs in public discourse, at their midpoint when they occur in commercial speech, and at their nadir when a plaintiff’s name or likeness is used in or on commodities. (P. 32.) Although the determination of the context in which a defendant is using a plaintiff’s name or likeness is sometimes difficult, this determination must be the starting point of accurate First Amendment analysis.
Although these categories of contexts seem to suggest an ad-hoc balancing of tort and First Amendment interests, Post and Rothman map the broad outlines of what the balance would look like with regard to each of the four torts they propose, leaving the details to future scholarship. For example, Post and Rothman contend that the similarity of the right of performance to copyright suggests the proper shape of its constitutional analysis and that copyright’s protections for free expression, such as the doctrine of fair use, should be imported into the right of performance.
The balance tilts quite differently in the case of the publicity rights more oriented toward redressing emotional harms—namely, the rights of control and dignity. For these torts, pinpointing the context of the appropriation is especially crucial. If the appropriation occurs within the sphere of public discourse, the scope of the rights of control and dignity is narrow because the First Amendment demands that the public remain free “to form its own judgments based on publicly available information.” (P. 63.) In addition, the First Amendment typically does not allow plaintiffs to recover for dignitary harms based on the publication of truthful information in public discourse unless they can prove fault of the defendant. Analogizing to existing First Amendment precedents, Post and Rothman suggest that the First Amendment should permit redress of harms flowing from use of one’s name or likeness in public discourse only when the defendant knowingly or recklessly disregarded that such use would mislead the public about the plaintiff’s participation in or endorsement of the use. Presumably, the authors would apply this standard regardless of the plaintiff’s status as a public or private figure, because to do otherwise would import into this troubled tort all the complications of another troubled tort, namely, defamation law.
A brief review, such as this one, can only hint at the many fruitful journeys scholars can take along the path marked by Post and Rothman. I look forward to the flowering of the new torts they have outlined, complete with elements fleshed out to protect the interests they have identified without comprising free expression.
Cite as: Lyrissa B. Lidsky, Within the Labyrinth of the Law
(May 1, 2020) (reviewing Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity
, 130 Yale L. J.
__ (forthcoming, 2020), available at SSRN), https://conlaw.jotwell.com/within-the-labyrinth-of-the-law/
If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.
“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech.
Blocher readily acknowledges his debt to important work by Fred Schauer, Paul Horwitz, Robert Post, and others. Blocher’s contribution introduces a distinctive and important structural dynamism. He carefully places his own “grounding” preoccupations adjacent to familiar free speech notions in order to assess what this juxtaposition reveals. Initially, thus, he takes up the much-celebrated image of the “free marketplace of ideas.” It is very easy to associate this notion with a concern for truth, as Justice Holmes himself made clear. Blocher stresses this conjunction, but he nonetheless does not suggest that the “free marketplace” and “justified true belief” are equivalents. Holmes’s writings, we know, frequently endorsed an inarticulate “invisible hand”-like “common sense,” and often expressed an overarching skepticism. Similarly, Blocher maneuvers “justified true belief” near to other often-invoked free speech motivating premises—notions of democracy and autonomy. He perceives more distance, a degree of independence therefore, but he is also able to identify partial congruences at least, signs of some measure of reinforcement.
* * * * *
Professor Blocher does not court controversy. For the most part, he stresses instances in which justifications of free speech and accounts of institutional infrastructures seem to proceed in defensible parallel. The tolerance that Justice Brennan famously shows for false statements (absent actual malice) in New York Times v. Sullivan, for example, may not serve truth immediately, but it also recognizes that the reliability in general of grounds for statements is often what really matters, not the results in every particular case. Constitutionally protecting journalists or other communicators implicates and encourages (perhaps extends) professional norms, and thus ultimately encourages its own form of discipline. This institutional reading of Sullivan is a familiar one, of course. But there are other dimensions to the case. His general approach, extended a bit, catches them well also.
We might remember that New York Times columnist and First Amendment writer Anthony Lewis walked away from Brennan’s Sullivan opinion. The actual malice test, Lewis thought, opened up too many chances for intensive discovery and other procedural machinations, increasing litigation costs and inducing real self-censorship. We may also recall that Harry Kalven initially declared Brennan’s text to be incomprehensible, moving without explanation from free speech verities to the mandatory replacement of one usual state common law defamation regime with another.
As well, however: Justice Brennan identified the advertisement at issue in Sullivan as one exchange in a “robust, wide-open, and uninhibited” contestation (implicitly, the defamation suit too—he’d written NAACP v. Button the year before). Justice Black, concurring, worriedly described how the Alabama procedure might enable white supremacists, taking advantage of notably open-textured trial processes, to overwhelm careful legal inquiry as such, putting defendants at risk of financial ruin with only a semblance of an actual trial. Brennan returned to “actual malice” a few months later in Garrison v. Louisiana, delicately adverting to happenings in Germany in the period in which the Nazis seized power. Against this backdrop, we realize, Sullivan brings to bear freedom of speech and due process of law and equal protection of law; it brings together both First Amendment and Fourteenth Amendment fundamentals. Brennan’s main moves (the object of Kalven’s concern)—“actual malice,” turning defamation law into a sort of federal common law, the specification of de novo appellate review, and the rest—look to be efforts to buttress Fourteenth Amendment legality, the primordial project of Reconstruction. In Sullivan, judicial recasting of common law builds up journalistic disciplines along the way, reinforcing professional norms working to protect free speech too.
* * * * *
Tone, feeling, resonance, and the like are sometimes significant elements in free speech, whether independently or alongside claims of truth, assertions of autonomy, or commitments to democracy. Emotional palettes figure as close at hand in many communicative efforts. Professor Blocher does not explore these matters here (he comes closer elsewhere). But it’s easy to see that they fit readily within the workings he deploys. Extremes of feeling may propel ideas or images or other forms of expression into or out of prominence, at greater or lesser velocities. This is one way, at least, that we experience politics or other important aspects of social or cultural environments.
In Hustler Magazine v. Falwell, William Rehnquist seized upon Larry Flynt’s erotic cartoon mockery of minister Jerry Falwell (and his mother!), declaring it to be exemplary effrontery, thorough-going irreverence constitutionally characteristic of free speech protected against civil suit absent false statements of fact.
Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude….But in the world of debate about public affairs, many things are done with motives that are less than admirable are protected by the First Amendment. …The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. …[G]raphic depictions and satirical cartoons have played a prominent role in political debate. …Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons.…“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. 
Hustler depicts emotion as form-generating—as pushing towards simplifications or exaggerations or other intensifications. These devices overwhelm images of nuance or complexity or moderation. Facts—their characteristic modes of representation—push oppositely, accentuate complexity, in this way assert their own plausibility.
Emotion of itself tends to reposition society, politics, or culture—within communicative environments in which strong stylizations and reiterations “rifle,” spinning formulations to maximum force. Such settings may shape propagations of “fundamentals” or other cult-like formulations (we might conclude, following Mary Anne Franks). Ideas acquire pointed directness, maybe especially so outside courts and legal formulations as such, seeming to adherents to license absolutism, harshness near-kin to violence, cousins to the grotesqueries privileged by the Court in Hustler. Much we glimpse now looks to be of a piece. Disciplinary institutions often perceive themselves as precarious, cowed by self-promoting affinity groups pressing members to extremes. Affinity groups sometimes perceive social media platforms as affording huddling shelters or other bolsterings. Platforms at times perceive feelings of affinity groups as not only unified within the given group, but also as fiercely set against other views and groups. These oppositions look like “facts,” useful cues to entrenched popular fissures. Groupings become commodities: market segments, easily spotted, categorized, entrepreneurially valuable.
How do we address circumstances in which enthusiasms look to have occupied the field—whether positive or negative, affinity-driven or institutionally-narcissistic? Our awareness of American law as itself irreducibly layered, if at times disruptively so, is also occasionally rescuing. The interplay of free speech as contest, on the one hand, with concern for equal protection of the laws on the other, grounded the regime of filters New York Times v. Sullivan engineered to impede the exploitation of trial process by demagogues.
Consciousness of what we don’t know sometimes also engages constitutional thinking. Consider this too-quick sketch: The Fourteenth Amendment premise of equal citizenship governs dealings of citizens with each other. “We the people,” equally sovereigns, equally owe each other duties of allegiance and protection, duties of care. Division at the extreme—“all against all,” stasis—thus acquires constitutional marking, cannot not–be a background matter of legal concern and adjudicative attention. Social media platforms make sorting along political or cultural lines easy. The way they structure their own workings accentuates affinity group extremism. What if these divisions—their clarity, anyway—are in part artifacts, products of the formally encoded devices and algorithms of the platforms themselves, cartoons in effect rather than accurate representations of social and political reality? Platforms might appear to refuse to take seriously as fact statistical capacities to describe overlaps and unsettlings, the simultaneous pertinence of alternate modes of representation. Liability—potentially? Uncertain grounds! Joseph Blocher’s premise presses.
Carolyn Shapiro, Democracy, Federalism, and the Guarantee Clause
, 62 Ariz. L. Rev.
(forthcoming, 2020), available at SSRN
How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.
Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.)
In the antebellum period, the federal government resisted calls to intervene in state affairs by enforcing the guarantee, but after the Civil War the Radical Republicans claimed the Guarantee Clause empowered Congress to enforce new democratic norms through Reconstruction. (P. 20.) Charles Sumner described the Guarantee Clause as a “sleeping giant” awakened by the Civil War that gave Congress, more than any other clause, “supreme power over the states.” (P. 19.) From Reconstruction to modern times, the operational meaning of the guarantee has continued to evolve along with American democracy itself. The nationalization of American politics has rendered each state more vulnerable to antidemocratic spillovers from her neighbors. And the American polity has developed a more robust, universal, and egalitarian conception of the structural elements essential to ensure popular sovereignty and representative government, as evidenced by landmark legislation like the Voting Rights Act and constitutional amendments guaranteeing political participation rights, such as the Fourteenth Amendment, the Fifteenth Amendment, the Seventeenth Amendment, the Nineteenth Amendment, the Twenty-Third Amendment, the Twenty-Fourth Amendment, and the Twenty-Fifth Amendment.
Shapiro’s “guaranteeing power” (my term, not hers) would enable Congress to address something beyond the reach of its other powers: structural problems with state democracy. The Elections Clause empowers Congress to regulate the “Time, Place, and Manner” of congressional elections, and the Fourteenth Amendment empowers Congress to “enforce” its provisions “by appropriate legislation.” The former clause permits comprehensive regulation, but only for congressional elections. The latter permits regulation of state and local elections, but only to enforce individual rights in a way the Court deems “congruent and proportional” and consistent with “equal state sovereignty.” Neither permits regulation of state institutions to vindicate structural principles.
These constraints on congressional authority limit the national policy debate. Take HR1, the omnibus electoral reform bill the Democrats introduced after retaking the House of Representatives in the 2018 midterms. A key component of the bill requires every state to establish an independent redistricting commission (IRC). Another prohibits “double running”—an individual shall not run the very election in which she runs as a candidate. But both the mandate and the prohibition are limited to national elections. So Idaho must use an IRC to draw the single line that demarcates its two congressional districts, but not to draw the electoral maps for its state legislature. And the Secretary of State cannot administer the election if she is a candidate for Congress, but she can if she is a candidate for Governor.
Why limit these provisions to national elections? It’s not because the democratic threats of gerrymandering and double running are limited to national elections. It’s because Congress only has clear authority to address these threats in that context. But if Shapiro is correct about the scope and purpose of the Guarantee Clause, Congress may have the authority to mandate commissions for state legislative maps and to prohibit double running in state elections, not to enforce individual rights, but to guarantee a republican form of government.
Shapiro envisions a robust “guaranteeing power” that would recalibrate electoral federalism, enabling Congress to regulate the states more aggressively than it presently does and otherwise could. She suggests this power should be subject only to a “highly deferential” form of judicial review, one more deferential than what the Court applies to exercises of congressional enforcement power. (P. 49.) Shapiro contends that current practices—like gerrymandering, voter suppression, lame duck power grabs, and electoral maladministration—present the sort of democratic threats that warrant such unprecedented congressional action. And she suggests that Congress can and should adopt a broad array of preventive and remedial measures, such as national voter identification cards and national criteria for polling places and voting machines. (Pp. 47-48.)
Shapiro’s proposal invites future scholarly attention to the scope of the guaranteeing power and the role of the Court in determining and policing its limits. On the one hand, the Court might struggle to satisfactorily explain why it cannot enforce the guarantee itself while it can determine the scope of congressional power to enforce the guarantee. On the other hand, as Shapiro herself recognizes, if the scope of the guaranteeing power presented a non-justiciable political question, Congress would suddenly enjoy “unlimited power to impose on the states whatever government it deemed republican.” (P. 49.)
How could the Court constrain this power in a principled and determinate way, when the substantive content of the guarantee is dynamic? I suggest it may be instructive to consider the Court’s Eighth Amendment jurisprudence. Despite strident opposition from Justices Scalia and Thomas, the Court has consistently held that the meaning of “cruel and unusual punishment” changes over time with society’s “evolving standards of decency,” so a punishment accepted at the Founding, like the death penalty for child rape, may become impermissible when eschewed by a sufficient number of states. Could an electoral practice, permitted at the Founding but now rejected by most states, such as lifetime felon disenfranchisement, offend society’s evolving standards of democracy?
Note that the dynamism of the Eighth Amendment generally operates in one direction—practices once permitted may now be proscribed. But dynamism under the Guarantee Clause may operate in both directions—practices once permitted may now be proscribed, while practices once proscribed may now be permitted. For example, Shapiro suggests that Congress cannot prohibit Nebraska’s use of a unicameral legislature or California’s “ballot box budgeting,” even though the Founders may have considered unicameralism or direct democracy fundamentally incompatible with a republican form of government, because even if such practices produce “significant state-level dysfunction,” they do not produce “antidemocratic spillovers.” (P. 44.) Does the Court have the institutional competence, and the requisite methodological tools, to make such determinations? And, more generally, to distinguish permissible from impermissible exercises of the guaranteeing power?
In this article, Shapiro’s focus is appropriately limited: her intent “is not to set forth a fully developed legal doctrine but rather to lay out its conceptual framework.” (P. 40.) Shapiro successfully makes a strong case that Congress can regulate state democracy under the Guarantee Clause. I hope that future work, by Shapiro and others, will flesh out these doctrinal details and further develop the case for a robust guaranteeing power.
Cite as: Benjamin Plener Cover, Congressional Power to Guarantee State Democracy
(March 3, 2020) (reviewing Carolyn Shapiro, Democracy, Federalism, and the Guarantee Clause
, 62 Ariz. L. Rev.
(forthcoming, 2020), available at SSRN), https://conlaw.jotwell.com/congressional-power-to-guarantee-state-democracy/
Slavery is deeply imbedded in our nation’s history, economy, and law. The legacy of slavery is readily apparent in the disproportionate poverty of people of color and the new Jim Crow regime in our nation’s criminal justice system. Yet our country has never engaged in any sort of reconciliation process, let alone a reparation process. Recent years, however, have been marked by attempts to reckon with the history and legacy of slavery in the United States. In southern cities, local officials are debating whether to remove statues of confederate officials from public spaces. Those statues symbolize, and arguably celebrate, our nation’s legacy of slavery and racial discrimination. Removing the statues may ease the dignitary harm they cause but mask the ongoing impact of the legacy that the statues represent. In Citing Slavery, Justin Simard reveals how the legacy of slavery in our common law is hidden in plain sight. Lawyers and legal scholars know the legacy of slavery in our society but have failed to confront its impact on our common law.
Historians and legal scholars have been commemorating the 150th anniversary of the abolition of slavery and the establishment of fundamental rights for freed slaves during the Reconstruction Era. As part of this commemoration, historians are currently engaged in an ongoing debate over the extent to which slavery permeated our nation’s founding, and our constitution. In The New York Times, the 1619 Project commemorates the 400 years since the beginning of the slave trade in the U.S., fostering a debate over whether the focus on race sidelines the economic exploitation of the system of slavery. In Citing Slavery, Justin Simard makes a crucial contribution to the conversation about the impact and meaning of slavery on our legal system by pointing out the extent to which slavery permeates our nation’s basic principles of law. Like the confederate statues which force us to confront our past, Simard’s revelations force us to confront the question of how to treat law based on the tainted foundation of slavery.
In Citing Slavery, Simard shows that despite the fact that the Thirteenth Amendment abolished slavery over 150 years ago, lawyers and judges continue to cite cases involving enslaved people in the present day. This comprehensive and thoroughly researched article lists hundreds of opinions citing slave cases in the last three decades. It also addresses how cases involving slavery are included in legal treatises to illustrate basic principles of our common law. From property to contract law, commerce to inheritance law, the law of slavery permeates the U.S. legal system.
Moreover, judges today regularly cite cases involving enslaved people without acknowledging their presence. Sometimes judges discuss the facts of cases detailing the brutality of slavery without comment, focusing only on the legal principles to be discerned from the case. Simard argues that both descriptive and normative harms result from judges routinely citing cases involving enslaved people. First, those cases are questionable as legal authority. Second, continued reliance on cases involving slaves inflicts dignitary harms on the enslaved people involved in the lawsuits as well as their descendants. The formalism in these opinions masks the racial injustice imbedded in our law.
Nineteenth-century courts distinguished between the relatively few cases that directly regulated slavery and the vast majority of cases that indirectly involved slavery. The cases expressly regulating slavery are no longer good law after the Thirteenth Amendment abolished the institution. Simard goes further, arguing that all cases involving slaves are questionable legal authority because they remain implicitly premised on the validity of slavery. For example, slaves could not be inherited unless viewed as property, and masters could not recover for harms done to their slaves unless masters held a property interest in the slaves. Simard also points out that white supremacy affected the outcomes of cases involving slaves, further undermining them as legal precedent. Nonetheless, modern-day judges routinely cite them to support foundational common law principles. Ignoring the slavery roots of common law rules warps our system of legal precedent.
Overall, Citing Slavery illustrates how law provided a framework that legitimized the brutality and inhumanity of chattel slavery in our country. Our nation’s system of commerce depended on slavery, and law governing commerce was thus immersed in the commerce of slavery. Southern lawyers adapted common law rules to govern the system of slavery, and those rules affected the national legal system; northern lawyers shared in the focus on technical rules and customs that masked the inhumanity of the underlying facts. Prioritizing legal rules over the enslaved people affected by those rulings further deepens the injustice in our legal system. The failure to excise slavery from our nation’s jurisprudence perpetuates white supremacy and causes continuing harm, reflected in the historic exclusion of people of color from the legal profession and their under-representation today.
What should lawyers to do to make amends for our continued reliance on the law of slavery? Simard urges lawyers to directly confront the role that slavery plays in the cases upon which they rely and the extent to which this undermines the decision’s precedential value. Simard makes an analogy to the Supreme Court case of Korematsu v. U.S., in which the Court upheld the forced removal of Japanese Americans to detention camps during World War II. Even before Chief Justice Roberts declared it “overruled in the court of history” in 2018, lawyers were loath to cite the case due to its horrendous facts. “Only by confronting slavery’s past can we learn from and attempt to address its costs.”
An open and transparent approach to slavery in our law can play the same salutary role that universities and communities debating whether to take down confederate statues are engaging in as they confront their institution’s connection to slavery. Simard also suggests that legal research tools and the Bluebook should implement a citation system that identifies precedents based on slavery. Finally, he urges state and federal authorities to publicly acknowledge the legacy of slave law.
Reckoning with the legacy of slavery in our law would indeed be an important first step to remedying the racial injustice that permeates our society. As William Faulkner notably observed, “The past is never dead. It’s not even past.” Justin Simard proves Faulkner right in Citing Slavery. The law of slavery is both omnipresent and hidden over 150 years after our country abolished slavery. Simard points the way towards reckoning with the past.
In Sand and Blood: America’s Stealth War on the Mexico Border, John Carlos Frey shows the reader a story about life, death, and a void in the reach of law to human need. Frey tells of a government-orchestrated disaster, shocking but unseen, that has been under way at the Southern border for decades. As a journalist of Mexican origin and paternally derived U.S. citizenship, Frey delivers a vivid and partly personal account of the human tragedy purposefully and soundlessly inflicted on poor Hispanic arrivals—a tragedy that should sear a vivid image of horror into our collective memory. For many years, Americans have known of the grudging welcome extended to our Southern neighbors but little of the corresponding human consequences. The result has been a void in both cultural awareness and legal doctrine. Over time, a public theater of immigration control, balancing the needs of politicians, business interests, and law enforcement, has shunted aspiring immigrants into a dystopia, planned by bureaucrats but given effect and form by human desperation, avarice, and menace.
Pursuing the human drama in the void, Frey paid smugglers working in Mexico for the Sinaloa cartel to take him on a trip through the Mexican desert to the U.S. border. He depicts a brutal ride in a van packed with men, without seating. The cartel business model Frey experienced responds to a market opening created by a blank place in our American conception of legal order (P. 103.) The cartels run “sophisticated operation[s] capable of monitoring U.S. law enforcement activity to ensure that migrants crossed the border successfully.” (P. 108.) Frey’s guide, as they neared the border, used “binoculars, what appeared to be a satellite phone, and a cell phone…[for] communicating with someone who knew the whereabouts of Border Patrol agents on the U.S. side.” Frey endured a gun in his face by a cartel member charged with assuring he had not captured images of cartel members. “If they had [found images], I’m sure they would’ve killed me on the spot.” The cartel members are unemotional about their business, in contrast to those border patrol agents who have adopted emotional views of the quarry. The exception in the business model pitting emotional border agents against pure business logic is the expectable corruption—agents who take bribes to look away as guides move migrants into the U.S. (P. 104.) Everyone—almost everyone—gets a little something from the unwritten rules.
Frey provides a historical review of policymaking over time: from a few early Border Patrol agents on horseback to the grander visions of politicians who realize advantage in treating Mexicans and Central Americans as invaders, with labels classifying them as criminals. The border militarization began in earnest in the 1980s with walls constructed where casual gatherings of Americans and Mexicans once picnicked. (P. 20.) Frey provides a chilling narrative of a plan wrapped in a deadly abstraction: to use death as a tool of immigration control. The creative labeling of laws helps support a war footing. President Trump has supplemented rally rhetoric about invaders with the Victims of Immigration Crime Engagement Office, a program with “objectives” that “seem to conflate immigrants and criminals.” (P. 180.) As such, Frey concludes that the border has become “for all intents and purposes, a war zone.” (P. 195.)
In this context, Frey gives a history lesson about humanity moving through a physical space that courts cannot situate in the doctrines of sovereign states. Many of the deaths and other violations occur on U.S. soil. Even here, we find a liminal state defined as “situated at a sensory threshold: barely perceptible or capable of eliciting a response.”
As Frey describes the transition to an infrastructure of militarization—one gradually brought about by presidents starting with Bill Clinton and proceeding to Trump—he arrives in a descriptive cul-de-sac containing the void of law. In a world where federal control over immigration is constitutionally dubious and a national security military rationale spreads into that liminal space at the border, Frey finds and narrates the non-place in the constitutional order.
In 2010 and in 2012, U.S. border agents shot across a border, both times aimlessly killing a Mexican child on the Mexican side of a line drawn by artifice and not nature. The space, physical and conceptual, containing the lifeless bodies of Mexican children does not support connection or clarity. Law is a presence in the scribblings of courts and lawyers, but human reality on the ground disappears into legal briefs, trial court opinions, panel and en banc opinions, Supreme Court remands, and oral argument at the Court with justices fretting about “possible foreign policy implications” of allowing relief for a cross-border shooting.
In the liminal spaces around the border where immigrants contend, defenseless, with hostile U.S. border agents and mercenary coyotes, and spaces outside schools and courts where ICE agents snatch parents, also defenseless, from children, or children die to police violence held justified, both law and human connection are fragile. The stories of tragedies lost to law or common feeling pose an issue of empty spaces, barren spots in which it is ordinary to die or be seized by state power or criminal forces. These geographies lie outside the care of human feeling or the reach of comprehensibility to law.
Using his well-honed journalism skills and his personal narrative, Frey seeks to remedy the gap in general understanding and legal sight. He describes an enchanted spot on the border where he once played hide-and-seek as a prank on Border Patrol agents. (P. 2.) Notably, the 2012 incident in “ambosNogales” occurred after children were pranking agents guarding the line. No one is laughing today, and few outside ambosNogales weep. Uncertain of its domain, law hesitates.
After a theater of immigration control in the 1980s and 1990s sought to balance the interests of defense contractors and of businesses requiring cheap labor, Frey noticed a change. The border became the scene of a life-and-death exercise in a war against the poor. Toleration for the antics of kids diminished, while application of “the machinery of war” and “Death as Deterrent” techniques increased. A law called the Secure Fence Act, and programs with names like Operation Gatekeeper, drove migrants away from safe passage and into death traps in the desert and in the All-American Canal—a watery grave that became “the deadliest body of water in the country.” (P. 84.)
Deaths began to accrue long ago, as the border was fortified with a deadly intention to “raise the cost” of passage to those in search of safety, work, and family. Cost means death from dehydration or drowning. The bodies go into potters’ fields— marked “unidentified”—or simply disappear. There is no personal witness or official record of the human toll. “Poor Joshua” does not become “Poor José.” No exclamation observed sorrow. No shared cultural moment of American shock at anticipated welcome thwarted by death.
Within our constitutional framing for incorporating knowledge within the legal order, is there a basis for revelation in case law of events that lack cultural salience inside the nation? What of law as a discourse in which the void of empathy might be addressed? Frey, a journalist but not a lawyer, combines legal terms with journalism to highlight the void:
U.S. policy at the border also seems to have bypassed the Constitution. It is a zone where inspections can happen to anyone without probable cause and use of force can go unchecked without repercussion. Immigrants both legal and undocumented have been stripped of civil liberties, and the violations continue–to the point of the removal of children from their parents or even death. (P. 8.)
Frey is well suited to help us sound the shock of the reporter’s witness to this welcome-turned-disaster. He provides a narrative of the convergence of cultural racism and constitutional precepts supporting the enactment, and repetition by an unlettered president, of a repeated human catastrophe at the Southern border. The denial of welcome takes forms other than death, but the destruction of human expectation, wrapped in law, cruelty, and purported superior caste is a shock when translated by a skilled narrator.
Due process, under the Fourteenth Amendment, constrains state power when brought to bear on U.S. citizens and also constrains what states may do to “persons.” But in the liminal spaces in which citizenship and personhood confront a sovereign’s line in the sand, the constitutional niceties yield to a brute force delivered by human agents often immersed in a culture of race-themed hostility, backed by claims to sovereign might and to the “rule of law” as a commitment to our liberal order. In the liberal order, justices fret about the legal “line” they feel sworn to hold firm. How can there be a line—a thing imaginary—that leaves room on the side of justice just this once, but not again or not much? In Hernandez I, Justice Breyer tried in dissent to rub away a different line, the one in the sand: the place of death for the child is a limitrophe, an area created by “engineer’s ‘imaginary line,’ perhaps thousands of miles long, but having ‘no width.’” It also, he tells us, is a voisinage, a place of “cooperation and good neighborliness”—of law and human connection. Yet Frey has taken us to an empty space of sand and blood, given a shape by lines pitiless in law and on earth.
Legal scholarship presents an un-narrated depiction of a legal void: Where is the constitutional authority to restrict immigration? Ilya Somin has surveyed the absence of a textual basis and the weakness of other arguments to fill the constitutional gap. Original meaning provides no help. At the founding, the U.S. needed a population, and there was no attempt to stop immigration until racism emerged with the Chinese Exclusion Act of 1882. Even today, an absence of legal perception and narrated human response exists at the Southern border. The missing text constructs a moral absence, which leaves the constitutional order afflicted with fill-ins, such as the disorder of nativism and the logic of warfare. The morally barren charter for welcome—or not—even reaches inside our borders with federal enactment of terroristic raids by Immigration and Customs Enforcement agents.
This conceptual void is occupied by lawlessness and thuggery masquerading as law and order. The void is the basis for a slow-moving, intentional, and unheralded destruction of humanity in transit. Under the Equal Protection doctrine, an intention to harm a group out of hostility to the group constitutes wrongful discrimination. But the status of persons who die outside U.S. territory, even if the agent of death acts on U.S. soil, occupies an occluded spot in constitutional law, a brain teaser for justices for whom legal abstraction obscures all paths to simple justice.
Where we find a constitutional empty space, we find the language of security, i.e., warfare. The “invasion” word is familiar, but its loud and repeated broadcast by the “Commander in Chief” of a security state is new. The word appears to have conscripted a citizen soldier whose language and violence in an El Paso Walmart adopted the concept of war. The void is occupied by a militarization of borderline and domestic policing, with both becoming a liminal space either outside any comprehensible claims of humanity within law, or, in an argument advocating for humanity and law, “a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.” The legal void extends to American citizens re-entering the U.S. in an airport located on U.S. soil but conceptually somewhere else. Nature abhors a vacuum, and in the void of humanity and legal order, the cartels have entered. (Pp. 111-15.)
Frey’s book confronts us with difficult and urgent questions. For all, citizen and noncitizen, might liminality swallow all our shared humanity? Where will be the spaces that law will hesitate to enter? Where are the lines in the sand, in our humanity, in law’s reach?
What then-Professor Elena Kagan said in 2001 continues to hold true today: ours is an “era of presidential administration.” Modern-day presidents do not merely stand on the sidelines while agency officials run their agencies. Rather, from the Reagan Administration onward, presidents have wielded an increasingly heavy hand in dictating the course of their appointees’ day-to-day actions—monitoring, supervising, coordinating, and directing agency activities in accordance with their political and policymaking priorities. Agencies may remain the primary repositories of the powers that Congress has delegated away, but the agencies themselves have become subject to powerful forms of White House control.
As Lisa Marshall Manheim and Kathryn Watts note in this excellent new article, one of the ways in which presidents influence agency policymaking is through the issuance of orders, memoranda, proclamations, and other written directives. These documents communicate instructions from the president to a target agency, making clear to that agency’s officials that the President expects them to exercise their delegated powers in an often quite specifically defined way. More often than not, such instructions do not formally bind anyone to do anything. But when directed at officials who serve at the pleasure of the President, the demands of such “presidential orders” are seldom disregarded.
The increased use of presidential orders as a means of controlling agency action raises important questions regarding both the intrabranch allocation of power between agencies and the President and the interbranch division of powers across the federal government. But, as Manheim and Watts’s analysis makes clear, the rise of presidential administration also has raised the salience of several important procedural questions concerning the federal courts’ role in reviewing the legality of the Chief Executive’s directives. We are all familiar with the standard set of rules, doctrines, and principles that apply when agency action gets challenged in court. Ample case law guides courts’ application of, among other things, the APA’s reviewability provisions, the standing and ripeness requirements of Article III, Chevron and its associated deference doctrines, and the equitable principles governing the scope and availability of injunctive relief. But when courts confront presidential action, these principles—to the extent they apply at all—operate against a legal backdrop marked by a greater degree of precedential scarcity and obliqueness.
For most of U.S. history, this relative dearth of legal guidance has not posed much of a problem, as direct challenges to presidential orders have only sporadically arisen. This is not because presidential action is categorically or even largely immune from legal attack. Rather, it’s because past litigants seeking to challenge presidential action have tended to do so only indirectly, training their focus on the subsequent agency action that a presidential order provokes. And with the agency’s action on the books, a more traditional administrative law-based challenge can proceed. Would-be challengers to presidentially initiated action thus have tended to avoid the uncertainties and potential pitfalls of direct review by instead waiting to sue the agencies that act on the President’s behalf.
This “wait for the agency” approach, Manheim and Watts contend, has diminished in popularity during the course of Donald Trump’s presidency. President Trump’s orders concerning the so-called “travel ban,” sanctuary jurisdictions, the military’s treatment of transgender servicemembers, IRS enforcement priorities, and several other subject matters have found themselves subject to immediate and direct challenge in federal court. There has thus been what the authors call an “explosion” of litigation targeting direct presidential action, with public-law litigants increasingly “elect[ing] to challenge the legality of the President’s orders, rather than (or along with) the legality of subsequent agency action.” The heightened presence of this practice has put new pressure on the courts to develop a more structured set of doctrines to guide their adjudication of these cases.
Manheim and Watts’s descriptive thesis raises two sets of questions. The first has to do with underlying causes. Specifically, if the descriptive observation is correct, what accounts for the change in litigation practice? Why, that is, have public-law litigants suddenly shown an increased willingness to go after the President directly rather than wait for the relevant agencies to act? Part of the answer, Manheim and Watts suggest, has to do with Trump himself. While Trump by no means initiated the era of presidential administration, he has certainly embraced it with special enthusiasm, “act[ing] aggressively throughout his presidency to blur the lines between the President and the agency he oversees.” What is more, Trump has been “willing to use presidential orders to advance politically and legally controversial policies,” many of which have provoked intense public opposition while opening up opportunities for legal attack. These two Trumpian tendencies—his rhetorical tendency to “collaps[e] the distinction between presidential and agency action” and his political tendency to take the lead in pursuing divisive, controversial, and legally-suspect executive-branch policies—may be working to “invite litigants to direct their legal challenges not at subsequent agency action, but rather at the predicate presidential decisions.”
But that’s not the entirety of Manheim and Watts’s causal explanation. There is a second and somewhat complementary element that connects with two relatively high-profile and largely successful litigation campaigns: the 2014 attack on the Obama Administration’s Deferred Action for Parent Arrivals (DAPA) policy and the 2017 challenge to the initial iteration of Donald Trump’s “travel ban.” To be sure, only the latter of these two cases amounted to a formal attack on presidential action itself—the DAPA order took the form of a DHS memorandum that qualified as a “rule” under the APA—but both cases bore important similarities to the numerous challenges to presidential action that followed in their wake: Among other things, the DAPA challenge and the “travel ban” challenge concerned “politically salient executive actions;” they targeted policies at the core of each president’s political agenda, and they occurred “quite early in the administrative process.” And in both cases, the challengers achieved quick and high-profile successes. The DAPA plaintiffs not only won on the merits, but also managed to vindicate “a controversial theory of standing…that the government warned would open the floodgates for future challenges to federal policies.” And while a subsequent iteration of the travel ban would survive Supreme Court review, the initial travel-ban challenge yielded important victories for the plaintiffs on both procedural and merits-based issues. Manheim and Watts surmise that these two litigation campaigns operated as something of a proof-of-concept for the strategy of seeking immediate and direct review of presidential orders.
The second question raised by Manheim and Watts’s descriptive thesis can be simply stated: What should courts do now? Manheim and Watts do not take a strong normative position on whether the rise of challenges to presidential orders represents a good or bad thing. But they do suggest that the trend is likely to remain with us for the foreseeable future, and they urge the development of a more structured judicial approach to reviewing presidential orders.
In service of that goal, the authors conclude their article by developing a coherent but context-sensitive procedural framework for adjudicating challenges to presidential orders. This framework both derives and deviates from traditional administrative-law principles in instructive and revealing ways. In particular, the discussion considers: (1) the extent to which various timing-related limits on premature suits (e.g., ripeness, standing, finality, exhaustion, etc.) might embrace a working distinction between presidential orders that formally bind other actors and those that do not; (2) the circumstances in which courts should rely on their equitable powers as a basis for finding an implied cause of action to challenge presidential action; (3) the appropriate level of deference with which courts should review both the underlying rationality of a presidential order and any statutory constructions on which the order is based; (4) the proper crafting of injunctive relief in response to successful challenges on the merits (including the extent to which courts should address their injunctions to the President’s subordinates so as to avoid “the thorny questions that arise when courts try to enjoin a President directly”); and (5) the question whether severability analysis is ever appropriate in the context of reviewing presidential orders, given the procedural ease with which an invalidated order could be revised and reissued. On these and other issues, Manheim and Watts offer penetrating insights and persuasive conclusions, and their discussion is likely to be of great value to future scholars, litigants, and judges confronting the procedural complexities of future presidential-action cases.
Notably, Manheim and Watts are not the only public-law scholars who have grappled with the review-related problems raised by challenges to presidential orders. Several components of their analysis build on insights from an important article that Kevin Stack authored well before the recent spate of Trump-era challenges took center-stage. Their descriptive thesis is informed by Erica Newland’s impressive historical survey of the federal courts’ consideration of executive orders over the past two centuries. And their prescriptive suggestions nicely complement two other treatments of specific review-related problems to which presidential orders give rise: David Driesen’s article advocating for “arbitrary and capricious” review of statutorily-based presidential orders, and Tara Grove’s article (also recently JOTWELL-reviewed) endorsing a relatively strict-form of textualism as the appropriate method of interpreting presidential orders. Manheim and Watts’s article provides a helpful, unifying frame for this burgeoning line of inquiry, and it moves the discussion forward in numerous useful ways.
Katherine Shaw, Speech, Intent, and the President,
104 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN
What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”
Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration.
Shaw’s suggestion is simple: While judges should not rely on presidential statements to determine the “ordinary interpretation” of a presidential directive, they can and should use these statements to evaluate constitutional claims in which intent is relevant. (P. 40.) The travel ban case provides an example of this framework. In that case, Shaw says, the Supreme Court should not have used President Trump’s tweets to determine the scope of the travel ban proclamation—to determine whether it extended to Lawful Permanent Residents, for example. But it was appropriate to use the statements as evidence of improper intent under the Establishment Clause. Indeed, for the constitutional question, Shaw says, the court “erred in not taking more seriously the president’s statements.” (P. 50.)
Why the distinction between constitutional cases and “ordinary ones?” In part, the difference is institutional. Generally, our constitutional system contemplates “some executive-branch secrecy.” Congress is bound by a “norm of transparency” to open its proceedings to the public—an obligation that is underscored by the constitutional requirement that each house “keep a journal of [its] proceedings.” Agencies are also required to be transparent and facilitate public participation, reflecting the longstanding concern that unelected decision-makers might become too powerful. Presidents, however, have never been constrained by these obligations. Instead, it is the political process that keeps the executive accountable. Furthermore, there are the practical considerations: Presidential statements are made on the fly, if not on the campaign trail. The amount of presidential speech available to litigants, combined with executive-branch secrecy, invites reviewing courts to cherry-pick presidential statements and misconstrue presidential actions.
Constitutional questions are different. In these questions, individual intent is often relevant—and courts usually make no distinction between the intent of legislative or executive officials. In his controlling opinion in Masterpiece Cakeshop, for example, Justice Kennedy cited the “inappropriate and dismissive comments” of members of the Colorado Civil Rights Commission—who were “administrative” or “executive actors,” as Shaw makes clear—to assess their anti-religious bias and rule in favor of the cake shop.
Furthermore, in what Shaw calls “constitutionally inflected” administrative law cases, courts have considered the intent of an individual administrator. Accardi v. Shaughnessy, for example, concerned an Attorney General who had made public statements about a deportation case before ordering the petitioner’s deportation. While the case is famous for “the Accardi principle” (the requirement that agencies follow their own regulations), it also confirmed that speech indicating the “impermissible intent” or “bias” of a decisionmaker is relevant when the due process clause is concerned. (P. 29.) Cases like these make clear that individual intent is important when examining allegations of unconstitutional bias. Because there is no constitutional indication that presidential intent is irrelevant—in fact, Shaw says, the Constitution may provide an “affirmative constitutional warrant for considering presidential statements and presidential intent in constitutional cases,” because there is no “speech and debate clause” protecting presidential speech—courts can and should consider presidential statements in constitutional cases like the travel ban case. (P. 45.) This is, as Shaw points out, a particularly important question right now. In the Ninth Circuit’s 2018 opinion on the President’s rescission of President Obama’s Deferred Action for Childhood Arrivals (DACA) decision, which the Supreme Court will decide this term, the panel accepted tweets and statements from the President as “evidence of discriminatory motivation” underlying the rescission.
While this issue has recurred in recent litigation against the Trump administration, it is not a Trump phenomenon alone. Presidential speech sits at the intersection of the growth of executive power and the development of what scholars call the “rhetorical presidency” or the “bully pulpit,” the use of public speech as an expected form of presidential governance. The rise of new media and communication technologies have facilitated this transformation. Now, presidents share political statements on the White House’s website, as well as on social media services like Twitter, Facebook, and YouTube. It is no surprise that these statements make their way into the courts. As such, Shaw’s article is as timely as it is interesting.
Shaw’s focus on constitutional questions means that her framework does not address some of the most newsworthy issues of Presidential speech. As she admits, the issue of how the president’s speech might be used to show intent in, say, an investigation into his obstruction of justice remains outside the scope of the article. Moreover, as in any situation in which courts use speech to show intent, one wonders about the unintended consequences. Would administrators keep their more damning speech off-line, concealing any evidence of their intent from judicial scrutiny? In the presidential context, this seems unlikely (or, perhaps, desirable). But what about Mr. Accardi, the immigrant who used the Attorney General’s speech—a pre-circulated list of people who should be deported—to argue that the immigration service was impermissibly biased against him? An Attorney General, or a President, could have just as easily kept the list private, circulating it only to the immigration officials he needed to get the job done. Are there some cases when judicial scrutiny could promote executive secrecy? Given her development of this subject, we have every reason to expect that when scholars take up these and other questions, Prof. Shaw will lead the way.
The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.
Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”).
Distinguishing the government’s “information that purports to be truthful and objective” from the government’s “messaging that we expect to [be] more subjective,” Cortez focuses on the former. The government’s “[i]nformation that purports to be objective and truthful,” Cortez asserts, “should endeavor to be both.” To this end, Cortez has called upon government agencies to understand themselves as data “stewards”—in other words, “as sentinel[s] that help maximize the quality of data inputs and outputs via tailored procedures.” In earlier work, Regulation by Database, Cortez recommends a range of practices through which the government can ensure that its databases are “reliable, useful, and fair.”
To illustrate what not to do, Cortez documents examples aplenty of the Trump Administration’s information mischief. The federal Occupational Safety and Health Administration (OSHA) no longer publicizes its enforcement sanctions, information that past administrations had highlighted to expose and deter violations of workplace health and safety law. In 2017, the U.S. Department of Agriculture (USDA) removed online public data about inspections and potential violations of the Animal Welfare Act; the department re-posted many of these records after a 2018 congressional report “directed the USDA to restore the data, noting that its removal had violated previous directions from Congress.” And, as Cortez further explains, the Trump Administration stopped publishing documents that shed light, in different ways, on who has access to government power: the ethics waivers granted for lobbyists appointed to federal positions as well as the White House visitor log. These are just a few of many illustrations.
As I’ve explored elsewhere, the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences through its expressive choices that include falsehoods and misrepresentations as well as attacks on individuals and institutions that challenge its preferred narrative. Bu the government’s speech of this type is even more dangerous when accompanied by its efforts to control the information available to the public in the ways that concern Cortez. Consider, as a recent example, Trump’s unsubstantiated claim that Alabama “would most likely be hit (much) harder than anticipated” by Hurricane Dorian, followed by reports of the Administration’s directives to National Oceanic and Atmospheric Administration meteorological experts not to contradict the President’s assertions.
To be sure, the Trump Administration is by no means the first to engage in information mischief—although its efforts in this regard may be different in degree and perhaps in kind from those of previous administrations. Nor is it likely to be the last. Robert Lopresti recounts one of many examples in his book When Women Didn’t Count: in 2004 the Bureau of Labor Statistics “became involved in a controversy related to what some interpreted as a deliberate attempt by George W. Bush’s administration to conceal information of which it disapproved” when it announced its plan to halt the collection of data about women’s participation in major industries. And although Cortez applauds the Obama Administration for adopting coherent information policies that emphasized a commitment to transparency, he also notes that Administration’s oft-criticized resistance to FOIA requests.
What can we do to curtail the government’s abuses of its tools of information control? Cortez sketches a range of options. He wonders about administrative law possibilities like hard look review under the Administrative Procedure Act: “If the agency’s record can be undermined by evidence of information mischief, it might invite courts to invalidate the agency’s efforts—or at least trigger more searching review.” He flags the federal Information Quality Act that, among other things, allows aggrieved parties “to seek and obtain correction of information maintained and disseminated” by government agencies. Also helpful is the Whistleblower Protection Act, amended in 2012 to protect government employees’ disclosures about “any effort to distort, misrepresent, or suppress research, analysis, or technical information.” Perhaps more promising, in Cortez’s view, are nonlegal tools. Some are internal to the government, like robust agency policies and norms for principled information control practices. Others are external, like third parties archiving, and thus protecting, data.
Cortez’s paper demonstrates the continuing need for careful study of, and attention to, the government’s information policy—which he understands to mean an administration’s formal policies, as well as its discretionary decisions, about whether, when, and how to collect and disseminate information. And although Cortez’s work sounds primarily in administrative law, it also informs constitutional law by documenting threats to the informed public opinion necessary to a healthy constitutional democracy. As Cortez concludes: “It is unclear the extent to which legal and nonlegal tools can provide meaningful constraints on an executive interested in exploiting its power over information. The most powerful tool may be to fight information with information, drawing attention to these practices and archiving important information.”
A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia), the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.
In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution.
The article opens by discussing the opinions of appellate judges that formed the circuit split that prompted the Supreme Court to take up these cases, in order to explore a set of methodological questions surrounding statutory interpretation. Ironically, Eskridge notes that the methodologies of the judges that concluded Title VII covers LGBT employees would be attractive to the Supreme Court justices (such as Justice Thomas and Chief Justice Roberts) least ideologically inclined to read it to do so. “Will the Supreme Court divide along predictably ideological and political lines—or might the legal arguments provide a canvas to debate the issue in [a] relatively nonideological manner…?” he asks. (Pp. 329-30.)
A central pillar of Eskridge’s thesis is that any interpretation of Title VII’s text, purpose, or precedents—from any methodological perspective—is incomplete without an understanding of its statutory history, by which he means “its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court.” (P. 331.)
The article elaborates Title VII’s statutory plan “to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities.” (P. 322.) It presents compelling evidence that “sex” did not mean merely “biological sex”—even in 1964. Even the 1961 Webster’s dictionary defined “sex” with more nuance as:
- (1) “[o]ne of the two divisions of organisms formed on the distinction of male and female,” or sex as biology;
- (2) “[t]he sphere of behavior dominated by the relations between male and female,” or sex as gender or social role;
- (3) “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct,” or sex as sexuality. (P. 338.)
The statutory history that Eskridge explores demonstrates several points. First, in barring employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin,” 42 U.S.C. §§ 2000e-2(a)-(d), and as both Congress and the Court have recognized, Title VII, commits itself equally to purging the workplace of race-, sex-, and religion-based discrimination. Eskridge connects the Supreme Court’s equal protection jurisprudence, especially Loving v. Virginia and McLaughlin v. Florida, to Title VII’s meaning. Given the equal footing of race and sex in Title VII, and the Court’s constitutional holdings that discrimination against interracial couples constitutes discrimination because of race—that is, the race of one person relative to that of their partner—discrimination against a man for partnering with another man (or a woman with another woman) is likewise sex discrimination for Title VII purposes. Furthermore, in Loving, the Court rejected the state’s argument—parallel to that made by opponents of LGBT protections here—that the law did not target whites or blacks, simply inter-racial marriage, because it equally prohibited both races from marrying across race lines.
Second, Title VII not only bars employment practices that treat all women differently from all men, but also practices that treat some men or some women differently because of their sex. The Supreme Court’s first sex discrimination case is illuminating. In Phillips v. Martin Marietta Corp., the Supreme Court held that Title VII prohibited an employer from disadvantaging not all women, but only those with preschool aged children. The deep point, Eskridge notes, is that Title VII is, and has always been, concerned with social roles and the social meaning of sex. That is, the statute, like evolving constitutional norms, targets not biology simpliciter (or the class of all women or men), but disadvantages due to expectations about how a person should behave because of their perceived membership in a class.
In addition, Price Waterhouse v. Hopkins—a precedent ratified and expanded by Congress when it amended Title VII in 1991—committed the Act to the broader principle that employers cannot prescribe non-merit-based gender roles. In that case, Ann Hopkins was denied partnership, despite having brought in $40 million in business in the early 1980s (surpassing all 87 men in her partner class), because some partners viewed her as too pushy, too ambitious, and insufficiently feminine, because she did not meet their stereotypes of how women should behave, dress, and act.
A key—and perhaps the deepest—sex stereotype highlighted by Eskridge is that men should be attracted to women and that women should be attracted to men. (P. 370.) To discriminate against LGB employees is not irrespective of sex (as targeting not women or men, but homosexuality), but doubly impermissible, because it enforces male stereotypes on some employees and female stereotypes on others. Likewise, an employer who discriminates against an employee for being transgender does so because that person fails to meet the employer’s expectations of how a person of that presumed birth sex should identify, dress, or behave. For this reason, too, Title VII should be understood to prohibit discrimination against LBGT people.
Finally, Eskridge explores the way in which the Constitution’s treatment of LGBT people evolved at the same time Title VII was formally evolving. In a series of landmark Fourteenth Amendment decisions between 1996 and 2015, the Court reversed its prior acquiescence to governmental treatment of gay people as criminals and psychopaths. For this reason, Eskridge argues, “judicial precedents premised on the assumption that Congress and employers can discriminate against gay and lesbian employees because they are presumptive criminals or psychopaths not only can be but must be revisited.” (P. 333.) In short, it is not only “constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. It is impermissible, in light of recent constitutional holdings, to read Title VII to permit as much.” (P. 322.)
In this way, Eskridge notably breaks with Bruce Ackerman’s theory of constitutional moments. Where Ackerman views the adoption of the civil rights statues of the 1960s, including Title VII, as a watershed in a string of punctuated moments of higher law-making, Eskridge’s rich history illuminates the dynamic and evolving nature of statutory and constitutional meaning in their longer arc—showing how together Title VII and the Constitution have come to protect LGBT people.
The article concludes that “[t]he statutory text, structure, precedent, practice, and constitutional background norms is so tightly interconnected…[that] a poorly researched textual analysis, divorced from statutory history, [that read LGBT out of Title VII] would amount to an assault on the rule of law itself.” (P. 333.)
The piece provides critical insights into how to think about sex, discrimination, and the evolution of social and constitutional meaning. Often issues, such as those presented to the Court this term are framed as questions of whether constitutional or statutory text should extend to include LGBT people. Eskridge’s rich account forcefully demonstrates that Title VII’s “because…of sex” already does so. Indeed, to read LGBT people out of the statute would undermine principles protecting not only LGBT people or within Title VII, but far beyond them.
Cite as: Amanda Shanor, “Because…of Sex” & Constitutional Meaning
(September 20, 2019) (reviewing William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections
, 127 Yale L. J.
246 (2017)), https://conlaw.jotwell.com/because-of-sex-constitutional-meaning/