Saturday, August 29, 2009

Beauty and Equality: Saturday Evening Review

Appearances are not merely a matter of aesthetics, but also of law and politics.  That's the argument of Deborah Rhode in The Injustice of Appearance, 61 Stanford Law Review 1033 (2009).


After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments.  She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity."  Id. at 1048.  Additionally, another

reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.

Id. at 1052.  Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression."  Id. at 1058.   One of her arguments refuting criticisms is that there is an

assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted.  Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and  the ruling is widely regarded as one of the Court’s finest moments.

Id. at 1069-1070 (citations omitted).  Rhode's point is that law can affect societal change (and she provides other examples).  She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes.  However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.

I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow.  Thanks to Ann, I've read an engaging thought-provoking piece.  And it might even be the basis of a Constitutional Law hypothetical in next week's class.


August 29, 2009 in Equal Protection, Food and Drink, Fundamental Rights, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

Congressional Participation in the Reagan Centennial Commission

The Office of Legal Counsel recently posted its April 21, 2009, analysis and advice on the question whether congressional seats on the Ronald Reagan Centennial Commission violated the Appointments Clause, the Ineligibility Clause, and separation of powers.  The memo itself is unremarkable, but its analysis is reflected in President Obama's signing statementon the Act, specifically disavowing the Act's plain intended role for congressional members of the Commission. 

If ever a signing statement were appropriate, this may be it.  The statement is plain and transparent.  The President reported his objections to Congress.  The statement promotes the congressional purposes of the Act, while carefully carving out its obvious constitutional problems.  And given the nature of the Act, nobody is likely to object. 

But still, the timing of the OLC opinion (after House passage, but before the first reading in the Senate--presumably with time to amend the Act, as recommended by the OLC) raises the core question about Presidential signing statements: Should a President unilaterally rewrite portions of legislation that passed both houses of Congress?

The Commission, established by Pub. L. 111-25 and which includes members of Congress appointed by congressional leaders, shall

(1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and

(4) submit to the President and Congress reports [on the Commission's activities].

The OLC opined that Commission members are "officers," and that congressional appointment therefore violates the Appointments Clause.  And because congressional members would be both members of Congress and officers "under the Authority of the United States," the Act violated the Ineligibility Clause.  Finally, congressional members would have important executive functions under the Act--a violation of the anti-aggrandizement principle.

OLC recommended amending the Act to give the Commission authority merely to advise and recommend activities to an executive officer--a plain and simple recommendation before the bill even received its first reading in the Senate.  But the OLC's suggestion did not work its way into the final version passed by both houses and signed by the President.  Instead, the President, President Reagan's signing statement on a similar commission in 1983, wrote,

I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibiliity Clauses of the Constitution.

The statement is transparent, pragmatic, even quite useful in promoting the broader goals of Congress in creating the Reagan Commission.  But it also perpetuates the practice that a President can unilaterally rewrite legislation merely by claiming a constitutional objection upon signing.


August 26, 2009 in Executive Authority, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Administration to Continue Extraordinary Renditions

The Obama administration plans to continue to use extraordinary renditions but pledges to monitor them closely to ensure that the rendered aren't tortured, reportsthe NYT.

But if the administration has its way, we'll never know if rendered detainees are tortured, or whether they're rendered at all.  That's because the administration has adopted the Bush administration position in the extraordinary rendition cases that the state secrets privilege prevents the courts from hearing claims by formerly rendered plaintiffs.  Under the administrations' view, the courts must dismiss these cases on the complaints, because the government can't even acknowledge the existence (or not) of the program.  The Obama administration reiterated this position in the Ninth Circuit case Mohammed v. Jeppesen Dataplan and challenged the panel ruling rejecting its claim.  That challenge is now pending.  (More here.)

The statement by administration officials that the Obama administration will continue the program seems to fly in the face of its assertions before the Ninth Circuit that the program is so secret that it cannot even answer a complaint.

The statement came the same day that AG Eric Holder appointed a prosecutor to examine CIA abuses of detainees, as described in the just released 2004 CIA Inspector General's report.  Holder is apparently interested in pursuing only those who acted outside of the OLC's legal advice (which itself gave a broad license to interrogators). 


August 25, 2009 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, August 24, 2009

Jawad Released from Guantanamo, Transferred to Afghanistan

The U.S. Department of Justice announced today that the government transferred Mohammed Jawad from Guantanamo Bay to Afghanistan.  At the time of his detention, Jawad was the youngest detainee at Guantanamo.  The government held him for over seven years before he got caught between the Bush administration's military commission system and the Obama's administration's efforts to revamp it.  Last month, Judge Huvelle (D.D.C.) lambasted the government for its treatment of Jawad at a hearing in his habeas case.  (I posted on the extraordinary hearing here.)  Most recently, the government filed a notice that it would no longer treat Jawad as detainable.


August 24, 2009 in Executive Authority, News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, August 23, 2009

Miller's Legal Educator Blog Census

Professor Colin Miller (John Marshall, Chicago) recently posted his 2009 Legal Educator Blog Census on the Evidence Prof Blog.  Miller's Census picks up where Prof. Daniel Solove (GW) left off and tell us "which legal educators are blogging and where the blogosphere is headed."  Check out this excellent resource.


August 23, 2009 in News | Permalink | Comments (0) | TrackBack (0)