Constitutional Law Prof Blog

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering: 

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.

SDS

State AGs Challenge Constitutionality of Nelson's Nebraska Compromise

Senators Lindsay Graham and Jim DeMint last week asked South Carolina State Attorney General Henry McMaster to look into the constitutionality of the provision in the Senate health care overhaul bill exempting Nebraska from proposed new Medicaid costs.  (The Senate bill would increase health care coverage in large part by increasing eligibility for the Medicaid program.  Many states are concerned about their ability to cover the new costs.  In a move dubbed the "Cornhusker Kickback" by opponent, Senator Ben Nelson of Nebraska agreed to support the measure in exchange for exempting Nebraska from these new costs.  The federal government would pick them up instead.)  We posted most recently on related issues here.

There's some speculation that a group of Republican state AGs may seek to challenge the measure under the Port Preference Clause (Article I, Sec. 9).  (Talking Points Memo covered this here and here.)  You may be excused for not being on top of that one; here it is:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obligated to enter, clear, or pay Duties in another.

If you'd like a little more on the Clause, check out Pennsylvania v. Wheeling & Belmont Bridge Co. (1855) and Louisiana Public Service Commission v. Texas & NOR Co. (1931).  According to Louisiana Public Service Commission, "The specified limitations [in the Port Preference Clause] on the power of Congress were set to prevent preferences as between states in respect of their ports or the entry and clearance of vessels."  The Clause doesn't seem to be a very good candidate for a bill having nothing to do with ports, or port preferences, or the entry and clearance of vessels, etc.

Opponents are also arguing the General Welfare Clause--that Congress will have exceeded its authority under the General Welfare Clause by so favoring one state.  (The Alabama AG makes this point in a YouTube video at the end of this TPM story.)  This too seems awfully weak: The Court adopted the more expansive Hamiltonian position on the scope of Congress's spending power in United States v. Butler (1936) and has generally deferred to Congress in determining what spending promotes the general welfare.

Finally, Mark Tushnet suggests in this TPM story that the states may have a "slightly more viable" equal protection argument, but that it would likely fail at rational basis review.

SDS

Times: Undo Iqbal, Restore Access

The New York Times yesterday ran an editorial urging Congress to overturn Ashcroft v. Iqbal, the case that came down last spring and effectively heightened the pleading standard for plaintiffs in federal court.  (Thanks to Con Law Prof Blog editor Ruthann Robson for the heads up.)  We most recently covered the issue here.

The Times is right in framing the issue as an access question.  As we've written here and here, lower courts have used Iqbal to dismiss hundreds of complaints for failure to meet the pleading standard set in the case.  (We of course don't know exactly how many of these cases might also have been dismissed under the pre-Iqbal plain-statement standard.  But the rash of dismissals in the wake of Iqbal, and citing Iqbal, suggests that this case is responsible, as the Times writes, for curtailing access to the courts.)

Congress can undo the effects of Iqbal and return the pleading standard to the pre-Iqbal level.  Senator Specter introduced legislation here; Representative Jerrold Nadler introduced legislation here.  We looked more carefully at the legislation here.

SDS

Update: Pregancy Policy for Army, Comments by Major General Cucolo

UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post  here.

The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.  

A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:

Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;

Subject: Pregnancy Provision In His Recent General Order

Cucolo specifically addressed the matter of court-martial for pregnancy:

Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this.  I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue.  And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this.  I do not ever see myself putting a soldier in jail for this.  I have had four soldiers.  I have had to deal with four cases.  In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand.  I could have put it in their official file, which may or may not have impacted their career.  But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished.  There were three males punished.  And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it.  I did not pursue it.

Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:

The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances.  Both receive the same punishment.
. . . .

I am the one responsible and accountable for these 22,000 soldiers.  The National Organization for Women is not.  Critics are not.  I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything.  I have to accomplish a very complex mission, very complex.

We are on the Kurd-Arab faultline up here.  We are -- we are moving units, relocating things.  It's a very dynamic atmosphere.  And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers.  And I'm going to do what it takes to maintain our strength and bring as many home as I can.

I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.

RR

Obama Administration says Ninth Circuit Judge's Administrative Opinion not "Binding"

In a statement issued by Elaine Kaplan (pictured) OPM counsel and "open lesbian,"  the OPM and the Obama Administration refuse to comply with Ninth Circuit Judge Kozinski's order granting spousal benefits to lesbian federal employee's same-sex partner, previously discussed here.

Kaplan's statement, not yet on the OPM website but on the Advocate website here, provides in part:

It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s spouse is any less real or less painful, but it is a critical point.

The decision in this matter was not reached lightly — after we learned of this development, we examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment. DOJ also advised us that DOMA prohibits same-sex spouses of federal employees from enrolling in the FEHBP and that the law does not permit OPM to allow this enrollment to proceed.

By characterizing Kozinski's order as administrative rather than an opinion by a judge in an Article III capacity, the Statement seeks to diffuse any arguments raising separation of powers issues.  The statement ends with a note that Obama has "personally" called for an end to DOMA. 

RR

DOMA, Obama and the Power of the Judiciary

Ninth Circuit Chief Judge Alex  Kozinski (pictured left) and Chief of the Office of Personnel Management, John Berry (pictured right below) seem to be at loggerheads.  

As Kozinski explains in his recent Order,  Karen Golinski had been "denied a benefit of federal employment because she married a woman rather than a man," and despite DOMA "determined that violates this court's guarantee of equal employment opportunity," and ruled:

The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski's Health Benefits Election form 2809, which she signed and submitted on September 2, 2008, to the appropriate health insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of a listed spouse.

__ F.3d ___, 2009 WL 4043529, citing and quoting In re Golinski, 2009 WL 2222884  (9th Cir. Jan.13, 2009).  Kozinski then notes,

No “party or individual aggrieved” by my decision appealed it.  The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski's form 2809 to the Blue Cross and Blue Shield Service Benefit Plan, Ms. Golinski's health insurance carrier. That's as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. Golinski's form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski's form 2809, thwarting the relief I had ordered.  I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary's EDR plans.

2009 WL 4043529 at 1-2 (citations and footnotes omitted).   Kozinski does not cite Marbury v. Madison, but he does say:

if the theory of separate powers means anything, it's that the Executive cannot use its dominance over logistics to destroy our autonomy. Would we permit OPM to interpret a statute so as to require us to racially discriminate in what we pay our employees? Could the U.S. Marshals refuse to protect our courthouses because they disagree with our decisions? May the Treasury refuse to cut paychecks to judicial employees it believes are not suitable for their positions?

That those rights are not in question here is irrelevant. The power the Executive has arrogated to itself in this case would be enough to sustain those actions as well. Nor is it any answer that OPM could set out a plausible interpretation of the law to support its actions in this case.

Kozinski thus orders specific relief including ordering the Office of Personnel Management to rescind its directive to the insurer that "Ms. Golinski's wife is not eligible to be enrolled as her spouse."

 The response of John Berry, the Chief of the OPM (and perhaps ironically, the highest ranking openly gay member of the Obama Adminstration) has not yet been divulged.  However, Con Law Profs looking for a Marbury v. Madison issue for an upcoming exam might easily adapt this situation.

RR

VMI Update: Gender and the Virginia Military Institute

Of the 1,500 cadets on the campus of the Virginia Military Institute (VMI) this fall, only 126 are women - - - a dozen years after the United States Supreme Court, in its landmark opinion United States v. Virginia, ordered VMI to change its male only admission policy.

Yet the small number of female cadets is not the reason that the VMI is again subject to a federal investigation, although the small number may be a contributing factor.  

According to a report in The Roanoke Times in August:

A copy of the complaint -- obtained by The Roanoke Times through a Freedom of Information Act request -- sheds little light on the complainant's identity. Large portions of the document were redacted. Among the few readable sentences: "The language and terminology that is used and considered acceptable by VMI in the barracks reflects a climate and culture that is derogatory and discriminatory toward the women that are required as cadets to live in the barracks." And: "A male VMI graduate is almost always given preferential treatment."

According to a report November 22 in The Baltimore Sun, the "ongoing investigation of a sex discrimination complaint at the small, state-supported school" has  "taken nearly a year and a half — three times longer than usual."

VMI issued a statement on its website here.

For those thinking about a forthcoming constitutional law exam, this might be worth a look.

RR

(with thanks for the tip to Jen Hogg, CUNY School of Law, class of 2012)

Civil Rights in the Obama Era: Conference

The relationships between civil rights and constitutionalism will be explored this Friday, November 13, in a day long conference at Valparaiso University School of Law organized by Professor Penelope Andrews.  

Professor Frank I. Michelman, Harvard Law School, will kick-off the day with the Seegers Lecture, entitled "Legitimation by Constitution: Thoughts from South Africa." 

The subsequent panels include "Beyond the Black-White Paradigm of Civil Rights Law,"  "The Rights of Students in Public High Schools," and "The Possibilities and Limitations of Civil Rights Litigation: A Greater Role for Social Movements?"

Registration and more information here.

RR

Racial and Economic Integration of K-12 Schools: Conference

Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators is the title of a conference to be held at Howard University School of Law Washington, D.C. on Friday, November 13, 2009.

The Conference is organized by the Charles Hamilton Houston Institute for Race & Justice (at Harvard Law School).

The organizers intend to bring "together a wide range of government officials to converse with educators, civil rights advocates, and scholars who support racially and economically integrated K-12 public schools.  Participants will learn about racial and socioeconomic integration incentives in current and proposed federal policies, regulations and spending programs.  Panelists and audience members also will discuss current integration efforts on the ground that sustain quality integrated schools and stable communities."

Certainly, the continuing impact of the Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District 1 will be a topic for discussion. Speakers include Theodore Shaw, Susan Eaton, and john powell, as well as a wide array of government officials.

Registration reportedly ends this Friday.  More information here.

RR

Translating Equality

Third Annual Distinguished Conversation at CUNY School of Law
TRANSLATING EQUALITY:  LANGUAGE, LAW & POETRY

A conversation between Professors
Jenny Rivera
&
Kimiko Hahn

Moderated by Professor Ruthann Robson

Friday, November 6, 2009
at 11 am

City University of New York School of Law

English only laws, accent discrimination, the relationship between language and national origin classifications, and the art of translation across languages, cultures, and academic disciplines are a few of the topics to be addressed in this interdisciplinary conversation.


Jenny Rivera is Professor of Law and Director of the Center on Latino and Latina Rights and Equality (CLORE) at CUNY School of Law. 
Her work has centered on a wide range of issues facing Latinos and Latinas, including language and gender discrimination and cultural barriers.   Former Law Clerk to Supreme Court Justice Sonia Sotomayor, Professor Rivera was a frequent public commentator during last summer’s confirmation process.

Kimiko Hahn is a poet and Distinguished Professor in the English department at Queens College/CUNY.  Her poetry collections include The Narrow Road to the Interior (W.W. Norton 2006) and The Artist’s Daughter (W.W. Norton 2002). As one biography phrases it, her work often explores "the intersections of conflicting identities. She frequently draws on, and even reinvents, classic forms and techniques used by women writers in Japan and China, including the zuihitsu, or pillow book, and nu shu, a nearly extinct script Chinese women used to correspond with one another."

Free and open to the public.  RSVP required: robson@mail.law.cuny.edu

RR

Interracial Marriages as Children's Rights: Robson's Saturday Evening Review

There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have.  As one of my students phrased it, "Has Loving v. Virginia been overruled?"

The judge's "concern for the children" rationale is one that is often proffered by governments.  In Reflections on Loving and Children's Rights, 20 U. Fla. J.L. & Pub. Pol'y 11 (2009), scholar Barbara Bennett Woodhouse (pictured right) and co-author Kelly Reese interpret the 1967 case of Loving v. Virginia as a landmark case in the area of children's constitutional rights.  They write:

As it touches the lives of younger generations, Loving has played a central role in the development of children's rights to equality, privacy, agency, dignity and protection.

How can a case about marriage have such a broad legacy for children? Children define themselves and are defined by law in relation to those who bring them into the world, who claim them as their own and who guide their upbringing. Because of Loving and the cases that followed from it, the current generation of children, like no other before, enjoys the right to equal protection of the laws, regardless of the race or marital status of their parents. This generation also enjoys, as never before, the liberty to envision building families free from state-sanctioned discrimination. Nevertheless, pockets of discrimination remain, marginalizing many children who are growing up in nontraditional families and preventing many children from equal access to the benefits of a legally recognized family relationship. As long as these forms of discrimination continue, the legacy of Loving will remain unfulfilled.

They argue that marriage operates as a "gatekeeper" to children's rights, even though many of the disabilities of children born "out of wedlock" have been whittled away using constitutional doctrine.  They extend their argument to the children of same-sex couples, including the wedge issue of adoption.  Most interesting in this short piece are some of the observations by Barbara Bennett Woodhouse regarding advocacy, teaching, and personal experiences. 

There have been many calls for sanctions against the Louisiana Justice of the Peace and the couple has reportedly sued him.  Perhaps the judge could be required to read Loving v. Virginia as well as the article by Woodhouse and Reese; perhaps he might be required to a responsive reflection.

RR

English Only Consumer Protection Defeated

The proposed Consumer Financial Protection Agency Act of 2009, HR 3126, would establish the Consumer Financial Protection Agency as an independent executive agency to regulate the provision of consumer financial products or services.   The bill was approved by the House Financial Services Committee today, but only after a robust markup.

One amendment was offered by Representative Chris Lee, R-NY, seeking to strike a provision regarding consumer protection  "language accessible materials for non-English speakers" and to prohibit the Agency from requiring any disclosures in any language other than English.  The amendment was defeated 40 - 29 (see item 38, HR 3126 here).

For an excellent discussion of the status and constitutionality of a wide array of English-only laws and policies in the United States, see Watch Your Language! The Kansas Law Review Survey of Official-English and English-Only Laws and Policies, 57 U. Kan. L. Rev. 669 (2009).

RR

ABA President Calls for Civil Gideon

ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal.

Lamm argues that Civil Gideon is a part of a broader strategy, including increased pro bono efforts and increased legal aid funding, in meeting dire legal needs in the current economic crisis:

But we must do much more. Lawyers and advocates nationwide have been working hard, with ABA support, for the right to counsel in civil matters where basic human needs are at stake—a “civil Gideon” policy. They are making progress case by case, state by state, jurisdiction by jurisdiction. Most recently, in the Alaska Supreme Court case of Office of Public Advocacy v. Alaska Court System, the ABA filed an amicus brief supporting civil Gideon. This fundamental right must be recognized by courts and legislatures—and fully funded.

The ABA's amicus brief in Office of Public Advocacy is here.  See more here on the effect of the economic crisis on access to justice issues.

The issue may come to the Supreme Court this term.  Earlier this month, in a highly unusual move, the Court asked the Texas Solicitor General for views at the cert. stage on Rhine v. Deaton, a civil right to counsel case involving a Texas mother's private custody dispute with temporary foster parents.  See more here and here.  The Court has not previously recognized a categorical right to counsel under the federal Constitution; instead, it created a barrier to such a right under Fourteenth Amendment procedural due process in Lassiter v. Department of Social Services. 

Lamm's article comes the same month that the state of California enacted legislation to provide for a pilot program providing a civil right to counsel in cases involving basic human needs.  In the bill, the California legislature made its own finding that a civil right to counsel in these cases is supported by constitutional demands for equality and equal access to justice.

California now joins several states that, through their judiciaries or state legislatures, have arrived at similar conclusions.  Perhaps the time is right for Civil Gideon to bubble up to the Fourteenth Amendment in Rhine.

SDS

Plessy, Brown, Barbara Ehrenreich & "Positive Thinking": Robson's Saturday Evening Review

Be positive!  How many times have you heard that recently?  How many times have you said that?  Or if you haven't heard it or said it explicitly, how many times has that been the implicit message? 

In formal meetings and informal ones, in classrooms and offices, in conversations with colleagues, students, and clients, inside academia and outside it,  the significance of being - - - or at least acting - - - happy, positive,  and "upbeat"  has become de rigueur.   And what could be wrong with that?

  A few answers are provided by Barbara Ehrenreich's new book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America.  It is a journalist's book aimed at a popular audience,  yet this seems right because it is criticizing a movement so ubiquitous that it is rarely named a "movement." But a movement it is, she argues, tracing its genesis to the "New Thought" movement in post-Calvinist America, around the time of the Civil War.   In the 1860s, Mary Baker Eddy, the founder of Christian Science, met Phineas Parker Quimby, a metaphysician, watchmaker, journal-keeper, and inventor in Portland, Maine, and so "the cultural phenomenon we now recognize as positive thinking" was launched. (79).   From here, it is only a short distance to William James' pragmatism, Napolean Hill's 1930's classic Think and Grow Rich, and of course Norman Vincent Peale's 1952 mainstay, The Power of Positive Thinking.   Ehrenreich partially explains the contemporary popularity of "positive thinking" in part by changes in work and life:  much more depended on being "likeable to employers, clients, coworkers, and potential customers,"  (96) and not only that, one's very life and health might depend upon it.   

Ehrenreich looks at several specific contemporary manifestations: cancer care and advice, the partnership between corporate and motivational industries,  the mega-churches ("God wants you to be rich!"), and psychologists purveying "scientific" studies of happiness.  Most predictably perhaps, she considers the present economic turmoil.  Ehrenreich doesn't think the culprit was simply greed, but an all pervasive sentiment that confused positive thinking with reality.  Thus, not only were people, whether they be borrowers or lenders, encouraged to think that things could only get better and that they individually deserved the new purse/house/car that they had visualized, but that anyone who dared proffer another idea should be dismissed as "negative" or even "toxic."  Being "negative" could mean not only that one was not in demand as a conversationalist or dinner companion, but that one was terminated from her or his job.

Academia earns only a brief mention (141); she concludes that universities have been "corporatized" with their MBA Administrators, bland architecture, aggressive marketing techniques, and hiring of "motivational speakers.  Not to mention, although she does, the "jargon" that one hears in universities and "everywhere": "incentivizing," "value added," and "going forward."  (She omits my favorite, "reaching out," often referring to speaking to a colleague next door or a student one would see in class, as if that person is very far away).  

Law does not figure in Ehrenreich's book (with the exception of the "law of attraction": visualize what you want and it will be attracted to you).   Reading it, however, did bring to mind both Plessy v. Ferguson, 163 US 537 (1896), and Brown v. Board of Education, 347 US 483 (1954).  In Plessy, Justice Henry Billings Brown famously wrote:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

I've always considered this a premature postmodernist stance, but it also fits into the "New Thought" currents Ehrenreich discusses.   If Homer Plessy had only been more of a positive thinker about that Louisiana statute mandating separation of the races! 

Fifty-eight years later, Justice Earl Warren in Brown v. Board of Education concludes that racial segregation has a "detrimental effect" :

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

The modern authority Brown cites in the footnote includes the famous Clark "doll studies."  But in the power of positive thinking world that Ehrenreich describes, low self-esteem - - - what would be named "negativity" now - - - is in the control of the individual and is not attributable to legal or social conditions.    Instead of suing to end segregated schools, should the plaintiffs (and attorneys) in Brown have looked "within" and tried to be more "positive" about the "situation"?

Ehrenreich's all-important point - - - which I think might be too easily lost in the book - - - is that what's wrong with the insistence on a positive world view is that it reinforces the status quo.    If, as the positive psychologist studies contend, "circumstances" only play a small role in individual happiness, then, as she writes "policy is a marginal exercise."  (171).

Why advocate for better jobs and schools, safer neighborhoods, universal health insurance, or any other liberal desideratum if these measures will do little to make people happy?  Social reformers, political activists, and change-oriented individuals can all take a much-needed rest. . . . the baton has been passed to the practitioners of "optimism training"  . . . .

(172). 

So, the next time you hear - - - or say - - - something about someone's positive or negative attitude, think of Plessy v. Ferguson and Brown v. Board of Education.  And take a look at Ehrenreich's new book. 

 

RR

Schwarzenegger Signs Equal Access to Justice Bill

California Governor Arnold Schwarzenegger early today signed AB 590, the California Assembly bill directing court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ."  I posted on this last month, after the Assembly passed the bill, here.

The bill includes findings that the civil right to counsel is supported by "[t]he doctrine of equal justice under law" and that "[e]qual access to justice without regard to income is a fundamental right in a democratic society."

For more on the civil right to counsel movement in California and around the country, check out the National Coalition for a Civil Right to Counsel web-site.

SDS

The Constitutional "Gay Agenda": Robson's Saturday Evening Review

The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda."  Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.

(Update: These preliminary reports were confirmed after the speech, NYT here, WaPo here; the text of the speech is on whitehouse.gov here).

Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement.  Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war,"  "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run." 

In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here,  Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices."  In the context of the application of Loving to same-sex marriage arguments, Adler writes:

Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times.  For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict.  A formal equality agenda can eclipse or even undermine other potentially worthy goals.  .  . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality.  While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.

Instead, Adler posits several law reform agendas.  As a central example, she uses homeless adolescents.  By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.

This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.

RR

The Civil Right to Counsel in Foreclosures, Termination of Parental Rights

The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures.  (I previously posted on this issue here.)  The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering look at this critical problem:

In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel.

In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on "subprime," "high cost" or "non-traditional" mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation.  In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented.

In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosures did not have counsel in 2008. 

The report argues that "[u]nless and until the foreclosure process and laws are simplified to the point where legal counsel is not necessary, each homeowner facing foreclosure should be provided with an opportunity to consult with a trained counselor and then to receive fuller representation by a lawyer where necessary to ensure just and fair proceedings."

Such a civil right to counsel may not be far off.  The Supreme Court yesterday took the exceedingly unusual step of asking the Texas Solicitor General for his views on a civil right to counsel case coming out of that state.  The case, Rhine v. Deaton, involves a biological mother's private custody dispute with temporary foster parents.  The Texas courts denied appointed counsel to the mother, and she filed for Supreme Court review.  The parties have filed their cert. briefs, and the Court invited the Texas SG to provide his views.

I posted an analysis of the case this summer, suggesting that the mother faces a major hurdle in Lassiter v. Department of Social Services, a 1981 case denying a right to counsel for a poor mother in similar circumstances.  The Court in that case used the three-factor procedural due process balancing test in Mathews v. Eldridge and weighed the balance against a newly discovered presumption against appointed counsel in cases where physical liberty is not at stake.  (A claimed right to counsel in foreclosure cases would face the same burden under Fourteenth Amendment Due Process.  Some litigants have seen success, however, using state constitutional provisions.  Rhine's case comes up under the Fourteenth Amendment.) 

M.L.B. v. S.L.J., a 1996 case involving a poor mother's ability to appeal an order terminating her parental rights, may have partially eroded Lassiter's foundations--or at least it may have given plaintiffs a new set of constitutional tools to work with.  The Court in that case held that the mother had a right under Equal Protection and Due Process to appeal the order, even though she couldn't pay the appellate fees.  Unlike Lassiter, M.L.B. thus wasn't tethered only to procedural due process.  It gives litigants much more to work with.  (As I argue here and here, it gives litigants very much more.)

The Court's consideration of Rhine suggests that it may be willing to reconsider the Lassiter analysis and its groundless presumption in light of M.L.B.  It's not clear what the Court seeks from the Texas SG, but it may be seeking more information on the procedural complexities in Texas termination-of-parental rights proceedings--information that goes directly to one of the Mathews factors and would be relevant to an M.L.B.-type analysis. 

This is one to watch.

SDS

"Testing" Affirmative Action: Saturday Evening Review

The relationship between the Equal Protection Clause and the 1964 Civil Rights Act (especially Titles VI and VII) was once an amicable one.  Indeed, it was so amicable that one could conveniently ignore the Civil Rights Act when teaching equal protection doctrine; a student query about a reference to Title VI or Title VII could be answered summarily.

Contemporary equal protection doctrine, however, renders any racial classification subject to strict scrutiny, with the consequence that a state actor trying to comply with the 1964 Civil Rights Act and prevent racial disparities may be successfully sued for considering race. In his concurring opinion in Ricci v. DeStefano, Justice Scalia wrote

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how- - - and on what terms - - - to make peace between them.

Another battleground in the affirmative action "war" (to use Scalia's term) is between state ballot initiatives (such as the post-Grutter Proposal 2 in Michigan) and the federal law.  A useful intervention in that "war," although probably not on the side that Justice Scalia would favor, is Professor Kimberly West-Faulcon's article, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009).  West-Faulcon's focus is the

tension between state anti-affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action-less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti-affirmative action laws. At an affirmative action-less university, the river runs dry--the institution virtually stops admitting certain racial groups and presumes that state anti-affirmative action laws dictate such a result. This Article challenges this framing. Its point of departure is to explain how the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college-ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial differences in SAT scores.

Kimberly West-Faulcon (pictured right) notes that the "persistence of racial differences in SAT scores even when selecting among applicants with very strong academic credentials puts the SAT at the heart of the affirmative action debate" in the higher education context.  She contends that "decades of analysis of SAT scores have shown a variety of group disparities when students are separated based on certain categories. Specifically, men score, on average, better than women; whites and some Asian groups score better than Latinos and African Americans; the rich score better than the poor; and city dwellers score better than students from rural communities."  (footnotes omitted). 

It is affirmative action admissions policies that can "counterbalance" these test outcomes.  West-Faulcon's discussion, in footnote 122, provides the equal protection connection:

Interestingly, Justice Thomas, a staunch critic of race-based affirmative action, was the member of the Court in Grutter who most explicitly described the manner in which universities have traditionally used affirmative action as a corrective for the deficiencies in tests like the SAT:

[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body.... The [University of Michigan] Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test.

Grutter, 539 U.S. at 369-70 (Thomas, J., dissenting). Justice Thomas refused to condone race-conscious admissions because the University of Michigan Law School's need to use affirmative action was a “self-inflicted wound." Justice Powell, however, reached a very different conclusion in Bakke regarding the legal significance of test deficiency. He suggested that the need to use race as a corrective for deficiencies in a test's predictive ability may constitute a compelling state interest. See Bakke, 438 U.S. at 306 n.43 (suggesting that racial classification could offset “some cultural bias in grading or testing procedures”).  Professor Tomiko Brown-Nagin has noted, “But for the University's heavy reliance upon discriminatory admissions criteria as a sorting mechanism, the aspirations for diversity and selectivity would not be in tension.” Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. Pa. J. Const. L. 787, 800 (2005).

West-Faulcon's article provides a useful counter-balance for the often unexamined proposition that standardized tests (whether they be the SAT, LSAT, the firefighters test in Ricci or the police officers test in Washington v. Davis) are truly "standardized" in a multicultural context.

RR

Equal Access to Justice in California

The California Assembly earlier this month passed a bill, AB 590, to direct court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ."  Under the pilot project, "proposals to provide counsel in child custody cases should be considered among the highest priorities for funding, particularly when one side is represented and the other is not."  The LA Times on Friday encouraged the governor to sign the bill.

In passing the bill, the legislature made several key constitutional findings, including these: 

The doctrine of equal justice under the law is based on two principles.  One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life.  The second principle involves access to the legal system.  Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection.  For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others.

Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel.  A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. . . .

Equal access to justice without regard to income is a fundamental right in a democratic society.

The U.S. Supreme Court has never gone so far.  The Supreme Court has treated claims for civil counsel under the procedural due process test in Mathews v. Eldridge.  The Court in Mathews determined the constitutionally mandated process by balancing the litigant's interest, the government's interest, and the risk that the process used would lead to an erroneous deprivation.

The leading case on the civil right to counsel is Lassiter v. Department of Social Services.  In Lassiter, the Court rejected a poor litigant's claim for appointed counsel in a termination-of-parental-rights case.  The Court ruled that poor litigants have a right to appointed counsel in civil cases only when the Mathews factors weigh so heavily in favor of appointment as to overcome a presumption that there is a right to appointed counsel only when personal freedom is at stake.  (The Lassiter Court created this presumption; it nowhere existed as such in the Court's cases.)

Federal constitutional claims for civil right to counsel have always run up against Lassiter and its presumption.  But litigants have successfully won a state constitutional right to counsel in several states under state due process and equal protection principles. 

California, through its majoritarian processes and not its courts, now is poised to add itself to the growing list of states that recognize a constitutional civil right to counsel. 

For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site. 

SDS

The Constitutional Rights of the Elderly: Saturday Evening Review

A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five. 

This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law. 

Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect."   She contends that some state actions

limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state. 

Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse."  (at 1094).  She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological."  She continues:

Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.  

Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment.  Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.

(at 1098).

Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws.  She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108).   (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly).  She suggests that a better model is domestic violence. Id.  (Although it might be argued that violence against women policies have not always accorded women full constitutional status).

RR