Constitutional Law Prof Blog

SCOTUS Hears Oral Arguments on Montana Blaine Amendment for School Scholarship

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.

Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination."  Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:

Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.

In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.

The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:

isn't the crucial question why the state court did what it did?

If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.

So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.

Is that constitutional?

The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."

Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."

This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:

And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .

Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:

can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.

The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground.  And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.

 

OLC Says House Committees Lack Subpoena Power in Impeachment Investigation

Steven D. Schwinn, UIC John Marshall Law School

The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.

The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).

The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.

(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)

In short, OLC reasoned this way:

(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"

(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;

(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;

(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;

(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and

(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.

 

High Court Declines to Take Up Expedited Review of Fifth Circuit's Obamacare Ruling

Steven D. Schwinn, UIC John Marshall Law School

The Supreme Court issued a one-sentence order today denying a motion by Obamacare defenders to expedite review of the Fifth Circuit's ruling last month holding the individual mandate unconstitutional.

Recall that the Fifth Circuit ruled the individual mandate unconstitutional (because Congress zeroed out the penalty), but remanded the case to determine whether the mandate is severable from the rest of the Act--and therefore whether any other portions of the Act can stand. The district court previously ruled that the mandate was not severable, and that the entire Act must fall.

The Court's order means that the Court won't rule on the case until after the 2020 presidential election, if at all.

Ninth Circuit Rules on Court Processes and Media Right to Access

Steven D. Schwinn, UIC John Marshall Law School

The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn't. The ruling sets a test and clarifies the law in the Ninth Circuit.

The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed "no access before process," meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn't use electronic filing; it's all paper.)

As the case worked its way through the federal courts, Ventura County changed its practice to a "scanning policy." Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.

The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the "no access before process" violated it, while the "scanning policy" didn't. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court's important interest in the fair and orderly administration of justice. Or: "Ventura County must demonstrate first that there is a 'substantial probability' that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to 'adequately protect' that government interest."

As to the "no access before process" policy, the court said that it resulted in significant delays, but didn't serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy "caused far greater delays than were necessary to protect [these interests]."

As to the scanning policy, the court said that it directly related to the court's asserted interests and that, after the court changed its filing hours, the policy resulted in "near perfect" same-day access to the complaints. (Before the court changed its filing hours, there wasn't near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)

The ruling leaves the current scanning policy in place.

Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied "reasonable time, place and manner restrictions."

Daily Read: GAO Finds Executive Wrongfully Withheld Funds to Ukraine

In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.

The Report begins:

Office of Management and Budget—Withholding of Ukraine Security Assistance

B-331564 January 16, 2020

In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

The Report explains the constitutional and statutory frameworks, including the ICA, thusly:

The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).

The burden to justify a withholding of budget authority rests with the executive branch.

The Report found that the Executive did not meet that burden.

Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation: 

OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.

We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.

[emphasis added].

 

District Court Halts Trump Order Allowing Cities, States to Veto Refugee Resettlement

Steven D. Schwinn, UIC John Marshall Law School

Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.

President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.

The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:

[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.

The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")

The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.

The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.

SCOTUS Will Hear First Amendment Challenge to Federal Robo-Call Law

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).

The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.

The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.

The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015).  Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based.  The panel stated:

Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.

Importantly, as the district judge noted:

a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited  technology, with the sole distinction being that the first call relates to a loan guaranteed  by the federal government, while the second call concerns a commercial loan with no government guarantee.

Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:

It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.

However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added,  the automated call ban was “fully operative.”

The United States Supreme Court has now added this case to its 2019-2020 Term.

Daily Read: NYC Bar Asks Congress to Scrutinize Attorney General

In a six page letter, the New York City Bar Association urged Congress to "commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice." 

The bar association letter discusses four specific instances of public comments that were inconsistent with the duties of the Attorney General

to act impartially, to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities are bedrock obligations for government lawyers. In the context of pending investigations, government lawyers also are obliged to be circumspect in their public statements and to avoid prejudging the outcomes of those investigations.

The letter also remarks that the specific "comments follow and are reminiscent of Mr. Barr’s earlier mischaracterizations of the Mueller Report, prior to his release of a redacted version of it, in which Mr. Barr claimed the special counsel had found insufficient evidence of any obstruction of justice by President Trump—a material mischaracterization of the Mueller Report and a proposition rejected by more than 1,000 former federal prosecutors based on the facts set forth in the Mueller Report."

In brief, the four instances are:

• On October 11, 2019, in an invitation-only speech at the University of Notre Dame, Mr. Barr launched a partisan attack against “so called ‘progressives’” for supposedly waging a “campaign to destroy the traditional moral order.”
• On November 15, 2019, in a speech at the Federalist Society’s National Lawyers Convention, Mr. Barr again vilified “progressives” and “the Left” (characterizing as “the other side” those who “oppose this President”) in highly partisan terms.
• On December 3, 2019, drawing from earlier remarks, Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.”
• On December 10, 2019, in a television interview soon after DOJ’s Inspector General released a report finding no improper political motivation in the FBI’s commencement of a counterintelligence investigation into alleged ties between the Trump-Pence campaign and Russian officials in 2016, Mr. Barr publicly rejected the Inspector General’s findings, asserting instead that a separate ongoing investigation into the FBI’s actions that he personally had directed would likely reach a different conclusion.

The letter asks for Congressional oversight of Attorney General Barr because, in short,

In a troubling number of instances, Mr. Barr has spoken and acted in a manner communicating an impression that he views himself as serving as the Attorney General not for the entire nation, but more narrowly for certain segments of society—whether defined in terms of religion, ideology (his own “side,” to borrow the language of Mr. Barr’s Federalist Society speech) or party affiliation.

 

Eleventh Circuit Rebuffs Eleventh Amendment Immunity Defense in ADA Claim

Steven D. Schwinn, UIC John Marshall Law School

The Eleventh Circuit ruled in National Association of the Deaf v. Florida that Congress validly abrogated state sovereign immunity in enacting the Americans with Disabilities Act, insofar as it requires the state to provide captioning for live and archived videos of Florida legislative proceedings. The ruling means that the plaintiffs' case can move forward on the merits.

The case arose when plaintiffs challenged the Florida legislature's practice of live-streaming and archiving videos of legislative sessions without captioning. The plaintiffs argued that this violated Title II of the ADA and the Rehab Act (more on that below). The state moved to dismiss, arguing that it was immune under the Eleventh Amendment and that Congress did not validly abrogate immunity in enacting the ADA.

The Eleventh Circuit disagreed. The court ruled that Congress, in enacting the ADA, sought to protect the fundamental right to participate in the democratic process, and that the state denied that very right to the plaintiffs:

Here, deaf citizens are being denied the opportunity to monitor the legislative actions of their representatives because Defendants have refused to provide captioning for legislative proceedings. Without access to information about the legislative actions of their representatives, deaf citizens cannot adequately "petition the Government for a redress of greivances," because they cannot get the information necessary to hold their elected officials accountable for legislative acts. This type of participation in the political process goes to the very core of the political system embodied in our Constitution.

The court went on to say that Congress also validly abrogated immunity even if only a non-fundamental right were at stake. 

The court said that Congress enacted Title II against a backdrop of a "pattern of unequal treatment in the administration of a wide range of public services, programs, and activities," and that Title II was an "appropriate response" to this pattern:

The burden of adding captioning to legislative videos--which are already provided to the public--removes a complete barrier to this information for a subset of citizens with a remedy we expect can be accomplished with limited cost and effort. In this way, the remedy is a proportionate and "reasonable modification" of a service that is already provided, and it does not change the "nature" of the service whatsoever. Finally, if the cost or effort should prove to be prohibitively burdensome, the Defendants have available the affirmative defenses in Title II.

The court also held that the plaintiffs could pursue injunctive relief under Ex Parte Young for the ongoing violation of Title II. Finally, it remanded for further proceedings on whether state legislative defendants received federal financial funds, and were therefore on the hook for Rehab Act violations (as a federal conditioned spending program--federal funds in exchange for a state's agreement not to discriminate by disability). 

Daily Read: Crenshaw & MacKinnon Propose a New Equality Amendment

In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal

centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.

The article elaborates on the rationales for each section. The entire proposed amendment reads:

The Equality Amendment

Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and

Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and

Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;

Therefore be it enacted that—

Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.

Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.

Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.

Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.

This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.

 

pictured: Professors Crenshaw (left) & MacKinnon (right)

 

Daily Read: Chief Justice's Year-End Report on the Judiciary

For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy:  Shelby County (regarding voting rights);  Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts);   McCutcheon (finding campaign finance regulations unconstitutional).  For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.

Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside.  Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.

District Court Tosses Kupperman's Suit Over Congressional Subpoena, Absolute Privilege

Steven D. Schwinn, UIC John Marshall Law School

Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.

The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.

We previously posted on the case here.

Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.

Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.