Tag: hit&run

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

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The Transportation Security Administration sat on more than 1.3 million N95 masks it did not need even as hospitals and the Department of Veterans Affairs were begging for them. TSA does not mandate that its screeners to wear the N95 masks, which require training and fitting to use. Instead, TSA employees typically use surgical masks, and some agency officials in April began to suggest they send the masks to places that could use them. In fact, that was the direction give to the agency by higher-ups in the Department of Homeland Security. Instead, the agency stockpiled many of the masks in a warehouse and sent the rest to airports, where very few people were flying.

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I am happy to publish this guest post from Professor James Phillips, who will start at Chapman University this fall. James was counsel on an amicus brief in Our Lady Of Guadalupe on behalf of several religious groups.

Monday witnessed oral arguments in two consolidated cases involving the Ministerial Exception: the doctrine independently born of both the Establishment and Free Exercise Clauses that prohibits government interference in the selection, retention, and control of religious organizations ministers. And the back-and-forth between the Justices and the attorneys exposed three interconnected fallacies that appears to be driving much of the conversation in the cases. Laying bear these fallacies shows how one naturally leads to the other and ultimately to a fundamental misunderstanding of the constitutional protections afforded by the Religion Clauses. Correcting these errors points in a different direction than much of the discussion during oral argument—toward a test focused on the views and directives of the religious organizations regarding their “ministers” rather than the on-the-ground actions of the employees.

The “Ministerial” Exception Misnomer

The first error is the very name of the doctrine itself. Legal names have consequences. While a rose by another other name may smell the same, the name we give doctrines or constitutional clauses colors the perception of the underlying law. This is what psychologists label “framing effects.” As Donald Kochan has pointed out, imagine how differently we would perceive the “Takings” Clause if we called it “The Keepings Clause”? Or how might our views of the “Free Speech” and “Free Press” clauses be significantly altered if instead we referred to them as the “Censorship Clauses”? Names matter in the law.

Justice Alito hinted at this in the oral argument yesterday, though his concern with the name “Ministerial” Exception stems from its potential discriminatory effect: “I would be more comfortable if we jettisoned the whole term ‘ministerial exception’ because I do think it’s discriminatory . . . .” OA Transcript, at 73:1-4 (Alito, J, speaking). That concern is well-placed since Catholics, Jews, Muslims, and Hindus, for example, do not have “ministers,” a term that is Protestant in its origins.

But while well-placed, it does not go far enough. There is a bigger problem with the doctrine’s name than discrimination—the constitutional protection afforded by the exception does not flow to the “ministers” themselves, but to the religious organizations that employ them. Thus, the name diverts the constitutional focus from the very actor that is protected to the actor that is not. And as that next section shows, that can have a distorting effect on the doctrine. Rather than the “Ministerial” Exception, the doctrine should be labeled the “Religious Organizations Exception.” That would not only avoid the discriminatory nature of the label that Justice Alito worried about, but keep the focus on the object of the constitutional protection.

The Wrong Actor Error

With the misnamed exception focusing on “ministers,” it is perhaps not surprising that most of the Justices and attorneys alike repeatedly focused on the actions of ministers to determine whether the constitutional protection was triggered. For instance, Justice Thomas floated the hypothetical of a “chemistry teacher who’s a nun who starts class with—chemistry class with the Hail Mary, or the lay teacher who teaches religion but does it in a very straightforward, objective way.” OA Transcript, at 31:9-13 (Thomas, J., speaking). In response to a hypothetical situation of a math teacher at a Jewish school, petitioners’ counsel responded that whether such was covered by the exception “really depends on how that cashes out in actual practice.” OA Transcript, at 19:25-20:4. And respondents’ counsel perhaps fell into this trap the most explicitly when he argued that “the real issue in front of the Court” is

not whom the religion considers to be its ministers or even whom the religion considers to be performing its most important religious functions. It’s who among employees of religious employers are performing such—such vital duties to the establishment of the church that any qualification requirements or any legal enforcement having to do with their rights or—or qualifications would necessarily run afoul of the Establishment Clause?

OA Transcript, at 89:1-12 (Fisher, Mr., speaking).

But this gets the analysis backwards. Looking only to the actions of an alleged “minister” rather than the views and directives of a religious organization lets the tail wag the constitutional dog. If a “minister” fails in her duties it should not deprive the religious organization of its constitutional protection. Otherwise the law creates a perverse incentive for employees to secularize their job performance so that the exception is not triggered. Rather, the focus should actually be on “whom the religion considers to be performing its most important religious functions.” Justice Gorsuch understood this, as reflected in his questions about deference to religious organizations’ own sincerely held religious views as to which of their employees were ministers. See OA Transcript, 45:23-48:14; 90:16-24. Though even that position may not go as far as the Constitution requires.

That is because the Religious Organizations Exception is simply part of the broader constitutional protection frequently called the Church Autonomy Doctrine. That doctrine forbids the government from interfering in the internal affairs of religious organizations. And interfering in such organizations’ selection, retention, or control of their ministers is just one manifestation of that constitutional prohibition. In other words, the Exception cannot be construed in a way that violates the broader doctrine of which it is a part.

Thus, for instance, it would violate the Constitution to tell a religious organization who it could or could not hire or fire for an employment position that may seem secular to a judge, but that is nevertheless crucial to that organization fulfilling its religious mission. Take the head of a religious organization’s accounting department who is charged with overseeing the collection and use of an entity’s sacred tithing funds according to approved religious practices and doctrines. To some that employee may not seem to be carrying out a “religious” function, but the function may still be important to the religious mission of that organization. Though for such functions to qualify, they would seem to need to be ones the religious organization has deemed to involve involving leadership and supervision since it would be hard to view an entry-level accountant as performing a function crucial to a religious mission. If such functions were not covered by the Constitution, then the government could interfere unwittingly in a religious organization’s internal workings in a matter to cripple its ability to carry out its religious mission if employment laws prevented the religious organization from exercising its autonomy in such scenarios. And that would be constitutionally verboten.

Focusing on the perspective of the religious organization rather than the nature of an employee’s tasks also avoid the inter-religious discrimination that several of the Justices voiced concerns over, often in the context of the element of a formal title in the analysis. And titles could certainly lead to inter-denominational discrimination when one faith tends to use professional clergy whereas another uses a lay clergy for the exact same function.

But the problem is more than just with titles. For example, Justice Gorsuch voices concerns about formulating a test that results in “discriminating against minority religions that may have views about what’s important that are unusual or different from our own.” OA Transcript, at 46:7-10, 22-25. When counsel for the government proposed “a generalized functional approach that looks to the types of things that religions usually operate with across the board,” id. at 47:25-48:4, Justice Gorsuch noted the problem with such an approach: “Oh, well there—there exactly is the problem, ‘usually.’ ‘Usually.’ And that—that discriminates in favor of majority conceptions about religious doctrine and teaching,” id. at 48:3-9.

Precisely. A focus on the tasks of an employee rather than the perspective of a religious organization will lead to courts deciding that what some employee is doing is or is not religious. (Which leads to the final error, noted below). And that will discriminate against minority faiths. Imagine some new religion whose adherents believe that certain trees and plants are their deity. Rather than a chapel, temple, synagogue or mosque, they worship in a private park they own. In such a faith, the gardener—the person tasked with physically taking care of the religion’s gods—would have enormous religious importance even if pruning and fertilizing are not the types of things we usually view as religious in this country. Focusing on the tasks of the gardener rather than the views and directives to him of the religious organization could lead courts to deprive minority faiths of protections the Constitution guarantees that they desperately need given their outsider status.

The Stopwatch Fallacy

This erroneous focus on the employee’s tasks naturally leads to the analytical error of the stopwatch fallacy. Throughout the arguments, Justices and attorneys alike attempted to draw a constitutional line based on how many minutes an employee was engaged in a religious function. For example, respondents’ counsel didn’t view constitutional protection applying to a religious organization if a teacher only taught religion for “40 minutes a day.” OA Transcript, at 75:7, 13-21. Justice Kagan raised a hypothetical about “[a] math teacher who is told to teach something about Judaism for 10 minutes a week.” Id. at 18:23-25. And there were discussion about whether being a full-time versus a part-time religion teacher would make a constitutional difference.

Oddly, this focus on how much time an employee devotes to religious functions was already rejected in Hosanna-Tabor, which involved a religious school teacher whose “religious duties consumed only 45 minutes of each workday.” 565 U.S. 171, 193 (2012). As the Chief Justice observed for a unanimous Court, “[t]he issue before us . . . is not one that can be resolved by a stopwatch.” Id. at 193-94. Yet it’s not surprising that so much of the analysis could revolve around counting minutes. Misnaming the doctrine naturally leads to focusing on the wrong actor. And that misplaced focus causes analysis that emphasizes the wrong facts.

There is no doubt that even without these interrelated errors, there will be tough cases and the occasional line-drawing difficulty. But that’s just a function of applying the law to the real world, with all its messiness. Yet the by fixing these three errors, the Court can go a long way towards making sure that religious organizations of all stripes receive the protection the Constitution provides.

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Last Sunday, Mother’s Day, made me think how my mom warned me, as a young teen: “Work hard! Or you’ll freeze in the dark!”

Sometimes, the warning ended, “Or you’ll starve in the cold.”

She grew up during the depression. She and her peers were sensibly worried about freezing in the dark.

The message scared me, and I worked hard in school.

When I got my first job, I always put some pay in a savings account, even when (OK, it was long ago) I made only $132 a week. I feared a bad future, and I wanted to make sure I could support myself.

This wasn’t all good. I’ve probably been too anxious all my life. I missed out on things. I didn’t contribute to charities until I was in my 40s.

But fear of “freezing in the dark” made me persevere. I studied when I didn’t want to. Then I took a job that frightened me.

I’m a stutterer. Stuttering is now among disabilities covered by the Americans with Disabilities Act.

I wonder, had the ADA been law when I started in TV news, would I have struggled as hard to overcome my stutter? Would I have had the career I’ve had? Probably not.

The TV station wouldn’t have hired me. Once the ADA passed, my stutter makes me a member of a “protected class.” The station, reasonably, would have viewed me as potential poison.

That’s because if they fired me because I didn’t work out, I might sue. I could have accused them of failing to “accommodate the disabled,” as the law requires. Even if I didn’t win, the lawsuit would be expensive. It’s safer for employers to avoid members of “protected classes.”

Far-fetched? Look at the stats:

Before the ADA passed, 59 percent of disabled men had jobs. After it passed, the number fell to 48 percent. Today, fewer than 30 percent have jobs.

Once again, a law that was supposed to help people did the opposite of what politicians intended.

I think about that when I read about today’s $600/week federal unemployment check subsidies for the coronavirus. Added to average $378 state payments, unemployment now often pays better than working.

Incentives matter.

“We have not seen an application in weeks,” says Steve Anthony, CEO of the Anthony Timberlands sawmill in Arkansas. He’s offering jobs that pay $800/week. But in Arkansas, federal and state unemployment benefits reach $1,051/week.

Anthony told my TV producer Maxim Lott, “If Congress elects to extend this $600 unemployment bonus, it will simply support a higher level of unemployment.”

Lott also interviewed Otis Mitchell Jr., who quit his job transporting hospital patients once he learned about the increase in unemployment benefits.

“My little girl is loving it,” said Mitchell, because he has more time to spend with her.

But it’s bad for hospital patients who need transportation.

Shame on the U.S. government for making unemployment pay better than work.

People who lose jobs because government won’t let them work do deserve help. I’m giving more to charities because of that. Charities are able to discriminate—to discern who really needs help while ignoring freeloaders.

But government is a blunt instrument. Its checks go to people whether or not they try to find work or overcome disabilities.

Over time, as people depend on handouts, they often feel that their lives are no longer within their control. They become passive. They don’t push through obstacles. They wait for government help.

Social scientists call this “learned helplessness.”

It’s the struggle to overcome obstacles that that brings fulfillment.

When government programs “take care of us,” they kill off some of the best of life and make us much less productive. They don’t even make people happy.

If we keep giving the state more power over our lives, we will freeze in the dark.

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Based on an erroneous report of a “domestic assault,” police officers came to rescue Melanie Kelsay from the man who supposedly was attacking her at a community swimming pool in Wymore, Nebraska. Then one of them actually assaulted her, lifting the 130-pound woman off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious, because she disobeyed his command to “get back here.”

Last year the U.S. Court of Appeals for the 8th Circuit ruled that the assault did not violate Kelsay’s “clearly established” Fourth Amendment rights, meaning she could not sue the sheriff’s deputy who had injured her. Kelsay’s appeal of that decision is one of 13 cases involving “qualified immunity” that the U.S. Supreme Court will consider for review on Friday, giving the justices ample opportunity to revisit a misbegotten doctrine that shields police officers from liability for egregious misconduct.

Qualified immunity, which the Court invented in 1982, is supposed to protect government officials from the chilling effect of frivolous lawsuits under a federal statute that allows people to seek damages for violations of their constitutional rights. But in practice, the doctrine often means that victims like Kelsay cannot pursue their claims unless they can locate a precedent that closely matches the facts of their case.

In a recent analysis of 252 excessive-force cases decided by federal appeals courts from 2015 through 2019, Reuters found that most of the lawsuits were blocked by qualified immunity. It also found that the share of cases decided in favor of police has risen during the last decade and a half, from 44 percent in 2005–07 to 57 percent in 2017–19.

After 2009, when the Supreme Court said judges could grant police qualified immunity without even deciding whether their actions were unconstitutional, that shortcut became increasingly common, making it even harder for victims of police abuse to find apposite precedents. As 5th Circuit Judge Don Willett has observed, “important constitutional questions go unanswered precisely because those questions are yet unanswered.”

Hard as it may be to believe, those questions include whether police in Idaho violated the Constitution when they wrecked a woman’s home with tear gas grenades after she gave them permission to “get inside” so they could arrest her boyfriend (who was not actually there). While musing that getting inside could be construed to include firing toxic, destructive projectiles into the house, the U.S. Court of Appeals for the 9th Circuit last year declined to decide whether that would be “reasonable” under the Fourth Amendment.

That ruling, which the Supreme Court also has been asked to review, not only left the plaintiff without recourse; it gave other police officers license to do exactly the same thing, since the 9th Circuit approved qualified immunity without resolving the constitutional issue. So did the 6th Circuit in a 2018 case involving a Nashville officer who sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.

Another petition the justices are mulling this week involves a Georgia sheriff’s deputy who received qualified immunity after he shot a 10-year-old boy while trying to kill his dog. Neither the boy nor the dog had done anything to justify the use of lethal force, except that they happened to be in their own yard when the cops chased an unarmed suspect into it.

Further fodder for the Supreme Court’s potential reconsideration of qualified immunity: the Fresno cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant. Although the officers should have understood that theft was “morally wrong,” the 9th Circuit ruled last year, “they did not have clear notice that it violated the Fourth Amendment.”

Qualified immunity, by contrast, definitely gives police clear notice. It tells them they can get away with violating people’s rights as long as they find new ways to do it.

© Copyright 2020 by Creators Syndicate Inc.

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Late Tuesday night, a federal judge ordered a federal prison in Connecticut to speed up its process for releasing inmates at serious risk for COVID-19, finding that officials’ foot-dragging violated inmates’ constitutional right not to undergo cruel and unusual punishment.

U.S. District Judge Michael Shea ruled that the four lead plaintiffs in a federal civil rights lawsuit, all inmates at FCI Danbury, had showed that prison officials “are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.”

The class-action suit—brought by by the Quinnipiac University School of Law, Yale Law School, and the law firm of Silver Golub & Teitell—argued that Danbury leadership was failing to use its recently expanded authority to expedite the early release of inmates. 

This failure, the lawsuit argues, puts the incarcerated population at FCI Danbury, a low-security federal prison in Connecticut, at unconstitutional risk of harm. One Danbury inmate has died from the virus; according to the latest BOP numbers, 27 more inmates and seven staff are known to be infected with COVID-19.

The judge did not rule on the lawsuit’s most ambitious argument, which seeks a mass transfer of inmates out of Danbury, but he issued a temporary restraining order, first reported by the Hartford Courant, that will require the Danbury warden to submit a list of all inmates eligible for early release within 13 days and a written explanation of each denial.

The ruling is part of a growing pile of indications that the federal Bureau of Prisons (BOP) has not been wholeheartedly embracing expanded powers from Congress to release inmates at risk at COVID-19, or Attorney General William Bar’s March directive to do so.

In a letter to Congress yesterday, a group of federal public defenders warned that the Department of Justice (DOJ) and the BOP “have made little use of these authorities to reduce prison populations and enable social distancing.”

Although the BOP says it has placed an additional 2,471 inmates on home confinement since Barr’s order, criminal justice reformers and families of those incarcerated in federal prisons say the rollout of the directive has been slow and contradictory. Many federal inmates across the country were told they had been approved for early release and put into pre-release quarantine, only later to be told that the rules had changed and they were being sent back.

Civil liberties groups, criminal justice organizations, and prison guard unions all warned when COVID-19 hit American shores that the nation’s jails and prisons were woefully unequipped to handle a deadly epidemic. Although many jurisdictions have taken unprecedented steps to reduce incarcerated populations, it has not stopped jails and prisons from becoming many of the biggest COVID-19 clusters in the country.

On Monday, a federal judge in San Francisco sharply criticized the local U.S. Attorney’s Office for trying to coerce a defendant into a plea deal that would have narrowed his right to petition for compassionate release—one of the mechanisms through which inmates at risk from COVID-19 can be granted early release. The judge called the proposed plea bargain “appallingly cruel.”

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In today’s Supreme Court oral argument in Trump v. Mazars, one of two cases concerning the scope of Congress’ power to subpoena President Trump’s financial documents,  House of Representatives lawyer Douglas Letter repeatedly failed to provide any limiting principle constraining Congress’ powers to subpoena the president’s records. Cornell Law Professor Michael Dorf and co-blogger Jonathan Adler argue that this was a serious error, making it likely that the five conservative justices will rule against the House. They compare it to Clinton Administration Solicitor General Drew Days’ famous mistake in United States v. Lopez (1995), where he was unable to articulate any limits to Congress’ power to regulate interstate commerce. The result was the federal government’s first defeat in a Supreme Court Commerce Clause case in many decades.

Josh Blackman argues that Letter did not make a mistake, but rather deliberately refused to concede any limits to his client’s power.

Either way, Letter’s failure to identify a limit is a weakness in the House’s case, and one that could well lead to defeat. Fortunately, however, finding a limit is actually easy. Whether Letter’s faux pas was an unforced error or a deliberate tactic, the Court is not bound by it. It can readily rule in favor of the House without giving Congress unlimited subpoena power.

Ironically, Drew Days’ defeat in 1995 is a big part of the reason why Douglas Letter’s case need not suffer the same fate. From the New Deal era to the 1990s, many legal commentators assumed there were no longer any judicially enforceable structural limits to Congressional legislative power. But beginning in the 1990s, the Rehnquist  and Roberts courts decided a series of cases that reinvigorated such limits. Among other things, the Court ruled that the Commerce Clause cannot be used to regulate some types of “noneconomic activity” or impose mandates on “inactivity,” that the federal government may not commandeer state governments, and that there are limits to its powers under the enforcement clauses of the Fourteenth and Fifteenth Amendments. Most recently, in Murphy v. NCAA, the Court ruled that Congress cannot pressure states to ban sports gambling under their own laws, a decision that had important implications for other assertions of federal power, including attempts to coerce sanctuary cities.

Both sides in Mazars agree that Congress can only use its subpoena power in these cases if there is a “valid legislative purpose.” Obviously, there cannot be such a purpose in cases where Congress seeks to enact legislation that is beyond the scope of its powers. And under the federalism decisions of the last thirty years, those powers now have real, even if still modest, limits.

For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal. Similarly, Congress could not use its legislative authority to investigate whether it should force state or local governments to curtail possibly unethical business dealings by the Trump family. The anti-commandeering rule forbids such laws.

Despite the Court’s recent federalism decisions, congressional legislative power remains very broad. Some subjects that Congress cannot regulate directly might nonetheless be subject to investigation, because they are relevant to matters over which Congress does have authority. But if there is a problem here, it is not the lack of a limiting principle on Congress’ subpoena power, but insufficient judicial enforcement of substantive limits on the scope of congressional authority.

I have long argued that the Court should enforce such limits more aggressively. But, until then, it stands to reason that any matter on which Congress may legislate is also one that it can investigate in order to get relevant information. In the case of Trump’s financial records, Congress surely has the power to legislate on conflicts of interest in the executive branch, of which Trump’s business activities create many. His records are also relevant to Congress’ power to legislate income tax laws, as there may be good reason to impose special restrictions on the president and other high-ranking federal officials.

Congress’ motives in conducting such investigations may not be purely public-spirited. The president’s partisan opponents could potentially use the information they uncover for political purposes. But political self-interest is at the heart of a great deal of legislative activity, and does not thereby render that activity unconstitutional. There is a crucial distinction here between Congress’ possible political motives here, and Trump’s anti-Muslim motives in the travel ban case. Discrimination on the basis of religion is unconstitutional (even if cloaked under supposedly neutral criteria), whereas seeking political advantage is not.

Steve Sachs points out that Congress could potentially use subpoena power to investigate issues beyond the scope of its legislative authority because it has the power to initiate constitutional amendments. A proposed constitutional amendment can legitimately deal with issues that Congress cannot legislate about under the existing Constitution. However, if the amendment power is the only basis for a subpoena, Congress would at the very least have to be in the process of actually holding hearings or otherwise considering some potential amendment. And if the supposed amendment turns out to be a complete sham cooked up purely for purposes of subpoenaing information, that fact is likely to leak out, and courts should be able to take notice of it and rule accordingly.

Douglas Letter’s inability or unwillingness to identify a limiting principle was indeed an error in some ways analogous to Drew Days’ failure in Lopez. But Days’ defeat could yet turn out to be Letter’s salvation.

 

 

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Regents of the University of California v. Bakke was the Supreme Court’s first major opinion on the constitutionality of government affirmative action preferences. I am (barely) old enough to have read about the controversy contemporaneously (as I had a subscription to the New York Times for five cents a day in sixth grade through my elementary school (!)), and of course have read about it often since. Both at the time and beyond, the case has been portrayed as pitting racial preferences for African Americans against the rights of white students like Bakke, who insisted on race neutrality.

Justice Thurgood Marshall’s emphatic dissent helped crystallize the black-white prism through which the case is viewed. His opinion begins, “I do not agree that petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

The strange thing about this framing of the case is that African Americans not only weren’t the only beneficiaries of the minority quota that University of Davis Medical School established, they weren’t even the primary beneficiaries. As Justice Powell explained, in 1971 Davis increased the medical school class size from 50 to 100, and “from 1971—through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students.”

Two things are notable about these statistics. First, almost 50% more Mexican-Americans than African Americans were admitted under the affirmative action/quota program.

Second, out of 400 students in four years, under regular admissions 37 Asians were admitted, or almost 10% of the class. At the time, Asian Americans were about 2.5% of California’s population. Despite Asians being present well above their demographic numbers in the class via regular admissions, 12 additional Asians were admitted under the minority quota. Regardless of whether one’s rationale for affirmative action is “diversity” (as Justice Powell pioneered in his Bakke concurrence) or recompense for exclusion from educational opportunities due to historical and current discrimination, it’s hard to see the legal rationale for “Asian preferences” given their strong representation among the student body without such preferences.

In the Court’s various opinions, meanwhile, the words “Negro” or “Negroes” appear dozens of times; Asians and Mexicans are barely mentioned. Justice Powell’s opinion does have a footnote addressing the Asian anomaly: “The University is unable to explain its selection of only the four favored groups—Negroes, Mexican-Americans, American-Indians, and Asians—for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process.” But that’s about it.

It’s rather curious that both the Court and public discussion focused on the black-white dynamic, given that twice as many Mexican and Asian Americans were admitted under the minority quota as African American. But it seems that Bakke set a pattern for future discussions of affirmative action. Today, African Americans are a shrinking minority of those eligible for most affirmative action programs. If one adds together the population of Hispanics, Asian-Americans (who are eligible for government contracting and other preferences, but not university admissions preferences), and Native Americans, they outnumber African Americans by over 2-1. But we still debate racial and ethnic preferences as if the vast majority of beneficiaries are African Americans. (And, I should add, those who implement affirmative action programs still are unable to explain why they use the favored groups, e.g., why white Argentines get preferences but dark-skinned Yemenis do not, or why people from India are lumped in the same category with people from Malaysia).

Anyway, I wonder how the litigation would have gone if Bakke’s attorneys had argued that affirmative action preferences, even quotas, were lawful given the special history of African Americans, but that Davis’ program was unconstitutional because it extended the same benefits to other groups that did not have a 400 year history of slavery and Jim Crow.

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Today, Douglas Letter argued Trump v. Mazars on behalf of the House of Representatives. I have previously criticized his advocacy in cases concerning the CFPB and the Affordable Care Act. His performance today was no better. Letter was unprepared for several questions, did not seem to catch the gist of other questions, and at a few points seemed to contradict himself. The House should really, really ask Don Verrilli to argue the Obamacare case in the fall. Letter has failed to prove his mettle on far too many occasions.

But I disagree with co-blogger Jon Adler on one crticism of Letter. Jon writes:

In today’s oral argument in Trump v. Mazars, the attorney for the House of Representatives was asked (repeatedly) to identify a limit on Congress’ subpoena power, and he came up empty. He was unable to identify any information about the President that Congress could not demand.

Mike Dorf offers a similar pointed criticism of Letter:

Arguing for the House of Representatives, Doug Letter had what we might call a “Drew Days in Lopez” moment that could sink his case. Letter contends that a congressional committee has subpoena power, subject only to particularized objections, so long as its request relates to a legitimate legislative purpose–a term drawn from the case law. Asked by Chief Justice Roberts to name a single example of a subpoena that could not satisfy that standard, Letter whiffed.

Both Jon and Mike referenced the infamous exchange from United States v. Lopez. Solicitor General Drew Days did not provide a limiting principle to the scope of Congress’s commerce powers. Randy and I described the colloquy in An Introduction to Constitutional Law:

During oral arguments the Solicitor General was unable to articulate what limits existed on the scope of Congress’s powers. Justice Ginsburg asked the Solicitor General, “What are the limits, then?” and “What would be a case that would fall outside” the scope of federal powers? After an uncomfortable pause, he replied, ” — I don’t have — .” Justice Scalia then interjected, “Don’t give away anything here.” There was audible laughter in the Court. The Solicitor General was unable to identify a limiting principle for the scope of congressional powers. His inability to answer the question proved fatal to the government’s case.

You can listen to part of that exchange in our video:

Was Letter “unable” to answer the questions in Mazars? Or was he “unwilling” to provide a limiting principle? I lean towards the latter. It is very likely that his client, the House, refused to concede any additional limits on its own powers. If the Court wanted to impose such limits, so be it; but the House would not acquiesce. Here, the House may have not wanted to risk further cabining their subpoena authority for future cases that do not involve the President. After all, the House conceded that Article II and executive privilege provides some limits. But the questions from the Justices went further. Moreover, when pressed on a limiting principle, Letter had answers at the ready. The answers were largely non-responsive, but he didn’t stumble like he did at other times. I think Letter’s responses were deliberate.

Here, I see parallels to Don Verrilli’s arguments in NFIB v. Sebelius. He was widely criticized for not being able to articulate a limiting principle. But I wrote in Unprecedented that this choice was quite deliberate.

Here are some excerpts from my seven-year-old-buy-still-relevant book (Used copies are only $5!).

First, the Obama DOJ refused to articulate a limiting principle on federal power at the D.C. Circuit (pp. 151-152):

Like Silberman, Kavanaugh was also concerned about the limiting principle. “Another major concern I have . . . is in 220 years, with a whole lot of laws and a lot of crises, Congress has never once mandated a purchase.” But even when Silberman asked Brinkmann again, “Give me an example of something that would be unconstitutional,” she didn’t answer the question. Brinkmann wasn’t unprepared—she simply did not have the authority to answer that query. Brinkmann’s evasiveness was a preview of what her new boss, Solicitor General Verrilli, would do at the Supreme Court. Her circuitous answers were not sloppy—rather, they were part of a concerted effort not to identify the limiting principle. The arguments at the D.C. Circuit were a walk- through—a moot court, if you will—for the Supreme Court….

Verrilli’s strategy not to provide a limiting principle had proved successful. Silberman wrote, “We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” But he was not discomforted enough to strike down the law. Instead, Silberman stressed that Congress should receive the benefi t of the doubt. “We are obliged— and this might well be our most important consideration—to presume that acts of Congress are constitutional.” This strategy would prove decisive to Chief Justice Roberts. Judge Kavanaugh did not join Silberman’s opinion.

And SG Verrilli planned to use the same strategy for the Supreme Court (pp. 161-162):

Verrilli’s second big decision was to depart from the limiting principle that Katyal had advanced in the lower courts—but not for the expected reasons. The attorneys in the Solicitor General’s office were “under no illusion from the outset that the Commerce Clause argument was not going to be challenging.” Internally, the government conceded that there “wasn’t anything quite like the individual mandate.” Even they knew it was unprecedented. After “careful consideration,” Verrilli thought Katyal’s argument “ultimately was not going to be helpful as a limiting principle.” The “rock- solid” limits that Katyal located in Lopez and Morrison “wouldn’t seem robust enough [as] a limiting principle under these circumstances.” More importantly, Katyal’s position could not answer the hard hypotheticals—including, of course, the broccoli horrible example. Deeming the principles in Lopez and Morrison too “capacious,” the Solicitor General’s office came to the conclusion that those cases “were not going to be enough, and they needed to give a narrower answer.”

Verrilli’s answer at the Court was painful to listen to, but he stuck to his gameplan:

Chief Justice Roberts tried to pin down the solicitor general on a limiting principle. “But what I’m concerned about is, once we accept the principle that everybody is in this market, I don’t see why Congress’s power is limited. . . . Once you’re in the interstate commerce and [Congress] can regulate it, pretty much all bets are off . . . . The question is, is there a limit to the authority that we’re advocating here under the commerce power?” The justices were growing very frustrated by Verrilli’s evasiveness, but remaining evasive was part of his plan.

Justice Alito gave the solicitor general a clear opportunity to state his limiting principle. “Could you express your limiting principle as succinctly as you possibly can? …

Verrilli’s response was winding, circuitous, and unsatisfactory to nearly everyone in the Court. It was definitely not “succinct,” but that was no accident. Alito had tossed Verrilli a softball a question that any first- year law student should have been able to knock out of the ballpark. But after realizing that the Court was not buying his leading Commerce Clause argument, Verrilli laid down a sacrifice bunt to advance his other arguments. The government’s litigation strategy was to not provide what would have been an unsatisfactory limiting principle.

Leading advocates recognized that Verrilli was on to something.

Lisa Blatt, a veteran Supreme Court litigator, remarked at the time that “it may be that there was a strategic decision not to give a crisp and clear answer.” Paul Smith, Verrilli’s former partner at Jenner Block, told me, “I don’t think anything happened accidentally in that process.” It was not in the government’s interest to state whether laws other than the mandate were constitutional. It was enough to distinguish the mandate from the broccoli horrible.

I compared the SG’s strategy to Muhamamad Ali’s rope-a-dope move:

Verrilli was prepared to rope-a-dope, like Muhammad Ali, taking punch after punch, so that he could avoid giving a limiting principle that would not limit enough. Although Verrilli swung and missed with his effort at providing a satisfactory limiting principle, he would land a knockout punch with his fallback argument that the mandate should be saved as a tax. Verrilli’s response was based on his understanding that there was no satisfying answer to Alito’s question. That was the trap—Alito posed a question that could not be answered. Any incomplete answer would give the Court a reason to strike down the law.

At the time, Verrilli was savaged in the press and by law professors–some things never change–but he stuck to his plan. And, it worked (p. 162)

After the case was decided, a government lawyer told me that this section in the joint opinion validated the decision not to continue with Katyal’s argument. It did not persuade a single conservative justice, let alone result in five votes.

Even if Letter had answered questions from the Justices, he likely would not have gained a single vote; he would have only wounded his client. So why bother giving any answer?

Let’s consider several exchanges from Mazars. First, Chief Justice Roberts asked for examples of subpoenas that would not be covered by the legislative authority.

CHIEF JUSTICE ROBERTS: Mr. Letter, the –let’s talk about the standard you propose. The –the –the quotes in your -your brief is that concern is subject on which legislation could be had. Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?

Letter discussed legislation concerning “bankruptcy proceedings.” Roberts pushed further.

CHIEF JUSTICE ROBERTS: Well, that’s what I’m suggesting, that your –your —your test is really not much of a test. It’s not a limitation. And it doesn’t seem in any way to take account of the fact they were talking about a coordinate branch of government, the executive branch. Do you have any alternative to that limitless test that would take account of –of the fact that you’re dealing with a coordinate branch of government?

Letter quickly responded with a case he could not avoid, Nixon v. GSA:

Your Honor, it’s –it’s what this Court said in Nixon versus GSA and –and a number of other cases. Congress –there would be a limit if Congress is interfering with the President’s ability to carry out his Article II functions. No such claim has been made here, nor obviously can it be made given

Letter would only concede limits imposed by the Constitution itself that the Court already discussed.

Next, Justice Alito pushed Letter to explain the contours of his theory:

JUSTICE ALITO: So, I mean, I –I don’t want to cut you off, but I have very limited time. So your answer is that the protection against the use of a subpoena for harassment is simply the assessment whether the subpoena is conceivably –is relevant to some conceivable legislative purpose?

MR. LETTER: Correct. That’s what the Court has said. But also again Clinton versus Jones and Nixon versus GSA, it –

Again, Letter cited Nixon v. GSA, as well as Clinton v. Jones, a case he would repeatedly return to. Alito did not think those precedents provided “much protection.”

JUSTICE ALITO: Well, that’s not much protection. In fact, that’s no protection, isn’t it?

MR. LETTER: It is protection, Your Honor, if what –what Congress is doing is interfering with the President’s ability to do his job. These subpoenas are to private parties. The President does not need to do anything.

Alito later returned to the Chief’s hypo:

JUSTICE ALITO: But you were not able to give the Chief Justice even one example of a subpoena that would be –that would not be pertinent to some conceivable legislative purpose, were you?

MR. LETTER: As –as I said, Your Honor, the –that –that’s correct, because this Court itself has said Congress’s power is –to legislate is extremely broad, especially when you take into account appropriations.

I don’t think this statement was an unforced error. I think his client approved of him extolling the “extremely broad” power. If the Court wants to cut down the House’s power, let the Court do it; but the House should not serve up its own authority on a platter.

Alito continued that Letter’s limit would provide no protection at all.

JUSTICE ALITO: Well, so the end result is that there is no protection whatsoever in your view, and maybe this is –this is the correct answer, but, in your view, there is really no protection against the use of congressional subpoenas for the purpose of preventing the harassment of a president because the only requirement is that the subpoena be relevant to a conceivable legislative purpose, and you can’t think of a single example of a subpoena that wouldn’t meet that test?

MR. LETTER: No, Your Honor, because, remember, there may be constitutionally based privileges or things like executive privilege -you know, executive privilege –

Once again, Letter pivoted back to constitutional limit. He would not offer any voluntary, prudential limits. Alito (who was well past his three-minutes) pushed further:

JUSTICE ALITO: What are they? Would you name one?

MR. LETTER: Well, it seems to me executive privilege could enter in. State secrets privilege could enter in depending upon the specific circumstances, Your Honor.

Again, Letter stuck with constitutional limits.

Alito pressed further.

JUSTICE ALITO: Let me ask you one more thing if I –if I can and there’s time.

There’s always extra time for Justice Alito. The Chief is not fair with his distribution of time. He consistently lets Justice Alito run past his allotted times. He had nearly seven minutes in Little Sisters. But Roberts cuts off other Justices mid-sentence. I agree with Lyle Denniston: allowing the Chief to keep time “gives at least the impression that he is more than first among equals.” I have come to sour on this entire enterprise.

Alito asks:

JUSTICE ALITO: Are there any limits on the use –on using a president’s records as a case study relating to the need for legislation?…

MR. LETTER: It –it certainly could be, Your Honor. So, here –that’s a very good question. Here, remember, the Financial Services Committee is doing an extremely broad investigation of a financial services sector, and there’s massive public reporting that President –that before he became President, President Trump’s personal records and his businesses and his family have been heavily involved in those very activities. And we’re investigating numerous other banks and individuals having nothing whatsoever to do with the President.

Later, Justice Gorsuch returned to the same theme.

JUSTICE GORSUCH: Good morning, Mr. Letter. Normally, we use law enforcement investigative tools like subpoenas to investigate known crimes, not to pursue individuals’ defined crimes. That’s a principle you’re well familiar with from your time at the Department of Justice.

And I’m wondering what limiting principle you offer us here that can prevent that danger.

Gorusch then summarized three principles that Letter offered:

The first one was it has to be pertinent to a legislative purpose, but I think, as we’ve explored, that’s very, very broad and –and maybe limitless, some would suggest on the other side at least. [Second] Constitutional privileges, if you’re investigating someone in their private capacity, there are going to be few, maybe attorney-client privilege, things like that. And it can’t be burdensome, I heard, was your third, but in an age where everything is online and can be handed over on a disk or a thumb drive, that –that –that much pretty much disappears too. So what –what –what is left to protect that important value that I know you share?

Letter had given those three limiting principles. And he would not give more.

MR. LETTER: I do share that, Your Honor. And, by the way, burden here, none of the subpoena recipients have claimed burden. Your Honor, I –I answer it this way because, again, it has to be –I’m going to stick with the pertinent to legislative purpose because, for example, Congress did a massive investigation of what happened at 9/11. Obviously, a lot of that had –

JUSTICE GORSUCH: Well, let me –let me stop –let me stop you there if that’s where you’re going to go. And I thought that might be, Mr. Letter, and I apologize for interrupting.

Gorsuch recognized that Letter would not budge.

Later, Justice Kavanaugh tried his hand again:

JUSTICE KAVANAUGH: I don’t think you could answer the Chief Justice’s question about something that wasn’t. And the question then boils down to, how can we both protect the House’s interest in obtaining information it needs to legislate but also protect the presidency? How can the Court balance those interests? I guess the thing I would say is why not employ the demonstrably critical standard or something like that –this is what the other side would say –as something that’s borrowed from a different context but that might serve to balance the strong competing concerns here?

Letter would not go further.

MR. LETTER: Your Honor, that’s a very good question. I have –I have several responses.

Never, ever says “that’s a very good question.” All questions from Supreme Court justices are “very good questions.” Even if they aren’t.

But next, Letter lifted the curtain, and provided a hint of why he was being so stubborn. He mentioned a recent chat with “congressional leaders”–that is, his bosses. And they told him how to litigate the case.

The first one goes to the last thing you said about why not employ a demonstrably critical test. I –I don’t know how the Court would –the courts would do that without violating the separation of powers. I was reminded recently by –by the congressional leaders that often, they’re doing investigations, they don’t know where the legislation might go at that point. So I don’t know how you would force Congress to do –to show some sort of demonstrably critical reason

Next, Kavanaugh asked a question about medical records:

JUSTICE KAVANAUGH: Can I interrupt right there? What about medical records?

Letter was obviously ready for that question, and quickly turned to the 25th Amendment. I hadn’t considered that answer, but it is decent:

MR. LETTER: Your Honor, medical records of the President would, I think, almost always be not pertinent to valid legislative purpose. On the other hand, if you look at –

JUSTICE KAVANAUGH: Why not? Can you just –

MR. LETTER: –the Twenty-Fifth amendment, they would –they certainly would be pertinent.

Letter tried to shake off the outlandish hypos:

MR. LETTER: So I’m sure we can come up with some odd hypotheticals where presidential health would clearly be relevant, maybe changing the –the statutes that involve the succession of when a president becomes incapacitated, something like that, I –I suppose. But, in general, Congress –there would be no valid reason for Congress to be asking for the President’s personal medical records that I can think of.

Later, during Letter’s second round of questioning, Kavanaugh returned to the limiting principle:

JUSTICE KAVANAUGH: Yes. Thank you, Chief Justice. And, Mr. Letter, I want to follow up on Justice Alito’s question. And this really goes to the fact, I think, that there is concern about what the limiting principle is here, I think, pertinent to a legislative purpose is almost no limiting principle at all, at least I think that’s what some of the questions have explored, and his hypothetical about a committee would start subpoenaing members of Congress of the other House or of the other party, and you said, well, that hasn’t happened. But isn’t the whole point that once you start down this road and this Court articulates too low a standard, that something like that will start happening? That’s the concern that I heard identified or that I took away from that hypothetical. So I want to give you a chance to respond to that hypothetical of why it wouldn’t spiral….

Did letter give anything new? No. He returned to Clinton v. Jones.

MR. LETTER: I –I think that’s right. But, again, this –I –I come back to Clinton versus Jones. You –you –this Court issued a very clear decision saying we’re going to allow this one, but obviously the courts are going to monitor this. So if, contrary to what has happened in the past over our –our lengthy history, if there are situations when there –the President’s ability to do his job is being undermined, thank goodness the courts still exist and they are there to take care of it.

During his rebuttal, Patrick Strawbridge slammed this point home:

MR. STRAWBRIDGE: Thank you, Mr. Chief Justice.

You know, my friend from the other side struggled with every hypothetical that he was given about his ability to set some sort of limiting principle or some category of information or documents about the President

that would not be obtainable under his theory. And I think that’s very telling because there are no limits to their theories.

And, in particular, let’s just consider the example that was given regarding medical records. There is no reason under his theory why the President and his family and his grandchildren could not be declared useful case studies and, therefore, Congress could send out a subpoena for their medical records.

For that matter, the President eats and drinks like everybody else and Congress naturally has the ability to regulate food safety.

But that does not mean that Congress can subpoena medical records or even the President’s DNA. My friend refused to even rule out that hypothetical categorically below, and I think it’s telling that –that he can’t provide any meaningful limit today.

Letter held the line. I don’t think he lost any votes. He did what he planned to do. The House should still ask Verrilli to argue the Obamacare case. In that case, votes are actually in play.

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At today’s oral arguments, as Jonathan notes, some Justices were looking earnestly for a limiting principle for the topics of legislative subpoenas. I’m not sure one is needed.

As Akhil Amar has pointed out, either House can propose constitutional amendments. Since 1808, amendments can address any topic under the sun. So the House might take an interest in constraining the President, or expanding his powers, or granting itself plenary power, or reallocating Senators (among consenting states), or establishing a church, or reopening final bankruptcy judgments, or regulating the private lives of celebrities, or whatever.

Right now, Congress’s Article I powers are limited. The failure to respect those limits doomed the SG’s argument in Lopez. But Congress has the ‘horizontal’ necessary and proper power, to make laws for carrying into execution the President’s powers—and it has powers under Article V too. So it’s hard to find a topic categorically beyond any joint resolution the House might adopt, or beyond its potential need for relevant information.

Of course, there might be limits other than topical limits. Maybe needing the information for something isn’t enough. Maybe exploratory interest doesn’t count, without specific plans or proposals under review. Maybe there are limits of good faith, or of executive privilege, or on judicial enforcement, or on the House’s power to investigate in general, or on its capacity to appear in an Article III court, or …. But legislative topic seems the wrong place to look, for the parties and the Justices both.

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