Erwin Chemerinsky

  • October 28, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.  Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Tuesday, Nov. 8, the Supreme Court will hear oral arguments in two significant civil rights cases that raise the question of whether a city can sue to enforce the Fair Housing Act. Bank of America v. City of Miami and Wells Fargo v. City of Miami concern whether a city has standing to sue to challenge discriminatory lending practices of banks. The Court should follow well-established law in this area and allow these suits to go forward.

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. As the Supreme Court noted just two years ago in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, that the law represents Congress’s response to economic and social forces that “left minority families concentrated in the center of the Nation’s cities,” where “residential segregation and unequal housing and economic conditions” resulted in “neighborhoods marked by substandard housing and general urban blight.” The Act declares the “policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

    The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [...] or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions […] in making available such a transaction, or in the terms or conditions of such a transaction, because of race […] or national origin.” Two years ago, in Texas Department of Housing and Community Affairs, the Court held that the Act prohibits practices that have a racially discriminatory impact.

  • October 17, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates. 

  • September 19, 2016
    Guest Post

    by Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

    But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

    Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

    If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

  • September 14, 2016
    Dear Speaker Ryan and Leader Pelosi:
     
    We, as professors who specialize in constitutional law, write to urge you and your colleagues not to approve the fast-tracked resolution to impeach John Koskinen, Commissioner of the Internal Revenue Service.
     
    When it comes to impeachment, the Constitution leaves many open and difficult questions. Whether the alleged conduct of John Koskinen is impeachable is not one of them. There is simply no credible case for impeachment.
     
    The Constitution is designed to reserve the impeachment and removal from office for conduct that inflicts the most serious harms on society and that critically compromises the ability of an officer to govern. The Constitution limits the availability of impeachment in two ways. First, the Constitution provides a very limited definition of the scope of impeachment. Second, the Constitution erects significant procedural protections against impeachment and removal from office.
     
    I. The Constitution defines the scope of the impeachment power narrowly.
    An officer is subject to impeachment and removal from office only on the grounds of “treason, bribery, or other high crimes and misdemeanors.” It is true that the phrase “other high crimes and misdemeanors” is open-ended. It is nonetheless clear that the phrase charts a narrow scope. The text explicitly links the phrase – by employing the term “other” – to definite terms treason and bribery. The familiar canon of construction, ejusdem generis, tells us that it is proper to understand the open-ended term as limited to conduct that involves the attributes common to the definite terms. Treason and bribery each involves an immediate and elemental threat to our constitutional system; an officer who commits either of these offenses is indisputably unfit for office. Thus, the phrase “high crimes and misdemeanors” refers not to any misconduct but to misconduct that harms the nation as seriously as treason or bribery and that renders an officer as indisputably unfit to serve as an officer who commits treason or bribery.
  • July 11, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    On Tuesday, March 29, 2016, the impact of Justice Antonin Scalia’s death was apparent when the Supreme Court, by a 4-4 tie, gave public employees unions a huge victory. For decades, foes of unions have wanted the Supreme Court to declare unconstitutional the requirement that non-union members must pay their share of the union dues that go to support the collective bargaining activities of the union. After Friedrichs v. California Teachers Association was argued on January 11, it seemed certain that there were five votes against the unions.   But Justice Scalia’s death on February 13 occurred before the Court released its opinion and the Court was left deadlocked 4-4.

    In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the Court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union. Non-union members benefit from the union in terms of their wages, their hours, and their working conditions. The Court explained that they should not be able to be free riders and benefit without paying their “fair share.” But the Court held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree. Both government entities and unions have relied on this for decades in entering into thousands of contracts governing the workplace. 

    In recent years, the five most conservative justices on the Court – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito – have limited Abood and indicated a likely desire to overrule it. For example, in Harris v. Quinn, in 2014, Justice Alito, writing for these five justices, referred to Abood as an “anomaly” and inconsistent with the First Amendment. The Court did not go so far as to overrule Abood, but certainly suggested that the majority would be willing to do so in a case that directly presented that issue to the justices.

    Friedrichs v. California Teachers Association was filed in federal district court in Orange County, California with the goal of it being a vehicle for the Supreme Court to overrule Abood and hold that non-union members do not have to pay their “fair share” of the union dues that go to support collective bargaining. The federal district court and the federal court of appeals obviously cannot overrule a Supreme Court precedent and dismissed the lawsuit. But the Supreme Court granted review on the question of whether it should overrule Abood and the many decisions based on it.