The Lost Constitutional Stakes of Labor Unions

Excerpted with permission from Diana S. Reddy, After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions, 132 YALE L.J. 1391 (2023)

It is a consequential moment for American labor unions. Over the past decade, public support for labor unions has skyrocketed. Yet even in this moment of renewed public interest, the American conversation about unions remains constrained by the legacy of past legal decisions,...[by what I call] the “the law of apolitical economy.”

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Framing Labor Law for Lochner-Era Courts

The American labor movement of the mid-late 1800s and early 1900s advanced inherently normative claims about the value of unionism. Unions served fundamental American ideals. Early labor leaders spoke of “labor republicanism,” the idea that a democracy required autonomy and self-determination in the economic sphere too. Progressives in the early twentieth century championed an ideal of “industrial democracy,” that workers should have a voice in an otherwise authoritarian workplace. The 1914 Clayton Antitrust Act—labor’s first federal legislative win—insisted that market logic should not trump human rights. It proclaimed: “[T]he labor of a human being is not a commodity or article of commerce.” According to Samuel Gompers, President of the American Federation of Labor, that proclamation was “epochal.” It would, he said, “mark[] the end of the old period where workers were under the shadow of slavery and the beginning of a new period [in which neither] workers nor their labor power are to be regarded as things—the property of another.” Consistent with this view, labor unionists also saw themselves as effectuating constitutional values under the First, Thirteenth, and Fourteenth Amendments to the U.S. Constitution.

But New Dealers hoping to revolutionize American political economy in 1935 were neither labor leaders nor workers. They were politicians, lawyers, and economists with their own agendas, and who knew they would face challenges in effectuating them. Senator Wagner was especially concerned about how the Supreme Court would react to his statute. This was no remote fear. The NLRA was actively under consideration by Congress on May 27, 1935, when the Supreme Court issued three unanimous decisions ruling against the Roosevelt Administration. The last of those, Schechter Poultry Corp. v. United States, invalidated the National Industrial Recovery Act, a law with clear analogues to the NLRA. Wagner acted in the middle of a political revolution that had not yet become a judicial or constitutional revolution. Making legal arguments to courts, he decided, would demand code-switching….

The politicians, lawyers, and economists working on the statute...insisted that the statute be framed as a regulation of commerce….The justification of labor law under the Commerce Clause relied on two main arguments. First, consistent with Secretary Perkins’s vision, it was an “essential economic factor[] for recovery,” rendered logical by the dominant economic views of the time. By increasing worker bargaining power, labor law would increase consumers’ income, stimulating aggregate demand and economic growth. Second, it would promote industrial peace. At a time when workers across the nation were striking, some in increasingly radical ways, deterring strikes with a rationalized collective-bargaining process was also good economic policy.

The preamble to the NLRA reflects the constitutional strategy of its drafters, and it arguably suffers as a result. In the late 1800s and early 1900s, labor’s normative arguments had been a clarion call. In contrast, the preamble to the NLRA reads as somewhat muddled. Its most powerful normative stances are asserted in subordinate clauses. On the way to its macroeconomic concerns, the preamble notes “the inequality of bargaining power” between employers and employees who lack “full freedom of association [and] actual liberty of contract.” But its intervention is premised on the purported economic effect of these infringements, not their inherent injustice. Workers should have equality, freedom, and liberty, because when they do not, it “substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions.”

To be sure, Senator Wagner and his aide Leon Keyserling, the two who together drafted most of the bill, were invested in the law’s broader normative aspirations. They believed there was a moral case for redistribution and were particularly interested in the idea of “worker freedom.” They also believed in the economic arguments. In their minds, the two were complementary. As Keyserling would later reflect: “[W]e were interested in the struggle to be free as well as in the bread and butter issue. I really don’t know whether we explicitly weighed one higher than the other. They were complementary and each fed the other.” It was only in the years that followed that the inherent link between these two justifications would fracture.

The Law of Apolitical Economy

In 1937, the Supreme Court upheld the constitutionality of the NLRA in a decision that reflects all the possibilities and uncertainties of that moment. In NLRB v. Jones & Laughlin Steel Corp., the Court ruled that the NLRA was a reasonable exercise of Congress’s Commerce Clause power. Its reasoning mirrored the statutory preamble—commerce and rights, all at the same time. Consistent with the industrial-peace argument advanced by strategic lawyers, the Court found that strikes had a major impact on commerce, and so Congress could act to deter them. At the same time, the Court opined—for the first and only time in the history of Supreme Court jurisprudence on labor unions—that labor collective action was a “fundamental right.” In 1937, and perhaps only in 1937, unions’ roles in shaping commerce and in advancing rights were allowed to overlap.

One year later, the Court would decide United States v. Carolene Products Co. In it, the Court set forth guiding principles for judicial review in a post-Lochner era. The federal judiciary would reserve searching constitutional scrutiny for those cases in which majoritarian democratic processes might prove insufficient, when legislation affected “discrete and insular minorities” or intruded upon enumerated fundamental rights. In contrast, purely “commercial” regulation would henceforth be presumed not to have constitutional stakes. With this line-drawing, the Court suggested that regulation of the economy should be guided by a particular logic, crafted on a “rational basis” by legislators acting “within their knowledge and experience.” The goal of the Carolene Products framework was to protect statutes like the NLRA from invalidation by hostile courts, through categorically restricting the scope of judicial review over economic legislation. But to do so also meant deconstitutionalizing the stakes of labor unions, walking away from the emergent vision of fundamental union rights set forth in Jones & Laughlin. And as applied, it would mean even more than that, effectively cabining the range of legible normative arguments for labor unions within legal discourse. Labor law would be judged based on its rationality, its consistency with existing knowledge and expertise.

A few years later, the Supreme Court was called upon to adjudicate unions’ actual constitutional rights under the First Amendment, in a case involving peaceful labor picketing. The resulting decision in Thornhill v. Alabama has been heralded as a high point in Constitutional political economy, and it was. Yet the particularities of its reasoning also highlight a real-time shift toward applying the law of apolitical economy to unions, toward purposefully eliding their full normative stakes.

In Thornhill, the Court struck down an Alabama statute that prohibited labor picketing. It did so by equating labor’s interests with business interests, and treating them both as matters of public concern deserving of First Amendment solace. “It is recognized now,” the Court said, that “satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned.” This phrasing—“not less than”—was carefully considered. An earlier draft of the opinion said that labor’s importance “transcends” business interests. Three years prior, when labor advocacy was a “fundamental right” all on its own, that might have been the case. But with the Court’s commitment to a deconstitutionalized economy solidified, their language needed to be precise. Good jobs and the freedom and power to fight for them were economic issues; they did not transcend them. In the Court’s pointed “now,” this categorization still worked in labor’s favor. When workers’ interests were seen as integral to the national economy, labor advocacy was a matter of public concern, worthy of First Amendment protection. But it would not always be.

Legal scholar Martha T. McCluskey has described Carolene Products as a constitutional theory that “treats economic justice as discretionary, separate from and subordinate to fundamental constitutional protections for political and civil justice.” And it does so in part through line-drawing. According to the law of apolitical economy, economic issues and sociopolitical ones are not inherently bound together; they are separate categories. The NLRA intimated that unions advanced constitutional values, “actual liberty of contract” and “full freedom of association” within the economic sphere. But Thornhill used the NLRA’s economic justifications to firmly classify labor law on one side of the line. Having drawn that line, the law of apolitical economy then cabined the kinds of justification available. Appropriate regulation of the economy is rational, not moral.

Perhaps unsurprisingly, the Court’s protection of labor speech for its industrial importance did not last long. Over time, the law of apolitical economy would soundly carve out unions’ statutorily defined role from the material and symbolic benefits of constitutional protection under the First Amendment and an evolving constitutional conception of values-based advocacy. In time, I suggest it would also play a role in denying labor’s legibility as a rights-based movement at a time when rights had become the leading normative discourse within American culture and law.

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Under the law of apolitical economy, unions’ core statutory functions—allowing workers to come together to improve their working conditions, full freedom of association and actual liberty of contract—were shorn of their normative importance. They were legally framed as transactional and self-interested. The goal was to give unions more power, to insulate them from potentially hostile courts. But the problem is that if you say something enough times, people start to believe it. Unions and their supporters today still struggle to overcome that construction, to reclaim good jobs and the power to achieve them as a normative good, in and of itself.

Diana S. Reddy will be an Assistant Professor at the University of California, Berkeley, School of Law, starting July 2023. She recently completed her PhD in the University of California, Berkeley’s Jurisprudence and Social Policy Program.

Labor Renewal In the Absence of Labor Law Reform

Photo: Jay Mallin for the AFL-CIO

This piece is the third in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

For years, labor law professors and union lawyers have argued about what the labor movement must do to grow. Because every problem looks like a nail if you have a hammer, those arguments have largely focused on the need for labor law reform.

The current moment calls into question the assumption underlying those arguments. Today’s labor movement has momentum, optimism, and – hopefully soon – will experience significant growth.  Yet, labor law reform remains a dream deferred.

What gives?

Workers are on the move even though the law remains broken. Figuring out why may offer insight into the labor movement’s path forward.

One thing that is clear is that many workers really, really want to form a union. And these workers appear to be less afraid to take risks to do so.  That may be because unemployment is so low that workers know they have other options if, as so often happens, their employer fires them for organizing.

There is almost certainly something generational going on as well. It’s been a long time since so many young people have been this excited about forming unions, as Teen Vogue’s labor beat writer – I’ll repeat that, Teen Vogue’s labor beat writer – has explained. And, many young people – including increasing numbers of women and workers of color – are choosing to pursue union apprenticeships in the building trades as an economically-secure and personally-fulfilling career path.

Some employers, on the other hand, may feel stuck between a rock and a hard place, and that feeling may make worker organizing a smidgen easier. It’s a bit harder to fire an employee for being a union activist when your business is already short-staffed and you know you can’t realistically expect to hire a replacement any time soon. Or to run a vigorous anti-union campaign when it’s obvious your employees are already feeling squeezed and that subjecting them to repeated captive audience meetings and one-on-one anti-union pressure sessions with their supervisors will only make morale worse.

Then there’s the influence of the federal government. There are two distinct aspects of what the current administration is doing in the economy that are making a real difference for workers who want to form a union, although there is even more the administration can do.

The first is the part that you hear a lot about. Joe Biden is the most pro-union President in our lifetime. Like Franklin D. Roosevelt, who famously declared, “If I went to work in a factory, the first thing I’d do is join a union,” Biden spoke out in favor of workers organizing at the Amazon warehouse in Bessemer, Alabama.  And he has appointed leaders of federal labor agencies – like former-Secretary of Labor Marty Walsh, current Acting Secretary Julie Su, and NLRB General Counsel Jennifer Abruzzo – who appear to be doing everything in their power to even the playing field for workers and unions.

That’s all true. But a dirty little secret of the deep state is that there is only so much that these labor agencies can do through the regulatory process to move the needle for workers and their unions absent statutory change, even if the leaders of these labor agencies really, really want to help through vigorous enforcement of existing laws.

The part you don’t hear much about – but that matters a great deal – is what other agencies of the federal government are doing through their implementation of laws like the bipartisan Infrastructure Investment and Jobs Act (IIJA), the CHIPS and Science Act (CHIPS), and the Inflation Reduction Act (IRA). With names like these, you’d certainly be excused for thinking these statutes don’t have much to do with workers forming unions.  But the truth is, taken together, the IIJA, CHIPS, and the IRA provide significant opportunities for large-scale union growth.

The reason is two-fold.

First, and most importantly, these laws will inject more than $2.3 trillion into the economy and should create several million new jobs in the United States over a relatively short period of time, with a significant percentage of the new jobs in construction and manufacturing.  Indeed, some are calling this the United States’ first industrial policy in a generation. The laws contemplate a transformation of the U.S. economy, standing up entirely new industries in significant, future growth sectors such as semiconductor production and solar panel manufacturing.

All of this is happening at a time of record low unemployment and, in addition, many of these jobs require occupation-specific training. So, employers have to compete for the available skilled and trained workers they need to undertake these often massive projects and, as we have described, that tends to make workers a little more willing to take the risks associated with forming a union.

Secondly, the federal government has recognized – correctly, I might add – that if it is going to invest significant taxpayer money in creating entirely new industrial sectors in the United States, it ought to do so in a manner that results in an economy of the sort that people want to work and live in, e.g., safe jobs with middle-class wages and benefits, a concerted effort to address the historic racial and gender inequalities that plague our labor markets, training opportunities so that local residents have a fair shot at obtaining work near where they live, and special consideration for communities historically burdened by pollution.

To see why this matters so much, one need look no further than auto manufacturer Hyundai for an example of what will happen if federal investment is made without a proper accounting for community impacts.

Late last year, Hyundai Motor Company and its sister Kia Corporation entered into settlement negotiations with the U.S. Department of Labor over allegations that company suppliers, including Hyundai subsidiaries, were employing children as young as twelve in manufacturing jobs in violation of federal and state law. Yet, at the same time, Hyundai is in the process of building a huge new  $5.5 billion electric vehicle and battery “Metaplant” in Georgia, presumably to take advantage of generous IRA tax credits that are available only for those EV vehicles that are assembled in North America.

It is obviously illogical for one arm of government to hand out generous financial subsidies to an employer while a sister federal agency investigates the company for serious labor violations. Not only does such an approach subsidize the company’s lawbreaking, it also undercuts the many responsible employers who abide by our nation’s labor laws and compete with Hyundai for federal support. The Biden Administration’s commitment to ensuring that the jobs created by the IIJA, CHIPS, and IRA are good jobs thus makes good practical sense.

It is for this reason that the AFL-CIO has repeatedly urged the Biden Administration and the agencies charged with administering these statutes to take additional steps when issuing rules and guidance implementing the IIJA, CHIPS, and IRA to ensure that law-breaking employers do not receive federal funds and to put clear incentives into place to encourage employers to take the high road of respecting their employees’ right to form a union without interference.

Workers’ recent victory in forming a union with the United Steelworkers at the Blue Bird bus manufacturing plant in central Georgia illustrates why policies of this sort are so important. Workers at the Blue Bird plant assemble electric school buses.  Construction of those buses are subsidized both directly, through $40 million in rebates issued to the company by the Environmental Protection Agency, and indirectly, through $5 billion in the IIJA that incentivizes school districts nationwide to replace their existing diesel buses with low- or no-emission vehicles like the ones Blue Bird’s workers produce.

When national and state elected leaders asked Blue Bird to respect its workers’ federally-protected right to form a union without company interference, that effort made a difference. On May 12, workers voted 697 to 435 to form their union with the Steelworkers. And the company, unlike Amazon and Starbucks, who have tied-up worker organizing victories in legal challenges for months or even years, did not challenge the workers’ victory. That’s how federal investment can help build an economy that works for workers, business, and the community.

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Of course, with a casebook as my hammer, I can’t help but emphasize that labor law really does still matter, even if historic victories like Blue Bird demonstrate that it is not the only thing that matters.

Indeed, labor law may matter most at the state level, where a right-wing governor and legislature can eliminate public sector workers’ longstanding collective bargaining rights in one fell swoop. For example, Florida recently enacted anti-union SB 256. Among many other unabashedly union-busting provisions, that Ayn Rand-inspired statute requires unions – private voluntary organizations – to include specific language in their membership forms stating that “Florida is a right-to-work state” and that “union membership and payment of union dues and assessments are voluntary.” That’s like the state requiring the AARP to include unnecessary language in its membership application saying that “even though you are 50, AARP membership remains voluntary and is not required by Florida law.” Talk about woke indoctrination by the government!

On the federal level, the need for labor law reform of course remains painfully obvious. Starbucks, for example, appears to have simply refused to bargain with its employees at the 144 stores around the nation where workers have organized and there is little the NLRB can do to effectively counter the company’s intransigence. Starbucks presumably calculates that, since there is no economic penalty for an employer’s refusal to bargain with a certified union, it makes economic sense to drag its feet. If the Protecting the Right to Organize (PRO) Act were enacted, the NLRB would have many more tools available to convince Starbucks to quickly comply with its obligation to bargain with its workers.

But the takeaway is that workers aren’t waiting for labor law reform – and shouldn’t wait – to forge ahead and form unions. While workers certainly should care about what Congress and the Supreme Court does – not the least because of what the Court might soon say about the right to strike in its forthcoming decision in Glacier Northwest v. International Brotherhood of Teamsters – they will not let a conservative House of Representatives or Supreme Court stop them from organizing at their own workplaces. That organizing, and the rebuilding of worker power and voice in our economy and politics that will follow, is the necessary precondition to enacting the PRO Act and achieving a Supreme Court majority that reflects the interests of working people.

Matt Ginsburg is General Counsel of the AFL-CIO.

 

Portrait of a Queen: Hawaiian History and the Law

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities.

Last week, I walked into a special exhibit in the National Portrait Gallery in Washington, D.C., and was confronted with a large painting of Hawai‘i’s last sovereign, Queen Lili‘uokalani. In the portrait, the Queen peers out at visitors as they seek to beat the Potomac heat, as if to say, “listen to my story.” The portrait, which, for the first time, journeyed halfway across the globe from its home in Hawai‘i, was a poignant reminder of the same voyage that the Queen took more than a century ago to tell the history of her people and her stolen nation. 

American Overthrow

For centuries, Hawai‘i’s indigenous people lived in a highly sophisticated and self-sustaining community. As with many other indigenous peoples, western contact brought about the near demise of Native Hawaiians.  Despite dwindling numbers, the Native Hawaiians persevered and created an independent and internationally recognized Kingdom of Hawai‘i.   

Yet, in 1893, and capitalizing on American expansionism across the Pacific Ocean, the marines of the U.S.S. Boston unlawfully landed on the shores of the Kingdom. The insurrectionists forced the then-Queen, Lili‘uokalani, to make a decision to either suppress the American-supported coup and face the wrath of the American military, or cede her authority and hope that the rule of law in Washington, D.C. would prevail. To avoid bloodshed, the Queen chose the peaceful and diplomatic path. The bloodless coup, however, resulted in the illegal overthrow of the Kingdom and calls for immediate annexation.    

President Grover Cleveland condemned his countrymen’s conduct in the islands as an “act of war.” Kingdom citizens refused to sit idly and let the United States seize their land and their sovereignty. Community leaders gathered petitions expressing strong opposition to annexation. After being delivered to Congress, in 1897, these petitions helped make the case against Senate ratification of a proposed annexation treaty. Nevertheless, American imperialism prevailed. In 1898, and although the United States Senate never ratified a treaty of annexation as required under the Constitution, the McKinley Administration seized Hawai‘i through a joint resolution. 

Throughout this period and even following annexation, Queen Lili‘uokalani spent significant time in Washington, D.C. She met with politicians of all parties to plead the case for her people. Although halfway across the world, she never gave up and she told Hawai‘i’s story. 

The Project of Americanization

But, the injustices continued. Congress subsequently created the Territory of Hawaii in 1900 and, for decades, the project of Americanization inculcated the islands. Children (and their teachers) were punished for speaking the native language. Cultural practices were forced underground or, even worse, commodified to placate a growing tourism industry. Prime agricultural lands and precious natural resources were diverted from native farmers to support the sugar and pineapple industries. 

 The massive military presence in Hawai‘i made our lands and our people the target for anti-American sentiments just as America was poised to enter World War II. The Territory’s criminal justice system disproportionately and unfairly punished brown bodies. Native Hawaiians had the lowest rates of educational attainment, and the highest rates of incarceration and death. The project of Americanization was nearly complete. 

Promise of Reconciliation

Then, in 1978, something changed. Following a state constitutional convention, the multi-ethnic voters in Hawai‘i approved generation-shifting laws regarding traditional practices, the Hawaiian language, and reconciliation with Native Hawaiians. One of these constitutional amendments—the creation of the Office of Hawaiian Affairs—sought to alter the relationship between the State of Hawai‘i and the indigenous Hawaiian people. This new agency would be run by and for the betterment of the conditions of Native Hawaiians. It would serve as a vehicle for reparative action for the historical harms of colonization. 

President Bill Clinton and a bipartisan Congress amplified this message of hope for redress for historical harms when, in 1993, they apologized for the overthrow and committed to support reconciliation efforts between the United States and Native Hawaiians. While not perfect, the movement for reconciliation for the harms of the seizure of Hawaiian lands and sovereignty took significant steps forward. 

Reconciliation at a Crossroads

In 2000, the United States Supreme Court struck a blow to this reparatory momentum with its startling decision in Rice v. Cayetano, 528 U.S. 495 (2000). In that case, a white Hawai‘i resident challenged the Native Hawaiian-only voting limitations for the leaders of the Office of Hawaiian Affairs. The Court ignored the efforts of the state and federal governments to address the historical harms of colonization and the unique effort to provide a semblance of self-governance to Native Hawaiians through the Office of Hawaiian Affairs. The Court majority whitewashed the history of Hawai‘i and its native people. The Court then used that biased history to frame their legal conclusion and equate ancestry with race. In short, the Court denied Native Hawaiians their self-governance. 

 Since Rice, the path to justice for Native Hawaiians has been fraught with controversy. Any federal lawsuit dealing with Native Hawaiian issues has been forced to reconcile with the improperly premised and wrongly decided Rice decision. Even other indigenous communities across the Pacific, such as in Guam and the Northern Mariana Islands, have been shackled by Rice. 

 While the road to overturning Rice and correcting Hawai‘i’s history in the law seems to be perilous, to see Queen Lili‘uokalani revisit Washington, D.C.—even if just in a portrait—provides hope that Hawai‘i’s true history continues to be told. During this time as America celebrates Asian American, Native Hawaiian, and Pacific Islander Heritage Month, learn more about our unique histories and beautiful stories, and continue to share them. The fight for justice begins with sharing our stories.

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Troy J.H. Andrade is the Joanna Lau Sullivan Distinguished Professor and director of the Ulu Lehua Scholars Program at the University of Hawai‘i at Mānoa William S. Richardson School of Law.  His scholarship lies at the intersection of American jurisprudence and legal history, particularly in the context of the pursuit of Native Hawaiian political and social justice.  

The Korematsu Legacy

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

In 1942 Fred Korematsu of San Leandro, California, Minoru Yasui of Portland, Oregon, and Gordon Hirabayashi of Seattle, Washington, defied President Franklin Roosevelt’s Executive Order 9066, under which authority nearly 120,000 Japanese Americans were removed from the West Coast and incarcerated in desolate areas of the country. The three men maintained that it was unconstitutional to incarcerate Japanese Americans solely on the basis of their ancestry. But the U.S. Supreme Court allowed the government’s actions to stand and affirmed the men’s convictions in decisions issued in 1943 for Yasui and Hirabayashi and in 1944 for Korematsu.

The Korematsu decision was justifiably criticized for rubber-stamping the mass removal of an entire racial group on the basis of the government’s facile claim that it was a “military necessity.” In the dissenting words of Justice Robert Jackson, the Court’s decision “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Justice Jackson’s warning was indeed prophetic. After the 9/11 attacks in 2001, hundreds of Arabs, Muslims, and South Asians were detained and subjected to heightened government surveillance. A conservative author wrote a book calling the Japanese American incarceration an appropriate precedent for profiling Muslims.

The convictions of Korematsu, Yasui, and Hirabayashi remained on their records for more than 40 years. But in 1982, researcher Aiko Herzig-Yoshinaga and Professor Peter Irons discovered documents proving that the government lied to the Supreme Court when it claimed that “military necessity” justified rounding up Japanese Americans on the West Coast.

This stunning new evidence led volunteer attorneys in San Francisco, Portland, and Seattle to form legal teams to challenge the 40-year-old convictions. On January 19, 1983, the Korematsu team, which I had joined, filed a petition for writ of error coram nobis, a means of challenging a conviction when the petitioner is not in custody. On November 10, 1983, U.S. District Judge Marilyn Hall Patel of the Northern District of California granted Korematsu’s petition and vacated his conviction. In her written opinion, she concluded that the 1944 case “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” In 1986, the Ninth Circuit Court of Appeals vacated Hirabayashi’s convictions. Yasui’s conviction was vacated by the district court in Portland, but the court made no findings on his claims of government misconduct.  Sadly, his appeal became moot when he passed away in 1986.

The coram nobis cases became part of a successful movement for redress and reparations for Japanese Americans who were incarcerated during World War II. The Civil Liberties Act of 1988, signed into law by President Ronald Reagan, provided for a payment of $20,000 and a presidential apology to each Japanese American survivor of the incarceration. A coalition of civil rights, labor, and religious organizations supported the redress movement, and the Congressional Black Caucus played a critical role in the passage of the legislation.

In Trump v. Hawaii, a challenge to the government’s 2018 travel ban affecting primarily Muslim-majority countries, the Supreme Court purported to condemn Korematsu. Instead the Court upheld a discriminatory program based on a flimsy rationale of “national security,” despite compelling evidence of religious animus, just as it had done in the face of racial bias in Korematsu. Justice Jackson’s warning that Korematsu is a “loaded weapon” retains its force to this day.

The anti-Japanese fervor during World War II and anti-Muslim vitriol after 9/11 are uncomfortably familiar today. We are experiencing similar political and social stress, polarization, and extreme rhetoric, all intensified by social media. Asian and Pacific Islander Americans are still stigmatized as “perpetual foreigners,” subjected to stereotypes, and victimized by anti-Asian hate crimes. Many other Americans remain vulnerable to discrimination on the basis of race, religion, gender, and sexual orientation. Reliance on the Supreme Court to protect our civil liberties is futile. We must remain vigilant, speak out, build coalitions, and resist discrimination against all vulnerable groups and individuals. Many Japanese Americans, recognizing that they that they share a history of discrimination similar to, although not the same as, Black Americans, and that they would not have obtained redress without the support of Black Americans, are now joining the campaign for African America reparations. Don Tamaki, the only non-Black member of the California Reparations Task Force, was chosen for his experience as a leader of the Korematsu legal team, his knowledge of Japanese American redress, and his expertise in public education campaigns about the coram nobis cases and civil liberties.

The coram nobis cases leave us a positive legacy of vigilance, education, and coalition-building. Throughout their lives, Korematsu, Yasui, and Hirabayashi continued to speak out, not just about their own cases, but in support of the civil liberties of marginalized groups and individuals. Korematsu, departing from his quiet life as a draftsman in suburbia, became a civil rights activist. He wrote an essay criticizing the profiling of Arab Americans in the wake of 9/11 and signed several amicus briefs in support of American Muslims. He spoke often at universities and law schools across the country. In 1998 he received the Presidential Medal of Freedom. The Fred T. Korematsu Institute was founded to promote the lessons of his case, the Fred T. Korematsu Center for Law and Equality was established at the Seattle University School of Law, and a professorship in his name was endowed at the University of Hawai`i William S. Richardson School of Law.

As Korematsu often said, “Stand up for what is right.” We would do well to carry on that legacy.

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Leigh-Ann Miyasato was a member of the legal team representing Fred Korematsu in the coram nobis cases. She practices law and works in the nonprofit and entrepreneurial sectors in San Francisco, Washington, DC, and Honolulu.

To Stop Anti-Asian Violence, Invest in Communities, Not Police

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

At our office, the calls continue to come in. There was the Chinese woman whose neighbor, a local law enforcement officer, called her a ch*nk and waged an extended campaign of harassment to push her out of the neighborhood. The Vietnamese man who was showered with racial slurs when he confronted a hit-and-run driver about his damaged car. Another woman of Chinese descent who was run over with a shopping cart in the grocery store parking lot. The undocumented woman in public housing who was physically attacked outside her home.

Then, there is the aftermath. The anxiety of waiting for hospital, legal, body shop bills. The disappointment of police inaction. The calculation of whether the logistics and cost of finding a therapist was worth it. The need to move out of harm’s way but no resources to do so.

And there are questions for the broader community. Should I be scared when I leave the house? Will this wave of harassment and violence pass? Is this a hate crime? Or is this “just” another shooting? Does my race make me a victim, like the family killed at the mall in Allen, Texas? Or am I the violence itself, like the gunman in Monterey Park? Will the police target me, like Yia Xiong, the disabled Hmong elder who was killed by an officer, or serve and protect me?

I’m confronted with these questions every day, as a lawyer tasked with responding to anti-Asian violence. In observance of Asian American Pacific Islander Heritage Month, I looked back at our history to explore these questions about harm, identity, and public safety. What I found is that Asian Americans have a lot to learn from the history of other movements and our own.

For some Asian Americans, questions about violence and the criminal legal system are newly salient. For others, it is old news. Like other communities of color, Asian Americans, Pacific Islanders, and Native Hawaiians have been harmed by criminalization. This is especially true in high-poverty Asian neighborhoods, like parts of Long Beach and Stockton, California, that have endured high levels of community violence. Between 1999 and 2004, the AAPI prison population increased by 30%. In 2006, Oakland police arrested Samoan youth at a higher rate than any other racial or ethnic group, followed by Black youth. Cambodian and Vietnamese youth also had high arrest rates. The criminal legal system is particularly harsh to immigrants, who are funneled directly to ICE detention centers after earning their release from prison. Asian massage parlor and sex workers are regularly assaulted, stolen from, and harassed by their clients and the police officers who are charged with keeping them safe. And throughout the Asian community, there is underreported violence at home.

Many Asian community advocates and elected officials have called for strengthened hate crime laws and policing. As they tell it, Asian people are innocent, law-abiding victims who are receiving the brunt of a crime wave and anti-China rhetoric. The reality that Asian Americans can both be harmed, harm others, and be labeled “criminal” is inconvenient to this narrative. People who support law enforcement strategies dismiss reservations about law enforcement as limousine liberalism, even when they are rooted in decidedly Asian American experiences of intracommunity violence, police brutality, and incarceration.

On the other side of the spectrum, even opposition to more policing and incarceration can reinforce a false victim-perpetrator divide. As sociologist Tamara Nopper points out, some calls for Black-Asian solidarity to keep each other safe seem like “Black people are expected to reassure Asian Americans that they don’t ‘hate’ us…while Asian Americans reassure Black people we won’t call for more policing or criminalization of them.” As Nopper puts it, “the reality is all of us can commit harm and violence while only some of us will be prosecuted for crime.”

Increased policing has both easily foreseen and unintended consequences for all of us. One in 20 homicides are committed by police. Police officers kill Black people at a rate 3.5 times higher than white people, but this epidemic has touched all communities, including Asian American ones. The Asian American movement has been shaped by police brutality, like the brutal beating of Peter Yew in 1975 that galvanized the community and established organizing infrastructure that remains active today. In addition to Yia Xiong, earlier this year, Cambridge, Massachusetts police shot and killed a 20-year-old Bangladeshi college student, Sayed Faisal.

Longer criminal sentences—a common feature of hate crime legislation—also seem to have little practical value in making us safer. A 2016 National Institute of Justice review concluded that increased sentencing does not deter crime, and that prisons may in fact exacerbate recidivism. Over a decade ago, federal hate crime laws were expanded to criminalize more offenses targeting LGBTQ+ individuals, yet LGBTQ+ people are still nine times more likely to experience violence due to their sexual orientation.

There is no doubt that targeted violence and hate has overwhelmed our families and communities. But communities under this kind of pressure risk settling for immediate but unproven responses. Advocates for survivors of domestic violence found themselves in a similar position in the 1980s. They successfully advocated for aggressive arrest policies, with 90% of police departments adopting pro-arrest policies by 1991. In 1994, the Violence Against Women Act allocated funding to hire new police officers and prosecutors to protect people from partner violence. But several studies showed that arrests actually increased violence in certain cases. Research also shows that pro-arrest policies increased arrests of men by 60 percent and arrests of women by 400 percent. This is a cautionary tale for anti-Asian violence advocates, especially when police officers and prosecutors themselves have testified that finding clear-cut evidence of hate is difficult, even when they expend investigative resources.

A more effective response to public safety is possible. Justin Go, whose daughter Michelle was killed after being pushed in front of a New York City subway train, has charted a different approach. He proposes an ethic of community care, including preventative measures that fund housing and treatment. There is promising evidence that investments in our built environment, education, health care, treatment, and employment can prevent harm before it happens. These investments have the added benefit of helping people heal and recover after they have been harmed. Expansion of healthcare coverage, for example, both reduces arrests and increases access to medical care and counseling following an act of violence or harassment.

Historically, when advocates seeking protection from violence demand both harsher punishments and community investment, they only get the former. This was true in the domestic violence movement and for Black Americans who never saw the health care, jobs, and investments they asked for when crime and violence was at its highest in the late eighties and nineties. Pushing for the latter will get us the public safety solutions that work, instead of the decades of tough-on-crime policy that cost our communities so much. A public health approach to safety can ensure that people have the shelter, jobs, and care that make them less likely to both harm and be harmed.

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Jane Shim is Director of the Stop Asian Hate Project at the Asian American Legal Defense and Education Fund.

Asian Americans and the Bait-and-Switch Attack on Affirmative Action

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

As the U.S. Supreme Court considers challenges to affirmative action at Harvard and the University of North Carolina at Chapel Hill, Asian Americans find ourselves in a precarious position. Students for Fair Admissions (SFFA), the organization bringing these challenges, operates deceptively.  At the outset of the cases, it contended that “a 2013 U.S. Supreme Court decision essentially forbids [race-conscious admissions policies].” But SFFA founder Edward Blum, a longtime foe of affirmative action, himself orchestrated the litigation in Fisher v. Texas I (2013) and Fisher II (2016). The Fisher cases resulted in the Supreme Court upholding affirmative action, and Blum even expressed disappointment in the Fisher ruling.  That is why SFFA brought the current lawsuits. For the Harvard case, SFFA uses a bait-and-switch strategy with Asian Americans as plaintiffs by deliberately conflating two distinct concepts: “negative action” and affirmative action.

Although Asian Americans are well represented at Harvard, SFFA contends that the university wants to limit our enrollment. There is a history to such claims.  As our numbers increased at selective schools, some White students and administrators viewed Asian Americans as overly competitive and feared that elite campuses would look “too foreign.” Harvard denies intentionally engaging in such discrimination; thus the burden fell on SFFA to prove it. Doing so is very difficult and implicates a line of Supreme Court cases, including Washington v. Davis (1976), Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), and Personnel Administrator v. Feeney (1979). Even if Harvard discriminates against Asian Americans, the prospects for winning this claim were always dim.

In contrast, affirmative action refers to policies such as race-conscious admissions that tend to benefit underrepresented groups. Harvard admits to using race-conscious admissions policies, so SFFA does not have to prove intent. This implicates a different line of cases: Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher I and II. The burden falls on Harvard to show its admissions policy satisfies strict scrutiny. Harvard has the difficult task here, particularly with a Supreme Court that is quite hostile to affirmative action.

SFFA’s bait-and-switch began with its first claim against Harvard, which focused entirely on negative action. Using statistical models, SFFA highlighted the higher academic credentials of admitted Asian American applicants compared to admitted White applicants. It noted how over 40 percent of White undergraduates at Harvard received admissions preferences for athletes or children of alumni, donors, and faculty/staff. Asian Americans had the lowest representation in these categories, which have a much larger impact on their admissions numbers than affirmative action. SFFA pointed to racist comments against Asian Americans by a Harvard alum, and it noted the Harvard administration’s blasé response to these comments. It also cherrypicked comments from admissions files which seemed to stereotype Asian Americans as passive and socially-inept stereotypes that many of us have experienced. And SFFA furthered this claim by showing that Asian Americans were rated lower than all other applicants on Harvard’s personal rating—a score that assesses leadership ability, social skills such as humor, and other desirable personality traits.

While these findings are problematic, none of them prove intentional discrimination. SFFA’s negative action claim was doomed from the start. But this claim was an integral part of SFFA’s litigation strategy. It provided the “bait” to make Asian Americans the focus of the Harvard case. And SFFA’s second claim—an attack on affirmative action—was the “switch.”

SFFA’s second claim did not focus on Asian Americans. Rather, it contended that Harvard violated the guidelines for affirmative action laid out in Grutter and Fisher. Those guidelines, developed by Justices who were very ambivalent towards affirmative action, are vague enough to invite such challenges. As a remedy, SFFA wanted universities to remove from applications any information that would identify an applicant’s race. Doing so could address negative action, but it would also eliminate affirmative action.

The U.S. District Court for the District of Massachusetts ruled for Harvard on both claims. SFFA did not prove intentional discrimination against Asian Americans, and Harvard also demonstrated that its race-conscious admissions policy was consistent with Grutter and Fisher. But in evaluating the statistical models, the district court noted that Harvard did not fully explain the difference between White and Asian American applicants’ personal ratings. The court suggested that implicit bias—a form of unconscious racism—might be responsible.

Unlike intentional discrimination, implicit bias is not legally actionable. Nevertheless, SFFA seized upon this finding on appeal. It argued that Harvard bore the burden to explain the lower personal rating scores of Asian American applicants—an argument inconsistent with the Washington v. Davis line of cases. The U.S. Court of Appeals for the First Circuit rejected those arguments and affirmed the district court ruling. But the Supreme Court then granted SFFA’s petition for a writ of certiorari.

At the Supreme Court, SFFA’s bait-and-switch strategy became fully visible. It argued that the Court should overrule Grutter altogether. The claim of discrimination against Asian Americans was at the forefront of the district court case, but that now only played a small part. SFFA retreated from its proposed remedy of eliminating all references to race from applications, conceding that race could be revealed in applicants’ essays. It thus eschewed its own proposal for preventing negative action and focused mostly on striking down affirmative action. And unfortunately, most observers think that SFFA will prevail.

Nevertheless, Asian Americans should recognize SFFA’s bait-and-switch. Negative action is different from affirmative action. Asian Americans are stereotyped as socially inept, and we are viewed as a foreign threat because of our academic success. These are aspects of White supremacy, and even if Asian Americans are well represented at elite universities, civil rights advocates should acknowledge and address any negative action that occurs. But Asian Americans should also advocate for inclusion of underrepresented groups. Otherwise, we become mere pawns in a war against racial diversity and equity. And this war is far from over.

Acknowledgment
I thank Professor Jonathan Feingold of Boston University School of Law for his helpful feedback on this blog post.

Vinay Harpalani is a Professor of Law and the Lee and Leon Karelitz Chair in Evidence and Procedure at the University of New Mexico School of Law. His scholarship focuses on the intersections between race, education, and law, as he explores the nuances of racial diversity and identity from various disciplinary perspectives.