Paul Booth: An Organizer’s Life

*This piece was originally posted on American Prospect.

There’s a scene in last year’s documentary by Lilly Rivlin, Heather Booth: Changing the World, in which Heather and Paul Booth discuss how they met at an anti-war sit-in at the University of Chicago’s administration building in 1966.

“The sit-in lasted several days and nights. We got to know each other very well,” Paul recalled. “By the end of the week I was ready to propose marriage and I did.” Married the following year, they spent a lifetime together as key organizers and activists in every social justice movement of the past half-century.

On Wednesday, Heather was escorted, in handcuffs, out of the Capitol in Washington, D.C., at a protest of Dreamers and Jewish activists in support of DACA and immigrant rights. At the time, she didn't know it was Paul's last day. Paul had died unexpectedly at 7:30 p.m. of complications of leukemia.

In their last conversation, Paul told Heather that he was proud of her involvement in the civil disobedience. It bespeaks their lifetime together as activists.

Paul spent 43 years working for the American Federation of State, County, and Municipal Employees (AFSCME) before retiring last year. Throughout his lifetime as an organizer and activist, he was a key bridge-builder between the labor movement and other progressive crusades for immigrant rights, civil rights, women’s rights, and peace.

Born in 1943, Paul was raised in Washington, D.C., by Socialist Party members. His mother was a psychiatric social worker. His father was an economist with the Department of Labor and one of the architects of Social Security in the Roosevelt administration.

In August 1961, as a sophomore at Swarthmore College, Paul attended a National Student Association conference in Madison, Wisconsin, where he witnessed a heated argument between Tom Hayden, University of Michigan activist and Students for a Democratic Society (SDS) founder, and William Buckley, editor of the right-wing magazine National Review. According to James Miller’s SDS history, Democracy Is In The Streets, at one point Buckley harangued Hayden, “The trouble with you liberals is that you have no eschatology.”

As Booth told Miller: “I don’t remember what else was said. I went running around trying to figure out what an eschatology was.”

Impressed with Hayden’s vision of building a student movement to challenge the nation’s political and economic status quo, Paul formed an SDS group at Swarthmore, building it into one of the largest in the country. The chapter’s initial work involved participating in civil rights protests in nearby Philadelphia and Chester. At the SDS meeting at Port Huron, Michigan, in 1962, Paul was instrumental in drafting the Port Huron Statement, the group’s manifesto of youthful idealism and pragmatic activism. At that gathering, SDS elected Hayden as its president and the 19-year-old Booth as its vice president.

“My starting point was a commitment to mass organizing, that’s why I admired [Eugene] Debs,” he told SDS historian Miller, referring to the union organizer and Socialist Party candidate in the early 1900s. “He got votes, organized strikes and went to jail for protesting the First World War. He was both an effective organizer and a principled leader.” (The Booths named their eldest son Eugene. Their other son was named for Daniel de Leon, another Socialist labor activist in early 20th century).

In the summer of 1963, Paul worked with Arthur Waskow at the Peace Research Institute in Washington, D.C., researching the potential for shifting federal spending from military to civilian projects and helping defense workers shift into jobs outside the military-industrial complex.

The next year, as many other SDS activists ventured into local community organizing in the ghettos of American cities, Paul led SDS’s Peace Research and Education Project, which sought to organize workers in defense plants facing factory closings and layoffs. Its goal was to build a coalition between blue-collar workers and the inner-city poor to reduce military spending and increase funds for social programs, housing, and education.

In 1964, following President Johnson’s escalation of U.S. involvement in Vietnam, Paul and fellow SDS leader Todd Gitlin crisscrossed the country trying to interest student activists in opposing the war, but discovered little interest. But they persisted and eventually persuaded their SDS colleagues to sponsor the first major march on Washington against the war. The march, on April 17, 1965, was the largest peace protest up to that point in American history, drawing about 25,000 participants.

Supporters of the event included the Women’s Strike for Peace and the Student Nonviolent Coordinating Committee, reflecting Paul’s intent to connect the anti-war and civil rights movements. The day-long event began with picketing outside the White House, followed by music from folk singers Joan Baez and Phil Ochs and antiwar speeches at the Washington Monument.

While a few anti-war activists decided to burn their draft cards, Paul—hoping to enlist mainstream support for the peace movement—called a press conference in Washington to announce that the rally’s goal was to “build not burn.”

“We’re really not just a peace group,” Paul told the New York Times reporter covering the rally. “We are working on domestic problems—civil rights, poverty, and university reform. We feel passionately and angrily about things in America, and we feel that a war in Asia will destroy what we’re trying to do here.”

Although Vietnam preoccupied Paul and SDS, he also sought to expand the movement’s horizons. In March 1965, with SDS support and drawing on union and civil rights tactics, he organized a sit-in at the Chase Manhattan Bank in New York City to draw attention to the bank's ties to the pro-apartheid regime in South Africa, prefiguring the international divestment movement that helped bring down the regime in the 1980s.

Paul moved to Chicago in 1965 to serve as SDS’s national secretary—its top job. It was while working in the group’s national office that he joined the sit-in at the University of Chicago and met Heather—a fateful day for them and for American progressivism.

Paul’s commitment to building alliances with other groups and constituencies did not endear him to some of the more extremist elements in SDS. In 1966, they ousted Paul from his leadership role, casting him as a representative of the “old guard.”

Paul was 23.

He was one of the first former campus radicals to join the labor movement, which in the 1960s and 1970s was starting to lose members and political influence, but which he viewed as a necessary component of any progressive future for America.

In 1966, the United Packinghouse Workers of America hired Paul as its research director. He was one of the first former campus radicals to join the labor movement, which in the 1960s and 1970s was starting to lose members and political influence, but which he viewed as a necessary component of any progressive future for America.

In 1970, while working for the union, he and other Chicago activists formed Citizens Action Program (CAP), a remarkable progressive organizing force that gathered under its wing labor unions, religious congregations, and community and environmental groups. With Paul as its co-chair, CAP built grassroots campaigns to challenge banks’ redlining practices; to expose the Cook County tax assessor’s practice of undervaluing corporate properties; to reduce toxic air pollution from local steel plants and other factories, and prod Commonwealth Edison, the region’s largest private utility, to negotiate an unprecedented antipollution agreement.

The Edison campaign “taught me the real discipline of organizing,” Paul told the Chicago Tribune in 1988. “The difference between a good and a crummy meeting, how to plan, how not to waste people’s time and what power struggles are really like.”

One of CAP’s boldest campaigns was designed to stop the construction of the Crosstown Expressway, a highway that would have razed thousands of homes and hundreds of small businesses in blue-collar neighborhoods, which was a favorite project of Chicago’s business and political establishment. CAP turned the expressway controversy into a pivotal issue in the 1972 gubernatorial election. Dan Walker, an independent Democrat, defeated Illinois’s incumbent Republican Governor Richard Ogilvie by 51 percent to 49 percent on a strong anti-Crosstown platform.

CAP not only served as a training ground for many activists—including current Democratic Representative Jan Schakowsky of Illinois—but has also been a model for other labor-community coalitions ever since. Combining issue-oriented community organizing and transformational movement building led Heather (with Paul’s help) to found the Midwest Academy in 1973, a training center that has influenced thousands of organizers for unions, student and women’s rights groups, and environmental, peace, civil rights, and community organizations.

In 1974, Paul went to work for AFSCME as the international union’s representative for Illinois. He helped organize AFSCME Council 31 in Illinois and, as its assistant director, led the campaigns that secured the first union contract for 40,000 state workers and 7,000 Chicago municipal employees. He also negotiated historic pay-equity provisions for city workers to address pay disparities between women and men.

With Heather, he played a key role in electing Harold Washington as Chicago’s first black mayor in 1983, defeating the city’s corrupt patronage machine and creating a broad multiracial coalition that enacted the most progressive municipal policies of any American city.

Paul moved to Washington, D.C., in 1988 to work in AFSCME’s national office, serving for ten years as the union’s organizing director and then as Executive Assistant (essentially, chief of staff) for union presidents Gerald McEntee and Lee Saunders. In those capacities, he laid the foundation for AFSCME’s representation of nurses and corrections workers, helping grow the union into a 1.6 million–member organization. Paul retired in January of last year but continued his activism on a host of issues.

As the chief strategist for one of the nation’s largest, most progressive, and most electorally oriented unions (almost all of AFSCME’s members were government employees), Paul often came up with innovative campaigns and initiatives that not only guided AFSCME but also much of the labor movement. In 1994, he devised the nation’s very first living-wage campaign, working with BUILD, a community organizing group in Baltimore. To challenge municipal politicians’ efforts to privatize key government services, the AFSCME-BUILD coalition called on the city to require private companies with municipal subsidies to pay its employers a living wage. Over the next decade, the idea spread to hundreds of cities around the country and became a model for the broader Fight for 15 campaign that has pressured local governments to adopt minimum-wage laws.

After the midterm elections of 1994, which cost Democrats control of the House of Representatives for the first time in decades, the discontent that had been festering among progressive unions about the AFL-CIO’s leadership burst into the open. Headed by president Lane Kirkland, the federation still seemed to be fighting the Cold War—four years after the Soviet Union had ceased to exist—and still shunned working in alliance with other progressive groups and constituencies. AFSCME President McEntee was the first to go public with the demand that it was time for Kirkland and the ancient regime to go—an insurgency, which Paul helped mastermind, that led to the election of SEIU president John Sweeney as the AFL-CIO’s new leader, and brought about a transformation of labor’s political orientation.

In subsequent years, with McEntee chairing the AFL-CIO’s political committee, Paul played a major role in labor’s targeting of races, its campaign themes, and its nurturing of progressive candidates.

In 2016, Hillary Clinton appointed Paul to serve on the Democratic Party’s platform drafting committee, where he served as a bridge between the Clinton and Bernie Sanders forces. In his six-minute speech to the convention, Paul said, “I am proud to present the most ambitious platform the Democratic Party has ever offered,” describing the importance of challenging “systemic racism,” dealing with climate change, raising the federal minimum wage to $15, and expanding workers’ right to organize unions.

On his Fox News show, right-wing broadcaster Glenn Beck frequently used a blackboard to illustrate his conspiracy theories about the ties between radical activists and President Obama. “Who is Paul Booth?” Beck asked during one of his rants. Beck used a quote from Paul from his SDS days—“I want to build a New Left in this country”—then linked him to other union leaders, liberals, and radicals, including Saul Alinsky, Van Jones, Bill Ayres, Jim Wallis, and George Soros, who, Beck said, were seeking “a total transformation of the United States of America.”

Beck got many of the names and details wrong, but he was correct in viewing Paul Booth as a key player in linking people and movements into a broader progressive alliance to reshape society.

Since his student days, Paul was known as a brilliant organizer and shrewd strategist whose idealism was always balanced with a sense of practical politics.

“Paul was one of the most principled people I ever knew,” said Dick Flacks, a University of California, Santa Barbara, sociologist who knew Paul from their early SDS days. “But he always was rational and pragmatic. He cared about the practical effects of organizing and action.”

Unlike some movement leaders, Flacks added, “Paul was never swaggering or self-promoting. He preferred being behind the scenes.”

One of his many behind-the-scenes endeavors in recent decades was to help instigate, win funding for, and guide a host of other progressive institutions—from the Economic Policy Institute and Jobs with Justice to the National Employment Law Project, the Restaurant Opportunity Center, and the Los Angeles Alliance for a New Economy. As the leaders of these and other groups have attested, Paul was on tap for them whenever they needed strategic or organizing counsel.

Paul was the quintessential inside-outside activist, recognizing the importance of protest and civil disobedience while acknowledging the necessity of forging alliances with politicians to give voice to and help implement progressive changes.

Among his friends, Paul was known for being witty, ironic and warm as well as intellectual. Together, he and Heather balanced their activism and their family life, raising two sons, and participating in a wide network of activist friends. While Paul worked for AFSCME for 43 years—and was able to use that position to help countless other groups—Heather has worked for a range of groups across the progressive universe, building organizations like the Citizen Energy Coalition, working with the NAACP, Planned Parenthood, MoveOn, USAction, People’s Action, the National Organization for Women, the National Council of La Raza, and the Center for Community Change; running the Midwest Academy; serving as director of Americans for Financial Reform and as a key adviser to Elizabeth Warren in getting the Consumer Financial Protection Bureau through Congress; and mentoring young Dreamer activists pushing for immigrant rights. An account of their lives could serve as a history of the past half-century of American liberalism.

Paul was diagnosed with chronic lymphocytic leukemia in 2004 but exhibited no symptoms until last month. During a December trip to Cuba with Heather and other friends, Paul experienced severe exhaustion, difficulty breathing, and some bloating. When they returned to their D.C. home in early January, Paul was admitted to Sibley Hospital for tests.

Heather created a Caring Bridge website to inform their friends about Paul’s condition. In a message to friends a day after Paul entered the hospital, Heather wrote that Paul was “in good spirits—just tired,” expected to return home within a few days and to begin chemotherapy, and “should be fine continuing with his regular activities.”

“Paul particularly welcomes any news about more Republican retirements,” Heather wrote. “What you really can do for Paul (and yourselves and the country) is to organize and build the resistance!”
On Monday, from his hospital bed, Paul wrote a message to the hundreds of friends who had posted comments on the website. He reminded them of the Memphis sanitation workers' strike 50 years ago, a campaign in which AFSCME helped the African American workers win a union contract and better pay and working conditions.

Paul wrote:

 

I would like to reply to each of you, individually; our histories together have had unique moments whose recollection comes rushing to my mind as I see your names on these notes. Some of you have been friends from elementary or high school. But if I can’t write to each of you one by one, let me at least share a few reflections today, on Dr. King’s birthday. I’ve been lending a hand to AFSCME and the Church of God in Christ on their ambitious plans for the commemoration of the 50 years since the Memphis sanitation strike and Dr. King’s assassination. I encourage you to go to www.iam2018.org to learn about and connect with the effort. The year’s work kicks off tonight at the NAACP Image Awards, where the surviving strikers (those fit to travel!) will receive the Vanguard Award.

On February 1, we will remember the incident that triggered the strike, the Memphis afternoon when a downpour forced Echol Cole, 35, and Robert Walker, 29, to seek shelter in the back of their old trash truck. The compactor kicked in, crushing them to death. It was the last straw for the workers, who had an AFSCME charter as Local 1733, but no manner of recognition from the city. They struck for safety, and union recognition. As they marched, day after day, facing police brutality and racial hostility, it became a strike for basic human dignity, for dignity for all workers. They came up with the sign I AM A MAN, capturing forever in just four words the reasons we fight for justice. The whole point of I AM 2018 is to grab America’s attention, to drive home that the causes for which the workers and Dr. King marched and sacrificed are today’s causes. All our causes; the I AM sign now belongs to all our movements, be they about women, race, immigration, inequality or the simple right of public workers to unionize, which is on trial again at the Supreme Court. On February 1, Local 1733 asks that we join them in a Moment of Silence at 10 am, to reflect on the deaths of Brothers Cole and Walker, and to recommit to the struggle. In some cities, trash trucks will stop for that Moment; in others, sanitation workers and municipal officials will join for recognition and prayer.

Dr. King famously said ‘the moral arc of the universe bends toward justice.’ But he knew, and I underline, that it’s up to us to do the bending. We shall do it together.

Why leave Mississippi’s Masterpiece law in place?

*Reprinted with permission of LA Daily Journal, 1-10-18

When a new pope is selected by the assemblage of cardinals at the Vatican, the papal conclave releases white smoke into the sky. There are no smoke signals at the U.S. Supreme Court, but if one had a good sense of smell on Monday, the scent of cake appeared to be wafting from the neoclassical edifice at 1 First Street. The Supreme Court rejected two petitions challenging the 5th U.S. Circuit Court of Appeals’ upholding of a Mississippi law that permits businesses, religious organizations and government employees (as well as other organizations and individuals) to refuse service to gay people, to people who identify with a gender other than that with which they were born, as well as people of any gender who have sexual relations outside of marriage. Barber v. Bryant, 17-547 and Campaign for Southern Equality v.  Bryant, 17-642.

The cert petitions were filed last fall after the 5th Circuit Court of Appeals invalidated a district court’s preliminary injunction. In issuing the injunction, District Judge Carlton W. Reeves said the law was Mississippi’s “attempt to put LGBT citizens back in their place after the Obergefell decision.” The 5th Circuit lifted the injunction and denied en banc review, all on “standing” grounds, specifically that plaintiffs had not demonstrated that any harm had been caused by the law.

This freedom to discriminate law, passed by the Mississippi Legislature in 2016 as H.B. 1523, has the less-than-eponymous-mouthful of a name, the Protecting Freedom of Conscience from Government Discrimination Act. It prevents those in the private or public sector, as well as in religious organizations, from being censured or punished by the state for actions based on sincerely held religious beliefs and moral convictions. The law defines the protected beliefs as follows: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The act permits organizations with religious beliefs concerning marriage, sexual relations and gender identify, to deny people jobs, housing and services and specifically permits individuals with such religious beliefs who work in the medical field to deny a patient gender reassignment surgery, counseling or fertility services. It also permits state functionaries to opt out of issuing same-sex wedding licenses.

Additionally, the law makes clear that if a person, in the exercise of those religious views, loses their job or is denied some state benefit, then that person is a victim of discrimination and is permitted to recover damages from the government as compensation for the violation of religious freedom injuries.

The Mississippi law even has a specific provision which permits a religious believer to decline to provide wedding or “solemnization” event services to same-sex couples to include “photography, poetry, videography, disc-jockey services, wedding planning” as well as wedding invitations, floral arrangements, dress making, venue rental, limousine rentals, jewelry sales, as well as “cake or pastry artistry.”

This means that had Masterpiece Cakeshop baker Jack Phillips established his bakery in Mississippi instead of a Denver suburb, he could refuse to make a wedding reception cake for any same-sex couple.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111. And had there been an Anti-Discrimination Commission in Mississippi which censured the baker for his refusal to serve the gay couple, the baker could seek to collect damages from the State to include compensatory losses as well as attorney fees and costs.

It takes four justices to decide to take a case, and the Supreme Court gave no explanation for its refusal to hear the Mississippi cases. The court heard argument in Masterpiece Cake in December, during which the baker’s lawyer as well as U.S. Solicitor General Noel Francisco took the position that Colorado’s antidiscrimination law violated the baker’s religious convictions as protected by the Free exercise and Free speech clauses of the First Amendment to the U.S. Constitution. During the proceeding, Justice Anthony Kennedy, a devout Catholic and an established free-speech proponent, seemed to sympathize with the baker’s plight, and even “dressed down” Colorado’s lawyer for a “lack of tolerance” exhibited by the Colorado civil rights commissioner’s commentary on the baker’s “sincerely-held” beliefs. But four of the justices hearing the Masterpiece oral argument were not biting.

Justice Ruth Bader Ginsburg, spent time discussing the differences between custom-made cakes — which the baker’s lawyer and the United States’ lawyer said were constitutionally protected under the First Amendment — and “off the shelf/already-made” cakes which (at argument) the baker’s lawyer said were not constitutionally protected.

Justice Sonia Sotomayor riffed on the beauty of food and that the intent of the food-maker was to create something appetizing. She gave an example of the smashed cupcake in a box often being passed up for the more delectable, more beautifully shaped cupcake. She queried the baker’s lawyer to address if ever constitutional protection had been given to food that is purposefully made to look inviting and the primary purpose of which is to be eaten. (The lawyer had no satisfying answer.)

Justice Stephen Breyer asked whether a “fabulous mole” made for people at a restaurant table would be constitutionally protected, or whether First Amendment protection could be granted to made-to-order barbeque. He asked the baker’s lawyer to come up with “some kind of distinction that will not undermine every civil rights law” which has served to protect African-Americans and Hispanics and others discriminated against in trying to attain the basic needs of life to include food and housing. He was troubled by the baker’s lawyer’s inability to propose a narrow rule that would not swallow up the exception.

Justice Elena Kagan was also insistent on where one would draw the line and how could a cake be protected speech because it involves great skill and artistry, and would that apply to the chef of a masterful meal or even to the “the tailor who makes a wonderful suit of clothes”?

Surely those four could have caused certiorari to be taken on the Mississippi petitions. They did not.

Why? Maybe it was standing. Or perhaps the court wants to issue a Masterpiece opinion based solely on

“traditional” anti-discrimination laws (like that of Colorado and 20 other states) which prohibit discrimination based on race, gender and sexual orientation (among other things), instead of a law like Mississippi’s which turns “anti-discrimination” on its head. Mississippi’s post-Hobby Lobby, “anti-discrimination” law protects those who discriminate based on a specific set of fundamentalist Christian religious beliefs. Or perhaps the court declined because the issues raised in Masterpiece are couched in the First Amendment’s Free exercise and Free speech clauses, whereas the Mississippi cases assert that Mississippi’s freedom to discriminate law violates the First Amendment’s Establishment clause and the Equal Protection clauses of the Fifth and 14th Amendments.

Whatever the reason, it is a lost opportunity to kabash the forces of hate and intolerance. One cannot read Mississippi’s nine-page “anti-discrimination” law without seeing the obvious; it endorses a negative view of LGBT people as well as those who engage in sexual relations not “properly reserved” to marriage. The decision to decline this case does not bode well for the cause of true anti-discrimination.

Attorney Roberta Kaplan, who successfully represented Edie Windsor in United States v. Windsor, 133 S. Ct 2675 (2013), in which the Defense of Marriage Act was held to be unconstitutional, filed one of the lawsuits in Mississippi. After Monday’s decision by the Supreme Court, Kaplan, on behalf of the Campaign for Southern Equality, expressed disappointment that the court declined to step in to help those in Mississippi. She made a point to stress that 5th Circuit’s decision was based on standing, and that she and other lawyers like her will defend Mississippians who are discriminated against on religious grounds. “The fight against H.B. 1523 is not over.”

During the Masterpiece oral argument Justice Kennedy seemed taken a back by the idea that religion can be used to justify discrimination. The justice insisted that the lawyer for Colorado “walk back” the statement by a Colorado commissioner that “freedom of religion” is used in such a way. Colorado’s lawyer did not stand firm; the lawyer did not give examples from history (e.g., Northern Ireland, the Holocaust, and the Mideast) where religion has been used to do or justify such harm. The lawyer wilted.

Now, because of the cert denial in the Mississippi cases, the freedom to discriminate law is firmly in place in that state. Justice Kennedy, we will wait to see whether “freedom of religion” is used to discriminate. This means that Mississippians who are denied birth control because they are unmarried, denied medical counseling because they are transgender, or placed in the “slow lane” for same-sex wedding licenses, can take a page from Hollywood’s “me too movement” and tell their stories — not just to the Fourth Estate but to the lawyers.

It’s unlikely that any further legal action will occur in Mississippi before the Supreme Court rules on Masterpiece by June. But after that, at least by then, we’ll know where we can (and cannot) buy cake.

*Julie A. Werner-Simon, is a former federal prosecutor, 1986-2015 

 

Something Extraordinary Happened in Washington, D.C., Yesterday

*This piece was originally posted on Microsoft On the Issues

Something extraordinary happened in Washington, D.C., yesterday.

Members of Congress took the same position as members of the European Parliament. The U.S. Chamber of Commerce approvingly quoted a statement by the European Commission. Business groups and big companies agreed with consumer and privacy advocates. Faculty from Harvard joined with professors from Princeton. Professors from Duke joined rivals from the University of North Carolina, while those at Berkeley sided with Stanford. And Fox News agreed with the American Civil Liberties Union.

What’s the occasion for such agreement between so many people with different points of view? It was the filing of amicus briefs with the U.S. Supreme Court in the landmark Microsoft case that will decide whether the U.S. government can use a search warrant to force a company to seize a customer’s private emails stored in Ireland and import them to the United States. On Thursday, 289 different groups and individuals from 37 countries signed 23 different legal briefs supporting Microsoft’s position that Congress never gave law enforcement the power to ignore treaties and breach Ireland’s sovereignty in this way. How could it? The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing.

This is not to say that law enforcement never needs to access emails in other countries. Since we filed this lawsuit in 2013, we’ve said repeatedly that there are times when this is necessary to protect public safety.

But as 51 prominent computer scientists explained in their legal brief yesterday, emails are stored in known physical locations, on hard drives, in datacenter facilities. When the U.S. government requires a tech company to execute a warrant for emails stored overseas, the provider must search a foreign datacenter and make a copy abroad, and then import that copy to the United States. This creates a complex issue with huge international consequences. It shouldn’t be resolved by taking the law to a place it was never intended to go.

If anyone had doubts that this case has international ramifications, they were laid to rest by the list of governments that last month or this week either joined amicus briefs or made public statements supporting key parts of Microsoft’s position. The list includes Ireland, France, the European Commission, European privacy regulators and members of the European Parliament, to name just some of those involved. Supreme Court cases almost never garner this level of engagement from foreign governments and officials.

As these officials have explained, the U.S. Department of Justice’s attempt to seize foreign customers’ emails from other countries ignores borders, treaties and international law, as well as the laws those countries have in place to protect the privacy of their own citizens. As the French government stated on Monday, it’s a path that creates “a significant risk of conflict of laws.” And as the tech sector appreciates all too well, that’s a conflict that will leave tech companies and consumers caught in the middle.

It’s also a path that will lead to the doorsteps of American homes by putting the privacy of U.S. citizens’ emails at risk. If the U.S. government obtains the power to search and seize foreign citizens’ private communications physically stored in other countries, it will invite other governments to do the same thing. If we ignore other countries’ laws, how can we demand that they respect our laws? That’s part of why public interest groups, such as the Brennan Center for Justice and the Reporters Committee for Freedom of the Press, are watching this case so closely.

The DOJ’s position also bodes ill for the U.S. economy and American jobs. Right now, U.S. companies are world leaders in providing cloud services. That leadership position is based on trust. But if the U.S. government can assert this type of unilateral power to reach into datacenters that are operated by U.S. companies in other countries, foreign countries and foreign customers will question their ability to trust American companies.

Ultimately the courts – including the Supreme Court – can decide only whether the DOJ’s approach passes muster under current law. That’s a blunt instrument. The courts are not able to write a new law. Under our Constitution, only Congress can do that, using its tools to craft a nuanced solution that balances all the competing concerns by enacting a statute for the 21st century.

Everyone on both sides of this case agrees that these are real problems that need real solutions. But they need to be crafted with a scalpel, not a meat cleaver.

And as so many groups across the political spectrum and countries now agree, let’s hope the Supreme Court leaves it to Congress to do just that.

Find all 23 amicus briefs here.

Find the full list of signatories here.

Microsoft’s brief can be viewed here.

Sorting Out Bannon's Claim of Executive Privilege

Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

But the privilege extends only to communications with the President. So any communications that Bannon had with Candidate Trump or President-Elect Trump are not covered under Nixon. Under Nixon, executive privilege simply does not apply.

Moreover, the privilege works against particular requests for information. It doesn't provide a broad shield against testifying generally. (As the courts have recognized, if it worked as a broad shield, the President could use it to frustrate the functions of the coordinate branches, in violation of the separation of powers.) Bannon can only assert the privilege on behalf of the President in response to a particular request, and not as a shield against testifying generally.

As to Bannon's communications with President Trump: Nixon says that the privilege is qualified (that is, not absolute) and subject to a balancing of interests. In particular, in determining whether executive privilege protects communications, the Court balances the need for the information against the need for confidentiality of the particular Presidential communication at issues.

[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protections that a district court will be obliged to provide.

In Nixon, the Court held that the countervailing interests in the "fair administration of criminal justice"--in particular, Fifth and Sixth Amendment rights of defendants and the basic functions of the courts--outweighed the President's "broad interest in confidentiality of communications."

So the question in the Bannon case is whether the balancing works the same way with a congressional inquiry. There's good reason to think that it does. As Judge Bates (D.D.C.) explained in the Harriet Miers case, Committee on Judiciary, U.S. House of Representatives v. Miers, Congress's "power of inquiry" is every bit as important as the judiciary's power to administer justice:

[T]he Executive insists that this case is distinguishable because it does not involve a core function of another constituent branch but rather a peripheral exercise of Congress's power. That is mistaken. As discussed above, Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is "necessary to the effective functioning of courts and legislatures." Thus, Congress's use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury's in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here.

The Miers case was a little different--it involved an assertion of absolute privilege against congressional testimony on a slightly different theory than executive privilege--and the court used the quoted passage merely to support its conclusion that no such absolute privilege existed. Moreover, the passage glosses over the fact that the Nixonbalancing considered important competing Fifth and Sixth Amendment rights, absent or diminished in a congressional inquiry. Still, Congress's interests in fact-finding and oversight count for something important, even if slightly less than the judiciary's interests in Nixon, and they may well outweigh a "broad and undifferentiated" claim of privilege.

By claiming executive privilege before the House, but not before Mueller, Bannon and the White House are probably relying on a different balancing of interests under Nixon. In particular, the White House is probably claiming that the House's interests in the communications are less than Mueller's interests, and that the President's interest in confidential communications with Bannon outweigh the House's interests, but not Mueller's. Moreover, it's probably claiming that the communications are more secure if released to Mueller (like the in camerareview in Nixon) and less secure if released to Congress (even if a closed-door hearing).

But we don't know for sure, because the White House hasn't said. And we don't know how the courts would rule on these theories, even if the President asserted them.

These disputes between the White House and Congress usually work themselves out informally, without involvement of the courts. But now that the Committee has issued a subpoena, if Bannon continues to decline to provide certain information, the case could go to the courts, and we could get the President's legal reasoning--and a court ruling on whether and how executive privilege applies.

“You’ve Always Had the Power.” Marijuana, Federalism, and Separation of Powers

When Attorney General Jeff Sessions announced last week that he was rescinding the 2013 Cole Memorandum, marijuana policy was once again back on the national stage. The Cole Memo, issued by the Obama Justice Department, stated that those using, producing, or selling marijuana in compliance with robust state regulations would not be targeted by federal prosecutors. With the Cole Memo gone, there was renewed concern that state-level marijuana law reform could be undone by federal enforcement of the Controlled Substances Act (CSA).

The reaction against Sessions’s action was swift. Republican Senator Cory Gardner took to the floor of the Senate, condemning Sessions’s decision as a broken promise. Senator Gardner also announced that that he would block all Justice Department nominations until the Attorney General made good on his pledge to defer to the states on marijuana policy. Others on both sides of the aisle made similar calls on Sessions to respect the will of the voters in the 29 states that made marijuana legally available for at least some adults.

While marijuana policy has been seen primarily as a federalism battlefield – calling into question the appropriate division of authority between the state and federal governments to regulate the drug – it is now becoming clear that it is as much about separation of powers as it is about federalism. Like Dorothy at the end of the Wizard of Oz, Congress is now realizing that it had the power to fix matters all along. While the Justice Department has broad authority to enforce federal law, it is obviously up to the Congress to determine what that law is. Sessions’s actions have spurred Congress to reassert its authority in this area and members of both houses are now considering what options remain available to them.

Most immediately, Congress could extend the Rohrabacher-Blumenauer Amendment that since 2014 has prohibited the Department of Justice from using allocated funds to interfere in state medical marijuana laws. On January 11th California Representative Barbara Lee introduced a bill that would make the Amendment permanent, apply it to both medical and medical marijuana laws, and prohibit both criminal and civil enforcement actions against those acting in compliance with state marijuana laws.

Such a fix could forestall an immediate crackdown, but it would only have the effect of restoring the tenuous status quo ante – a world in which thousands of businesses and millions of people were engaged every day in conduct that remains felonious under federal law even while it is authorized and regulated by the states. So long as this conduct remains illegal under federal law, there are significant negative consequences for both businesses and individuals, even if the federal government is prohibited from enforcing the Controlled Substances Act. Businesses have trouble obtaining basic banking services and are taxed at confiscatory rates as a result of a federal law that denies them nearly all business deductions. Individuals risk losing their jobs, parental rights, or government benefits by engaging in conduct that remains criminal in the eyes of the law.

Thus, if Congress truly wishes to empower the states to explore alternatives to marijuana prohibition, a mere ban on federal enforcement will not suffice; rather, it must change the legal status of the underlying conduct. Senator Cory Booker’s Marijuana Justice Act would remove marijuana from the CSA entirely, take steps to undo the damage wrought by the discriminatory enforcement of marijuana laws over the years, and create a path by which those imprisoned for marijuana crimes could have their convictions overturned or their sentences lessened. The SMART Enforcement Act would make the CSA inapplicable in those states with robust state-wide marijuana regulations, leaving it in place only in those states choosing to be governed by it.

Ironically, Sessions’s attempt to crack down on states moving away from prohibition is having the effect of focusing energy and attention on alternatives to prohibition at the federal level.

The Constitutional Vision of Martin Luther King, Jr.

In 1976, when I was in tenth grade, the dreaded “back-to-school” assignment for my American history class was to write an essay about the three most important Americans in our nation’s two hundred-year history. This was, I suppose, our school’s nod to the celebration of the Bicentennial of the Declaration of Independence. I chose Abraham Lincoln, Franklin Delano Roosevelt and Martin Luther King, Jr. It turned out that I was one of two people in my class to include King, the other being the class hippie, whose other two choices were Alan Ginsburg and Jimi Hendrix. My teacher returned the assignment to me the next day and said that I needed to write about someone “serious,” like George Washington, Thomas Jefferson or, and I kid you not, the Rev. Billy Graham. I told my teacher that I would rather write about Rev. King than Rev. Graham, and refused to change my mind. My teacher refused to change her mind as well. I received a D on the assignment because, as my teacher told me, Lincoln and Roosevelt were “genuine” Americans. I suppose it’s important to note here that I grew up and attended public schools in Atlanta, where, at the time, more than a few people still referred to the Civil War as the “War Between the States.” My teacher offered wise counsel: “Lincoln is still not all that popular around here, you know. Let’s not push things in the future.”

The notion that Martin Luther King, Jr. is anything less than one of the most important and consequential figures to grace the planet, not just the nation, in this or any other lifetime, is one that today finds a home only among those unwilling to acknowledge the profound injustice at home and abroad that he dedicated and sacrificed his life to overcome. Rarely, if ever, has an American public figure combined a deeply principled philosophical approach to social and political change with the moral force of prophetic religion to so dramatically alter the course of history. There is, of course, the obvious influence of Mahatma Gandhi. But throughout his all-too-short life, King acknowledged his debt to such important American theologians and philosophers as Reinhold Neibuhr, Paul Tillich, Henry David Thoreau and John Dewey in his public speeches, books, articles and essays. In his final public address, “I See the Promised Land,” delivered at the Bishop Charles J. Mason Temple in Memphis the night before he was assassinated on April 4th, 1968, King referenced Plato, Aristotle, Socrates, Euripedes and Aristophanes, Martin Luther (for whom King, at age 5, was “re-named” after his father, Michael King, Sr., also taking the great Protestant Reformers name, visited Germany in 1934), Abraham Lincoln’s “Gettysburg Address,” and The Story of Jericho before reassuring his audience that “we, as a people, will get to the promised land.”

Today, as we honor Martin Luther King, Jr., it is important to remember that he was motivated as much by his admiration for the Declaration of Independence and the Constitution as he was God’s word in taking the grievances of black America public. Just before telling his audience his Memphis that he had “been to the mountaintop . . . and seen the promised land,” King made reference, for the last time, to the aspirational language of the Declaration and the Constitution, referring to them as “those great wells of democracy” which the Founding Fathers “dug deep.” For King, repeatedly invoking the abstract principles of the Declaration and the Constitution were intended to accomplish two essential goals, each of which were co-joined in the pursuit of social justice.

The first was to remind those who viewed him as “un-American” that he was following in the tradition of the men who founded and established the United States by refusing to follow unjust laws that denied individuals fundamental freedoms. In his famous 1963 “Letter From a Birmingham Jail,” King alluded to the Boston Tea Party as an example of civil disobedience, writing that “In our own nation, the Boston Tea Party represented an act of massive civil disobedience.” That was not the first time King made reference to the Boston Tea Party as a moral baseline for the direct action of the civil rights movement. Just a little over three years before King’s “Letter” was published in bits and pieces in popular magazines around the country, King made reference to the Boston Tea Party in an interview on NBC’s “Meet the Press to explain the student “sit-in” movement that had emerged in full bloom in late winter and early spring of 1960. King, of course, had come to national attention as the public face of the Montgomery Bus Boycott, which began in December 1955 and lasted just over a year. For King, calling attention to injustice through nonviolent direct action was firmly within the spirit and intellectual architecture of American political tradition.

Second, King’s invocation of the Declaration and the Constitution was a conscious attempt to soothe white America’s fears that the civil rights movement represented some foreign-directed effort to undermine American social and political institutions. In his most famous public address, the “I Have a Dream” speech delivered at the August 28th, 1963 “March on Washington for Jobs and Freedom,” King, at the top of his remarks, noted that [f]ivescore years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation.” Two paragraphs later, King would refer to the “magnificent words of the Constitution and the Declaration of Independence” as a “promissory note to which every American was to fall heir. This note was the promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.” For the 250,000 people who gathered on the Mall in Washington, D.C. that afternoon, such a public gathering represented what the First Amendment was intended to do: allow individual citizens the freedom to assemble peaceably and to petition the government for a redress of grievances. Just like the 52,000 black Montgomery citizens who endured economic reprisal and violent terror by insisting that the First Amendment permitted them to express their grievance peacefully and lawfully. For King, the First Amendment, sometimes referred to as the “People’s Darling Privilege,” was tied to the promise of the Fourteenth Amendment that all persons in the United States were guaranteed the equal protection of the law. Far from encouraging violence and extra-legal measures to achieve the broader goals of enfranchisement, personal freedom and equal standing, King was a committed constitutionalist who believed the remedies for what ailed the nation were right there in front of it.

Since his death, Martin Luther King, Jr. has been mythologized as a man of soft curves rather than hard edges. Sometimes lost in the public persona of King the great orator, leader and public intellectual was the truly radical nature of his beliefs, particularly towards the end of his life. Racism, economic injustice and militarization were the three pillars of King’s public conscience. He went to Memphis in March and April of 1968 to support the strike by black sanitation workers, who labored under horrible conditions spared their white counterparts. In April 1967, he gave his famous address at Riverside Church in New York, “A Time to Break the Silence,” in which he came out directly against the Vietnam War, a decision that effectively banished him from Lyndon Johnson’s White House and rendered him persona non grata among former allies in Congress who had supported the historic civil and voting rights acts passed just a few years before. The outpouring of public grief that accompanied his murder stood in stark contrast to his standing in public opinion. King, as strange as it sounds, had become one of the most unpopular public figures in America. The stirring orator who, in the minds of many white Americans, singlehandedly led the civil rights movement and encouraged America to come together as one was far preferable to the man who believed he had no choice but to bear witness to the twin tragedies of war and poverty.

When Martin Luther King, Jr. offered the hope that one day his “four little children would live in a nation where they will not be judged by the color of their skin but by the content of their character,” he was invoking the words of John Marshall Harlan’s (sole) dissent in Plessy v. Ferguson (1896) that the Constitution was “colorblind and neither knows nor tolerates classes among its citizens.” Again, King was simply asking the nation – its people, its political institutions and those who served in them – to make good on the abstract promises of the Constitution. King was willing to forgive the men who enslaved and imprisoned African Americans by using their words in service of higher ideals. We live in a perilous time when respect for the Constitution and the rule of law are undermined on an hourly basis by the current president. Taking a moment to reflect on Martin Luther King Jr.’s commitment to peaceful change through constitutional means is needed now more than ever.