Points of Rebellion and A Constitutional Faith: ACS’s Perfect Constitutional Primers

What texts should the American Constitution Society use to introduce its members to progressive constitutional values? I mean besides our nation’s founding texts, The U.S. Constitution and The Declaration of Independence as well as The Federalist Papers.

First principles are in order. “Alternative facts” derange political discourse. Soundbite screaming matches mock Socratic dialogue. Yellow journalism dumbs down public opinion. We’re in a cold civil war of red states and blue states.

We need principled idealists to wake us up from our dogmatic slumbers. Our liberal/conservative debate must again approach civility. For productive conversation and mutual constructive criticism, it’s high time that ACS reframe the national debate. To this end, I move that two books initiate ACS members into the mysteries of constitutional law: Associate Justice William Douglas’ Points of Rebellion and Associate Justice Hugo Black’s A Constitutional Faith.

William Douglas’ 97-page manifesto should initiate ACS members into the hardboiled liberalism of the New Deal, the Fair Deal, the Great Society, and beyond. Points describes how We the People should command the “Establishment”: “We must realize that today’s Establishment is the new George III. Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is revolution.”

Douglas’ analogy prompts us to pay close attention to The Declaration of Independence’s bill of particulars against George III. It invites us to consider how American colonists’ complaints against the King resonate with many American citizens’ contemporary complaints against the Pentagon and the police state. Points thus suggests how we Americans should frame our founding text. It outlines revolution through altering, not abolishing, government.

Points offers a goldmine of soundbites. Consider Douglas’ criticism of “socialism implicit in vast subsidies to the military-industrial complex,” and “the upside down welfare state [that] helps the rich get richer and the poor, poorer.” ACS would do well to encourage its members to explore Douglas’ lines of inquiry:

What does he mean by “folklore of the corporation state”? How are universities “symbols of the Establishment”? Regarding our apartheid state, what about these four axioms: “Police practices are anti-Negro. Employment practices are anti-Negro. Housing allocation is anti-Negro. Education is anti-Negro.”

Points brims with rhetorical possibilities. It reframes The Declaration of Independence for today’s cutting edge of activism, rather than a mere historical curiosity dated July 4, 1776. Points sketches a new Reconstruction. We the People should work out its details to command and control the Establishment.

Furthermore, Points epitomizes Douglas’ more expansive common-law constitutionalism, which contrasts Hugo Black’s more fundamentalist strict constructionism. A Constitutional Faith articulates Black’s Fourteenth Amendment originalism. His principled conservatism provides a compelling alternative to those who claim the title “conservative,” yet spin-doctor the zero-sum society sanctioned by Lochner, and dog-whistle the apartheid state mandated by Dred Scott.

Black’s 66-page credo frames conservatism in humane, rather than formalist, terms. A Constitutional Faith puts our written constitution in the historical context of English experience. His ideal judges, guardians of our constitutional rights, defend public welfare and affirm the public good by deciding cases according to the terms of The Constitution, not their own subjective views of “fairness,” “reasonableness,” or “justice.” Goldilocks chose the porridge “just right.” Likewise, judges should neither legislate their policy preferences as judicial activists, nor evade their constitutional responsibilities through so-called judicial restraint.

Black strictly construes due process as a matter of procedural protections of life, liberty, and property. Black frames the due process clauses of the Fifth and Fourteenth Amendments in terms of Magna Carta’s “law of the land.”

Black’s First Amendment views are especially noteworthy: “The right to think, speak, and write freely without governmental censorship or interference is the most precious privilege of citizens vested with power to select public policies and public officials.” To Black, the right of free speech is an absolute, notwithstanding occasional “time, place and manner” restrictions. It is a necessary condition for representative democracy. Hence his strict constructionist mantra that “no law means no law.”

A Constitutional Faith conceptualizes how we Americans may fulfill our written constitution’s purpose, which, according to Black, is government controlled by the people. It provides historical context for our constitution even as Douglas’ polemic impresses power to the people.

Douglas and Black, the progressive liberal and the progressive conservative, championed the public good. They transcended the factionalism that is subverting our democracy, what James Madison complained about in Federalist no. 10. Thus, Points of Rebellion and A Constitutional Faith are the perfect ACS primers. Many ACS members are youthful lawyers on the make. What better appeal to youthful idealism than the credos of real-life Atticus Finches?

Now Who Is A Sad Sick Joke?

by Paul Bland, Executive Director, Public Justice

It has become common knowledge in Washington that, if you want to bury bad news, the best time to do so is on a Friday afternoon, or over a holiday weekend. So it is especially telling that, when it came time to strike at one of the most effective agencies in the federal government, the Trump Administration chose a two-for and announced its plans for the Consumer Financial Protection Bureau on Friday evening over Thanksgiving weekend. While most of the country was (the White House hoped) distracted by black Friday sales and family gatherings, President Trump announced he had installed Mick Mulvaney – who once referred to the CFPB as a “sad sick joke” – as acting director of the agency. The move is just the latest in a long line of Presidential appointments designed to dismantle government agencies from the inside by placing their fiercest critics in charge of their work. But Trump’s move at the CFPB is probably illegal, politically risky, and could backfire in a big way.

While public trust and confidence in the federal government is sagging, to say the least, the CFPB has managed a nearly impossible feat: Both Republican and Democratic voters agree, overwhelmingly, that the agency has an important job and has done it well. That bipartisan support is likely due to the unique independence the agency enjoys, which was a key part of its original plan. By ensuring the Director would not be beholden to the President, Congress also ensured it would be free to take on big banks, payday lenders and Wall Street’s bad actors without fear of political repercussion or retaliation. It allowed former Director Rich Cordray to go after Wells Fargo – to use just one example – even while the bank filled the campaign coffers of candidates from both political parties.

The result has paid very real dividends for consumers. Since its founding, the CFPB has returned $12 billion to consumers cheated, defrauded and wronged by the financial services industry.  It’s a narrative that should play bigly with the President’s campaign promises to look out for the little guy. But the President, instead, has put politics – and Wall Street – ahead of the voters who put him in the White House.

In selecting Mulvaney, who will also retain his position as director of the Office of Management and Budget, Trump has installed his own direct report at the agency, wiping away any sense of independence the CFPB once had. This is flatly contrary to the provisions in Dodd-Frank, the statute that created the CFPB, that require that the head of the Bureau be completely independent (like the Chair of the Fed).  But with a political appointee whose main job (at OMB) is controlled by the President, rather than having the freedom to go after corporations based on what they’ve done wrong, Mulvaney will now undoubtedly have to seek the President’s blessing to do so. And anyone who doubts where Trump’s allegiance is needs only to look at the long line of Wall Street bankers who now hold top positions in his Administration.

That, in turn, leaves little doubt as to why Trump has chosen to appoint – at least for now – an “acting” head of the agency. By doing so, the White House hopes to avoid a Senate confirmation hearing that would almost certainly come with withering questions about the Administration’s assault on an agency that has become increasingly popular among its own voters. But voters deserve those answers, and the White House should not be allowed to use political loopholes as part of its strategy to deliver a death knell to the agency.

In fact, Mulvaney’s appointment is, itself, of questionable legitimacy. Cordray’s Deputy Director at the agency, Leandra English, has filed suit to stop the OMB head from taking over, citing language in the law creating the agency that makes clear the President cannot avoid Senate confirmation of a new Director, and that the Deputy Director (in this case, English) should serve as the agency’s head until the Senate approves a White House nominee. It may be an uphill struggle, but we strongly urge Senators to insist that the Administration begin to respect the idea that the agency serve as an independent watchdog.  If the White House ignores this principle, at least if there are public hearings, those will give the consumers the agency is charged with protecting the option of weighing in with their elected representatives.

Sadly, the President seems intent, instead, on making sure the wolf is put in charge of the hen house, with the apparent goal of making the CFPB the latest casualty in the White House’s war on competence. And while defeating any eventual permanent nominee for the agency may be its own uphill battle, every consumer who feels like Wells Fargo already has enough friends in high places should get ready to fight like hell to protect the last friend the little guys have left in official Washington.  

Special Registration, Deferred Action and Prosecutorial (In)Discretion

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park

*This piece was originally posted on Medium. 

Witness Fatiha Elgharib, who has lived in Ohio for more than two decades, serves as primary caregiver to a United States citizen child suffering from Down Syndrome, is married to the breadwinner, and faces imminent deportation on November 27. Fatiha became a target of immigration following her fight and support of her husband during the course of NSEERS –a Muslim registration program enacted after the attacks of 9/11. Fatiha’s story highlights the ongoing residual impact of NSEERS and raises important questions about the legitimacy of using a now defunct and ill-conceived policy to generate new deportations.

Early into the Presidential campaign, I lamented over then candidate Donald J. Trump’s proposal of a complete shutdown of Muslim immigration and described the flashbacks it had to ill-conceived policies created after the attacks of 9/11 against Muslim, Arab, and South Asian communities and in the name of nationality security. In the months that followed, I responded to a mountain of inquiries about the parallels between the President’s proposed Muslim registry and a 9/11 program known as “NSEERS” or special registration.

Special registration is a program announced by former Attorney General Ashcroft in 2002 whose legacy is marked with chaos, discrimination, and scars worn by individuals and families to this very day. The most controversial portion of NSEERS enlisted men from 25 majority Muslim countries (one exception: North Korea) to report to local immigration offices for interrogations, fingerprints, and photographs. The residual effects of NSEERS were significant as those who came forward voluntarily to comply or were unfamiliar with the program years later, faced charges, detention, and deportation. Following a decade plus long fight to dismantle the legal framework of NSEERS, the Obama administration rescinded the framework in late December 2016.

Less than one month later, now-President Trump signed his first of many Executive Orders categorically suspending the entry of noncitizens from seven countries, all of which have Muslim populations of 90% of more. In response, lawyers, advocates and community leaders have responded to these bans with legal excellence and significant advocacy. While orders to ban entry differ in form from a registry program, the message both send to Muslim, Arab and South Asian communities is the same: exclusion and discrimination under a proxy of national security.

Enter Fatiha’s case: the heartbreaking intersection of the near-sighted and ill-advised NSEERS program; and Trump’s immigration policies.

The heartbreak is not limited to NSEERS but to this administration’s misuse of prosecutorial discretion in Fatiha’s case. For decades the administration has used a form of prosecutorial discretion called “deferred action” to protect mothers like Fatiha who have lived in the United States for several years and serve as primary caregivers to children born here.

Prosecutorial discretion refers to a decision by the Department of Homeland Security to enforce or not enforce the immigration law against a person. In a world of limited enforcement dollars and cases involving multiple equities like long term residence, the use of prosecutorial discretion in the immigration system is inevitable.

Deferred action data from 2016 reveals that most deferred action cases processed and granted were for medical reasons. Having studied thousands of deferred action cases throughout my research, it is without question that someone like Fatiha who is herself a long-time resident, without a criminal history and caring a for United States citizen child with Downs Syndrome should be protected through formal relief or in the alternative a deferred action. The Department of Homeland Security has the authority and the responsibility to use discretion wisely and judiciously at every stage of the immigration enforcement process.

If the regular lesson is that “two wrongs do not make a right” I might conclude that “two wrongs” (NSEERS and potential deportation) adds to a broken immigration system while needlessly separating a family who call America home.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and the Director of the Center for Immigrants’ Rights at Pennsylvania State University Dickinson School of Law and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), now available in paperback.

Don’t Politicize the 2020 Census Count

by Leah Aden, LDF Senior Counsel

*This piece was originally posted on Medium.

In 2020, the federal government will undertake the monumental and important task of attempting to count each person residing within our country’s borders. An exercise that has taken place every 10 years, since 1790, and is mandated by the U.S. Constitution, it cannot be overstated how important the Census is to the well-functioning, representative democracy that our country strives to be. The Black community that the NAACP Legal Defense and Educational Fund, Inc. (LDF), where I work, serves, has a lot to lose if they, like other communities of color, are not counted fairly and accurately in the 2020 Census.

As LDF’s Count on Change campaign around the last Census highlighted, Census data are primarily used for redistricting at every level of government, affecting representation for Congress, state legislative districts, and local bodies like school boards and city councils. Shortly after the Census count, elected bodies go through the hotly-contested and critically impactful process of redrawing election maps. Consequently, the Census count is the basis for every person in the United States to have representation in government.

In addition to redistricting, Census data are fundamental to the distribution of enormous resources and making critical policy decisions. The data are used by elected officials and many others to consider and build infrastructure, inform the tax structure, and administer health care, as well as to direct nearly $700 billion in federal funds for programs such as those that promote fair housing and public education — all issues that bear upon Black people.

It is critical then that the Census Bureau’s leadership ensures that Census data are collected accurately, fairly, and non-discriminatorily. For this reason, Census leaders traditionally have had expertise in quantitative sciences and management experience. That was the case with John Thompson, the Bureau’s former director, who was a career statistician, and worked at the Bureau for nearly three decades before rejoining it as Director. Thompson abruptly resigned in June 2017.

POLITICO has now reported that President Donald Trump is considering the appointment of Dr. Thomas Brunell as a leading candidate for Census Director. A political science professor at the University of Texas at Dallas, the president reportedly considered nominating Brunell to be the next Census Director this past summer. Brunell’s candidacy apparently did not survive the vetting process, as it shouldn’t have. His lack of managerial experience as required by federal law precluded him from the directorship, and the clear partisan nature of his body of professional work — do not indicate his readiness for the top Census job. However, Brunell is potentially being given a second chance; he reportedly is now being considered for the Deputy Director position even though his stunning lack of qualifications for this position should likewise disqualify him.

To say the least, Brunell’s potential appointment should raise eyebrows, particularly because the position does not require Senate confirmation. The rumored pick is yet another example of the Trump administration’s readiness to forego the norms that sustain our democracy: a long-standing precedent that the Bureau’s second in command is led by a nonpolitical, independent, and experienced civil servant and program manager.

In addition to his lack of administrative experience, perhaps the most problematic aspect of his potential appointment is Brunell’s deep involvement in partisan issues. Brunell, a registered Republican, has testified as an expert witness many times on behalf of Republican efforts to redraw districts to entrench that party in power, often by manipulating the power of communities of color. In 2008, he wrote a book titled, Redistricting and Representation: Why Competitive Elections Are Bad for America, in which he maintained the widely unpopular and antidemocratic opinion that competitive elections suppress voter turnout. His consideration for appointment to such an important position is more than just a curious choice. It signals this administration’s long-term efforts to skew the electorate — to choose voters rather than to have voters choose them — as well as the distribution of benefits that flow from it.

Worse, the potential personnel move also indicates the Trump administration’s disturbing attempt to politicize the 2020 Census count and raises major concerns about the administration’s ongoing efforts to encourage voter suppression. Throughout his campaign and since his confirmation, Trump has perpetuated the myth of widespread voter fraud, targeted people of color in this hysteria, and has assembled a sham election commission as a tool to intimidate voters — especially voters of color. LDF has filed one of nine federal lawsuits to challenge this sham.

To be sure, the Deputy Census Director is charged with operational duties that are central for a fair and accurate Census count. The deputy director’s responsibilities are serious: the person is widely considered the Bureau’s chief operating officer and financial officer, and in this position, Brunell has control of where and how the Bureau’s $400 million advertising budget around the Census is spent. Those advertising dollars are traditionally used to encourage hard-to-count communities, like Black communities and immigrants, to respond to the Census questionnaire. That public education is all the more critical given the natural disasters and man-made havoc wreaked by home foreclosures, racism and xenophobia that potentially chills participation in the Census count.

Indeed, Trump’s potential pick also indicates that the White House could use Brunell to facilitate a measure to require that the 2020 Census question individuals about their citizenship and legal status. Such an effort dissuades people of color from participating in the Census, and is also opaquely designed to intimidate and prevent communities of color from engaging in the political process over the long-term.

By law, the Census cannot be used as a tool for immigration enforcement or to police Black and other communities of color. And it’s certainly not intended as a tool to put into effect a discriminatory and political agenda. While the political ramifications of the next Census count are clear, it is ultimately a counting exercise — a purpose that is as nonpartisan and apolitical as a government effort can be. The only agenda that it should have is to be fair and accurate. A Brunell appointment would undermine the Census’s only rightful objective.

What It Means to Trust and Believe Women

by Chris Edelson, assistant professor of government, American University School of Public Affairs

For much of American history, legal rules and cultural norms have deemed women unworthy of trust or responsibility.  The law often treated women as children, incapable of carrying out adult duties. Women did not have the right to vote until 1920. It took until 1961 for the Supreme Court to strike down laws automatically excluding women from jury duty.   Until 1979, state laws made it legally impossible for a husband to rape his wife. In the early 19th century, the doctrine of “coverture” provided that a married woman did not have legal status separate from her husband.  In the eyes of the law, married women were not their own person.  Women were barred—by law or by practice—from professions like law, medicine, and politics.

We like to think those days are long behind us, that women are no longer second-class citizens relegated to a separate, lesser sphere. But it may be difficult, especially for men, to recognize the ways in which significant problems linger.

The recent flood of stories about sexual assault and harassment has pulled back the curtain—in ways that are often painfully obvious but also sometimes harder to see. When women have come forward with allegations of sexual assault or misconduct by powerful men, they are often ridiculed, slandered, dismissed, or simply not believed. One of the dozens of women who described being sexually assaulted and harassed by Harvey Weinstein wore a wire to record incriminating comments; prosecutors did not bring charges.  Four women have accused Roy Moore of sexual assault, attempted rape, or groping. Moore has called this a political witch hunt and the ultra-right wing Breitbart News sent reporters to Alabama in an effort to “discredit the women”.  17 women have described being assaulted, groped, or harassed by Donald Trump. Trump called them liars and threatened to sue them after the election. He never sued, but he was elected president, and the womens’ charges have largely been ignored (though one of the women, Summer Zervos, has filed a defamation lawsuit against Trump).

Even when multiple women come forward with highly credible allegations, it is quite possible nothing will happen—or, more accurately, nothing will happen to the man they accuse. The women who describe what happened to them can expect to be publicly smeared and derided. The focus is on whether to believe their accounts—even when the stories they tell are persuasive, specific, and corroborated.

This of course reminds us what hasn’t changed. A contest between one blustering, disingenuous man and multiple, even dozens, of credible women somehow becomes an even match—or even one where the women lose. Women still know that they cannot count on being trusted or believed. No wonder so many do not immediately come forward with their accounts.

There may be, however, cautious reason for some hope. Some Republicans in Congress have decided that the women accusing Moore can be trusted. Senate majority leader Mitch McConnell (R-KY) bluntly concluded that “I believe the women”. When Leeann Tweeden said that Sen. Al Franken kissed and groped her in 2006 without her consent, Senate Democrats condemned Franken’s behavior and called for an investigation.  These are important first steps, though it is not enough. First, it remains to be seen whether there will be any consequences for Roy Moore or Al Franken. With Franken in particular, it may be his word against Tweeden’s, unless additional women come forward. Will her account be dismissed with the tired “he said, she said” rationale? Second, and more broadly, it’s essential to consider what it means to really believe and trust women. Sen. McConnell is right that men should believe women when they come forward with credible accusations of sexual assault and harassment. But men must also trust women when they say they can decide what happens to their body during pregnancy, or whether they should have access to contraception.  And, most centrally, men should welcome and support the long overdue necessity of equal representation for women in elected office, on the federal and state bench, in corporate boardrooms, and across society.  When that happens, maybe it won’t be necessary any longer to wonder whether men will believe or trust women.  Women will be able to ensure, by themselves, that their voices have power and consequence.

Holes in Grassley’s Blue Slip Story

by Paul Gordon, Senior Legislative Counsel, People For the American Way

*This piece was originally posted by People For the American Way. 

Chuck Grassley wrote this about blue slips in the Des Moines Register in 2015:

For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.

It turns out that only applies to a Democratic president’s nominees. On Thursday, Politico reported that Chuck Grassley is ditching the longstanding Senate blue slip policy and will be holding a hearing for David Stras, even though Stras does not have the support of both of his home state senators. Grassley laid out his justification for this seismic shift in policy in an op-ed in The Hill yesterday. An earlier PFAW post explained how Grassley’s comparison to the 2013 filibuster rules change made no sense. But that’s just one of the many holes in his argument.

For instance, Grassley wrote:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor.

Grassley left out a vital piece of information: Respecting the home state senator’s opposition, the committee reported the nomination negatively, and the Senate rejected it without even bothering to hold a recorded vote.

Hmmmm … I wonder why he would omit such an important detail.

Grassley’s very next paragraph continued the misleading tactics:

That blue sheet of paper was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. This courtesy, commonly known as the blue slip, was intended to serve as an advisory tool – a source of information for senators to consider when casting a vote on the Senate floor.

This newly-adopted courtesy was much more than just an advisory tool. It has ensured that the Senate will not confirm judicial nominees over the objection of either home state senator. It has also been a way to protect the unique nature of the Senate as a collaborative body respecting individual senatorial prerogatives.

According to the Congressional Research Service, the policy was introduced in the 65thCongress of 1917-1918, when Woodrow Wilson was president and his fellow Democrats controlled Congress. That unified control of all the elected branches of the federal government suggests what might be the blue slip’s most important role, whether intended or not: The blue slip was a way for the Senate to protect its institutional interests from the effects of partisan loyalty to the president. In other words, it has served to protect the separation of powers. As we have seen with the Senate GOP’s eagerness to confirm President Trump’s woefully unqualified nominees, such institutional tools are vital. With the Senate rubber-stamping Trump’s judicial picks who will in turn rubber-stamp his actions, the independence of Congress and the courts is threatened. Trump is getting exactly what he wants, and Grassley has now made it even easier for the Senate to serve the president.

Grassley’s op-ed went on:

For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee.

A couple of things here. First, Grassley’s phrasing makes it sound like there were lots of committee hearings in the face of unreturned or negative blue slips. But that was simply not the case. His sentence would be true if there had been a thousand negative or unreturned blue slips that the committee chair ignored. But it would also be true – as is the case – if there were few if any.

Second, Grassley once again left out an important detail: In the policy’s earlier incarnations, negative blue slips meant that the home-state senator wanted to testify at the hearing in opposition to the nominee. Holding a hearing during that earlier era was consistent with the blue slip practice. Also consistent with the blue slip practice is the fact that the Senate did not confirm those nominees.

Perhaps my favorite part of the op-ed is Grassley’s attempt to explain away a 2009 letter from every Republican senator to the newly-elected President Obama. Grassley wrote:

The minority also points to a letter signed by Republican senators at the beginning of the Obama administration explaining that senators expected to be consulted on judicial nominees from their home states. This letter merely supported continuation of the strict blue-slip policy adopted by Chairman Leahy (D-Vt.) during the Bush administration. It would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.

Grassley seems to undermine his own argument here by admitting that “[i]t would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.”

Just update the presidents: It would be unfair to allow President Trump to make judicial nominations without home-state senators’ approval when Chairman Grassley demanded such terms under President Obama.

Yes, it would be unfair. Nevertheless, Grassley is scheduling a hearing for Stras.

Why be fair when you have power?