Maryland Legislature Expands State AG Authority - Finally!

*This piece originally appeared on StateAG.org's Tierney Blog. 

The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.

As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc., et al., 951 A.2d 428 (R.I. 2008).

Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.

An Open Letter from 1,060 Law Students to President-Elect Donald J. Trump

*Read the open letter to President-elect Trump here.

Dear President-elect Trump,

I believe you love this country as much as I do. Only someone with a compelling sense of purpose would endure such a grueling campaign, which will only be dwarfed in difficulty by the demanding, often thankless term of service that follows. To be sure, boldly and cautiously guiding the United States from the helm, while simultaneously serving as leader of the free world, are arduous and exhausting duties in any era. Yet the present moment is characterized by greater complexity, nuance and potential for conflict than perhaps has ever existed in human history. The burden on your shoulders – for maintaining America’s position as a linchpin of the Western-led liberal world order; attending to the needs of Americans at home and abroad; cherishing and working to uphold peace; safeguarding the integrity of American institutions and rule of law so they enable every American to achieve his or her potential; and offering light, hope and help to those suffering outside our borders – is truly immense.

No matter how heavy these responsibilities become nor how different our politics might be, I promise that I and others, will be always be here to help move our country forward, as well as to labor mightily to prevent backsliding when the need arises. One of the bedrocks of our democracy is truth. So over the next few years, as you feel you could benefit from the knowledge, analytic skill and passion for truth and justice embraced by young lawyers like myself, I hope that you will reach out.

In the meantime, you may perceive Open Letters such as this as an affront to your leadership. Inasmuch as they may represent acts of resistance, they are born out of our deep love of country, respect for our democratic institutions, and affirmation of the worth, dignity and equality of our fellow citizens. Former President Jimmy Carter recently reiterated the importance of upholding human rights at home and abroad, since another cornerstone of our democracy is equal rights and protection under the law. The potential for unequal treatment and unequal opportunity under an Attorney General Jeff Sessions is a profound concern motivating the writers and signatories of this letter. When it seems that entire communities, vulnerable people or marginalized groups are, or may in short order fall, under attack, acts of defiance may become urgently necessary.

Mr. Carter also noted, “In our democracy, the only title higher and more powerful than that of president is the title of citizen. It is every citizen’s right and duty to help shape the future legacy of our nation.” These words touched my heart and reminded me of some of our obligations as citizens. Together, we must valorize truth and protect it as we would a candle on a windy day. We must affirm the belonging of every American – including immigrants, members of the LGBT community, minorities, people of all and no religious beliefs, women, men, the rich, the poor, liberals, conservatives and moderates – within our diverse, entrepreneurial and spirited republic. We must struggle to remain open, understanding, and resilient in the face of extremism and hate. And when any of our brothers or sisters in this great nation is threatened, we must not hesitate to take swift action to defend and protect the people and values that represent the best of America. This is the fabric of patriotism, of kindness, of trust and of greatness, which we must weave together as a society, day by day.

Sincerely,

Amy Larsen

Amy Larsen is a Joint-degree student at NYU Law and the Harvard Kennedy School of Government and is Outgoing President of NYU Law's ACS Student Chapter and an ACS Next Generation Leader.

The Second Most Powerful Person in the U.S. Government?

Who do you think is the most powerful individual in government, after the president? Some might say the Secretary of Defense, the Attorney General or the Chair of the Federal Reserve Board. According to a panel of the D.C. Circuit, it is actually the director of the Consumer Financial Protection Bureau. On that ground, the court in PHH v. Consumer Financial Protection Bureau has just held it unconstitutional that, under the Dodd-Frank Act, the director can only be dismissed for cause.

For those unfamiliar with the agency, it is the federal regulator of consumer protection in financial services—things like mortgage and credit-card lending, consumer reporting, debt collection, checking accounts, etc. The Dodd-Frank Act created the Bureau, inspired in large part by then-Professor Elizabeth Warren’s idea for a finance analog to the Consumer Product Safety Commission. The Bureau has a budget of about $480 million and just over 1,500 employees—a quarter or so as big as, say, the USDA’s Agricultural Research Service. The Bureau is certainly influential in its sphere; in a six-month period it reports securing $244 million in relief for consumers harmed by violations of federal consumer financial law. Yet, whether you think the Bureau is doing a good job or a bad job in the various areas it regulates, it is not immediately evident that its director is the second-most powerful official in the entire government.

The opinion’s rhetoric reveals that this panel lost its mooring to the Constitution. The judges’ concern was that the director has “unilateral power,” by which the court really meant that the director runs the Bureau by himself, not as part of a multi-member commission or board. A commission or board is superior, the court said, because it poses less threat to individual liberty. To be sure, the Supreme Court has observed that the separation of powers protects individuals as well as the rival branches. But individual liberty is not the Constitution’s only value. To assess the validity of the Bureau, the question is not simply how it affects liberty, but how it measures up against the actual framework of the Constitution.

To see the all-consuming importance of individual liberty to this D.C. Circuit panel, it will be useful first to run through the other justifications it offered.

First, the opinion professed to be suspicious because having a single agency head with for-cause protection is novel. Setting aside whether that mode of constitutional analysis is wise, the panel’s historical review was incomplete. The National Bank Act of 1864 established the Comptroller of the Currency and it permitted (and still permits) the President to remove the Comptroller only “upon reasons to be communicated . . . to the Senate.” Textually and in terms of effect, “upon reasons” seems pretty similar to a “for cause” limitation. Assessing this historical example would be important for any careful examination of whether for-cause protection for a single agency head is a novelty. The D.C. Circuit panel dismissed it in a footnote stating that the Comptroller is an at-will official—for which the court cited no precedent and provided no explanation.

The court also framed the Bureau as having an unprecedented “broad authority over the economy.” But the Bureau’s hand does not reach so far. The largest portion of what the Bureau regulates is credit and the total of U.S. credit services—including business credit over which the Bureau has very little authority—constitutes just 2.8% of GDP. By comparison, the Federal Trade Commission oversees antitrust and the law of unfair trade practices economy-wide and the Securities Exchange Commission regulates the markets for all publicly traded securities. The Comptroller of the Currency, noted above, was asked to implement a national monetary system to stabilize an economy suffering from the uncertainty produced by a patchwork of state banking systems.

The court’s definition of “unilateral power” also stated that the director is not “checked by the [p]resident.” Because the president can remove the director only for “inefficiency, neglect of duty, or gross malfeasance in office,” the panel said, the president cannot supervise or direct him and is reduced to mere “cajoling.” That theory bucks what the Supreme Court has said on this very point. The power to remove an official for those reasons is, in fact, a “means of supervising or controlling” the official. The Court has “already concluded” that the limited removal power “provides the executive with substantial ability to ensure that the laws are ‘faithfully executed.’”  In its most recent Appointments Clause, the Court—operating on the assumption that the SEC commissioners have for-cause protection—observed that the president can “hold the [SEC] to account for everything . . . it does.”  Moreover, presidents can and do issue orders to independent agencies. For example, the Bureau submits a semiannual regulatory agenda to the Office of Management and Budget, as Executive Order 12,866 expressly instructs independent agencies to do.

The court also complained that “within his jurisdiction, the [d]irector of the CFPB can be considered even more powerful than the [p]resident,” because “the [d]irector’s view of consumer protection law [...] prevails over all others.” Yet the director’s view of consumer protection law didn’t even prevail in this case; besides invalidating a piece of the Dodd-Frank Act, the court also rejected the director’s interpretations on key statutory issues.

Ultimately, then, the D.C. Circuit’s rationale boils down to the fact that the director runs the Bureau by himself, without being “checked . . . by other colleagues.” This brings me to what may be the key passage in the opinion. “In the absence of [p]residential control,” the panel said, “the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head – a check that helps to prevent arbitrary decision making and abuse of power and thereby to protect individual liberty. But this new agency, the CFPB, lacks that critical check and structural constitutional protection. And the lack of the traditional safeguard threatens the individual liberty protected by the Constitution’s separation of powers.”

After those lines come nine pages of exposition about the merits of multi-member commissions. They are less susceptible to capture by regulated industries, groups make better decisions, etc. There is great wisdom in these pages. But they do not touch on the separation of powers between the president, Congress and the courts. Instead they reason that the Constitution’s drafters favored checks and balances as a general matter. This part of the opinion also does not rely much on Article II. The constitutional requirement, as articulated in cases like Morrison v. Olson and Free Enterprise Foundation v. Public Company Accounting Oversight Board, is that the president be able to take care that the laws are faithfully executed. If the President has insufficient control over the Bureau, it is hard to see how giving the director four colleagues, also removable only for cause, would enhance the president’s influence. If the president cannot supervise the director, checking him with a multi-member board would be an odd substitute—as far as Article II is concerned.

This, then, is why I say the PHH panel lost its mooring in the Constitution. Where the opinion offers justifications based on the Constitution’s structural requirements, they are—despite their length—somewhat hasty and incomplete. Understandably so. The panel’s assertion that a for-cause protection prevents the president from having any control or influence over the director logically implies that eight decades of Supreme Court cases, from Humphrey’s Executor to Free Enterprise Foundation, are mistaken and the Federal Trade Commission is unconstitutional. The opinion did not explore those consequences. Where the panel seemed surest on its feet was its explanation that individuals have less to fear from a multi-member commission than from a solitary agency head. And that is the part of the opinion that abandons the content of the Constitution in favor of one value—individual liberty—among the multiple values that the Constitution furthers.

Meanwhile other federal officials—the Treasury Secretary? the Chair of the Joint Chiefs of Staff? the Vice President, pace Jack Garner?—might ponder whether they should seek a promotion to what the D.C. Circuit considers a vastly more powerful position.

On the #BlackLivesMatter Question

by Gregg Ivers, Professor of Government, American University @Givers1023

For much of white America, the phrase Black Lives Matter elicits thoughts of confusion, anger and resentment. Confusion, anger and resentment over the perception that the phrase, Black Lives Matter, somehow suggests that Black Lives Matter more than All Other Lives – meaning White Lives. All Lives Matter, so goes the rebuttal of some white folks, and Black Lives do not Matter any more or less than the lives of any other American citizen. Another demand for special treatment. Another demand that black folks get their own house in order rather than drawing attention to police brutality directed against unarmed black men, much of which, after we “place things in context,” somehow, after “careful review,” is almost always “justified.”

Among the many problems with this line of reasoning, there is one that stands out:

White America, you’re right . . . Black Lives have always Mattered. For almost four centuries, Black Lives have Mattered a great, great deal to white Americans. We would be a very different country without them. But just not in the way you would like to acknowledge.

Black Lives Mattered so much to the British that colonized North America that they brought their first black slaves to Jamestown, Virginia, in 1619, just a dozen years after they arrived. By 1860, shortly before the outbreak of the Civil War, there were approximately 4 million African slaves in the United States. Black Lives Mattered when white America needed black men to do the brute physical work one would associate with animals and later machines. Black Lives Mattered so much to Southern planters that, after tobacco reached its peak as a cash crop in the Upper South, about a million slaves were sold to the owners of cotton plantations in the Deep South, and forced to migrate to Georgia, Alabama, Mississippi and Louisiana, where the hell that awaited them was even more unimaginable than it had been in the tobacco producing states. The Lives of Black Women Mattered even more than black men. Black women gave birth to even more slaves, whether they wanted to or not, and functioned as sexual slaves to white men who, for reasons that only Sigmund Freud might understand, degraded their existence and yet had no problem raping and pillaging them as they pleased. A young male black slave was valued for the physical labor he could provide and nothing more. A young female black slave, especially a pretty one, was doomed to an existence that no civilized person would want to think about. And so we didn’t.

After the Civil War, Black Lives Mattered so much that the South, after the federal government reached an agreement with the Southern states to abandon Reconstruction and return the region to white rule, reinstituted a system of Neo-Slavery called Jim Crow. So valuable was the labor of black men and women that Southern planters, industrialists, politicians, law enforcement and para-military terrorist organizations like the Ku Klux Klan conspired to create a system of peonage and convict labor to dredge the swamps, pick the cotton, split the sugar cane, take care of the children, cook and clean for white folks, make the turpentine, crack the rocks, build the roads to take them to the glorious buildings that neo-slave labor largely built that rose up by the early 20th century and do anything else respectable white people believed was beneath them – and at the lowest possible cost. This system, in which blacks had no say, did not fall apart until the 1960s.

Black Lives Mattered in other ways, too. By the early 20th century, the art and music that emerged from black communities throughout the Southern United States expressing everything from despair to hope to joy to redemption soon became so popular among white Americans that record companies figured out a way to profit from it without really having to pay the artists that created it. Black music became the first genuinely indigenous form of American music, providing the foundation for the blues, jazz, gospel, the popular song, rhythm and blues and rock and roll and changed the way that music was understood and appreciated throughout the world. Yes, indeed, Black Lives Mattered to record and entertainment executives a great deal.

Black Lives soon began to Matter to lovers of collegiate and professional sports, so much so that, beginning in the late 1940s, the white guardians of professional baseball agreed to let one black man play with 149 other white men. Over the next several decades, black men rose to prominence in baseball, soon dominated football and, of course, almost completely took over the court in basketball. By the early 1960s, Black Lives Mattered so much to the NCAA that it began to permit black athletes to play football and basketball, the two highest revenue producing sports in collegiate athletics, with white athletes. The same Southern schools that took such great pride in preventing academically qualified black men and women from attending their whites-only universities decided that they were not going to tolerate a losing sports program, especially football. It became high time, as the phrase then went, “to get some niggers of our own.” There wasn’t a whole of lot of concern about actually providing these athletes with a proper college education – and there still isn’t. But allowing black athletes into historically whites-only institutions of higher education fattened the wallets of a great many people and continues to do so. By any measure, Blacks Lives Matter a great deal to our collegiate and professional sports complexes.

Although it may not seem like it, Blacks Lives have always Mattered in politics, especially in the South. That is why, until 1965, when the moral force of the civil rights movement forced the passage of the Voting Rights Act, Southern states did not let black people vote. In states like South Carolina, Georgia, Alabama and Mississippi, that would have doomed white supremacy because of the large – and in the case of South Carolina and Mississippi – majority black populations. So the powers-that-were either threatened, arrested, intimidated, raped and sometimes killed black men and women who registered to vote until the federal government made them stop. Of course, Black Lives Mattered in the Old South. Especially when it came to how white people could acquire and exercise political power.

Black Lives still Matter in politics, which is why the modern Republican Party has spent so much time and effort attempting to disenfranchise black voters, especially black men. Photo ID laws to combat a “voter fraud” problem that doesn’t exist. Making registration more and more complicated. Spurious messaging that preys on poor, semi-literate rural black voters by announcing false election times, closing traditional voting centers or anything else that will suppress the black vote. Yes, Black Lives Matter to the Republican Party, which is the reason it doesn’t want blacks to vote. Let's take a moment to remember that blacks have only been second-class citizens for 51 years. Before then, they were subjects. When you cannot vote, you are not a citizen. Period.

Black Lives Matter to the “get tough on crime crowd” in Congress and state legislatures, and our penal system at all levels. The United States has created a mindless system of mass incarceration, taking black men and placing them and their most productive years behind bars. Mass incarceration also means that black men are politically the most impotent voting bloc in the country. Approximately one-third of black men are under the supervision of the criminal justice system, making them largely ineligible to vote. One-third. Combine the fact that voting eligible citizens are far less likely to vote when they feel the system does not serve them, and you magnify the problem to even higher degree. So not only does mass incarceration disproportionately destroy the lives of black men and black families, its sabotages the ability of black men to influence a political system that has demeaned and brutalized them – and for longer – like no other subset of American people. To our criminal justice system, yes, Black Lives Matter. A lot.

There are many more examples of how Black Lives have Mattered over the course of American history. But how Blacks Lives have Mattered to white America is very different than how black Americans believe that Black Lives Matter. And, if you listen very carefully, white America, you will hear that is what this movement is about. Black people want to show white America what it’s like to be black from their side of the camera. Black people want white people to see what happens to young, unarmed black men like Alton Sterling, Philando Castille, Trayvon Martin and Tamir Rice. Black people really want to know – and are willing to listen – why some white people really think George Zimmerman was justified in murdering Trayvon Martin. Black people really want to know if you think Philando Castille would have been killed in front of his family if he was white. Black people want to know why some white people believe that if I teach three black students in a class of 30 rather than just one or two that will somehow threaten your child’s ability to attend college and build a life. Black people really want to know why some white people are so afraid of them that, eight years ago, they invented a right that did not exist for the previous 209 years under the Constitution to own guns designed to do nothing more to kill other people, including school children, and, ironically, pierce the vests that police officers wear to protect themselves from you. Because you do know that white people are far more likely to kill a police officer than a black person? Right?

Black Lives Matter is not something to fear. Black Lives Matter is not an indictment of every single non-black person in the United States. Black Lives Matter is not demanding a revolution through armed force. Black Lives Matter is mad – this is not the Civil Rights Movement of Rosa Parks, Martin Luther King, Jr. and John Lewis – and wants white America to know why. Black Lives Matter is asking you to realize that even white people of goodwill continue to benefit from a system that white people created and have maintained for almost 400 years.

Black Lives Matter wants white people to know that Black Lives Matter just as much as White Lives Matter. And when that happens – when Black and White Lives Matter equally, then we will have reached the point where All Lives Matter. Until then, keep expecting to hear, whether white folks like it or not, why Black Lives Matter.

And don’t be afraid. Just listen.

Public Service: A Steady Persistence of Unsung, Everyday Effort...To Improve the Quality of Life for Others

by Amy Larsen, joint-degree student at NYU Law and the Harvard Kennedy School of Government. She is an outgoing president of NYU Law's ACS Student Chapter and a Next Generation Leader.

Our democracy is, and will always be, a work in progress. Accordingly, public service requires both an urgency of now, and a patience with the longer term trajectory of making change, whether in the context of issues like criminal justice reform, climate change or consumer protection. While grand victories can be won, more often, public service consists, rather mundanely in Consumer Financial Protection Bureau Director Richard Cordray's words, of a "steady persistence of unsung, everyday effort...to improve the quality of life for others." In short, heeding the call to public service is often a halting and unceremonious, yet deeply rewarding, labor of love.

Cordray’s speech reminds us that the messy and imperfect nation-perfecting process requires bringing our best selves to this honorable undertaking. Cordray offers the insights of someone who has gracefully navigated the pressure cooker of American politics, demonstrating conviction, endurance, and humility in his own life and in fighting for broader change. His resilience and continued idealism in spite of the defeats and delays that have intermittently punctuated his career path are inspiring and refreshing. Cordray’s story also counsels in favor of welcoming temporary defeat as a teacher, all while maintaining perspective and optimism. Perhaps counterintuitively, it is precisely those moments in which democracy feels the least satisfying, accountable, and responsive, when the call to leadership and service must be taken up with renewed vigor, commitment, and civic engagement. As such, much like an ACS talk on consumer protection that I heard Cordray deliver a few months ago, this personal reflection seems to double as a call to action: It is as an important reminder that each of us is responsible for shepherding this great country and the causes we care about forward, despite the inevitable setbacks and frustrations. No one is off the hook in our continuous nation-improving project, and so we must press on, attempting as we go to achieve just the right balance of patience and urgency, cautiousness and courage, humility and brazen idealism.

Read CFPB Director Richard Cordray’s speech at The Ohio State University John Glenn Leadership Forum here.

Windsor and Obergefell: Marriage Equality as Equal Dignity

by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve.

The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases.

Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.

When these cases eventually reached the Supreme Court, the justices spoke with blunt and refreshing candor about the malevolent motives of DOMA, and the harmful effects of state laws that persisted in treating gays and lesbians as second-class citizens.  Justice Kennedy’s majority opinion in Windsor recognized that “interference with the equal dignity of same-sex marriages … was more than an incidental effect of” DOMA.  “It was its essence.”  DOMA’s “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma.”  Two years later in Obergefell, Justice Kennedy explained that where states barred same-sex couples from marriage, the “harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” Pointedly excluding gays from marriage “has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”

What is perhaps most striking about these opinions is the warm empathy and respect they convey toward gays and lesbians. Justice Kennedy wrote movingly about Edie Windsor and Thea Spyer, the couple at the center of Windsor, and about how they had “longed to marry.” In Obergefell, Kennedy summed up the crux of the case in two sentences. The gay and lesbian couples who had filed the challenges, he said, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” (Earlier this spring, I interviewed Jim Obergefell in front of a law school audience about his journey as a plaintiff in a landmark constitutional case; the video is available here.)

Given how controversial same-sex marriage was for more than 20 years, and notwithstanding a few vulgar sideshows like the Kim Davis spectacle last summer, it is remarkable how easily the reality of legal same-sex marriage has become integrated into the tapestry of American life. According to data from the Williams Institute at UCLA, 132,000 same-sex couples married after Obergefell, bringing the total of married same-sex couples in the U.S. to almost half a million.

Yes, there was been backlash against LGBT progress in the far-right-controlled legislatures of a few states like Mississippi and North Carolina. As legal challenges to these laws move forward, we must hope that lower federal courts will draw lessons from Windsor and Obergefell about the importance of clear-eyed candor toward anti-LGBT laws, and about the constitutional principle of equal dignity that weighs against them.