To Preserve Our Constitutional Order, We Need More Federal Judges Like Brandeis

The federal judiciary is in crisis. Now stocked with conservative jurists who openly disdain the courts’ limited constitutional role and actively dismiss the public they serve, this critical branch of our government presents an unacceptable risk to the stability of our democracy and economy. But there are solutions at hand.

The way to overcome this crisis is by quickly rebuilding the judiciary with a new generation of capable and civic-minded judges. President Joe Biden and Senate Democrats — with their expanded majority following the midterm elections — must take advantage of the opportunity to do just that.

With that in mind, concrete models might offer the president helpful guidance on how best to proceed. In light of the current challenges facing our country — including the gross political and economic disparities that threaten our social order — Biden and Senate Democrats should look to former U.S. Supreme Court Justice Louis Brandeis as an ideal.

Contemporary jurists could learn a lot from Brandeis who, over the course of his storied career, exhibited two essential traits for presiding over disputes in a pluralist society facing rapid economic and technological change.

The first was his appreciation for how the just application of the law benefited from ongoing advances in our understanding of the natural and social sciences. Brandeis most memorably gave form to this idea with the eponymous legal innovation, the “Brandeis brief,” he helped pioneer. Brandeis introduced this form of legal advocacy in conjunction with a 1908 Supreme Court case involving an industry challenge against an Oregon state law that set maximum work hours for women. The document largely dispensed with traditional legal arguments and instead marshaled empirical research documenting the harmful effects that excessive work hours have on women and society at large. Remarkably, the Court upheld the law, even though the majority was then, much as the Roberts Court is now, notoriously pro-business.

The second defining trait of Brandeis’s legal philosophy is the notion that the law ultimately serves as an expression of the democratic will of the people, and it is the duty of judges to see that it does so. As his writings and opinions make clear, Brandeis saw the law as a vital animating force behind our ongoing project to meet the new and emerging crises we face as a society, consistent with our ever-evolving shared conceptions of justice and the common good. Especially important is law’s unique role as an equalizing force in society, safeguarding both our democracy and economy by preventing individuals or companies from becoming too dominant in either.

As a Supreme Court justice, Brandeis used his dissent in the 1933 case Liggett v. Lee to provide one particularly clear delineation of his conception of the law as a tool that empowers the American people to shape their collective destinies. At issue in Liggett was a Florida law that sought to promote competition in grocery stores by imposing a graduated tax on chains that increased according to their number of outlets. In contrast to the Court’s majority, Brandeis would have upheld the law as a legitimate means of protecting this vital part of the state’s economy against potentially harmful concentration of market power among a few dominant corporate entities – a concern that certainly resonates today.

More to the point for Brandeis, though, the people of Florida themselves shared that concern and were moved enough to act upon it through their democratic institutions. As he notes in the conclusion to his dissent, “If the citizens of Florida share that belief [that systemic economic inequality contributed to various social problems at the time such as widespread unemployment], I know of nothing in the Federal Constitution which precludes the state from endeavoring to give it effect and prevent domination in intrastate commerce by subjecting corporate chains to discriminatory license fees. To that extent, the citizens of each state are still masters of their destiny.”

Such traits are absent among many federal judges these days, as my co-authors and I observed in a recent report on the Supreme Court’s troubling decision in West Virginia v. Environmental Protection Agency (EPA). In that case, the Court strayed well beyond its limited constitutional role to strike down an EPA rule to limit greenhouse gas emissions from fossil fuel-fired power plants. To get there, the majority ignored the relevant scientific and technological issues at stake — both with regard to the existential threat of climate change and the creative engineering solutions the agency devised to tackle the problem as cost-effectively as possibly.

The majority also disregarded the democratic pedigree of the rule, including the Clean Air Act through which it was authorized, as well as the painstaking process of public input and stakeholder collaboration that led to the rule itself. Indeed, the majority seemed entirely unmoved by the public’s decades-long effort to overcome the fossil fuel industry’s staunch opposition to finally achieve effective climate action.

The social conditions that shaped Brandeis’s approach to jurisprudence are much like ours today. Then, as now, economic dislocation was widespread, and disparities in political power and wealth were vast and growing. With rampant corruption and the persistent ineffectiveness of governing institutions on full display, the public’s faith in democracy was quickly eroding.

Overcoming these challenges today will require policy solutions that draw on both the situated knowledge of the public and the specialized expertise of scientists and other professionals. Federal judges must contribute to this effort by ensuring that our laws are built on a foundation comprising both elements.

James Goodwin, JD, MPP, is senior policy analyst at the Center for Progressive Reform

The Defense Production Act’s Secret Weapon to Fight Climate Change

During the COVID-19 pandemic, the Defense Production Act of 1950 (“DPA”) emerged as a significant source of presidential emergency power. Both the Trump and Biden administrations relied on the law to compel manufacturers to prioritize production of essentials like masks and ventilators, and to alleviate pandemic-related supply chain backlogs.

But the DPA can do more than just respond to a public health emergency. As a new report I co-authored for the Roosevelt Institute explains, a subsection of the DPA – Title III – can be a powerful tool to fight climate change. The Act includes expansive authority for the president to finance and advance green industrial policy projects “without regard to the limitations of existing law.” If deployed, this authority could complement the historic climate investments in the Inflation Reduction Act to overcome legal obstacles that would otherwise stall or erode our clean energy transition.

The DPA was originally enacted to give the Truman administration tools to mobilize the country for the Korean War. But the law was also meant to ease inflationary pressures from conflict abroad – Congress specifically saw one prong of the law (Title III) as a tool to “attack . . . various types of bottlenecks” that “act as effective limits on the supply of specific essential commodities.” And over time, Congress has steadily expanded the DPA, including adding a mandate to maximize the domestic supply of renewable energy.

Title III of the DPA authorizes the president to make investments in critical infrastructure and energy production. These financial authorities are each entitled to special exemptions under the DPA – specifically, they can be exercised “without regard to the limitations of existing law.”

Putting this together, the government has the legal authority to override a wide array of laws that get in the way of green energy projects financed under the DPA. There are at least four reasons why the DPA’s “without regard” clause means what it says. First, the plain meaning of the law is clear that DPA projects can override other laws. The Supreme Court has made clear that plain statutory language trumps everything else. Congress regularly emphasizes the primacy of a statutory power by stating that it applies “without regard to other law,” or “notwithstanding any other provision of law.” The Court has recognized that these sorts of statutory commands have typically been understood to “supersede all other laws” because a “clearer statement is difficult to imagine.” (Notably, the Biden administration has recently interpreted similar language in another statutory context to support the Secretary of Education’s authority to forgive federal student loan debt.)

Second, overriding other laws is consistent with the purpose and intent of the DPA. The DPA was, at its origin, meant to grant the president with extraordinary power to secure the country’s industrial stock through speedy action and accelerating supply. In addition to the DPA’s general preference for renewable energy, Title III loan and purchase authority subsections each include a statement of purpose to expedite production of critical materials, such as “reduc[ing] current or projected shortfalls of industrial resources, critical technology items, or materials essential for the national defense[.]” Toward that purpose, such transactions may be “made without regard to the limitations of existing law[.]”

Third, the DPA’s legislative history supports its authority to override other laws. Subsequent amendments to the DPA after its initial passage broadening Title III support its authority to override other laws. At the time of enactment, the “without regard” clause Title III subsection applied just to contract law. However, Congress subsequently removed the reference to contracts, implying that Title III projects can override other law in general. (In fact, the lone statutory exception from the DPA’s “without regard” clauses is the prohibition on spending more than Congress has appropriated.)

Moreover, legislative statements around the time the DPA was enacted evince Congress’s willingness to grant the statutory authority to override other laws. Months after Congress passed the DPA in 1950, it took up another Cold War defense bill that included similar “without regard” language. During floor debate, the Senate floor manager for that bill – Senator Estes Kefauver – said that the “without regard” clause “is the usual language employed when emergency power is given. The intent is that if some other statutes . . . which old line agencies have to deal with are applicable, the [administration] will not have to act under them.” This suggests that the DPA anticipates the government to likewise have the power to circumvent business-as-usual laws in order to secure the completion of strategically important projects, such as clean energy projects.

Finally, there is some limited legal precedent affirming the DPA’s authority to override other laws, including state law. In United States v. Latrobe Const. Co. (1957), the Eighth Circuit recognized that the DPA gave the government “authority to prescribe the conditions of [a] loan” that superseded other legal obligations (there, state law governing lien prioritization). Based on this and some additional modern authority in other areas, the DPA today can likely be used to overcome state and local legal impediments to green industrial policy.

How should the administration wield the DPA’s power to preempt other laws? We identify three general categories. First, preemption of federal procedural laws – such as procurement and environmental review – that unduly delay or restrict DPA projects and transactions. Second, preemption power can be invoked to ensure that expenditures under the DPA are used efficiently, giving the government the most bang for its buck by overriding certain corporate and securities laws that prioritize short-term returns over long-term productive capacity investments. And third, preemption power can be used to promote important public purposes, such as worker power, equity, and fair pay.

Thanks to the Inflation Reduction Act, the administration currently has more than $500 million in funds at its disposal to dispense through the DPA. With a divided Congress unlikely to enact any additional major climate legislation, the DPA is an important well of possible executive action to continue advancing a decarbonization agenda – and authority to make those funds go further by overriding other legal impediments.

Joel Dodge serves as chair of the American Constitution Society New York Lawyer Chapter. He is the Director of Public Interest Professional Development at Columbia Law School, and previously practiced constitutional law at the Center for Reproductive Rights. His analyses on politics and policy have been published at The American Prospect, the Washington Monthly, CNN, and other outlets. Follow him on Twitter @joeldodge07.

Oral Arguments in U.S. v. Texas and the Challenge to Prosecutorial Discretion in Immigration

On Tuesday, the Supreme Court heard oral arguments in United States v. Texas, which involves a challenge to a memorandum titled “Guidelines for the Enforcement of Civil Immigration Law” issued by the Secretary of Homeland Security on September 30, 2021, and commonly known as the “Mayorkas Memo.” As background, the Mayorkas Memo provides guidelines on prosecutorial discretion, which in the immigration space refers to the how and whether the agency or Department of Homeland Security (DHS) will take enforcement action against a person or group of people. When DHS chooses to not file a charging document against an undocumented mother who is a primary breadwinner for her family, it is choosing to exercise prosecutorial discretion favorably. This kind of discretion operates at every stage of immigration enforcement, including before and after an arrest, charging decision, removal proceedings, appeal and after a removal order has been entered. The Mayorkas Memo reaffirms the legal authority and principles of prosecutorial discretion and goes on to list three priorities for immigration enforcement: public safety, national security, and border security. The legal authority for prosecutorial discretion and duty for DHS to set priorities has been affirmed by Congress, courts, and the executive branch.

The state of Texas and Louisiana filed a lawsuit in the Southern District of Texas claiming that the Mayorkas Memo is contrary to law, arbitrary and capricious under the Administrative Procedure Act, and procedurally irregular. In June of this year, the district court agreed with the states and vacated the Mayorkas Memo. The Biden administration filed an appeal to the Fifth Circuit Court of Appeals and an application for a stay pending appeal, but the appellate court denied this application. In July, the Biden administration filed an application to the Supreme Court asking it to stay the order issued by the district court. The Supreme Court refused to do so but granted certiorari. The Court asked the parties to answer three questions:

1. Whether the state plaintiffs have Article III standing to challenge the Mayorkas Memo;
2. Whether the Mayorkas Memo is contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violates the Administrative Procedure Act; and
3. Whether 8 U.S.C. §1252(f)(1) prevents the district court to “hold unlawful and set aside” the Mayorkas Memo under 5 U.S.C. §706(2).

During oral arguments, the justices focused on all three of these questions with equal animation. This post highlights only a few of these questions and colloquies. On standing, Solicitor General (SG) Prelogar, representing the United States, argued that the states lack standing and under their theory would meet the standard with a “one dollar” injury. Or as Justice Kagan posed later in a question to Texas Solicitor General Stone, representing the states: “General, do you think that there's any immigration policy that you could not challenge under the way you view standing? … I mean, every immigration policy, you let in more people, you let in fewer people, is going to have some effect on a state's fiscal condition. Maybe they'll get less or more tax dollars. Maybe they'll have to spend less or more money. I mean, every single immigration policy. And then, you know, not to mention all the other policies in the world that if a state comes in and says, ‘I got a dollar's worth of costs that I can show you.’”

On remedies, SG Prelogar focused on the scope of 8 U.S.C. § 1252(f)(1) (a statute that limits the types of remedies lower courts can make) arguing that it does cover vacaturs or the kind of action taken by the district court. She cast the limits of this provision as a jurisdictional one. General Stone cast the same statute as more limited.

On the merits, the justices focused on the two detention statutes 8 U.S.C. § 1226(c) (pertaining to the mandatory detention of certain criminal noncitizens) and 8 U.S.C. § 1231(a) (pertaining to the detention and removal of those who have been ordered removed). One discussion point during the argument centered on the use of “shall” in those statutes—as in the "shall take into custody" language in § 1226(c). But Justice Barrett noted that this "shall" language was joined by language connoting discretion in § 1226(a), which states that a noncitizen "may be arrested and detained pending a decision" on the whether the noncitizen "is to be removed from the United States." The combination of "shall" and "may" makes sense under the government's reading of these subsections, which was explored by Justices Sotomayor and Barrett: the government "may" choose to start removal proceedings, but the statute does not require that the government do so. However, once the government initiates removal proceedings, it shall detain the noncitizens listed in § 1226(c). Indeed, General Stone, acknowledged that the government could decide to decline to start removal proceedings regarding any noncitizen or could terminate them at any time. At that point, General Stone recognized that the government no longer had a duty to detain that noncitizen.

When asked by Chief Justice Roberts for her views, SG Prelogar explained that, in light of this common-sense reading, it would be “wrong” to state that “shall means shall” and described the practical impossibility of enforcing it. She also later mentioned the number of “shalls” throughout the Immigration and Nationality Act and how transforming them into mandatory provisions would be unworkable.

On the role of prosecutorial discretion in immigration, Justice Sotomayor pointed to the 1999 Supreme Court case Reno v. ADC authored by the late Justice Scalia and conclusion that this discretion applies at every stage of immigration enforcement including whether to charge a person, place them in removal proceedings, or execute a removal order.

The oral arguments also included a discussion about the scope of the Mayorkas Memo. The Mayorkas Memo focuses on the apprehension and removal of noncitizens. And yet the focus of the litigation was on two detention statutes. SG Prelogar underscored this point when stating “And let me be really clear about how the Guidelines operate with respect to detention. They don’t govern the question of continued detention at all. They’re focused on apprehension and removal, and therefore when DHS officers have someone in custody and --- there are pending removal proceedings, the Guidelines leave it to the statute to dictate those kinds of detention decisions…”

The oral arguments were not only animated but also replete with ping pong dialogue between the justices and the advocates. And yet, some core concerns surfaced. First, there is a concern about the allocation of power. This lawsuit has now for the first time called the question: who controls the direction of prosecutorial discretion–states and courts or the executive branch? A second concern is practical: If the states are successful, does the government have the resources to identify, detain, and deport every noncitizen who falls under the mandatory detention statutes or to spend the resources that might be required when mistakes are made?

Importantly though and tied to the resource arguments raised during oral arguments, prosecutorial discretion is inevitable, so it does not stop functioning with litigation. For example, an arm of the Immigration and Customs Enforcement (ICE) known as the Office of Principal Legal Advisor (whose lawyers represent the government when a noncitizen is in removal proceedings) has acknowledged their ability to “consistent with longstanding practice—exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

So, what now? Even with the inevitability of prosecutorial discretion and a pending outcome in the Supreme Court, I remain concerned about the current landscape where there is no single guideline on prosecutorial discretion. What kind of message does this send to immigrants and their families? Without any formal guidance in effect to guide prosecutorial discretion in immigration enforcement, how different is our landscape from a previous administration that issued breathtaking priorities and warned that anyone in the country without authorization is at risk? What is the message to local ICE officers? Does it change the way local offices and officers behave so that people previously shielded from deportation while the Mayorkas Memo was in effect are now at greater risk? Finally, the presence and outcome in this case may also impact transparency. Will agencies engage in more rulemaking or instead be more resistant to publishing or announcing guidelines?

More than 20 years ago, I handled my first prosecutorial discretion case with a now abolished agency known as the Immigration and Naturalization Service. It was a pivotal point in my career and later a foundation for a body of scholarship and my first book on the historical role of prosecutorial discretion in immigration law. The challenge in this case represents a striking departure from the history, law and application of prosecutorial discretion in immigration for more than a century. There is nothing remarkable about the Mayorkas Memo and yet the courts have singled it out. If history, law and precedent prevail, so too will the elements of the Mayorkas Memo and the important role DHS plays in setting priorities and exercising discretion.

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Shoba Sivaprasad Wadhia is a Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants' Rights Clinic at Penn State Law - University Park.

It is Time to Reform Federal Supervised Release

This month's midterm elections revealed a country so evenly divided on crime and punishment that any successful reform will require bipartisan support. Fortunately, there is support at the federal level to address one important but overlooked problem in our criminal justice system – the “overly burdensome” and “punitive” use of community supervision, which has become a “driver of mass incarceration.” This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive. As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole. Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment. If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years. Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment. The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive. Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s. Federal probation officers “report significant caseloads that can exceed over 100 offenders per officer,” leaving them little time to do anything other than police misconduct. In approximately one-third of cases, the government ultimately revokes the defendant’s supervised release, sending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.” Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration. We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment. These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release. First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant. Currently, judges impose supervised release in virtually every case where they sentence a defendant to over a year in prison, yet almost never explain why supervision is necessary. By encouraging judges to impose supervision only on individuals who actually pose a public-safety risk or need rehabilitation, the Act would help probation officers more effectively protect the community and provide transitional support.

Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety. Although supervisees are currently entitled to seek early termination after serving a year of their term, judges only grant it in about 10% of cases. By rewarding good behavior with early termination, the Act would encourage reentry into society while focusing supervisory resources on those most in need of them. This change would promote both fairness and efficiency.

Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests. By criminalizing drug addiction, this mandatory-revocation provision promotes a destructive cycle of supervision, relapse, and incarceration. Instead, the Act would require judges to revoke supervision only if the defendant possesses drugs with intent to distribute or commits a felony possession (thus excluding misdemeanor possession). Although Congress could and should go further to end mandatory revocation entirely, this amendment would represent a small step toward ensuring that judges have discretion to decide whether prison is the appropriate response to a violation.

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services. The federal judiciary and U.S. Sentencing Commission collect and publish extensive analyses of federal prison sentences every year, yet there is comparatively little empirical research on federal supervision. By measuring the scope and impact of the supervised-release system, the Act would help us identify how best to improve it.

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release. The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization. The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress. We commend this bipartisan political effort to make federal community supervision more effective and more just.

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Aliza Hochman Bloom is a Faculty Fellow at New England Law|Boston.

Jacob Schuman is an Assistant Professor at Penn State Law School.

Book Review: Winning the War to Secure Multiracial Democracy

For decades, author and activist Steve Phillips has navigated the loosely aligned but distinct worlds of Democratic donors, progressive think tanks, community organizing, and multiracial coalition building. He has pushed Democratic party leaders to hire diverse staffers and vendors, and he has founded groups that support progressive organizing and diverse candidates. He’s also urged Democrats to win more elections by shifting resources from targeting a narrow group of white swing voters to expanding participation by voters of color.

In his new book How We Win the Civil War: Securing a Multiracial Democracy and Ending White Supremacy for Good, Phillips asserts that our nation faces a primary question of whether we are “fundamentally a white nation or a multiracial democracy.” He believes that too many progressives avoid this question (and racial issues generally) because they discount the question’s importance or because they fear political backlash from white moderates and conservatives. Phillips argues that the Civil War never truly ended and continues to this day—and that Americans need to wake up and stop contemporary efforts to destroy multiracial democracy.

In the first part of the book, Phillips asserts that in each era since 1865, Confederates and their ideological descendants have consistently used five tactics to stifle multiracial democracy: 1) never give an inch; 2) ruthlessly rewrite the laws to preserve white power; 3) distort public opinion to whitewash white supremacy; 4) silently sanction terrorism; and 5) play the long game.

For example, Phillips argues that opponents of multiracial democracy were unyielding in the 1950s when they closed rather than integrated public schools, and are unyielding today in refusing to accept that Joe Biden won the 2020 election. Multiracial democracy opponents once preserved power by erecting poll taxes and literacy tests—they now ban 24-hour voting and giving food and water to voters waiting in line. Confederate monuments and films like Birth of a Nation were once the primary tools to whitewash public opinion, and now that work is done by racialized disinformation on social media and cable news. Past government officials passively sanctioned KKK terrorism and mob lynchings, while contemporary officials obstruct investigations of white domestic terrorist networks and January 6 insurrectionists.

In the second part of the book, Phillips provides a roadmap for multiracial democracy supporters to win the Civil War. He highlights local organizations and leaders like Stacey Abrams, Tram Nguyen, and Andrea Guerrero who have successfully turned red areas blue in places like Georgia, Arizona, Virginia, San Diego, and Houston. He urges progressives to replicate these victories using four key strategies: 1) invest in visionary local leaders who are committed to the larger cause; 2) build strong civic engagement organizations; 3) develop detailed, data-driven plans to identify and mobilize underrepresented voters of color; and 4) “play the long game” to set and achieve incremental goals over several election cycles that eventually transform the electorate and public policy.
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How We Win is an unapologetically progressive organizing book. Phillips offers inspiring stories of everyday people utilizing democracy to organize and transform their communities. He shows how change happens by quoting directly from organizing strategy memos and showing data on the number of new voter registrations and door knocks needed to increase turnout and win elections. Phillips shows that multiracial democracy is not the inevitable byproduct of demographic change, but also requires strong local leaders and institutions, data, and strategy. How We Win is required reading for every volunteer and professional progressive organizer who wants to take action rather than just complain or pontificate.

Some “Make America Great Again” adherents may claim that Phillips is fueling division by declaring Civil War on all 74 million Americans who cast ballots for Donald Trump in 2020. But Phillips’s stated target is white supremacy—and rather than trying to contain this threat through appeasement he sounds the alarm to rally action against it. Phillips explicitly acknowledges the value of compromise in communities “bound together by common values and mutual respect,” but believes that in light of historical and contemporary attempts to cripple multiracial democracy, “it is nonsensical to continue to act like our opponents are people of good faith.” For Phillips, “[w]inning a war requires that you first recognize that you are in a war.”

While Phillips’s book is an important contribution because of its potential to inspire organizers and convince Democrats to fully embrace multiracial democracy, I do want to add a dose of reality.

If the Civil War was not won in 1865 or upon the passage of the Voting Rights Act of 1965, it will not be won after local organizers mobilize voters of color to transform politics in places like Florida, Georgia, North Carolina, and Texas. Granted, widespread civic engagement is essential, and policies will better reflect the interests of communities of color. But multiracial democracy will not be secure.

Top congressional staff—both Republican and Democratic—likely still will be disproportionately white. White supremacists and election deniers will still use tech platforms to distort public opinion with racialized disinformation, and invoke the need to protect their "freedoms" to incite and justify violence. While some politicians will be more responsive to voters of color, others will try to contain these voices by erecting new voting barriers. A majority of the current U.S. Supreme Court will still undermine the future of multiracial democracy by diluting the Voting Rights Act and the 14th and 15th Amendments.

Republican and Democratic politicians will still try to appeal to whites who harbor little racial animus, but feel increased cultural anxiety because the white share of the overall electorate is declining. The bulk of this group will still likely support policies they feel preserve their own status like Social Security and immigration restrictions, while opposing Medicaid, racial equity proposals, and reforms that expand the freedom to vote.

The future of multiracial democracy is bigger than any one book, election cycle, or political party. To truly secure a multiracial democracy, we will need citizens, grassroots leaders, researchers, historians, technologists, policymakers, philanthropists, strategic planners, and public education and debate to work through some big issues. The work will take time and the inclusion of diverse communities—it cannot simply be driven by a few white experts with sign off by a handful of civil rights groups.

In proactively building a new multiracial democracy, we’ll need to grapple with tough questions. How do we truly transform rather than simply retrofit institutions that were never originally designed to facilitate multiracial democracy, like the U.S. Senate and House, the Electoral College, the U.S. Supreme Court, state governments, and tech platforms? Can we truly have a healthy multiracial democracy if the concept is seen as the dominion of one major political party while being opposed by the other? When are election rules that favor a declining white population a legitimate exercise of democracy, and when are they racial entrenchment? What lessons about multiracial democracy can we learn from other countries?

How We Win is a foundational contribution to the emerging field of multiracial democracy. By centering community organizers rather than abstract manifestos, the book demonstrates an authentic commitment to democracy. How We Win is well positioned to shape election outcomes, policy outcomes, and debates about the future of multiracial democracy.
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Spencer Overton is a Professor of Law at George Washington University who specializes in race, democracy, and law. He is also the fifth president of the Joint Center for Political and Economic Studies, which was founded in 1970 and is America’s Black think tank.

Dobbs and Trump Bring Focus to Prosecutorial Discretion

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.” Robert H. Jackson, former Associate Justice of the U.S. Supreme Court, April 1, 1940

U.S. Attorney General Merrick Garland will shortly decide whether to indict Donald J. Trump for one or an array of federal criminal offenses. The country is rightly focused on this case, but similar decisions are made every day by thousands of local prosecutors in counties and cities across this nation about whether to charge persons for crimes. And, just like Garland, the decisions made by these local attorneys are coming under increasing political scrutiny and criticism, mostly from elected officials in conservative states. It is yet another battleground in the fight for the heart and soul of America.

The power of local prosecutors to decide whether and how to proceed in any given case is a long-established principle in American law. Known as “prosecutorial discretion,” it is built on the idea that these local lawyers are best positioned to exercise sound judgment in handling their cases while being respectful of community standards. The ultimate backstop to this system rests with local citizens, who, in all but five states, can vote out chief prosecutors whose decisions do not reflect the views of the community they serve. Direct election of public prosecutors, and their accompanying discretion, has been the tradition in our system since the 1830s and is unique among the western democracies. Only three states--Alaska, Delaware, and Rhode Island— do not provide for local prosecutorial discretion; in those, the state controls prosecutions.

New Prosecutors and New Policies

When prosecutors were putting more people in jail for longer periods of time, law-and-order types were content to let them operate independently. Rarely were they second-guessed, if only because the legal profession has considered prosecutorial discretion the norm and a foundation of our criminal justice system. But recently, prosecutors throughout the country began to change their approach. Public attitudes increasingly questioned whether incarceration was always the best response to certain types of crime, and newly elected local prosecutors adopted new approaches reflecting this community sentiment.

Prosecutors in Baltimore stopped prosecuting shoplifting and marijuana crimes. Prosecutors in St. Louis chose not to pursue cases that arose from recent political protests. In Portland, prosecutors would not press trespassing offenses. Some smaller jurisdictions followed suit, drawing the ire of the law-and-order types who control state legislatures, especially in Republican areas. Lawmakers in these states are now seeking to undermine prosecutorial decisions through executive orders and legislation, much like they are preempting the actions of local governments with which they disagree. Attorneys call this “supersession,” but it is just another word to describe efforts by state lawmakers to nullify the decisions of local chief prosecutors and exercise greater power over them.

These actions are proving effective. When a prosecutor in Orlando, Florida announced that she would no longer seek the death penalty, then-Governor Rick Scott responded by reassigning death-penalty-eligible cases to another prosecutor. In 2019, Pennsylvania’s Republican-controlled state legislature, in a move targeting Philadelphia district attorney and long-time reformist Larry Krasner for his aggressive prosecution of firearms offenses in Philadelphia, passed legislation to allow the state’s attorney general to take control of these violations in that city — and nowhere else in the state. And Tennessee’s legislature recently passed a bill that allows the state’s attorney general to seek a court order removing any local prosecutor who “peremptorily and categorically” refuses to prosecute certain criminal offenses regardless of the facts.

Dobbs Introduces More Controversy

The U.S. Supreme Court decision in Dobbs v. Jackson has supercharged (and complicated) the debate, as state lawmakers now confront local prosecutors who have pledged not to prosecute women and doctors who violate the plethora of new state laws restricting abortion. Immediately upon the decision in Dobbs, 89 district attorneys and attorneys general published a joint letter declining to prosecute people who “seek, provide, or support” abortions. Many of the signers were from states where access to abortion is already protected. But it also included local prosecutors from places like Orleans Parish, Louisiana, San Antonio, Texas, De Kalb County, Georgia, Jackson, Mississippi (home to the clinic that was the focus in Dobbs), and Nashville, Tennessee, all located in states controlled by abortion opponents. Their rationales differed. One prosecutor cited her office’s limited resources, stating that she will focus on “serious violent crime. . . rather than potentially investigate women and doctors for medical decisions.” Others have emphasized their opposition to state policies that prohibit abortions under any circumstances.

Predictably, conservative state lawmakers have fought back. When Tampa Bay prosecutor Andrew Warren announced he would refrain from prosecuting women who violate Florida’s new 15-week ban on abortion, Governor Ron DeSantis went apoplectic, suspending the district attorney for a “blatant abuse of power.” Warren has since sued the state, alleging that his first amendment rights had been violated. Predicting the victor in this case is not easy. Florida law makes it easy for the governor, giving him removal power “for any . . . good and sufficient reason,” where “the ends of justice would be best served.” But with no actual case having been rejected by Warren, a court might conclude that the prosecutor is simply exercising protected speech.

Despite widespread consensus that local prosecutors have broad discretion in deciding which cases to prosecute and which to dismiss, virtually every state has laws that permit their removal by state officials. The process differs dramatically by state. In Alabama, all that is required is for the attorney general to deem removal to be “proper.” Similarly, Michigan case law states that the state’s attorney general can intervene “in any criminal proceedings in the state.” North Dakota allows “twenty-five taxpaying citizens” of a jurisdiction to request the attorney general to intervene. Kansas, Oklahoma, South Dakota, and Wisconsin allow their legislatures to direct the supersession of a local prosecutor.

State Law Vary

Other state laws impose greater hurdles to supersession. When Indianapolis District Attorney Ryan Mears stated his opposition to prosecuting abortion, the state’s Republican attorney general, Todd Rokita, grudgingly admitted that the General Assembly “has given prosecutors 100 percent discretion in filing criminal charges, including those regarding violations of Indiana abortion laws.” A similar situation exists in Texas, which has some of the strongest anti-abortion legislation in the country. A 2021 decision by Texas's highest criminal court found that the state’s attorney general is precluded from prosecuting criminal offenses without consent of the local district attorney. Hence, when the District Attorney of Dallas County, a jurisdiction of 2.6 million, joined colleagues from other large jurisdictions in stating that he would not pursue criminal charges related to abortion procedures, Attorney General Ken Paxton was left without an easy legal remedy. Instead, Republicans will have to wait for the 2023 legislative session, when they hope to pass a bill to allow district attorneys to prosecute abortion violations that occur outside of their jurisdictions.

Most state legislatures are not presently in session but expect considerable activity when they reconvene in January 2023. Much of it will involve political posturing, and crafting legislation will not be easy. The legal principles surrounding state preemption of prosecutorial discretion are thorny, issues are complex, and the stakes are high in this struggle between state lawmakers and the attorneys who are charged at the local level with enforcing the laws and protecting the public.

Prosecutorial Dilemmas

The prosecutor in our American legal system occupies a unique and powerful position. Many people believe that his or her role is to put people in jail. But while it is true that they work with law enforcement agencies to investigate and hold people accountable for violating the law, their primary role is to pursue justice. This is an ethical imperative of the job and something that distinguishes them from most others in the legal community. It requires them to exercise judgment at every stage of a case—from investigation and charging to adjudication and sentencing—all the while balancing a locality’s values, the principle of “equality under the law,” and an understanding of how his or her legal actions promotes accountability in a fair and equitable fashion. We can see this in the abortion context. With Roe now in the rearview mirror, many prosecutors are faced with draconian state laws that do not square with community standards. On the one hand, principles of the “rule of law” suggest enforcement of all statutes, independent of how objectionable they might be. If prosecutors decline to act, they risk criticism for becoming de facto policy makers, typically a legislative function. Yet a community only has so many resources, and discretion suggests independent judgment. To further complicate matters, is it proper for a prosecutor to announce in advance a decision to refrain from pressing any charges for certain categories of cases? For some, prosecutorial refusals that apply to entire categories of criminal charges or defendants are improper and illegitimate encroachments on legislative enactments. At the same time, announcing such a position in advance, which the 89 prosecutors did in their open letter about abortion, supports the notion of equality under the law, i.e., similar cases are all being treated the same. These are not easy issues to resolve.

Those who argue for easier supersession have similar dilemmas. The U.S. Supreme Court has consistently supported the concept of prosecutorial discretion, and various state supreme courts have held that state attorneys general are part of the executive, a branch of government distinct from district attorneys. This raises serious separation of powers issues. Should members of the executive be permitted to curtail the independence of prosecutors without their consent? For legislatures, the question is similar; should legislators be allowed to force an independently elected official from a separate branch to act contrary to what he or she defines as a constitutional duty or ethical imperative? Politics, of course, oozes into these deliberations, which makes them even harder to judge.

A Balanced Approach Standard

In the present political environment, these issues are not going away. And arguments suggesting that supersession makes no sense because prosecutors can always be removed by the voters are not sufficiently strong to prevent further efforts to restrain their authority. We should not expect state lawmakers to shy away from opportunities to score political points at the expense of prosecutorial discretion. All we can hope for is a better standard that recognizes supersession under certain circumstances but preserves the integrity of prosecutorial discretion. One commentator suggests that a reasonable approach is found in Pennsylvania, where statutes allow prosecutors to set their priorities and exercise their judgment but applies to them the same standard as is typically reserved for overruling the decision of a trial judge—the abuse of discretion. To invoke supersession, an attorney general must prove to a judge that a local attorney has “failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.” Applying this standard in most states would better balance the exercise of prosecutorial discretion against the need for action in cases of misconduct and impropriety.

Our faith in democratic institutions has suffered greatly in recent years, partly due to the perception that they are being politicized for political gain. Any decision Merrick Garland makes will be greeted by partisan outcry; witness the remarks of House Republican Leader Kevin McCarthy threatening to investigate the Department of Justice and telling the attorney general to “clear your calendar.” But these ominous trends are also emerging in states, as lawmakers seek to overrule local prosecutors and their exercise of discretion over who and how they will prosecute. How these issues are resolved will affect how Americans view their criminal justice system in the decades ahead.

David J. Toscano is an attorney in Charlottesville, Virginia. He is a former Mayor and served 14 years in Virginia’s House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.

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