The Constitutional Attack Against Chevron Deference  

This blog was originally posted on Law360.

The Sixth Circuit has just held (in Gun Owners of America v. Garland) that “an agency’s interpretation of a criminal statute is not entitled to Chevron deference.” Other courts have said so before, but usually in criminal prosecutions under Title 18, the section of the U.S. Code that deals with most criminal matters. Against that backdrop, the Sixth Circuit’s decision is noteworthy—and not just because, as discussed below, there now seems to be a split between the Sixth Circuit and the D.C. and Tenth Circuits. The recent opinion gave an extensive analysis based on constitutional constraints; and it considers an entire agency regulation to be likely invalid on this basis. The consequences could be far-reaching. Whether or not this case is a critical step towards ending Chevron deference in general, exiling the doctrine from “criminal statutes” is already quite significant given how many regulatory regimes involve some sort of criminal sanction.

The case at the Sixth Circuit involved the Bump-Stock Rule. In December 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)—part of the Department of Justice—amended its regulations under the National Firearms Act and under Title 18 of the U.S. Code to clarify that devices with bump stocks are “machine guns.” The clarification is written into regulations, but it represents ATF’s interpretation of an underlying statutory definition of “machinegun.”  The change has several consequences, including imposing a tax on each manufacture, import, or sale of a device, subjecting the manufacture of devices to strict licensing requirements; and prohibiting the transfer or possession of a device other than for use under federal or state authority. Violating these regulations can, in general, incur criminal penalties.

In cases across the country, plaintiffs have been attacking the Bump-Stock Rule on the ground that a bump-stock device does not fall within the statutory definition of a “machine gun.” For years before the Bump-Stock Rule, ATF had not regulated bump stocks as machine guns. Given that history, the government would presumably need to invoke the longstanding Chevron doctrine that an agency’s interpretation of ambiguous statutory language receives deference, so long as it meets certain criteria—that Congress empowered the agency to make rules, for the relevant statute, that carry the force of law; that the agency’s interpretation was an exercise of that authority; and that the interpretation is reasonable.  The Justice Department has actually been disavowing Chevron in these cases, even though the Bump-Stock Rule itself invoked Chevron vigorously and was the product of a notice-and-comment rulemaking process of the sort the Supreme Court said in United States v. Mead is the paradigm for Chevron-worth interpretations. The various plaintiffs, meanwhile, have been arguing that the Bump-Stock Rule should not get deference because violating the National Firearms Act and the Title 18 firearms provisions can be criminal.

The D.C. Circuit rejected one such challenge in Guedes v. ATF, both adhering to Chevron despite the criminal enforcement mechanism and refusing the Justice Department’s attempt to waive Chevron deference. The Tenth Circuit did so as well in Aposhian v. Barr; it then took that case en banc to reconsider these arguments, but on March 5 it vacated the en banc order (over dissents from Chief Judge Tymkovich and Judges Hartz, Holmes, Eid, and Carson) and reinstated the original panel decision. The Sixth Circuit has now rejected Chevron deference for the Bump-Stock Rule, on the basis of a broad conclusion that an interpretation of a criminal statute cannot get deference. The opinion was written by Judge Batchelder and joined by Judge Murphy; Judge White dissented.

Before now, the notion that a court does not defer to interpretations of a criminal statute has come up in criminal prosecutions. In a 2014 case, United States v. Apel, the Supreme Court rejected a criminal defendant’s argument that the crime at issue in his case should be interpreted narrowly because internal government manuals had explained it that way. The Court refused to defer to internal manuals, and it said “we have never held that the Government’s reading of a criminal statute is entitled to any deference.” In a second 2014 decision, Abramski v. United States, the Supreme Court repeated the statement about deference, in deciding that pretending to buy a gun for yourself while actually buying it for another person violates the prohibition on false statements in gun purchases, 18 U.S.C. § 922(a)(6). Several circuit courts, including the 9th Circuit, 2nd Circuit, and 5th Circuit, have followed Apel and Abramski by refusing to defer to ATF when interpretative questions arise in criminal cases under Title 18. These cases have not given much reason, beyond simply following the Supreme Court’s statement. The Supreme Court itself did not say why a court should not defer to agency interpretations of a “criminal statute” or even define what is a “criminal statute.”

One could read Abel and Adamski as saying simply that the substantive provisions of Title 18 are not matters for agency interpretation. That understanding would be an interpretation of Title 18, about what authority Congress generally intended agencies to have under that portion of the U.S. Code. It would also make these cases consistent with a long line of Supreme Court precedent accepting agency regulations that make certain conduct criminal. In United States v. Grimaud, over 100 years ago, the Court rejected a challenge to a statute that made it a crime to violate Forest Service regulations. Grimaud held that Congress had indeed established the crime, and it did not violate the Constitution to allow the agency to write the regulations delineating the proscribed conduct. In Touby v. United States, 30 years ago, the Court rejected a constitutional nondelegation challenge to the Controlled Substances Act.  Under the statute, certain sales of controlled substances are crimes; the Justice Department (through the Drug Enforcement Administration) can add substances to the list of controlled substances. The Court rejected the contention that Congress cannot leave such decisions to an agency. In Gundy v. United States, two years ago, the Court considered the Sex Offenders Registration and Notification Act (“SORNA”), under which the Attorney General determines whether and when SORNA registration requirements apply to pre-enactment offenders. Again, the agency determines by rule whether certain conduct is or is not criminal. The Court undertook constitutional nondelegation analysis but did not suggest the standard should be different because the agency’s delegated decision would determine, in part, the content of a criminal prohibition. Abramski can be consistent with those cases even though Abramski arose under the Gun Control Act, for which ATF has rulemaking authority, because the statutory provision conferring that authority is somewhat limited.[i] It might not extend only to specific topics, such as the storage of firearms seized in firearms prosecutions, and thus not give ATF Chevron-eligible authority over the whole statute. (The Supreme Court has held that the Justice Department’s rulemaking authority under the Controlled Substances Act is limited in just that sort of way.)

The recent Sixth Circuit decision goes much farther. The provision ATF was interpreting is in the National Firearms Act, codified within the Internal Revenue Code (“IRC”), 26 U.S.C. § 5845. Title 18 incorporates that definition by reference, but the National Firearms Act definition also determines the scope of certain taxes and regulatory requirements. That is the sort of matter on which agencies routinely assert and enjoy Chevron deference, and ATF had set itself up to do that by conducting a notice-and-comment rulemaking in which it explicitly discussed why Chevron deference would be appropriate. The Sixth Circuit refused Chevron deference for ATF’s regulation as a whole, because the statute(s) overall—the opinion does not make clear whether this means Title 18, the National Firearms Act, or both—“carry[] criminal culpability and penalties.” And rather than basing its decision on a statutory interpretation that Congress did not intend ATF to have Chevron-eligible authority under one or both of these statutes, the Sixth Circuit said that as a constitutional matter ATF cannot have such authority.

The opinion gives two reasons. First, the court says that for a criminal statute, “the primary question is what conduct should be condemned and punished,” and that judgment must be made by Congress, not by an agency. Second, the Sixth Circuit says that the separation of powers built into the Constitution precludes a role for the executive branch in determining the meaning of a criminal statute. (The court also discussed whether deferring to agency interpretations would violate the due-process requirement of fair notice, but it seems not to have adopted that rationale yet.)

This analysis might well apply to any statute under which an agency either establishes a conduct requirement by regulation, or interprets a statutory conduct requirement, and a violation of that requirement can be a crime. There are very many statutes that are administered by agencies and for which violations can be criminal.  Examples include the Securities Act, the Securities Exchange Act, the Fair Labor Standards Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and more. The Sixth Circuit’s opinion calls into a question a wide range of agency regulatory interpretations.

The consequences may not be far off. In a concurring opinion eight years ago, Judge Sutton, of the Sixth Circuit, contended that the agency interpretations of the anti-kickback provision in the Real Estate Settlement Procedures Act—a financial statute administered by the Consumer Financial Protection Bureau—should not receive deference because violations can carry criminal penalties in addition to civil liability. The recent decision in Gun Owners of America cited Judge Sutton’s concurrence repeatedly with approval.  Judge White’s dissenting opinion also warned of the implications. So, the court issued its sweeping constitutional discussion with eyes wide open to the ramifications beyond Title 18. The constitutional holding in the recent decision might surface soon in arguments against any number of agency interpretations.

There has been extensive debate in recent years about the wisdom and propriety of the Chevron doctrine. The Sixth Circuit has started a volatile new phase.

Keith Bradley is a partner at Squire Patton Boggs, and the vice president of the ACS Colorado Lawyers Chapter.

 

Attacking trans athletes doesn't protect women and girls in sports. Here are three things that do.

As a woman who played Division I basketball in South Carolina, I have seen the power of non-discrimination protections under Title IX. As a civil rights advocate fighting for gender equity in sports, I have excitedly watched our courts and more sports organizations move towards extending those same essential protections to transgender athletes. 

However, conservative politicians are now targeting transgender athletes in state legislatures and stoking transphobia in their opposition to the federal Equality Act. They have done so under the guise of protecting “fairness and equality for women” in sports, touting baseless scientific claims that trans women and girls have an unfair physiological and biological advantage over their cisgender counterparts.  But the assertion that transgender athletes’ participation harms women’s sports is simply not true. Moreover, anti-trans bills that aim to exclude trans women and girls from teams that match their gender identity are actually harmful to all women and girl athletes. Research suggests that policing athletes’ gender or sexual orientation negatively impacts sports participation among all young girls. 

Not only are lawmakers engaged in a dangerous, calculated, and strategic attempt to weaponize transphobia for political gain, but they are actually creating the very problem they claim to be preventing. 

We can and should do better by our women and girls in athletics. There are real threats to their ability to play and excel, including unequal treatment, lack of access to sports, lack of investment, and a shortage of women leaders. 

Here are 3 evidence-based actions for policymakers and advocates to support and uplift women and girls in sports. 

1. Fully enforce Title IX.   

Despite the advances in women’s athletics that we have seen under Title IX, the law is still not fully enforced. Consequently, major disparities in sports opportunities still persist at both the high school and collegiate level. For example, in high school, boys have approximately 1.13 million more opportunities to compete than girls. Girls of color are disproportionately left out. At NCAA schools, women make up half of the student population but they only receive 44 percent of the athletic participation opportunities.

There are also glaring disparities in the treatment of women athletes as evidenced by the recent March Madness incident. The women had access to a small pyramid of dumbbells and a small stack of yoga mats, while their counterparts competing in the NCAA men’s tournament were given a massive room of weightlifting equipment. The women also received pre-packaged food (the men were offered giant platters to choose from) and less accurate COVID testing options. The list goes on. 

To date, no school has ever lost Title IX funding for violating Title IX athletic protections. By fully enforcing these protections and holding schools accountable for major disparities in their sports programs, we can protect and expand access to sports for women and girls.  

2. Invest in women’s sports. 

If you want something to thrive, you invest in it. Too often, however, sports entities across the board fail to adequately invest in women’s sports. In collegiate sports, women receive millions less actual athletic scholarship assistance. Further, of the $282 million spent on NCAA recruiting, only 30 percent was spent to attract women talent. Pay gaps at the professional level persist. Media visibility is bleak (Women make up 40 percent of sports participants but only 4 percent of sports media coverage). 

Too few opportunities, coupled with a lack of investment, create barriers for women to thrive in athletics. Financial constraints frequently prevent them from purchasing equipment, training, traveling, and or paying tournament fees. Teams do not exist in many places and aspiring athletes often lack access to venues or a safe and reliable method of transportation. 

Advocates can help support women and girls by demanding more financial investments in women’s and girls’ sports. This means calling for more opportunities, equal treatment, equitable pay, safe facilities, and more media coverage. These are the types of investments women and girls need and have been requesting for years. 

3. Hire more women in leadership positions.

Simply put, there is a dire lack of women in sports leadership. In a recent hiring report card for processional sports that tracks women in leadership positions, the National Football League (NFL) and Major League Baseball (MLB) both received “C” grades. Major League Soccer (MLS) received a “C-.” Even the NBA, often considered to be the most inclusive big sports league, only received a “B.” Women are also underrepresented in the collegiate leadership space, especially in coaching. Women account for only 40 percent of women’s team coaches and a startling 3 percent of men’s teams. 

Representation is everything, and the lack of women in sports in top positions is a disservice to all women and girl athletes who want to feel empowered and included. It signals to them that they can only go so far in their journey—that there isn’t room for them at the top. Having women leaders in sports positively impacts girls’ participation in athletics. 

Just as we pushed for girl athletes to receive equal treatment in sports under Title IX, there must be a concerted effort to increase the presence and visibility of women in sports leadership positions. 

We can achieve fairness and equality in women’s sports without using the political system as a weapon to attack transgender girls who just want the same opportunities to play as every other child. We just have to look past transphobic attacks and start addressing the real challenges that prevent all women and girls from thriving in athletics. 

Ashland Johnson is the President and Founder of the Inclusion Playbook, a sports impact project that works with sports leaders to transform communities in and through sports. Ashland is a former Board member of the American Constitution Society.

Amazon and the Fight Over Whether Workers Can Have a Voice

During the COVID-19 pandemic, fast food workers, nurses, home care workers, warehouse workers, food processing plant employees, and many others have joined together in protests, strikes, and union drives. They have demanded safe workplaces, and pay and benefits that reflect the essential work they do—in the words of SEIU members, “Respect Us, Protect Us, Pay Us.” Many of these workers are people of color who identify their fight as one for racial justice. Though their specific demands vary by workplace, these workers are advancing a common principle: that workers should have safety and dignity at work and a say in the policies that shape their jobs and their communities.

Amazon, the mega-behemoth retailer, web-services provider, and TV and movie studio, whose profits increased more than 200% during the pandemic, has been perhaps the most prominent company to respond to these worker demands by doubling down on the idea that it alone—not workers, not elected officials—should have the power to set its workplace policies. The idea that companies should be free from unions and government regulation is certainly not a novel one in the United States. But as a recent speech by President Biden supporting workers’ rights highlighted, that corporate position is actually very far removed from the ideals behind our nation’s labor laws. (It is worth noting that Andrew Devore, Amazon vice-president and associate legal counsel in charge of labor and employment matters, was until his recent resignation a member of the Board of the American Constitution Society.)

Congress passed the National Labor Relations Act (NLRA) in 1935 to allow workers to bargain collectively  with their employers in order to redress “the inequality of bargaining power” between workers and employers. It would be hard to find a better example of that inequality than the chasm between Amazon, the country’s second-largest employer which is owned by one of the world’s richest men, and the low-wage workers, more than a third of whom are Black or brown,  who work in its warehouses under constant electronic surveillance to ensure they meet unyielding, grueling productivity standards.

One of the first Amazon worker actions during the pandemic came in March 2020, when the first COVID case was reported at an Amazon warehouse in Queens. Workers staged walkouts to protest unsafe working conditions. Jonathan Bailey, who led one of the walkouts, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the day after the walkout, a manager interrogated him for an hour and a half, and then a week later wrote him up for harassment. The NLRB found enough merit in Bailey’s claim to issue a complaint against the company.

In April 2020, after several workers at an Amazon facility in Chicago tested positive for COVID-19, workers staged “safety strikes” demanding, among other things, that the company pay for health care for workers and their family members who became ill. Amazon allegedly retaliated against some of the striking workers, again by interrogating them and writing them up. The NLRB issued another unfair labor practice complaint, but around the same time, Amazon announced the closure of the facility where the safety strikers work.

More recently, in February 2021 Amazon filed an unusual preemptive lawsuit against New York State Attorney General Letitia James, days before she filed suit against the company for inadequate safety measures at its facilities in Queens and Staten Island, and for retaliating against workers. Amazon’s lawsuit sought to block AG James from “subject[ing] Amazon … to state oversight.” The complaint reads like a press release about the safety precautions Amazon has undertaken, combined with an indignant rejection of the idea that a state might have any role in setting or enforcing safety standards to protect employees during a pandemic.

To date, only one of the Amazon pandemic-era workplace actions has grown into a union election: the historic effort by predominately Black workers at a warehouse in Bessemer, Alabama to organize with the Retail, Wholesale and Department Store union (RSDWU). Amazon’s response has been relentless, threatening, and expensive: millions of dollars on consultants and law firms, a website called DoItWithoutDues.com, online ads, texts and four or five emails to workers per day, banners at the warehouse and flyers in the bathrooms, and “captive audience” meetings featuring videos and PowerPoint presentations.

The company’s messaging subtly and not-so-subtly threatens employees that they may lose pay and benefits if they decide to unionize. For instance its anti-union website tells workers that in collective bargaining “everything is on the table … know what’s at stake.” While it barrages workers with anti-union messages, it has also sought to block union organizers from the slivers of opportunity they have to talk to employees. For months organizers stood in the road outside the warehouse, starting at 3:45 in the morning, to speak with workers in their cars at a red light. But in the midst of the union drive Amazon successfully requested that the county change the timing of the traffic light so that cars would not stop as long.

Amazon has also fought to force workers to vote literally on its own turf. First it argued to the NLRB that the union election should be held in-person at its facilities despite the pandemic. Then, when the Board ordered a mail ballot election, Amazon encouraged employees to mail their ballots in a new mail box that was just installed outside its warehouse.

While Amazon’s anti-union tactics are receiving worldwide attention for their ferocity, they are common among American employers. As Steven Greenhouse put it in an op-ed in the Los Angeles times, “Union elections in the U.S. often resemble political elections in authoritarian nations such as Hungary.”

This is why it was such a jolt when, in the midst of the Bessemer election, President Biden released a video celebrating workers’ right to organize. He noted that the NLRA encourages collective bargaining and that unions “give you a stronger voice for your health, your safety, higher wages, protections from racial discrimination and sexual harassment.” He stated that employers should not engage in intimidation or threats. The speech was mostly unremarkable as a description of American labor history and the principles behind a decades-old law. But it was also unprecedented as an implicit endorsement of an ongoing union drive and a repudiation of common anti-union practices by a sitting President.

Among the reasons for the huge distance between the values behind our labor laws and the reality of union-busting by American companies like Amazon is that the consequences for violating the NLRA are laughable. In many cases the only penalty is that the employer is required to post a notice promising they will not violate the law again. When employers fire workers in retaliation for exercising their right to unionize, as they are alleged to do in 20-30% of union drives, the worker can at most win reinstatement and back pay, minus the pay they earned or “could have” earned at another job while fired. The NLRA provides for no civil penalties or punitive damages, so employers often calculate that it is worth it to break the law to avoid sharing power with their workers.

The Protecting the Right to Organize (PRO) Act is a bill pending in Congress that would create real penalties for NLRA violations and make it easier for employees to challenge unfair labor practices. It would also update the nation’s labor laws in several other important respects: it would ban captive audience meetings, bar employers from permanently replacing striking workers, prohibit misclassification of employees as independent contractors, and create a process to get newly-unionized workers and employers to a first contract in a reasonable amount of time. The act would, in effect, guide our labor law back toward the values that motivated its enactment more than 80 years ago.

Black, white and brown workers in the United States have long done essential work for inadequate pay and benefits, in unsafe conditions, and without the collective power of being part of a union. The injustice of that reality has become even more obvious and pronounced during the pandemic. The pandemic has also exacerbated the already gaping disparity of wealth and income in our country, and has disproportionately ravaged communities of color, all in the shadow of a national reckoning on systemic racism.

This terrible confluence of circumstances may have pushed workers to new levels of willingness to insist on their right to have a voice at work. But it is not fair to expect that workers’ courage alone will be enough to overcome entrenched corporate hostility and legal indifference to collective action by workers. The Alabama union election will be over at the end of March. No matter the outcome, this will not be the last union drive sparked by the pandemic. The question is not whether workers want to have power on the job to shape the future of their communities, but whether the rest of the country--Congress, the courts, employers, and the public--will step up to defend their right to have it.

On Women’s History Month

As a feminist and proud ACS leader on a white, Christian, conservative campus, it is an honor to be asked to write this blog post. But it also made me extremely self-conscious to reflect on the theme that seems to run through those identifiers: resistance. Who would I be if I had nothing to fight against?

Laura Mulvey coined the term “the male gaze” in the 1970s to define the traditional, male cinematic point of view. The spectator, particularly in classic Hollywood cinema, is put in a masculine subject position, and the women on screen are always the objects. Even female spectators subconsciously internalize that perspective. The worlds we see and the stories we enjoy are from the perspective of men.

So too were all of the major systems in which we exist today. They were established by and for white men, including the legal system. There would not be a Women’s History Month in a nonpatriarchal society and Justice Amy Coney Barret would not have “replaced” Justice Ruth Bader Ginsburg. Similarly, there would not be a Black History Month in a non-white supremacist society and Justice Clarence Thomas would not have “replaced” Justice Thurgood Marshall.

We cannot realistically (for now at least) change the fact that the U.S. Constitution, system of government, and legal framework were created and dominated by white men. What we can do, like Laura Mulvey did for the film industry, is, at the very least, identify and label that reality so that we can reevaluate and change the status quo, hopefully a little freer from its influences. Mulvey called for a feminist avant-garde filmmaking that would destroy the pleasure of classic Hollywood filmmaking. In Visual Pleasure and Narrative Cinema, Mulvey wrote, “Analyzing pleasure or beauty annihilates. That is the intention.” We cannot be afraid of a little discomfort for the sake of a more expansive perspective, and, naturally following that, more freedom and justice.

In regards to Women’s History Month, expansion involves acknowledging and celebrating the entirety of women and the gamut of the female experience. We can resist objectification by embracing and respecting intersectionality. We can annihilate a little more of the status quo by acknowledging complicity and ignorance. We can move towards freedom through progressivism. Only a living constitution can protect and serve the rights of our explosively diverse citizens and their interests. Women’s History Month for me means looking at how much of my ambition and drive comes from resisting male institutions and exploring the implications of that.

You might be surprised to learn that Women’s History Month was established by President Ronald Reagan via proclamation in 1987 at the direction of Congress. The irony of this origin might be as physically repugnant to you as it is to me. As a direct result of Reagan’s War on Drugs, women, especially Black and Latina women, have been the fastest growing prison population for the past 30 years. The United States accounts for one third of the world’s female prison population. But at least we have March!

The women that are traditionally offered to us as role models have, for the most part, been able to skillfully navigate and succeed in this male-created framework. For example, Justice Ruth Bader Ginsburg, who has been a personal hero of mine for years, was famously able to attend Harvard Law School for both herself and her ill husband, come out at the top of her class, and raise a family. Among the words that she left us are: “Fight for the things that you care about, but do it in a way that will lead others to join you.” “Disagree without being disagreeable.” Admittedly, I have not been entirely successful in following these directives. In fact, I naturally resist against these somewhat patriarchal ideas that, to make an impact, women must be agreeable and palatable. Disagreeable to whom? Lead others to what? How can I fight effectively without compromising my values to assuage the powers that be? Isn’t that very compromise part of what we’re fighting against?

Some feminist heroes have succeeded using Justice Ginsburg’s model, but countless others have changed the course of history through more aggressive challenges and resistance. We must also learn about these other womxn, because they, too, have paved the way for us. Like Rev. Dr. Pauli Murray, who is sometimes remembered during this month but too often forgotten the rest of the year. Murray, decades before Justice Ginsburg, fought against the systems built to exclude Black, queer, transgender women. They worked to dismantle segregation both personally and systemically by organizing sit-ins and  creating arguments for its demise that would eventually be successfully deployed by their professor. They resisted misogyny at historically black institutions by coining the term “Jane Crow” and co-founding the National Organization for Women. Murray personally challenged their rejection from Harvard Law School, asking the admissions department to reconsider changing their minds because changing their sex would not be as easy.

Pauli Murray also suffered emotional consequences from their resistance against gender norms. They had mental breakdowns yearly and was frequently hospitalized. The language, awareness, and respect for their complaints simply did not exist at that time. And so, Murray suffered.

Murray insisted on a full recognition of their integrated identity, which today would translate to intersectionality. While Murray and Ginsburg had extremely different paths, Ginsburg’s work would not have been possible without Murray’s unflinching drive. In “Reed v. Reed,” the first time the Equal Protection Clause was applied to sex discrimination, Ginsburg credited Murray as inspiration for her brief and put them down as honorary co-author. Some of us are Ginsburgs and some of us are Murrays, but most of us are somewhere in between. It takes all of us to create lasting change.

This Women’s History Month, my intention is to celebrate all of my experiences and dimensions as one full identity. I have been motivated by resistance to the status quo, ever since my mother taught me to ask “why?” I came to law school after #MeToo as a means of resisting and challenging the misogynistic Hollywood system of secret sexual abuse. I work at a public defender’s office to defy our state’s criminalization of poverty, drug and alcohol addiction, and mental illness. And I use my voice to ask my professors why originalism is the most “valuable” mode of constitutional interpretation.

Part of my identity includes resistance, but it also includes connection, warmth, hope and excitement. Part of me hates the very idea of Women’s History Month because of its implicit tokenization of half the population, but another part loves the opportunity to focus on the gamut of accomplishments that women have achieved and the obstacles that still exist. I first acknowledge that I’m the object, and by so realizing I become the subject. Women may have been given this month, but we’ll take it all.

A New Beginning? Justice Ginsburg and the Equal Rights Amendment

Timed to honor Women’s History Month, the House voted last week to remove the time limit on the ratification of the Equal Rights Amendment (ERA). The ERA, which would explicitly enshrine sex equality in the Constitution, was proposed by Congress in 1972 and sent to the states for ratification within seven years.  A supermajority of the states – 35 of them – ratified the ERA by 1977, but that was still three states short of the 38 needed to constitute the three-fourths of the states required under Article V of the Constitution.  Congress extended the deadline by another three years, but no additional states ratified the ERA until 2017, decades afterwards. Three states – Nevada, Illinois, and Virginia, ratified the ERA from 2017 to 2020, leading to litigation in courts and resolutions in Congress aiming to overcome the ratification deadlines.

The late Justice Ruth Bader Ginsburg was a lifelong proponent of the ERA.  While she litigated cases to persuade the Supreme Court to scrutinize sex discrimination under the Fourteenth Amendment through the 1970s, she developed a case for the ERA in her scholarly writings.  She argued that an explicit textual guarantee of sex equality in the Constitution was needed to give coherence and legitimacy to strong doctrinal development of the principle of gender equality. In the absence of a clear constitutional declaration of the equal citizenship stature of men and women, courts hesitated to develop the principle robustly, RBG wrote in 1979, because judges were understandably uneasy about stepping into “the gray zone between interpretation and alteration of the Constitution.”

Even though the Supreme Court that she joined did in fact shape sex equality as a constitutional principle in United States v. Virginia in 1996, Ginsburg continued to say, in public speeches, that the U.S. Constitution needed an ERA.  But her argument shifted: she emphasized its expressive, rather than doctrinal significance.  Her granddaughters and all Americans needed reassurance from the text of their pocket constitutions that the equal citizenship stature of women was as foundational to our political and legal order as other human rights, such as free speech.  After World War II, gender equality guarantees became a legitimating feature of every modern constitution.  In February 2020, in a public interview at Georgetown, Justice Ginsburg said:

The Constitution’s Preamble says, ‘We the People . . . in Order to form a more perfect Union.’ The Union will be more perfect if we added this clarion statement to our fundamental instrument of government: Men and women are persons of equal-citizenship stature. . . . Why should the rest of the world have the equivalent of an ERA while the United States lags behind?

However, it was the opponents of the ERA, rather than its proponents, who quoted Justice Ginsburg in the House floor debates about the future of the ERA last week. In that 2020 Georgetown interview, when asked for her prognosis for the ERA after the late ratifications by three states, Justice Ginsburg had replied:

I would like to see a new beginning. I’d like it to start over. There’s too much controversy about a latecomer like Virginia ratifying long after the deadline passed. Plus, a number of states have withdrawn their ratification. If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?

ERA opponents in the House quoted these words to argue that the only legal way to add the ERA to the Constitution now is to introduce it anew, and that keeping the ERA alive by removing the deadline would be illegal.

This position misapprehends Justice Ginsburg’s impromptu preference for a “new beginning” as a legal ruling about what the constitution requires.  But Justice Ginsburg’s 1970s scholarship and congressional testimony as a law professor laid out reasoned arguments for why Congress had the constitutional power to change the ERA’s ratification deadline.  Although the situation in 2021 is different, in that Congress’s action would change the deadline retroactively by removing it rather than extending a deadline before it arrived, RBG’s careful reasoning about the legitimacy of the ERA deadline extension is as applicable to the current deadline removal effort.

RBG understood that Congress was the “director of the amendment process.” She described the ratification deadline as “a procedural fact of the amendment process.” Article V authorizes Congress to “propose” amendments and to designate the “mode of ratification.”  Furthermore, Article I Section 8 empowers Congress to make all laws that are “necessary and proper” for executing its other constitutional powers, including those under Article V. RBG argued, citing Coleman v. Miller, that it was proper for Congress to make the political judgment as to whether the public interest and relevant conditions warranted a change in the ratification time period, in much the same way that legislatures could decide to extend statutory statutes of limitations.  The ERA’s time limit was placed in the preamble to the proposed ERA and not in the constitutional text itself; it said that the amendment would be part of the constitution “when ratified” “within seven years” “by three-fourths of the several states” – leaving it unanswered as to whether it would be part of the Constitution if the states took longer than seven years.  Other ratification deadlines, for instance, that for the Prohibition Amendment, were placed in the constitutional text (and were therefore part of what the states ratified), and used language that explicitly expressed the intent that the amendment proposal expire if not ratified within seven years; Section 3 of the 18th Amendment reads, “This article shall be inoperative unless it shall have been ratified . . within seven years.”

There may be policy reasons to decide not to allow the ERA to continue to be ratified over forty years after the “when ratified” time limit, but such policy decisions are the province of Congress, rather than the courts. This is consistent with the recent dismissal by a district court of the case brought by the three late-ratified states against the National Archivist, seeking a declaration of the ERA’s validity. As the court dismissed the case for lack of standing, and alternatively reasoned that the seven-year deadline imposed by Congress was legally effective, it explicitly refrained from deciding the “difficult issue” as to whether Congress could extend or remove the deadline to validate the ERA’s resurrection, and the question of whether state efforts to rescind prior ratifications should be given effect.

As for rescissions, RBG testified that it was for Congress to decide, only after the thirty-eighth ratification occurred, whether to count any rescinding states as ratified states.  Indeed, after two states ratified and then rescinded their ratifications of the Fourteenth Amendment, Congress decided in 1868 to recognize that the Fourteenth Amendment was ratified. That step was necessary, though not sufficient, to direct the nation on the long path to racial justice that is still being paved. Although she – and many other ERA proponents – can appreciate the cleaner path of a brand-new ERA, her writings about the ERA and Article V clearly understood Congress to be the proper decisionmaker to resolve the controversy caused by lateness or rescission.  And that is precisely what the resolutions in Congress proposing to remove the deadline on ERA ratification seek to do, now that 38 states have ratified the amendment.

For RBG, Congress was not only in charge of the amendment process; it was also the primary implementer of the Equal Rights Amendment. In the inaugural issue of the Harvard Women’s Law Journal, she wrote:

With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.

Section 2 of the ERA empowers Congress to enforce the amendment, and Section 3 delays the effective date of the ERA to two years after the date of ratification, so that Congress and state legislatures would comprehensively review and rewrite laws to ensure gender-equal rights. Courts would play a secondary role, stepping in when legislative action failed to guarantee equality. When Nevada ratified the ERA in 2017, nearly four decades after the deadline, ERA proponents quoted that paragraph from RBG’s article on the floor, affirming the importance of new laws advancing such policies as pregnant worker fairness and pay equity to the amendment’s meaning.

On March 17, the ERA deadline removal bill reached the floor of the House along with the Violence Against Women Act reauthorization bill. That day, the Senate Judiciary Committee concurrently held hearings on the Equality Act, which the House had recently passed.  The next day, the House Education and Labor Committee held hearings on the Pregnant Worker Fairness Act. In the 1971 words of Congresswoman Patsy Mink as she advocated for the ERA on the House floor, the ERA is “constitutional backing” for extensive legislation to eliminate situations that are discriminatory in effect. Such legislation will be critical to overcoming the devastating disproportionate economic effects of the Covid-19 pandemic on women, especially working mothers, who have left the work force in alarming numbers, largely due to the new caregiving burdens created by the shutdown of schools and daycares.  If future legislation to counter the dynamics that push women into traditional gender roles is challenged on other constitutional grounds, the ERA could save such legislation. In this unprecedented female recession, an unprecedented revival of a constitutional amendment on gender equality may be appropriate.

Nonetheless, the questions Justice Ginsburg raised about late ratifications and rescissions point to an important consideration in approaching the novel resurgence of the ERA:  the process by which the constitution changes can shape the change that is achieved. Congress’s process for recognizing that the ERA has been ratified is an opportunity for a democratically elected national body to stimulate a new era of policymaking. The legislative process of hearings and floor debates can articulate the goals of the ERA that have endured since the 1970s and become most urgent in 2021. In this unprecedented gendered economic crisis, a new way of forging a new beginning may be warranted.

Plenty of Glass Yet to Break

As we mark Women’s History Month this March, there is much to celebrate. We have, for the first time in history, a female Vice President of the United States, Kamala Harris (as well as the first-ever Black and Asian Vice President).  So many of the women I know shed tears of joy on Inauguration Day as many years of hope and hard work were realized in that moment. The exhilaration of watching that ceremony with my two young girls was beyond what I could have hoped. But it was an inflection point in a tale that is still unfolding.

As we look at the rest of our government leadership, there is yet much to do. President Joe Biden has been roundly and fairly praised for his diverse Cabinet picks, which have indeed broken barriers, including the first woman Secretary of the Treasury, Janet Yellen, the first woman Director of National Intelligence, Avril Haynes, and recently Secretary of the Interior Deb Haaland, a woman and first Native American to lead any cabinet-level agency. Women make up just 26.4% of the 117th Congress, with 24 in the Senate and 119 in the House. Women make up one-third of the United States Supreme Court and slightly less than one-third of the Article III lower federal courts.  There are still a handful of district courts where there has never been a female judge, and there are several more districts and a few circuits where there has never been a woman of color judge. Women are governors in eight states.

The legal profession also has a long way to go to reach any kind of parity. In its 2020 survey on the Promotion and Retention of Women in Law Firms, the National Association of Women Lawyers (NAWL) found that while women made up 47% of associates, they were only 21% of equity partners. Women of color made up 22% of associates but just 3% of equity partners.  Notably, when NAWL started reporting this survey in 2006, 15% of equity partners were women, reflecting a glacial pace for progress. As of 2019, women made up about one-third of law school deans, although about half of law students are women. Also, about one-third are women in General Counsel positions, and again, women of color make up a small part of that overall number.  As we look to another top echelon of the legal profession, women advocates at the Supreme Court, there is also so much room to grow. Women made just 20 arguments before the Court in the 2019 Term.

Why has progress been so slow, and why are women stalling out at one-quarter or one-third of these important spaces? First, there is the age old, “You can’t be what you can’t see.” As much as we have had women break barriers, and we have been celebrating the Year of the Woman since 1992, leaders are overwhelmingly male. We cannot normalize women in leadership when we see them only fleetingly. Additionally, some research has indicated that we don’t trust women. Even in countries like Germany and India, who have had notable women leaders, people are uncomfortable with women leaders.  We see male approaches to leadership as the expected way to do things. These phenomena are in addition to the structural barriers of women still being primarily responsible for childcare and having to weave such duties into their careers whereas men often do not have such constraints.  As we all know by now, the pandemic has not made that better.  At an even more basic level, women can’t control their own bodies in many respects let alone their career trajectories. Then-Senator Kamala Harris drove home the dichotomy between treatment of women and men in her questioning of now-Justice Brett Kavanaugh when she asked him to name one law that gives the government the power to make decisions about men’s bodies.  He was not only unable to do so, but he was confused by the very foundation of the question. We are living in a country that has thus far been unable to adopt the Equal Rights Amendment to the Constitution, simply confirming that, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

When asked when there would be enough female justices on the Supreme Court, Justice Ruth Bader Ginsburg now famously said, “when there are nine.” Many have chuckled at that response, but the resonant point is there – there will be enough when women get to dominate the space and set the standard for what is normal, just as men have throughout history. Perhaps someday we will not need to set aside one month to call out women’s accomplishments.  For now, there is plenty of glass that still needs breaking.

Jill Dash is ACS's Vice President of  Strategic Engagement and Immediate Past President of the Women's Bar Association of the District of Columbia.