The Vacancies Act: A Precedented Tool for Managing Unprecedented Obstruction

Over the past several weeks, President-elect Joe Biden has begun to name his choices for his Cabinet. Alongside the usual debate over the selections’ merits looms another question: will any of them actually be confirmed? In the past, this was hardly much of a consideration. Barring legal flags like a failure to pay taxes, a presidents’ first batches of cabinet nominees were generally all but assured confirmation. It would seem that that reality is no more.

Republican lawmakers have already expressed an unusual willingness to slow-walk or block the confirmation process for Biden’s Cabinet nominees. If they’re ready to obstruct even high-profile figures, common sense and history suggests that lower level appointees will get even harsher treatment. In light of this reality, Joe Biden will need to be prepared to work around Senate obstruction in order to deliver on his mandate and address our country’s multiple crises. The Federal Vacancies Reform Act, which governs acting appointments to Senate-confirmed positions, will be key to this project.

Executive branch vacancies are nothing new. While seamless handoffs from one Senate-confirmed official to the next would be ideal, the reality is that sometimes officials leave their seats unexpectedly. In those cases, a temporary solution to ensure continuity of operations is required. There have long been laws on the books governing who could fill vacant, Senate-confirmed roles and for how long. The statute has undergone several overhauls but the basic purpose remains the same.

The most recent iteration, the Federal Vacancies Reform Act (FVRA) of 1998, lays out three acceptable avenues to fill a vacant position that is subject to advice and consent. When a position is vacated, the “first assistant” to the office automatically assumes the role. The FVRA  does not define “first assistant,” but some agency statutes and regulations do. In the absence of such designations, the question of who is a position’s first assistant may be the subject of debate. Alternatively, the President can also designate any other person “who has been confirmed to a different advice-and-consent position” or any “senior ‘officer or employee’ of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.” In other words, the President has options in the face of vacancies and confirmation delays.

The exact length of time an acting official can serve varies according to several factors that are both within and outside of the President’s control. The Vacancies Act normally provides for an initial period of 210 days in which an acting official can fill the role without the president having made a nomination for a permanent replacement. Vacancies that exist on inauguration day or occur within 60 days of it may be filled by an acting official for an additional 90 days beyond the usual 210 day period, starting from either inauguration day or the date of the vacancy, depending on which is later. On the day the President nominates a permanent replacement, a new timeline begins. The acting official may serve until such time as the nominee is confirmed or for 210 days from the date the nomination is withdrawn, returned, or rejected. If the President makes a second nomination, an acting official may again continue to serve until a permanent replacement is installed or 210 days from the date the nomination fails.

Thus, through careful planning, the President can ensure that an acting official is in office for over 720 days, or two years. Depending on how long the Senate holds the nomination, an acting official could be in the role for even longer.

Officials who are appointed in line with the Vacancies Act’s parameters are empowered to perform all of a position’s functions. This is not to say that a Senate-confirmed official is not ultimately preferable. Acting appointees face several practical barriers such as limited time to build relationships and implement major policy initiatives (although reliance on senior civil servants to serve in an acting capacity avoids some of these pitfalls). Still, it is clearly preferable to have these roles filled than to have governing functions grind to a halt.

It is, therefore, unsurprising that presidents from both parties have relied on the Vacancies Act to govern. And while many have questioned the merits of the current system in terms of good governance, its legal legitimacy is relatively uncontroversial.

As with many things, the Trump administration has put this to the test with slipshod legal work that invites challenge. But the trouble it has faced with the statute should be viewed as an exception, not the rule. So long as the Biden administration shows appropriate attention to detail, the Vacancies Act will serve as a powerful means to act in the face of Senate intransigence.

With control of the Senate still up in the air, we do not yet know how much power Senate Republicans will have to slow and stop nominations. But those lawmakers are leaving little doubt that, if empowered, their obstruction will be severe. Some have committed to confirming nominees who are in the “mainstream,” a rather imprecise category that may turn out to be more exclusive than some might imagine. Others have laid out an even more unattainable standard, suggesting that Biden’s nominees should not be too “partisan.” Still others are not being so coy; John Cornyn indicated that he would not support Biden’s nominee for the Office of Management and Budget, Neera Tanden, because of tweets that have been critical of Republican lawmakers.

Thanks to the Vacancies Act, this unprecedented, bad faith opposition need not mean that Biden does not have an OMB Director or, indeed, a Cabinet. To have any hope of fulfilling his mandate and thus earning voters’ trust in future elections (for his own bid or others’), Biden should not hesitate to use this well-trod legal pathway expansively.

Over 230 years’ worth of statutes -- from the Sherman Antitrust Act of 1890 and the 1964 Civil Rights Act to 2010’s Dodd Frank and many more -- will give Biden and his eventual appointees many tools to respond to the present crises. With these tools Biden’s team can even begin the long project of more fundamentally restructuring institutions to serve the public interest. And by acting now, Biden can give voters a reason to go to the polls in 2022 to expand his congressional mandate and, thus, the breadth of possible action.

The volume, scope, and vision of the Biden administration’s actions will depend on the people Biden picks to carry them out. Most immediately, the country cannot tolerate delays getting people in place at -- to name just a few -- the Department of Defense, Health and Human Services, and Labor to invoke the Defense Production Act, oversee the finalization and distribution of the vaccine, and finally put in place and enforce workplace protections for frontline workers. Biden ran on a promise to lift the country out of this public health crisis. With Senate delays for Cabinet appointees all but certain, he’ll need the Vacancies Act (in conjunction with other legal tools) to make it happen.

I served on Brandon Bernard’s jury, and I believe his death sentence is wrong

Brandon Bernard’s death sentence haunts me. Now that Mr. Bernard has been scheduled for execution on December 10, I feel like my nightmare is turning into reality. My only hope is that President Trump will commute Mr. Bernard’s sentence to life without possibility of release,  the sentence we, the jury, should have returned at his trial.

That’s right, I served on the jury that voted to send Mr. Bernard to his death, and I was wrong.

Participating in the trial of Brandon Bernard and his co-defendant, Christopher Vialva, was one of the most difficult experiences of my life. The victims’ deaths were a terrible tragedy, and I felt deep pain for their families, and still do.  I do not wish any further suffering upon them.

The first part of the trial was not nearly as hard.  The evidence made it clear that Mr. Bernard played some role in the crimes, even if a lesser role than others who were involved, and my fellow jurors and I were convinced of his guilt. I stand by that decision today. But I struggled then, and I struggle now, with our sentencing decision.

Both because of the evidence and because of my religious faith, I was uncomfortable with a death sentence for Mr. Bernard. I should have stood by my own views, but I didn’t do that. I believe at least one other juror shared my concerns, yet he, too, let himself be swayed by the majority.

At the time of the trial, I felt that Mr. Bernard was a follower, pressured by his friends into participating in the situation that led to the murders. I did not think he would have participated if he knew the victims would be killed, and I did not think he would have taken any action to personally kill anyone. I believed that he thought the victims were dead, having seen them  shot by Christopher Vialva, before following Vialva’s directive to set their car on fire.

Mr. Bernard’s mother testified at trial to his Christian values and the strong faith tradition in which he was raised. That made an impact on me, because as a Christian I believe that everyone deserves a second chance, including Mr. Bernard. I also watched Mr. Bernard closely during the trial.  He seemed dazed, overwhelmed, and terrified of what was happening. He did not seem like a hardened criminal or someone who failed to grasp the consequences of his actions.

I often wonder if Mr. Bernard’s case might have turned out differently if his lawyers had worked harder to defend him. They seemed to be “phoning it in,” making only a half-hearted attempt at a defense even though their client’s life was on the line. I learned later that there were important witnesses they didn’t present, including Pastor Jack Hetzel, who counseled Brandon after he was arrested and was held at the Waco County Jail. Pastor Hetzel saw Brandon for about a year leading up to the trial. During these meetings, Brandon continued to express remorse to Pastor Hetzel. I’m disheartened that Brandon’s trial attorneys chose not to have people who knew Brandon testify about him and the remorse and shame he expressed to them. That kind of evidence would have helped me hold my ground that a life sentence was the appropriate punishment for Mr. Bernard, and not  death.

I know that under federal law, if I had stuck to my refusal to vote for a death sentence, then Mr. Bernard would have been sentenced to life imprisonment without possibility of parole. Over the years, I have often thought about this fact, and wondered what I could do to change the death sentence I let myself be convinced to support into the life sentence I have always believed was the right and just punishment for Mr. Bernard. I thought about writing a letter to express this belief, but I wasn’t sure where to send it, so I did nothing.

Now the federal government plans to kill Brandon Bernard on December 10, and I can no longer stay silent. Mr. Bernard is not the worst of the worst, and if he is executed, I will carry his death on my conscience for the rest of my own life. And so, I share this with you all now and ask  President Trump   to commute Mr. Bernard’s death sentence to a sentence of life without possibility of parole. I pray that he does so.

Gary McClung served on the jury in Brandon Bernard’s capital trial.

Congress Legislated Under the Thirteenth Amendment Long Ago to Address Slavery’s Harms. It Should Do So Again.

December 6 marks the 155th ratification anniversary of the U.S. Constitution’s Thirteenth Amendment outlawing slavery and “involuntary servitude.” One of three Reconstruction Amendments (along with the Fourteenth and Fifteenth), the Thirteenth Amendment is the first time the Constitution mentions the word “slavery.” Remarkably, it’s also the first time the Constitution expands the federal government’s power, explicitly authorizing Congress’s reliance on “appropriate legislation” to ensure the dissolution of slavery and its remnants.

Congress set out to do that with various  legislation during the Reconstruction era. To the extent that any social injuries of contemporary Black Americans still qualify as such remnants, Congress can—and should—do so again today.

Careful consideration of what the Thirteenth Amendment was ratified to accomplish informs why. In the wake of the Amendment’s 1865 ratification, Black Americans, free and formerly enslaved, reunited with loved ones, traveled, pursued education, and more, all with particular vigor. These acts underscore what Black Americans believed the Amendment to grant: a lavish form of freedom to live the lives they had long been denied. Because slavery was as much about the social death of Black Americans as it was about violent, physical servitude, the new freedom the Amendment conferred would enable Black Americans to do things like support their families. Build homes. Go to school. Take pleasure in life unencumbered. And for Black Americans, the Amendment, as enforced by Congress, would safeguard the freedom to pursue all of those without barrier.

That understanding comports with the goals Congress also had for the Thirteenth Amendment when it drafted it. Almost immediately after its ratification, for example, Congress seized its new power and enacted the Civil Rights Acts of 1866, guaranteeing Black Americans’ ability to enter contracts, own property, and access courts—the kind of rights infrastructure necessary for freedom to mean anything. The Civil Rights Act of 1875 under the Amendment soon followed, outlawing private race discrimination in public accommodations. For legislators like Senator Charles Sumner of Massachusetts, a prominent figure in the Amendment’s ratification process, such legislation’s justification was clear: preserving some rights for Black Americans was “not enough,” as the “denial of any right is wrong.” This early legislation, coupled with the ways Black Americans attempted to proceed with their lives, demonstrate that the Amendment was envisioned to bar not just forced physical labor; it was to assure what Sumner himself described as a “practical freedom.”

This freedom still eludes us as Black Americans today, notwithstanding that Congress retains the same remedial power it’s had since the Amendment’s ratification to correct that. Congress can build on its past Thirteenth Amendment legislation to take on the obstacles Black Americans still face in, among other things, housing, education, and, as especially reminded this year, protection from violence at the hands of state officials. These social phenomena are all heritable vestiges of those impediments erected to oppress Black Americans as part of slavery’s intricately designed and deep-rooted system. They therefore comfortably fall under Congress’s purview with respect to its enforcement of the Thirteenth Amendment.

The United States Supreme Court would seem to agree, at least under its current precedent. In its last major Thirteenth Amendment decision in 1967, the Court made clear that Congress can still legislate against social hurdles rooted in slavery. That decision, Jones v. Alfred H. Mayer Company, affirmed that the Amendment “clothed” Congress with legislative power to eradicate what the Court described as slavery’s “badges and incidents”—in the Jones case, that included the housing discrimination Black Americans faced in St. Louis, Missouri. The Court has since never questioned that rationale in Jones. Importantly, nor has it diluted that precedent as it has with the Fourteenth and Fifteenth Amendments’ respective powers to address slavery’s lingering wounds for Black Americans.

Yet, Congress’s reparative power under the Thirteenth Amendment is essentially untapped. This is in part because Congress’s accountability for legislating under the Amendment requires us as voters to appreciate the Amendment’s purpose. Still not enough of us do, despite increasing attention to the Reconstruction Amendments’ original aims and enduring capacities as constitutional levers for racial justice.

Besides unfamiliarity with the Amendment’s original purpose, others are increasingly suspicious of the Amendment’s “exception clause” that forbids slavery “except as a punishment for crime.” That clause has been dubbed a “loophole” that implicitly aids Black American overimprisonment. Such suspicion was the entire premise of a major documentary; has received attention in an award-winning Broadway play; and is a message still regularly propagated on social media. But the suspicion, while reasonable, belies the fact that the Supreme Court has never endorsed that clause as an escape hatch justifying Black American incarceration. The skepticism is also difficult to reconcile with both the express goals of the Amendment’s architects and the expectation that Black Americans themselves had for the expansive kind of freedom they understood the Amendment to bestow.

It is instead with rich hopefulness that we should understand the Thirteenth Amendment. In the midst of our most dynamic social movements concerning Black American life since the 1960s, now more than ever is there urgency for a direct national reckoning with slavery’s insistent legacy. Legislation under Congress’s Thirteenth Amendment powers that explicitly combats discrimination rooted in slavery is an appropriate and major step in that direction. The Amendment, now at 155 years old, was to facilitate the kind of liberation Black Americans imagined—and continue to imagine—for ourselves. All of us can still make good on that assurance by holding Congress accountable to that constitutional end.

Brence Pernell is an attorney and Adjunct Professor of Law at the New York University School of Law and New York Law School. 

Respect Jurors

The U.S. Supreme Court Should Not Allow Calvin McMillan to be Executed When the Judge Imposed Death After the Jury Voted for Life

 In 2006, I was called to serve as a juror in a death penalty case in Alabama. The evidence showed that the defendant was involved in the murder but that his co-defendant committed the shooting. We convicted him and then had to decide what his sentence should be.

Choosing between a sentence of life or death was not an easy decision for the jury. I knew I could impose the death penalty if I thought it was appropriate, but I went into the case with an open mind because I did not know what to expect. We took the evidence into account, and considered the opportunity he had to rehabilitate himself and seek forgiveness from God. We listened to each other’s arguments for life and death. Eventually, the group of jurors who wanted to impose a life sentence persuaded some of the jurors who wanted death. In the end, the jury voted to recommend a life sentence by seven to five.

After all that time and careful deliberation, the judge overrode our decision and imposed the death penalty. It was a slap in the face that shook my confidence in the criminal justice system. The whole process was a waste of time and taxpayer dollars.

Hundreds of jurors in Alabama and three other states that once had the judicial override rule had similar experiences. We were called to jury duty, conscientiously served on capital trials, and made a recommendation about whether one of our fellow citizens should live or die, only to have the judge throw our hard work out the window.

For example, another Alabama juror served on the 1992 capital trial of Larry Padgett, who was accused of murder. At the guilt phase, she wanted to vote to acquit, but other jurors convinced her to vote for a guilty verdict. During the sentencing phase, she still doubted Mr. Padgett’s guilt and voted for life along with eight other jurors. She was devastated when the trial judge overrode the jury’s recommendation and sentenced Mr. Padgett to death. Like me, she thought the trial and jury deliberations were a waste of time and unfair to the jury and Mr. Padgett.

After Mr. Padgett’s trial, his conviction was reversed because the prosecution had improperly suppressed evidence. Blood was found at the crime scene that didn’t belong to Mr. Padgett or the victim, but this information wasn’t shared with Mr. Padgett’s attorneys or the jury. Mr. Padgett was retried and acquitted. It turns out, the jury was right to have doubts.

Only four states ever allowed judicial override and all four have abandoned it. Even so, 35 people still face execution because a judge imposed a death sentence after a jury voted in favor of life. The entire nation has rejected the practice of judicial override, but that doesn¹t change things for the people who were sentenced to death when it was permitted.

Another Alabama man on death row, Calvin McMillan, is asking the U.S. Supreme Court to accept his case and hold that the execution of a person sentenced to death by judicial override violates the Eighth Amendment. In Mr. McMillan’s case, the jury voted eight to four in favor of a sentence of life without parole. The judge speculated that the jurors were “tired" of the deliberative process, cast doubt on the legitimacy of their vote for life, and sent Mr. McMillan to death row instead.

The faithful work of a jury should not be cast aside cavalierly. Juries are the voice of the community and its values. As important, juries provide a check on the government’s power to take away a citizen’s life and liberty. Nowhere is the jury’s role more important than in a death penalty case when a person’s life is on the line.

Mr. McMillan’s petition to the Supreme Court understandably focuses on the harm that judicial override caused him. But there’s harm to the citizens who serve on juries, too. The legacy of judicial override stamps some juries with a mark of inferiority, as though we are too emotional or incompetent to do our jobs. The Court, which is expected to conference on this question on Nov. 20, should accept Calvin McMillan’s case and make sure he is not executed because a judge imposed death after the jury’s recommendation for life.

Francis Miles resides in Alabama. He submitted a “friend of the court” brief in support of Mr. McMillan’s petition for a writ of certiorari. 

 

Severability, the Affordable Care Act, and the Supreme Court: The Oral Argument in California v. Texas

Earlier this week, the Supreme Court heard oral argument in California v. Texas, the latest attempt in the long-running effort by conservatives to strike down the entire Affordable Care Act.  The two hours of questioning suggest that the Supreme Court is unlikely to take this radical step.  Both Chief Justice Roberts and Justice Brett Kavanaugh—who together with the Court’s three more liberal Justices could form a majority—repeatedly stated that it would be inappropriate to strike down the statute as a whole.  No other Justice offered any real rejoinder to their statements recognizing that the court’s role should be to salvage, not destroy, Congress’s handiwork.  A straightforward application of precedent, Chief Justice Roberts and Justice Kavanaugh stressed, points decisively in favor of saving the Affordable Care Act.  The Roberts Court is deeply conservative, but, at least for now, it seems unwilling to upend settled legal principles to strike down the ACA.

The linchpin of the latest attack on the Affordable Care Act is a radical revision of the doctrine of severability.   Severability is the legal principle that when a court finds a particular provision of a law unconstitutional, it should save, not destroy, the remainder of the statute.  The basic idea behind severability doctrine is that courts should not gratuitously invalidate constitutional parts of a law.  In California v. Texas, that is precisely what the plaintiffs are seeking.

Texas and the Trump administration are urging the Supreme Court to strike down every one of the ACA’s 974 pages because of one supposedly unconstitutional provision.  They claim the ACA’s individual mandate is unconstitutional because, in 2017, Congress reduced the tax payment for failing to comply with the individual mandate to zero and therefore, in their view, the mandate can no longer be justified as a tax.  Seeking to weaponize the doctrine of severability, they insist the proper remedy is to strike down the law in its entirety, even though Congress explicitly left the rest of the ACA in place when it zeroed out the tax payment.

Thankfully, this argument, which would turn severability on its head, got little traction from the Justices.  Even if a majority of the Court reaches the merits and wrongly concludes that an unenforceable individual mandate is unconstitutional, the rest of the ACA is likely to survive.

Justice Kavanaugh commented that “this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place” in keeping with “our respect for Congress's legislative role under Article I.”   Chief Justice Roberts told Kyle Hawkins, the Texas Solicitor General, that “[i]t's hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”  The fact that “Congress left the rest of the law intact when it lowered the penalty to zero,” Chief Justice Roberts stressed, was “compelling evidence” that Congress did not want courts to throw the baby out with the bathwater.  Justice Kavanaugh added that the “record and text” reflected that Congress “wanted to preserve protection for coverage for people with preexisting conditions.”

Both Hawkins, as well as Acting Solicitor General Jeffrey Wall, who represented the Trump administration, responded that the entire ACA should fall because, in 2010, Congress made the finding that the individual mandate “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”  Wall called these findings the “functional equivalent of a targeted inseverability clause” supposedly directing courts to invalidate the whole statute if a single provision was invalid.  But, as both Chief Justice Roberts and Justice Kavanaugh stressed, these findings had nothing to do with severability.  Chief Justice Roberts told Hawkins that the finding in the ACA “doesn't look like any severability clause anywhere else in the rest of the U.S. Code.”  Justice Kavanaugh added that “Congress knows how to write an inseverability clause. And that is not the language that they chose here.”

The Court’s other conservative Justices offered little in the way of pushback.  None of the Court’s most conservative Justices offered any reason why the Court should reach out to invalidate the entire ACA.  Indeed, even Justice Samuel Alito, who voted to invalidate the entire ACA in National Federation of Independent Business v. Sebelius, observed that it did not appear that the individual mandate was integral to the rest of the ACA.  As he put it, in an airplane construction metaphor, “the part has been taken out and the plane has not crashed.”  The silence of the Court’s most conservative Justices underscored just how weak the plaintiffs’ case in California v. Texas is.

The severability question in California v. Texas is an easy one.  Fortunately, a majority of the justices seemed to recognize that.   The Supreme Court should, once again, reject the efforts of conservatives to strike down the ACA.

 

Legal Scholars on the Importance of Counting Every Vote

American history is replete with presidential elections that were not decided on Election Day. From the very first presidential election in 1788 through the 2016 election, having a sufficiently complete count of votes to confidently predict a winner on the same day that the polls close has been the exception, not the norm. That’s why all of us, who teach and write about constitutional law, election law, voting rights, and/or the rule of law, are signing this letter—reaffirming that it is deeply in line with, and not counter to, our finest traditions to count every vote, to take our time in doing so, and to not cast aspersions on the process simply because it is methodical.

It should go without saying, but under our constitutional system, presidential elections are really 51 different elections—where the voters of every state and the District of Columbia separately vote for a slate of presidential electors, who meet 41 days after Election Day as the “Electoral College” to officially vote for the President and Vice President. Since the nineteenth century, federal law has thereby deemed as conclusive any state certification of presidential election results that takes place within the first five weeks after Election Day—and every state except one (Delaware) waits at least a full week before officially declaring a victor.

Both historically and today, the reason for this cushion is entirely to ensure that the votes are properly counted—to provide local and state election officials with enough time to ensure that all lawful votes are tallied in the first place; to resolve any discrepancies that arise during the counting process; and, where necessary, to conduct a recount if the margin is sufficiently narrow. Media organizations report these results on an ongoing basis, leaving many with the misleading impression that a particular candidate may be “winning” or “losing” (or gaining or losing ground). But the reality is that the votes have already been cast by the time these reports come out; the media is reporting on the counting, and every state counts their votes in a different order. In some states, including some of the states on which this election appears to be hinging, the first votes received are actually counted last—thanks to state-law rules barring the “pre-canvassing” of such votes before Election Day. Perhaps Congress should consider the wisdom of enacting uniform federal laws to standardize pre-canvassing, mail-in ballot receipt deadlines, and other rules to make these results more easily predictable; that’s a conversation for another time.

For now, we say all of this in direct and concerted opposition to the repeated public statements of President Donald Trump, who has claimed that he “won” states that are still counting; that it is “very strange” that the totals are shifting against him in some states as more votes are counted; and that Democrats are trying to “steal” the election. These statements are false as a matter of both contemporary fact and historical practice; they are unbecoming of the office that, whatever the result of the election, the President continues to hold, and they risk undermining public confidence in the legitimacy of the ultimate result of the election—perhaps even provoking violence and civil disorder.

The President knows better. His advisors know better. His supporters in Congress know better. But most importantly, the American people know better—because we’ve seen, first-hand, how prior presidential elections have run. Simply put, there is no evidence that this election is anything other than one of the many in American history in which a number of states have been closely divided. We have every confidence in state election officials to finish counting all of our votes as best they know how—and we encourage all of our fellow citizens to wait until they have done so before jumping to conclusions.

Signatories as of November 9, 2020[*]

 

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts, University of Texas at Austin School of Law

Matthew Adler

Professor of Law, Duke University School of Law

Sam Bagenstos

Frank G. Millard Professor of Law, University of Michigan Law School

Joseph Blocher

Lanty L. Smith '67 Professor of Law, Duke University School of Law

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Alan Chen

Professor of Law, Denver University Sturm College of Law

Sarah Cleveland

Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School

Wilfred Codrington III

Assistant Professor of Law, Brooklyn Law School

Michael Dorf

Robert S. Stevens Professor of Law, Cornell Law School

Joshua Douglas

Ashland, Inc.-Spears Distinguished Research Professor of Law, University of Kentucky J. David Rosenberg College of Law

Garrett Epps

Professor Emeritus, University of Baltimore School of Law

Bryan Fair

Professor, The University of Alabama

Joseph Fishkin

Marrs McLean Professor in Law, University of Texas at Austin School of Law

Luis Fuentes-Rohwer

Professor of Law and Class of 1950 Herman B. Wells Endowed Professor, Indiana University Maurer School of Law

Ruben Garcia

Professor of Law, UNLV Boyd School of Law

Kent Greenfield

Professor of Law and Dean’s Distinguished Scholar, Boston College Law School

Heidi Kitrosser

Robins Kaplan Professor of Law, University of Minnesota Law School

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School

Steven Koh

Marianne D. Short and Ray Skowyra Sesquicentennial Assistant Professor of Law, Boston College Law School

Margaret Lemos

Robert G. Seaks LL.B. '34 Professor of Law, Duke University School of Law

Lawrence Lessig

Roy L. Furman Professor of Law and Leadership, Harvard Law School

Justin Levitt

Professor of Law, Loyola Law School

Marin Levy

Professor of Law, Duke University School of Law

Leah Litman

Assistant Professor of Law, University of Michigan Law School

Darrell Miller

Professor of Law, Duke University School of Law

Victoria Nourse

Ralph Whitworth Professor of Law, Georgetown University

Richard Painter

  1. Walter Richey Professor of Corporate Law, University of Minnesota School of Law

William Rich

Professor Emeritus, Washburn University School of Law

Kermit Roosevelt

Professor of Law, University of Pennsylvania Law School

Chris Seaman

Associate Professor of Law and Director, Frances Lewis Law Center, at Washington and Lee University.

Bryan Sells

Adjunct Professor of Law, Georgia State University College of Law

Peter Shane

Jacob E. Davis & Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law

Jed Shugerman

Professor of Law, Fordham Law School

Neil Siegel

David W. Ichel Professor of Law and Professor of Political Science, Duke University Law School

David Strauss

Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Ciara Torres-Spelliscy

Professor of Law, Stetson University College of Law

Laurence Tribe

Carl M. Loeb University Professor Emeritus, Harvard Law School

[*] Affiliations provided for identification purposes only. All signatories represent their views as individuals and do not sign on behalf of any law school or organization.