RBG's Human Rights Legacy

As Justice Ginsburg blazed the trail for equal citizenship rights, she drew inspiration and analysis from comparative and human rights-based approaches to equality. This is a critical aspect of her legacy.

In 1946, at the age of 13, Justice Ginsburg appreciated the potential held by the creation of the United Nations just one year earlier.  In an editorial for her school newspaper, Highway Herald, eighth grader Ruth Bader lauded the UN Charter and its underlying principles, placing it in the pantheon of great documents including the Ten Commandments, the Magna Carta, the English Bill of Rights, and the U.S. Declaration of Independence.

As an aspiring scholar in 1961, she joined the Columbia Law School Project on International Procedure, headed by Professor Hans Smit. Ginsburg had just completed a two-year clerkship with Federal District Court judge Edmund Palmieri, so was certainly steeped in American rules of civil procedure. However, her assignment with Smits’ project would be to develop the study of Swedish civil procedure. She was paired with a Swedish judge, Anders Bruzelius, to complete the book-length work.

After spending some months learning Swedish, Ginsburg traveled to Lund University in southern Sweden to meet with her co-author, accompanied by her young daughter Jane. The book that Ginsburg and Bruzelius ultimately produced in 1965 was well-received, with at least one reviewer expressing surprise that a book on such a seemingly arcane topic was actually interesting.

The more momentous legacy of this trip, however, was its influence on Justice Ginsburg’s perspectives on both equality and comparative law. At the time of Justice Ginsburg’s visit, women made up 25 percent of Swedish law students, and the family-friendly social policies for which Sweden is known were rapidly expanding. Justice Ginsburg visited a Swedish court where the presiding judge was eight months pregnant, unthinkable in the United States. Looking back decades later, Justice Ginsburg credited her comparative law experience with “influencing my perspective on legal issues ever after.”

Her appreciation for comparative law was soon evident in her work. As a litigator, she famously cited to cases from the West German Constitutional Court in Reed v. Reed, the first Supreme Court case that she briefed. As a scholar, she looked to comprehensive income protections and pregnancy and childbirth benefits contained in International Labor Conventions as models for eradicating gender-based discrimination.

As a jurist, Justice Ginsburg explicitly embraced a human rights-based approach to equality. Upholding the University of Michigan Law School’s use of affirmative action in its admissions program in her concurrence in Grutter v. Bollinger, Justice Ginsburg cited to both the international Convention on the Elimination of All Forms of Racial Discrimination (CERD), which the U.S. ratified in 1994, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the U.S. has signed but not yet ratified. She noted that affirmative action measures are consistent with governments’ obligations under international human rights to enact temporary positive measures to guarantee the equal enjoyment of rights.

Justice Ginsburg’s embrace of international human rights in Grutter in 2003 was not a one-off. Rather, it reflected her deep thinking on the topic. In her 1999 Cardozo Lecture to the New York City Bar Association, Justice Ginsburg states clearly that the UDHR and human rights treaties influenced her thinking about constitutional guarantees of equality, including government’s affirmative obligations. She notes the ways in which affirmative action, in particular, is consistent with the UDHR’s embrace of civil and political rights alongside economic and social rights protections, and the UDHR’s holistic approach to equality. Affirmative action, she explains, is both “in harmony with” and “may draw force” from human rights principles, “in particular, from the prescriptions on equality coupled with provisions on economic and social well-being.”

Indeed, Justice Ginsburg spoke often and publicly of her appreciation for and approach to comparative law and human rights. In a 2004 speech at Columbia Law School, and again in a 2006 speech at the University of Pretoria, she discusses the ways in which the Supreme Court’s opinion in Brown v. Board of Education was influenced by the cruel hypocrisy of the United States’ engagement in World War II to fight against Nazi Germany while racial apartheid thrived within the U.S. She noted that Brown “both reflected and propelled the development of human rights protections internationally.” Justice Ginsburg states: “Brown and its forerunners, along with the movement for international human rights that came later, powerfully influenced the women’s rights litigation in which I was engaged in the 1970s.”

In a 2010 speech at the International Academy of Comparative Law, she again discusses how comparative studies “powerfully influenced” her work as a lawyer, a law teacher, and a judge, and she notes the value, firmly rooted in the American tradition, of courts consulting foreign and international legal sources when engaging in constitutional review to ensure the protection of rights.

In her Cardozo Lecture, Ginsburg states, in no uncertain terms, the relevance of comparative and international law:

In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.

She later concurred with Israel’s Chief Justice Aharon Barak’s assessment that comparative law holds particular value in cases involving hate speech, privacy, abortion, the death penalty, and terrorism.

The human rights influence also appears embedded – if more subtly - in her writings and jurisprudence. For example, in an early article delving into gender and the constitution, she discusses the importance of positive government measures, including affirmative action and government support for child rearing, in realizing gender equality. In M.L.B. v. S.L.J., she engaged in an intersectional analysis to elide the traditional distinctions between due process and equal protection and recognize the impact of poverty on the realization of fundamental rights, holding that a state may not condition the opportunity to appeal termination of parental rights on payment for the trial court record. In United States v. Virginia, she did not merely rule that VMI  must admit women, but, seeking to make equality norms responsive to people’s lived realities, noted that the military college would need to make other changes as well, such as adopting policies to respect cadets’ privacy.

Justice Ginsburg was a champion for gender equality and equal citizenship rights, as reflected in opinions (both controlling and dissenting) addressing gender-based discrimination, reproductive rights, voting rights, and corporate campaign spending. She was not perfect. She had significant blind spots.

But her understanding of equality as grounded in human rights principles should be an enduring aspect of her legacy. Building on such a legacy would lead to more explicit recognition under constitutional law of the ways in which discrimination based on gender, race, and poverty intersect. It would remedy the current failure of constitutional doctrine to extend heightened scrutiny to claims of poverty-based discrimination, and it would extend protection under the 14th amendment to disparate impact claims of race and gender discrimination. It would recognize, too, governments’ affirmative obligations to ensure equality.

For example, rigorous application of human rights norms in the U.S. context would provide a framework for courts to recognize governments’ duty to ensure non-discriminatory access to quality comprehensive reproductive health care in order to secure women’s equality, a framework for protecting reproductive rights that Justice Ginsburg favored. It would likewise more fully elucidate how restrictions on access to abortion care, such as requiring people to travel long distances to a clinic and either make a return trip or stay overnight, have direct and particular impact on access to abortion care for people in marginalized communities, including people living in poverty, people of color, immigrants, and people with disabilities. Indeed, Justice Ginsburg’s concurrence in Whole Woman’s Health forcefully acknowledged the barriers that targeted restrictions on abortion providers place on people’s ability to access abortion care.

As a litigator and as a jurist, Justice Ginsburg was indeed a trailblazer. Her approach was to work methodically, case-by-case, within existing doctrine to make it more inclusive, with an ultimate result that was transformative. Building on her human rights legacy would likewise require deliberation and patience. What a powerful legacy that would be.

The Incapacitation of a President and the Twenty-Fifth Amendment: A Reader’s Guide

This post originally appeared in Just Security.

Read an explainer on the Reader's Guide.

The Twenty Fifth Amendment of the United States Constitution is an immensely consequential provision that has received remarkably little scholarly attention. Adopted in 1967, the 25th Amendment addresses what happens if the President of the United States is removed, dies, is incapacitated, or otherwise unable to fulfill the powers and duties of the presidency. To explain it, we offer The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide, a document that provides guidance on critical interpretive and procedural questions regarding the 25th Amendment.

Section Four of the Amendment has drawn particular attention in the popular media and news commentary alike in recent months. This provision provides a strikingly compressed constitutional process whereby nine government officials could separate the President from his powers and duties, with the Vice President immediately becoming Acting President. If the President should contest this declaration of inability, the amendment requires both houses of Congress to assemble within 48 hours, and then (by a two-thirds vote of each body) to resolve the question of inability within three weeks. Depending on the vote, the President may resume his official duties, or the Vice President may continue to serve as Acting President.

In the more than 50 years since the Amendment’s ratification, Section 4 has never been invoked. There are no judicial or other authoritative opinions on its proper implementation. There is no historical practice to guide its operation. The Amendment’s requirements and implications have been misstated even by experienced legal commentators. As a result, uncertainty persists about such basic questions as

  • When can or should Section 4 be invoked?
  • Who can invoke it?
  • What does presidential “inability” mean?
  • What happens if the President contests the invocation of the Amendment?
  • What are the Vice President’s powers and duties as Acting President?
  • If the matter gets to Congress, how should the Amendment’s constitutional processes be implemented?
  • Is the Amendment’s operation justiciable?
  • And what would happen in the morning(s) after the Amendment is invoked?

Yet once triggered, the constitutional timetable is swift and inflexible. Critical national decisions would need to be made within weeks, employing a procedure that is poorly understood.

In an effort to remedy this uncertainty, the Rule of Law Clinic at Yale Law School is releasing an authoritative analysis of the Amendment and how it was intended to function. We have studied all available sources on the amendment and the intent underlying it. The Clinic examined the text, legislative history, critical academic commentary, and judicial analyses of the amendment, reviewed all significant past studies, and consulted closely with leading experts, including Professor John D. Feerick, past Dean of the Fordham University School of Law, a principal drafter of the 25th Amendment who continues to be its preeminent commentator.

The Clinic’s key findings included the following:

  • While the amendment’s framers generally contemplated Section 4’s employment in the case of the President’s mental or physical incapacitation, they also expressly disclaimed any intent to define “inability.” They purposefully set forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies. As a result, those deciding whether a President is “unable to discharge the powers and duties of his office” should focus on the overall effects of the inability—whether the totality of the circumstances suggests that inability prevents him from discharging the powers and duties of the presidency—rather than the specific characteristics of the inability itself.
  • The Clinic found a general consensus that while medical evidence may inform the inability determination, Congress and the amendment’s other actors must render its own judgment as to presidential inability.
  • The Clinic concluded that while the amendment is increasingly discussed in popular media, the United States government is unprepared for the unlikely event that Section 4 is triggered; most critically, there are no standing congressional procedures to be followed.
  • The Clinic also released an addendum to the Reader’s Guide that recommends a list of congressional actions that could be immediately taken to clarify Section 4’s constitutional process, and minimize Executive Branch and Congressional chaos surrounding the transition of power to the Vice President and the adjudication of the President’s inability. These proposals include clarifying committees of jurisdiction, adopting formal standing rules and procedures for deliberation, creating a standing advisory committee, passing laws establishing procedures for the transition of power, and passing a joint resolution affirming the interpretive conclusions in the Reader’s Guide.

Experts who have read the Guide believe that it provides invaluable and authoritative guidance on critical interpretive and procedural questions regarding the 25th Amendment. Were the issue of presidential inability ever to be contested, faithful adherence to the rule of law would require careful parsing of and conscientious adherence to the text, structure, history and practice of the Amendment.  The Guide seeks to do this in a way that is accessible and understandable. Even—perhaps especially—in a time of constitutional emergency, we hope that the Reader’s Guide will serve as a helpful constitutional resource to ensure that a critical provision of our Constitution is properly implemented in accordance with the Rule of Law.

Steering Towards Zero Emissions: Is California’s Ban of Gas-Powered Cars on a Collision Course with the Federal Government?

On September 23, California Governor Gavin Newsom announced an Executive Order that would, among other things, ban the sale of new internal combustion engine vehicles in California after 2035. The announcement sparked a flurry of reactions: Some environmental groups praised the order, while others said it didn’t go far enough, and petroleum and auto industry spokespeople questioned the availability of infrastructure to support the shift and argued that the move didn’t have widespread buy-in from stakeholders.

In short, the Governor’s order requires steps to reduce both supply of and demand for fossil fuels. The centerpiece of the order is its target that 100 percent of new in-state car sales will be zero-emission vehicles (“ZEVs”) by 2035, and that, for all operations where feasible, 100 percent of medium- and heavy-duty vehicles in the state will also be ZEVs by 2045. But beyond directing the California Air Resources Board (“CARB”) to adopt regulations effectuating these targets, the order recognizes that substantial new investment and regulation will be required to speed the state’s transition away from fossil fuels. To that end, it also directs state agencies to develop a ZEV market strategy; identify improvements to clean transportation, sustainable freight, and transit options, including support for ZEV infrastructure; update assessments of needed ZEV infrastructure; and take steps to transition away from fossil fuels by repurposing oil production facilities and expediting closure and remediation of oil extraction sites. Making progress towards these goals over the coming years will involve a significant amount of coordination spanning across state agencies and, likely, the legislature.

The order comes as California continues to fight a battle against the Trump administration’s September 2019 revocation of its Clean Air Act (“CAA”) waiver for vehicular greenhouse gas emissions standards and its ZEV mandate. (Full disclosure: Emmett Institute colleagues and I co-authored an amicus brief in the litigation on behalf of over 140 members of Congress, arguing that the agencies’ rule runs contrary to Congressional intent.) The Trump rule in question, dubbed “SAFE: Part I,” declared California’s standards preempted by the Energy Policy and Conservation Act’s (“EPCA”) mandate to set federal motor vehicle economy standards, and nixed California’s waiver both because of that purported preemption and because, allegedly, the waiver request did not meet the standards set forth in CAA Section 209.

A bit on both arguments: EPCA preempts states from adopting laws “related to” the regulation of fuel economy standards; NHTSA claims that California’s Advanced Clean Cars program, the subject of the waiver request at issue in the litigation, does just that. Turning to the CAA, Section 209 requires the EPA to grant California a waiver to implement vehicular emissions standards that are, on the aggregate, as stringent as federal standards—the agency can decline to do so only if it finds the standards are arbitrary and capricious; are not needed to meet extraordinary and compelling circumstances; and/or are inconsistent with technical and enforcement provisions of the CAA. The EPA says it can make these findings.

As I’ve written here before, both sets of arguments rest on questionable legal ground. More than one federal court has already rejected NHTSA’s EPCA argument—even the Supreme Court has agreed that EPCA does not preclude federal regulation of vehicular GHG emissions—and the statutory and legislative history is clear that Congress never intended EPCA to preempt emissions standards, even when those standards might have an impact on a vehicle’s fuel economy. And aside from the fact that there is no waiver revocation authority written into the CAA, California is owed considerable deference to its determination that it needs the Advanced Clean Cars program. Reams of evidence show that the program is needed not just to combat climate change, but to reduce the amount of smog and smog-forming pollutants in the state, conditions the EPA has historically recognized—and still acknowledges—as “extraordinary and compelling circumstances” necessitating a waiver.

While much of the order, including its infrastructure-related provisions and mandates to transition away from fossil fuel production, are unrelated to the waiver litigation (and are well within the state’s authority to regulate), the outcome of the waiver fight still looms large over Governor Newsom’s announcement. That’s because California has historically sought a waiver for its ZEV program, which requires an ever-increasing percentage of vehicles sold in California to have zero tailpipe emissions. Governor Newsom’s order directs CARB to adopt regulations requiring increasing volumes of ZEV sales until ZEVs represent 100 percent of all new vehicles sold in California by 2035, a framework similar to the existing ZEV program but with much more ambitious targets. If the new CARB regulations are structured this way, California is likely to require a waiver for them, and because the Trump administration has already demonstrated its hostility to the existing ZEV program, whether or not California receives one may turn on the outcome of the November election. But it shouldn’t.

First, any new ZEV mandate is necessary to meet “compelling and extraordinary circumstances,” whether you accept the overwhelming scientific consensus on climate change and the likelihood of unique and serious impacts to California as a result of it, or choose to adhere to the EPA’s current interpretation of the phase as referencing only local air pollution caused by criteria pollutants. In support of its Advanced Clean Cars program waiver request, and again in opposing revocation of the waiver, California has submitted ample scientific evidence demonstrating that the state stands to experience special and extreme harms as a result of climate change. Given California’s position as the fifth-largest economy in the world, an aggressive move toward ZEV adoption by the state would certainly influence vehicle markets elsewhere and would demonstrably reduce transportation sector emissions within and outside of California’s borders.

But it’s also important to recognize how critical a ZEV program is to winning the state’s long battle with smog. California initially adopted the ZEV mandate in 1990, in response to concerns about persistent smog pollution. Designed to be technology-forcing, the ZEV mandate was aimed at reducing concentrations of smog-forming criteria pollutants by encouraging a transition of the vehicle fleet to non-emissive cars. Over time, the fight against climate change became an added rationale for the program, but since its inception, the ZEV mandate has always been targeted at reducing the very pollutants EPA has historically recognized as the cause of California’s “extraordinary and compelling circumstances” requiring a waiver. That’s why the EPA has consistently throughout the years—including during a past Republican administration—granted waivers to California to update its ZEV program. A more aggressive ZEV mandate is even more important now, as California still struggles with some of the worst air pollution in the country (and worsening pollution in places like the San Joaquin Valley) and as climate change stands to exacerbate that pollution.

Nonetheless, in the event that Trump wins reelection, California should expect to face federal resistance as it seeks to move forward with these regulations. Of course, the courts may ultimately decide in California’s favor on the waiver, but a final decision in the litigation, assuming it proceeds, may still be years away. The state may consider alternative courses of action—for example, a straight ban of internal combustion engine vehicles with no emissions standards attached to it arguably would not require a waiver from the EPA—but even an alternative path is likely to face litigation, and a straight ban would lack the benefit of the steady ramp-up approach the Governor’s executive order implies. A policy as bold as this one is bound to be challenged, but California’s CAA authority to implement it should be clear; whether the federal government chooses to recognize that authority is another question.

Should a New Congress Use a Deeply Flawed Law to Repeal Trump Agency Rules?

The Congressional Review Act was Newt Gingrich’s Brainchild. It should be repealed.

The Congressional Review Act (CRA), part of Newt Gingrich’s “Contract With America”, slumbered for many years in obscurity. Then, in 2017, Congress dusted it off and used it to kill fifteen Obama administration regulations. I’m not the first to ask whether there should be payback if the White House and Senate change hands.

There are legitimate reasons for using the CRA. Doing so would allow for reversal of some of the Trump administration’s regulatory rollbacks without waiting for time-consuming litigation or cumbersome agency reconsideration. But the CRA is an ill-conceived law, and we should really aim at repealing it. One option might be to give legislators a choice: Agree to repeal the law, or watch as the CRA is wheeled into action.

What’s Wrong with the CRA?

When one administration issues an agency regulation (including repeal of a prior regulation), the new administration can start its own agency procedure to undo what the last administration did. That’s a lengthy process and invites litigation. The CRA provides a short cut.  Congress can disapprove the previous administration’s action. That immediately eliminates it. As applied to the Trump administration’s regulatory rollbacks, the effect of a CRA resolution would be to restore the situation prior to the Trump regulation. In other words, this would undo the rollback.

Here’s how the CRA works. Before major rules can go into effect, agencies must notify Congress, which then has a specified period of time in which to consider a joint resolution of disapproval. (In practice, this means that regulations in about the last six months of an outgoing administration can be reviewed). The law is basically limited to times when control of the White House flips, because otherwise the same President who was responsible for a regulation could veto the congressional resolution of disapproval. If a disapproval resolution becomes law, the CRA provides that a rule may not be issued in “substantially the same form” without additional statutory authorization.

The CRA has five serious design flaws.  Taken together, these make it more a threat to rational governance than a method for controlling bad regulations.  First, because Congress has a limited time to use the law and there’s a fast-track procedure, there is little opportunity for Congress to gather evidence or deliberate. There are no committee hearings and severely limited time for debate. Regulations that have taken months or years of thought, supported by voluminous evidence and analysis, are tossed out overnight with barely an explanation. Congress can only reject the entire regulation, not the portions it dislikes. This is surely not the way to conduct congressional oversight.

Second, the law is basically useless except when control of the White House flips and the new President also has control of Congress. Under those circumstances, use of the CRA is inevitably seen as partisan and therefore divisive.  Adding to political polarization is hardly something we need.

Third, the CRA creates the false impression that Congress is exercising real control over the administrative process.  As was true under both Obama and Trump, the most important regulations are unlikely to be subject to CRA reversals. Those are exactly the regulations most likely to be fast-tracked within the administrative process precisely to avoid issuing them late in an Administration when the CRA would be a risk.  What’s left are typically the second-tier regulations that the previous Administration left for the end. Only a few of those can be reviewed.  The reason is that the opposing party can insist on ten hours of floor debate for each one, and Senate floor time is a precious resource.

Fourth, given that only a small number of regulations can be reviewed, the selection is necessarily arbitrary. You can see this in the use of the CRA in 2017.  Republicans argue that regulations create large economic burdens for minimal public benefits. My study of the 2017 CRA resolutions shows the  targets didn’t generally have major regulatory costs (over $100 million per year). Instead, the rules selected for elimination were a grab bag. They included some rules impacting special interest groups (notably the oil industry), others impacting Republican constituencies like rural Westerners, and others that must have somehow caught the attention of Fox News or talk radio. As Professor Tom McGarrity has pointed out, many of these rules were not even especially controversial at the time they were proposed. They just happened to be convenient targets.

The final flaw in the CRA is the provision that prohibits an agency from proposing a substantially similar regulation after a rule is disapproved.  This provision seems to have been initially added to prevent agencies from doing an end-run by reissuing the essentially same rule all over again. It applies, however, even years in the future, when the need for a rule may have become obvious to everyone. The bigger problem is that no one really knows what the standard is.  Are only nearly identical new rules subject to the ban?  Or is it any new rule that tries to achieve a similar purpose?  Or is it any new rule at all dealing with the same topic?  No one knows.  No one even knows whether this ban is enforceable by the courts or only by Congress. The chilling effect on new regulation may be equivalent to repealing the agency’s authority, but without Congress ever having to stand up and take responsibility for the repeal.

In the end, the CRA is more useful for scoring partisan points than fixing regulatory policy. Regulations subject to CRA are often not especially important and chosen haphazardly. Even those regulations don’t get a fair hearing before they are axed. And axing them makes it risky for regulators to address the same problem again for years into the future, even though the statute requiring them to do so is still on the books.

What Should be Done?

It’s all very well, you may well be thinking, to say that the CRA should be repealed.  But it’s on the books and Republicans have felt free to use it before. Why should Democrats unilaterally disarm themselves?

That’s a fair point.  Although most of the worst regulatory rollbacks are deliberately timed to avoid possible CRA review by a new Congress, some will still fall within the CRA’s orbit.  Recent examples include efforts to limit environmental impact statements and to end limits on methane emissions by oil and gas companies. Pending rules that are likely to come down within the timeframe for CRA review, would shackle future regulation of dangerous pollutants and freeze air quality standards despite scientific evidence they urgently need tightening.

Although it would be nice to kill those efforts, using the CRA also has downsides. Using the CRA might hinder the government’s ability to issue future regulations.  How a court might interpret the CRA’s restriction on future regulations is completely unknown. The safest targets for CRA actions are rules like the ones on environmental impact statements and on future toxics regulation, where there’s no pressing need for new initiatives in the area anyway.  Another important problem with using the CRA is that it eats up time on the Senate floor when there may be more pressing business in the midst of a public health and economic crisis. In short, using the CRA isn’t risk free or costless.

Still, despite the imperfections of the CRA as a way of reversing policies, using it would admittedly allow at least some bad policies to be eliminated.  It would also be a morale boost for a new Congress. In any event, unless the filibuster is abolished, the CRA can only be repealed with bipartisan support, and there hasn’t been any interest in that.

In my view, the short-term benefits of using the CRA are outweighed by the public interest in eliminating it. A demand to repeal the law should be pressed by a new Congress, with any actual or threatened use of the CRA serving as leverage. That’s the reason for my suggestion that negotiators offer a choice between suffering the use of the CRA against rules they support or agreeing to its repeal. An alternative would be for the Democrats to use the CRA exactly as many times as the Republicans did, declare the two sides even, and suggest talks about repeal. I wouldn’t blame politicians for simply using the CRA for all it’s worth, without worrying about repeal. But to my mind, that would only legitimize a fatally flawed instrument of governance. Whether or not there are tactical reasons to make any use of the CRA next year, the ultimate goal should be total repeal.

For more information on how progressives should reform Administrative Law, read ACS’s Issue Brief Reforming “Regulatory Reform:” A Progressive Framework for Agency Rulemaking in the Public Interest by Professors Dan Farber, Lisa Heinzerling, and Peter Shane.

The Future of the Administrative State Is Being Written Now

With Election Day looming on November 3, the next five months are critical in shaping the agendas of the agencies that regulate labor and the workplace. Whatever the outcome of the election, there is a flurry of regulatory activity still on the horizon at the Department of Labor (DOL) and the National Labor Relations Board (NLRB).

The usual patterns of the sunset of one administration and the dawning of a new administration are familiar. The incumbent administration attempts to push through a number of regulations before its possible departure, and the hopeful incoming administration prepares plans to implement on day one, looking to reverse many of the changes of the last four years.  There are certainly plenty of those kinds of items on the agenda of each federal agency, but the dockets of the NLRB and the DOL are particularly full.

The National Labor Relations Act (NLRA) and unions

The NLRB (or “the Board”) recently has been prone to rulemaking to narrow the coverage of employee status under the National Labor Relations Act (NLRA).  For example, earlier in the Trump administration, the Board was refusing to hear charges or petitions of gig workers.  Additionally, long running issues about whether graduate students in private universities can bargain and the use of email and cell phones in union organizing campaigns have been at the top of the regulatory agenda of the Trump NLRB. This led to two recent calls for notice and comment by the public.

In the Mountaire Farms case, the Board has invited amicus briefs on the “contract bar” doctrine in a case involving a meat processing plant in Delaware with a pending petition to remove the existing union. The plant has been the source of multiple safety issues during the Covid-19 pandemic and is owned by the Cameron family, who are politically connected to the Republican Party and to President Trump as detailed in a July article in the New Yorker.

The contract bar rule as it currently stands provides for stability in bargaining relationships, preventing employees dissatisfied with their unions from holding a new union election until the current agreement expires.  The contract bar rule was a compromise between the ability to remove incumbent unions and the stability that is needed for collective bargaining to be successful in the way that Congress intended. Unfortunately, too many employers hide behind the rule to avoid their legal obligations to their workers. If the Board eliminates the contract bar doctrine, many more workers would lose collective bargaining rights.

The reversals of rules depending on which political party has a majority on the Board is enough to make one’s head spin like Linda Blair’s in The Exorcist. The Board usually makes rule changes by adjudication and that will invariably lead to the dissatisfaction of those who do not like the substance of the rule, but also leads to the frustration of those seeking stability in the rules. The NLRB has responded by making rules through the notice and comment process that purport to give some certainty to these questions.  Besides the fact that the rules seem out of touch with both reality and the intent of the 1935 Congress to “extend the practice and procedure of collective bargaining to the highest number of employees,” the stability that these rulemakings offer is illusory.  Enter a new Administration; so, begins a new rulemaking to reverse the previous rule.

In some ways, the last four years at the NLRB have been as predictable as the Board of the prior Republican Administrations.  The new focus on rulemaking however shows that this Board is looking for structural changes to limit collective bargaining.  This focus on destabilizing long standing doctrine to make it harder for employees to use the rights guaranteed by Congress is unique to the Trump NLRB.

The Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA)

So too with the DOL. The overtime rules of the Obama administration were put on ice by the federal courts, but the Trump administration put their own ice on overtime rules under the FLSA for three years by delaying instituting a new rule. While claiming to find a standard which would expand access to overtime without being “burdensome” on employers, the truth is that there was much infighting about how far the DOL should even go in regulating the employment relationship – which is after all its central mission.

Nonetheless, after three years the DOL finally proposed a new rule.  If Vice President Biden wins the election there will likely be an immediate move to return to Obama’s 2016 rule and predictably the return of litigation in business-friendly federal judicial districts in more conservative states. There will still be matters to litigate that previous injunctions did not resolve, such as the authority of the DOL to set a salary level for exemption from overtime law at all. This will require a basic examination of authority that goes to the heart of many of the administrative law battles going on in other courts and in the Supreme Court, which will outlast whomever is in charge of the next Administration.

During the COVID-19 pandemic, access to family leave has become more important than before. Until September 14, the DOL is requesting information from the public about ways to provide more information to employees about their rights under the FMLA. Many have weighed in with comments, including one of my students and I, which give suggestions for how to expand information about existing FMLA rights.  As we have seen, however, the Supreme Court is the ultimate arbiter of those rights through  their decisions, including Ragsdale v. Wolverine World Wide, where the Court limited the tools available to the DOL to remedy violations of the notice posting rules.  In spite of the Supreme Court’s Ragsdale ruling, the Department could have gone much further in mandating the distribution of information, particularly in light of the Covid-19 pandemic.

Underlying these policies issues within DOL and NLRB is a recognition of possible fundamental change within the entire administrative state. From the debates in the United States Supreme Court over obscure doctrines like the nondelegation doctrine, it is clear the agencies can do what they will, but the nine justices will decide whether to defer to agency, or to strike them down in the name of “nondelegation.”  It remains to be seen whether the majority of the Supreme Court will take the same hard look to Trump administrative agency actions in the workplace as it has to the actions of other administrations.

 

No Law School Should be Named for John Marshall

Chief Justice John Marshall may be the most influential judge in American history. He authored many decisions that shape our democratic republic even today. As a result, three law schools are named in his honor. But Marshall has another, darker, legacy—that of a slave lord who bought and sold other human beings to support his plutocratic lifestyle. Even worse, Marshall allowed his slaveholding interests to taint his work as a judge. He undermined the rule of law by ignoring precedent in cases involving slavery. He engorged power and unjustly enriched himself. Thus his full legacy, though complicated, is one we should not honor. No schools of law should bear his name.

John Marshall: A Framer of Constitutional Law

Marshall served as Chief Justice of the United States from 1801-1835. Early in his tenure he authored the single most important judicial opinion in American history, Marbury v. Madison (1803), which established judicial review. By giving the Court power to declare legislative acts and executive actions unconstitutional, he in a sense became an unnamed co-author of all subsequent landmark constitutional decisions. Without Marbury, there could be no Dred Scott nor Brown. Hard to overstate his influence.

We celebrate his legacy in many ways, most notably, by having named three law schools in his honor, in Chicago, Cleveland, and Atlanta. Law professors tell students at these schools, many of them Black, that their careers, to be spent in the pursuit of “equal justice under law” as engraved on the Supreme Court building, will underscore Marshall’s legacy.

But does equal justice denote John Marshall’s true legacy, if we move beyond Founding Era hagiography? What about Marshall’s practice of routinely perverting the law in favor of slaveholding interests, against the rights of enslaved people? What about his legacy as corrupt judge who undermined the rule of law? Is he truly a role model for law students or anyone else?

The Rule of Law Defined

John Adams said ours is a “government of laws and not of men.” The rule of law had replaced the “divine right of kings.” But what does “rule of law” mean?

A legal maxim that defines the rule of law is: “no one should be a judge in their own cause.” In other words, a judge shouldn’t decide a case if they have a conflict of interest.

A classic example of this maxim is Dr. Bonham’s Case (1610). The Royal College of Physicians charged Dr. Bonham with practicing medicine without a license. The College tried Bonham in its own court and found him guilty. It imprisoned him and fined him. It proposed to pocket half the fine. But Sir Edward Coke reversed the decision.

Regarding the fine, Coke stated that physicians: “cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety [half] of the forfeiture.” He explained why: “someone ought not be a judge in his own cause, for it is unfair for someone to be a judge in his own affairs.”

Coke went on to equate the common law with the law of the land. Dr. Bonham’s Case thus stands for the principle that any Act of Parliament that is against reason may be voided through common law. John Marshall restated the principle in Marbury: “A law repugnant to the Constitution is void.”

John Marshall’s Slavery Jurisprudence and the Rule of Law

Marshall owned hundreds of slaves throughout his lifetime. He traded in slaves and in the 1830s auctioned off some of them to pay off his son’s debts. And yet the Virginian slave lord heard roughly 50 cases involving slavery during his 34-year tenure as chief justice. His jurisprudence was always proslavery, even when stare decisis, the rule that judges should abide by decided cases and apply their rules, favored the Black litigant. Nor did public policy, insofar as it supported Black freedom, ever persuade him to rule for the Negro.

The Marshall Court heard 14 cases involving freedom claims. Marshall wrote seven of those opinions. They concerned Negroes living in Washington, D.C., which, as federal territory, was within Supreme Court jurisdiction.

If Marshall had respected the rule of stare decisis in these cases, he would have applied Virginia or Maryland law to alleged slaves living in Washington, D.C. But Marshall repeatedly ignored state law or precedent on slavery to rule against Black plaintiffs. He never construed statutes if doing so led to Black freedom. A couple of examples should suffice:

In Scott v. Negro London (1806) Marshall reversed a jury verdict for Black freedom. London sued for freedom in D.C. under a Virginia law prohibiting importation of slaves. A jury of twelve white men, some probably slaveholders, concluded London was free because he was illegally imported into Washington. The trial court strictly construed Virginia slave law. As legal scholar Paul Finkelman observed: “This result was consistent with other decisions from American state courts of the period that strictly applied statutes regulating slavery and at the same time liberally construed the common law in favor of liberty.” Marshall, nevertheless, construed the statute for a pro-slavery result.

In Scott v. Negro Ben (1810) Ben had been brought into Washington County, which was then governed by Maryland law. Ben’s owner failed to properly register him, so Ben sued for freedom. The jury declared him free, since Ben’s owner hadn’t followed the statutory procedure. Marshall reversed. And yet Marshall admitted in his opinion that: “The act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.”

Marshall concedes that he could have decided the case either way because of its ambiguity. He could have resolved it in favor of liberty and natural rights. He could simply have let the jury verdict stand. But his ruling was what we’d expect from a Virginian slave lord with massive financial investments in human beings. His rule-of-law hypocrisy lay bare for all to see—natural rights for contracts and property; total refusal to apply natural rights when it came to the crime against humanity that was slavery.

The Final Verdict on John Marshall: Take His Name Off Law Schools

 John Marshall’s slavery jurisprudence is an embarrassment to anyone who takes the rule of law seriously. His moniker “Great Chief Justice” mocks the courts and especially Black people who seek justice in them. That is why I recently signed a petition calling for the three law schools named after him to change their names on account of his slaveholding. My tax dollars as a Cleveland resident have gone towards one of them—Cleveland-Marshall College of Law. We the People must question the legitimacy of a legal system that would honor a judge who valued his own profiteering, engorgement, and unjust enrichment over the rule of law.