Standing When You Want It

This is the second piece in a series that details some of the national consequences of the Supreme Court's last term as it prepares to begin its 2023-2024 term in October.

As most ACS lawyers know, standing is often a barrier that the courts use to prevent our clients from having their claims decided in federal court. For me, the general rule of thumb that judges seem to apply in my cases when standing is at issue is that I have standing to lose but almost never have standing to prevail. But I now understand that I have been representing the wrong clients, because the Supreme Court has recently shown a willingness to surmount, or even not mention, standing issues that might stand in the way of the conservative majority reaching a desired ruling. Here are some recent examples of how the Court overcame standing and related Article III barriers.

Separation of Powers Cases

The Court’s conservative majority strongly supports the Unitary Executive theory, under which laws that limit the President’s control over executive branch agencies, including the so-called independent agencies, are unconstitutional. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the plaintiffs claimed that the Board was unconstitutionally appointed and that the provision limiting the ability of the Securities & Exchange Commission to remove its members except for cause was unconstitutional, as an interference with the ability of the President to oversee the activities of the Board. The members of the SEC were also subject to an implied protection from removal except for cause, and the Court ruled that this double for-cause protection was unconstitutional.

How were these private plaintiffs injured from the President’s inability to fire these Board members at will in such a way that would give them standing to make this claim, especially since under the applicable statute only the SEC, not the President, had the right to fire members of the Board? It’s unclear because the plaintiff’s standing was never challenged and never considered by the Court. Of course, they had standing to challenge any defects in the appointment process, and so perhaps no one thought to question their standing to raise the separate removal claim. But standing, like other aspects of the case or controversy requirement in Article III, is jurisdictional, and so, according to its own precedent, the Court had a duty to raise the issue on its own because those requirements cannot be waived by the parties.

When a similar removal challenge arose in Seila Law LLC v. Consumer Financial Protection Bureau, regarding the single director of the bureau who could only be removed for cause, the Court gave only brief attention to the issue, relying on Free Enterprise, even though the issue was not raised there or in any of the other cases cited by the Court. The Court will hear another removal for-cause claim this term in SEC v. Jarkesy, and the Government has not even raised the issue, presumably because it assumes that it would receive the same treatment as the Court gave it in Seila Law. The failure to raise standing is noteworthy because the connection between the Administrative Law Judges who work for the SEC at issue in Jarkesy and the President is far more remote than between the President and the CFPB director in Seila Law, and the duties of ALJs do not involve making any policy, which is the stated reason why Presidential control is important. Another CFPB case before this Court this term, CFPB v. Community Financial Services Association of America, the government all but  conceded that the Court is determined to reach the merits in these separation of powers cases that involve laws that do not conform to the traditional agency head subject to presidential at-will removal. In this case, the Solicitor General did not even suggest that there might be a standing problem by a plaintiff who alleged (successfully in the Fifth Circuit) that the statutory funding mechanism for the CFPB was unconstitutional because the agency received permanent funding from the Federal Reserve, instead of having to persuade Congress and the President how much the agency deserved every year. The failure to even raise the issue means the spurious causal connection between the CFPB’s funding mechanism and any alleged harm to the plaintiff will likely remain unexamined.

First Amendment Cases

The majority’s strong inclination to protect religious speech has enabled it to overlook significant Article III problems in two cases. In Kennedy v. Bremerton School District, the only relief that the plaintiff sought was to be reinstated to his former position, but by the time the Court heard the case, the plaintiff had sold his house in Washington State and moved to Florida to help take care of his mother-in-law, raising a serious mootness issue. The plaintiff insisted that he would move across the country again to become a part-time assistant high school football coach, but the Court never mentioned this problem, which would have enabled it to avoid a difficult First Amendment problem on the merits. The legitimacy of the mootness claim is supported by Coach Kennedy’s recent decision to resign after coaching for a single game.

A variation of these Article III problems was also sidestepped by the Court in 303 Creative LLC v. Elenis, in which the Court reached out to decide a legal question that was unmoored from an actual dispute on which the Court could base its speech-protective ruling. The plaintiff is a website designer who is opposed to same-sex marriage. While she expressed a willingness to serve gays and lesbians, she is unwilling to create a website for a wedding they might have. She had never been asked to do a wedding website for anyone, let alone a same-sex couple. Because the State of Colorado had stipulated to many facts suggesting that there was an actual controversy, and it appeared to have sought a ruling on the merits below, the Court issued a sweeping First Amendment ruling which lacks any specificity as to what the State may or may not do to enforce its anti-discrimination laws in cases like this, other than to be very careful if an individual claims that the law is forcing them to speak on a subject that they find offensive.

Other Constitutional Claims

Last term in Haaland v. Brackeen, there was a two-pronged challenge to the constitutionality of the Indian Child Welfare Act, which establishes a preference that state courts  place  Indian children who have been removed from their families with extended family members or an Indian caretaker, brought by a group of plaintiffs including a non-Native family wishing to adopt an Indian child.  . The Court first upheld the power of Congress to enact this law under Article I, even though adoption laws are the principal province of the states, but it then declined to decide whether the preferred treatment for Indians was a racial classification that violated the Equal Protection Clause (rather than a political one). It backed away from that question on the ground that the plaintiffs, who were non-Indian families, lacked standing to assert the latter claim. The problem, according to the Court, was that all the defendants were federal officers, and because these adoption cases are all heard in state courts, there was nothing that the federal defendants could do to remedy the alleged discriminatory harm that plaintiffs allegedly suffered. But those same defendants were the ones who were sued on the Article I objection, and the relief problem appears to be the same for both claims. Somehow the Court overlooked the standing problem for the first claim, which they wanted to decide in order to sustain the law, but discovered it for the more controversial Equal Protection claim, thereby avoiding the merits. Perhaps the pendency of the Harvard affirmative action case at the same time may have influenced the majority’s desire to postpone decision on the Equal Protection claim, although the Haaland opinion made clear that the issue could be raised in state courts – but so could the Article I argument.

Finally, the merits issue in Biden v. Nebraska was whether the President had the legal authority to cancel roughly $430 billion in debts owed the Government under the federal student loan program. The effects of the cancellation would have been to help hundreds of thousands of debtors and to make the federal treasury that much poorer. The claim looked like one in which taxpayers objected to the manner in which the Federal Government spent money, and the Court has been clear that taxpayers lack standing to bring such claims, except when the claim is based on the Establishment Clause.

Missouri had an idea to deal with the standing problem, which the majority accepted. Missouri had created an independent non-profit body to service student loan repayments for a fee. The state claimed that, if the loan cancellation went ahead, the loan servicer would lose fees which is a real economic injury. But there was a big problem: the loan servicer was not a party to the case, and it had refused to join or even cooperate with the State. Moreover, all of the profits or losses realized by the loan servicer stayed with it and were not passed along to the State.

I will not attempt to describe the means by which the Court concluded that none of this mattered so that the Court could decide the merits against the Biden administration. I suggest you read Justice Kagan’s dissent to see how far the Court had to stretch to reach its desired result. This case, more than any other, demonstrates that the Court will not let standing stand in its ways when it wishes to rule for the plaintiffs on the merits.

Despite these decisions, the Court still invokes standing in some cases to avoid reaching the merits. But the record, at least from this observer’s seat, is that when the Court wants to decide a legal issue, standing and the rest of Article III are not a barrier to doing so.

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Alan B. Morrison is the Lerner Family Associate Dean for Public Interest and Public Service Law, and Professorial Lecturer in Law at George Washington University Law School. Morrison adapted this Expert Forum blog from his recent publication in The George Washington Law Review.

How SCOTUS Keeps the Government from Doing Its Job

This is the first piece in a series that details some of the national consequences of the Supreme Court's last term as it prepares to begin its 2023-2024 term in October.

The Supreme Court’s recent decisions on affirmative action, gun control, and discrimination against LGBTQ+ individuals all attracted a lot of attention, and deservedly so. But there has been another important development in the Court’s recent terms that is not as neatly captured in a newspaper headline. In several cases, the Court has made it harder for the federal government to improve the lives of the American people by providing them with clean air, clean water, and public health – some of the most important responsibilities of government.

To be fair, the justices of the Supreme Court are not the only ones to blame. Conservatives in Congress set the stage in what amounts to a kind of tacit joint venture with the conservatives on the Court. Conservatives in Congress have made it very difficult for Congress to enact important legislation on almost any subject. The filibuster, partisan polarization, and gerrymandering (which, as it happens, the Court refused to do anything about) have all contributed.

The result is that often, if problems are to be dealt with at all, the executive branch will have to take the lead. But the executive branch – meaning, in this situation, administrative agencies like the Environmental Protection Agency (EPA) – cannot act unless a law passed by Congress authorizes them to. Now fortunately Congress has not always been so dysfunctional. Often there are laws on the books, enacted before the current era of congressional paralysis, that deal with some of today’s ongoing problems. A lot of those laws were written in general terms, precisely to give administrative agencies leeway in deciding how to deal with problems that Congress knew it could not foresee and on which its members are not experts. Recently, faced with inaction by Congress, agencies like the EPA have used those broadly-written laws to deal with new problems – only to have the current Supreme Court stop them.

Climate change is an example. Early in the Obama administration, the House passed a “cap and trade” bill, the first serious proposed legislation dealing specifically with the greenhouse gases that cause climate change. But because of a threatened Republican filibuster, the bill never came to a vote in the Senate. So the Obama EPA used the Clean Air Act – an important environmental law that historically has enjoyed bipartisan support – as the authority for what came to be known as the Clean Power Plan, a set of rules that would have greatly reduced greenhouse gas emissions from power plants.

The Clean Air Act was passed before climate change was generally recognized as a problem. But like many laws that authorize administrative agencies to act, it contains broad language. The Supreme Court itself did not deny that the Clean Power Plan fit under that language. And if there is one thing that conservatives on the Supreme Court and elsewhere like to say, over and over, it is that courts should follow the letter of the law. The text governs, they say – not judges’ ideas about how things should be.

But not this time. In the Clean Power Plan case, as in several other cases, the conservative majority on the Court decided that sometimes issues are too important to be left to administrative agencies, even when that is the conclusion to which the language of the statute leads. They are “major questions,” which means, the Court says, that it is not enough that Congress has enacted general language that allows the EPA, or some other agency, to deal with them. The laws that Congress passes have to deal with those problems specifically, the Court says. Otherwise, the agencies cannot act. Congress had not specifically authorized the Clean Power Plan; the Clean Power Plan dealt with a major question; so, the Court held, the Clean Power Plan was unlawful.

What makes something a “major question”? That’s the critical issue. But the answer is quite unclear. Is it economic significance? The Clean Power Plan was economically significant, but so were several other environmental regulations that the Court did not think presented major questions.

Is a “major question” one that is politically controversial? That gives opponents of a government action a standing invitation to complain as loudly as they can in the hope of manufacturing what the Court will consider controversy, and gives the justices who don’t like a regulatory initiative a standing invitation to indulge their own policy views.

In any event, apparently the justices know a major question when they see it. And when they see it, the usual rules – the language of the statute governs; if the language is broad, the agency has a lot of discretion – no longer apply.

The “major questions” doctrine is not the only way that the Court is keeping the government from doing its job. There may be a majority on the Court that would insist on specificity in all laws, not just those dealing with “major questions,” in the face of decades of experience that demonstrate how unrealistic it is to expect a legislature to operate in that way. And when Congress does use more specific language, the Court – reversing a principle that was once conservative orthodoxy – increasingly says that the agencies’ views about the meaning of that language carry no weight. Or the Court will discover some other principle, having to do with federalism or private property or whatever, that limits the effect of the language. Last term, the Court did that in a case that significantly undermined the Clean Water Act, another critically important and, up until now, highly successful environmental law.

The undertone in these decisions, sometimes made explicit, is that the Court is defending democracy by protecting the American people against the depredations of unelected bureaucrats. But that is pretty much the opposite of the truth. An elected President stood behind, and took responsibility for, the Clean Power Plan. The same was true of the Biden administration’s efforts to deal with the pandemic, some of which were also blocked by the Court’s “major questions” doctrine.

The unelected bureaucrats in this scenario are, in fact, the justices, who, unlike the Administrator of the EPA or other agency heads, answer to no one and do not have to leave office when the voters reject their views. Those unelected justices now get to decide when a question is too “major,” when a law is not specific enough, or when Congress has not made its intentions sufficiently clear. Combine that with the congressional paralysis engineered by the conservative justices’ ideological soulmates in Congress, and the result is not just an undemocratic outcome – it is that the federal government cannot address some of the most important problems facing the nation.

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David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School.

With labor in the national spotlight, state AGs are increasingly standing up for workers’ rights

Image Source: Flickr | P.T. Manolakos

Labor Day 2023 provides a good opportunity to take stock of the important and growing role that state attorneys general (state AGs) are playing in relation to workers’ rights. Even since last year, state AGs have greatly increased their activities in this area, and protecting workers’ rights is becoming understood as part of state AGs’ core mission. The expanding footprint of state AGs in this area offers considerable promise to increase employer compliance with key workplace protections.

Trends and observations 

The trend in recent years has been increased involvement by progressive state AGs in worker protection matters. Nine offices have dedicated labor units (California, D.C., Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Pennsylvania), and several additional states (Arizona, Colorado, Delaware, Maine) have hired dedicated staff to focus specifically on workers’ issues. New Jersey’s AG recently issued a Request for Qualifications for a special counsel in this area; the office intends to hire a law firm or firms as outside counsel to bring labor enforcement cases. And some offices without dedicated labor staff have nonetheless played an important role in this space, including Rhode Island’s AG, who was the driving force behind a new law increasing wage theft penalties. AG offices have also collectively weighed in on major national labor issues, from Supreme Court cases to federal regulations. And alumnae of state AG labor units are now the Labor Secretary of Pennsylvania and Director of the Illinois Department of Labor.

This trend is positive for workers, their families, and state economies. But there is still great untapped potential for more state AGs to get involved in protecting workers’ rights. Although there are challenges for state AGs to take on this work—resources, limited jurisdiction, maintaining relations with the state labor agency that is also a client—state AGs focused on workers’ rights have found ways to have a meaningful impact in this space. While it is inappropriate to expect the core government function of enforcing worker protection laws to be self-funding or “pay for itself,” it is also worth noting that enforcers in such cases can sometimes recover considerable penalties for the state.

The following is a sampling of pro-worker action by state AGs in the past year:

Fighting wage theft

State AGs have fought wage theft in a range of industries, including construction, grocery stores, house cleaning, health care, security, and more. The D.C. AG sued a restaurant and its executives, alleging years of wage theft, including allegations that servers were paid as low as $5 per hour. It also recovered over $460,000 in a settlement with a health insurance provider that allegedly violated the district’s law regarding payment of final paychecks, nearly $1 million in settlements with companies to resolve alleged wage-and-hour law violations, and even secured up to $500,000 in alleged unpaid overtime for Georgetown University employees. The Massachusetts AG’s office cited a New York-based cleaning company that allegedly targeted workers with language barriers for violating wage, sick time, and other laws. The office also obtained an $800K settlement with three C-Mart grocery stores, and brought a lawsuit against a contractor, alleging that it underpaid workers on a public construction job.

Some cases focused on industries with high rates of violations, such as home health care. The D.C. AG’s office obtained a $1.5 million settlement from an assisted living company that allegedly failed to pay workers for all hours worked at the pandemic’s onset, and the Illinois AG’s Office along with the state labor department recovered $950,000 in alleged back wages and interest for employees of a medical staffing company.

The Minnesota AG’s office filed a lawsuit against St. Paul’s largest landowner for allegedly using a common scheme to avoid paying overtime: according to the lawsuit, the employer had security guards work at different locations that were separately incorporated but part of the same business enterprise. Instead of combining all hours worked for overtime calculations, the employer allegedly treated the positions as two separate jobs and paid straight time for all hours worked. The case is ongoing.

State AGs fighting wage theft often find multiple violations: employers who violate wage laws frequently fail to comply with other statutes as well. The Massachusetts AG brought several cases in which there were both alleged wage and paid sick leave violations, involving an insulation company,  three motels, and a bakery and staffing company (treated by the state AG office as joint employers). The New York AG office pursued a home health agency that paid a $3 million settlement related to claims of wage theft and Medicaid fraud.

In several cases, offices used an under-utilized tool–the False Claims Act–to address prevailing wage violations. The New York AG’s office and the New York City Comptroller recovered $3 million in a False Claims Act case referred by the Service Employees International Union (SEIU) Local 32BJ. The case alleged that luxury buildings received a tax abatement but failed to meet the requirement to either provide affordable housing or pay prevailing wages to building service workers. In addition to $723,324 for worker restitution and interest, the settlement includes almost $2 million in penalties for New York City and State.

Protecting worker tips, as well as consumers’ intent in leaving them 

Customers leave tips for the workers who serve them, not for the workers’ employers. When companies keep a portion of workers’ tips, or fail to ensure that workers receive all gratuities left for them, they cheat workers and also defraud consumers.

The D.C. AG’s office has brought several cases to recover tips intended for workers: the office sued Amazon over this; entered into a settlement of $2.54 million with platform delivery company Instacart; and settled with the platform alcohol delivery company Drizly for over $6 million—in relation to allegations that tips did not go to workers and certain required marketplace taxes were unpaid.

Fighting misclassification of workers as independent contractors 

Worker protection laws generally cover employees and not independent contractors. Employer misclassification of workers as independent contractors is a widespread problem that deprives workers of rights, starves public coffers of taxes, and burdens honest employers who must compete with low-road businesses that evade their legal obligations as employers. Several state AG offices have taken action to address worker misclassification.

The D.C. AG’s office has been particularly active in this area. For example, the office reached a settlement with a construction company that included notable terms: the company will pay over $600,000, including restitution and penalties, undertake monitoring/compliance measures, and also agreed not to do any business, on public or private construction projects, in D.C. for a period of five years. Prior D.C. AG misclassification cases during the past year include a consent order in a lawsuit involving security guards, and an $835,000 settlement with another construction company.

Confronting misclassification in the “gig economy”

Several state AGs have taken action to challenge worker misclassification by online platforms, or “gig” companies. The D.C. and Minnesota AGs both filed lawsuits against Shipt, a Target-owned delivery company, for allegedly misclassifying workers. In addition, the Massachusetts AG issued $6.2 million in citations against the delivery company, GoPuff. The New Jersey AG collaborated closely with the state labor department and reached a $100 million settlement with Uber for unemployment taxes based on alleged worker misclassification from 2014-2018.

Child labor 

The federal labor department and media have both reported an upsurge in child labor violations across the country. Some state AGs have taken an active role in enforcing their states’ child labor laws.

The Michigan AG’s office obtained a guilty plea from a meat processing company owner who employed a 17-year-old whose right hand was amputated while operating a meat grinder, hazardous work prohibited by child labor laws. The modest sentence included penalties of $500 plus costs, for a grand total of $1,143, prompting Michigan AG Nessel to encourage the legislature to strengthen state child labor laws.

The Massachusetts AG’s office has long been involved in child labor enforcement, and has issued a number of citations, including against Dunkin’ (at least two times), Dave & Buster’s, and lesser-known employers, too. The office held a convening of community leaders to raise awareness of child labor protections. The Minnesota AG’s office represented the state labor department in a lawsuit against a meatpacking plant that allegedly employed teenagers in prohibited, hazardous work.

Finally, three state AG offices have pursued the fast-food chain Chipotle for alleged child labor violations related to minors’ permissible work hours: the D.C. AG’s office recovered over $300,000 in penalties as well as future compliance measures, and the New Jersey AG’s office worked closely with their labor department in reaching a $7.75 million settlement. These cases followed a similar resolution by the Massachusetts AG’s office in 2020.

Safeguarding labor market competition: fighting no-poach and noncompete agreements, wage collusion, and similar practices 

When employers impose noncompete provisions on their workers, or make agreements with competitors not to hire each other’s workers or about wage levels, they impede worker mobility and, research shows, reduce wages.

The New York AG’s office has taken the lead in pursuing employers on these issues, often based on an antitrust legal theory. The office has focused extensively on no-poach agreements in the title insurance industry, and in a multi-year initiative, has resolved investigations with the nation’s largest title insurance companies, including Fidelity National Financial, Old Republic National Title, Kensington Vanguard, Stewart Title Guaranty Corporation, AmTrust, and First Nationwide. The companies agreed to stop using no-poach agreements, to terminate existing agreements, and to pay a total of over $9 million to the state. The office also secured agreements halting the alleged use of illegal no-poach agreements between employers in ski resorts and in the home care industry, where no-poach agreements can also adversely affect patients, by constraining their ability to use the provider of their choice.

The D.C. AG’s office also engaged in advocacy related to labor market transparency, sending a letter to the D.C. Bar Ethics Committee seeking an opinion that attorneys violate legal ethics if they include unenforceable or illegal terms in contracts, such as void or unenforceable noncompete clauses. The Ethics Committee has not issued any public response to date.

Finally, 21 state AGs filed a multistate brief in the Second Circuit supporting former Saks workers who alleged they were harmed by private agreements between Saks and other luxury brands not to hire Saks employees.

Criminal prosecution

State AG criminal jurisdiction varies: a few offices are the sole criminal enforcers for their states; most have limited criminal jurisdiction. Several state AGs have used their criminal authority to pursue employers who have intentionally committed serious violations of workers’ rights. For example, The Rhode Island AG announced charges against three drywall installation contractors for alleged wage theft on a school construction project, and the Massachusetts AG indicted an environmental services company and its owners in connection with alleged worker safety violations and illegal asbestos work in multiple locations.

The company and owners were charged with violating the state’s clean air act, and with reckless assault and battery related to allegations that an asbestos worker fell several stories through a roof after being repeatedly denied protective safety equipment.

Representing and collaborating with state labor agencies 

A core function for all state AG offices is representing the state in court. In labor cases, this can mean defending new pro-worker laws that are challenged in court, defending state labor departments when employers challenge their enforcement, or representing labor departments when—as part of their own enforcement—they need to file suit. This work is generally non-discretionary. The following are some examples of this work from the past year:

The Washington AG’s office defended the state’s workplace safety and health enforcement structure from a frontal attack by Amazon. Washington state’s workplace safety laws, unlike the federal Occupational Safety and Health Act (OSH Act), allow for an order requiring abatement of hazards before all appeals are concluded. Amazon challenged this aspect of the law and lost. The office also successfully defended a state Covid safety rule for farmworkers against an OSHA preemption challenge, as well as a challenge to the state’s prevailing wage statute.

The Michigan AG office successfully defended the state Department of Technology, Management, and Budget in its implementation of a prevailing wage requirement for government contractors as part of the contracting process. The New Jersey AG’s office successfully defended a new law creating extensive new rights for temporary workers. And the Connecticut AG’s office has been defending a challenge to a new “freedom of conscience” state law that prohibits employers from punishing workers for refusing to listen to religious or political speech by the employer.

Along with defending new laws, state AGs can provide legal backup for state agencies’ enforcement. For example, the Minnesota AG’s office filed a lawsuit against a construction subcontractor for allegedly obstructing a state labor investigation. State AGs also can collaborate on multi-agency enforcement actions, as occurred in New Jersey when numerous agencies, including the AG office, participated in a multi-agency sweep of a construction site in Jersey City, finding misclassification and other violations involving multiple subcontractors. And state AGs can file lawsuits on behalf of state agencies: the Connecticut AG’s office sued the operator of state rest stops for $6 million for allegedly failing to pay workers a higher wage rate that was required as a condition of state contract.

Policy: filing amicus briefs, authoring comment letters, proposing legislation

State AG offices often weigh in on broader legal and policy issues by filing amicus briefs, authoring comment letters about proposed federal regulations, and proposing legislation.

A coalition of state AGs wrote an amicus brief in Glacier Northwest, a case in which the Supreme Court held that the National Labor Relations Act did not preempt a state-court tort case in which the employer alleged that the union intentionally destroyed company property during a labor dispute. State AG coalitions also filed amicus briefs in a case challenging a New York City law requiring just cause to terminate fast food workers, a case involving alleged no-poach agreements by McDonalds, and an equal protection challenge to California’s AB5 law (which helps curb worker misclassification by creating a streamlined test for determining employee status). California’s AG filed an amicus brief in the state’s supreme court about worker rights under the state’s Private Attorney General Act, which allows workers to sue for penalties based on labor law violations.

State AGs also worked together to file comments on proposed federal regulations on worker classification and joint employment, implementation of the Inflation Reduction Act, worker pesticide exposure, and noncompete provisions in employment contracts.

Rhode Island AG Peter Neronha played a leading role in championing legislation to increase the state’s criminal penalties for wage theft. After several years of the AG strongly promoting the bill, it passed in the 2023 legislative session. A bill raising wage theft penalties also passed in Delaware; among other things, that law allows the state labor department to refer cases to the AG’s office for prosecution. The AG’s office supported the legislation.

Education and outreach

Finally, state AGs can help educate the general public and legal community about new developments or pressing issues affecting workers. The Massachusetts AG’s office, for example, issued an advisory regarding rights of immigrant workers, including a new U.S. Department of Homeland Security process granting deferred action for workers who are potential witnesses in labor enforcement cases. The Illinois AG issued a press release about guidance issued on protections against employment discrimination related to pregnancy and reproductive health decisions, and California’s AG issued a legal alert about unlawful employer-driven debt.

With workers’ rights in the spotlight, state AGs can do even more

Labor Day is a day to recognize and celebrate the contributions of workers. At a time when workers’ rights are increasingly in the spotlight, state AGs’ growing involvement in enforcing labor laws is a positive and necessary development. As the above discussion demonstrates, some AGs are playing a key role in promoting compliance and fair working conditions within their states. At the same time, Labor Day 2023 is a good moment to note the considerable untapped potential for even more extensive and impactful involvement by state AGs on behalf of the nation’s working people.

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Terri Gerstein is Director of the State and Local Enforcement Project at the Harvard Center for Labor and a Just Economy. She is also a Senior Fellow at the Economic Policy Institute.

Affirmative Consideration, Not Affirmative Action

In Students for Fair Admission v. Harvard the Supreme Court effectively ended affirmative action in college admissions. Although Justice Thomas would have gone further in his separate concurring opinion, the Court recognized a limit to how far it could push to end racial preferences. As the Court explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The Court has repeatedly emphasized that the Constitution protects individuals, not groups. But if the Court were to dictate complete race blindness in admissions practices, it would require universities to deny aspects of personal identity that are intrinsic to individuals. The Court carefully avoided this paradox, opening the path for a new practice in which universities can give affirmative consideration to whole persons, including aspects of their identities such as race, gender, sexual orientation, or class, among others.

This new form of identity-conscious decision making—call it affirmative consideration, as I have explained in a related scholarly piece—has a more enduring ground in the Constitution and can achieve many of the goals of affirmative action while avoiding some of its costs. Justice Kennedy’s opinions protecting the overlapping values of equality and liberty in same-sex relationships provide the roadmap. The Constitution protects the liberty of individuals to define and express their identities, including their racial identities.

By giving affirmative consideration to individual persons, a university would attend to the complex details of their identities in ways that are similar to programs of affirmative action. But as the Court was keen to point out, this is not an invitation to continue the old regime of racial categorization. Chief Justice Roberts explained that consideration of race has to be tethered to the identity and experience of the whole person (“a benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination”). But even when race is relevant to considering an applicant as a whole person, “the student must be treated based on his or her experiences as an individual—not on the basis of race.” Nonetheless, universities may consider the experiences and identities of individuals without imposing artificial blindness to the meaning of socio-economic background, race, gender, and sexual orientation, and other personal aspects that collectively comprise a person’s identity.

This new practice will be more organic and student-driven than affirmative action. Under the new regime, universities will be unable to impose racial categorizations for purposes of generalized institutional goals such as diversity. But such diversity-driven programs were always about the needs of the university as an institution, not about the identity of individual applicants. These preconceptions about racial identity were a problem for the Court because they provided categories into which individuals were expected to fit, which could have the effect of effacing individual identity to serve institution ends. As the Chief Justice admonished, universities had too easily “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” By contrast, a program of affirmative consideration would allow individuals to create the meaningful categories they experience in society through the stories they tell of their lives.

Even though the Court did not explain the basis for this new race-conscious program of affirmative consideration, it has a natural home in the interaction between the Constitution’s protections for both equality and liberty. In opinions written by retired Justice Anthony Kennedy, the Court identified this interaction as protecting the equal dignity of individuals to define their own lives and relationships on an equal basis with others, free from the state imposing its own conception of their proper identity. By protecting the equal dignity of individuals to have same-sex relationships and marriages in Lawrence v. Texas and Obergefell v. Hodges, the Court also affirmed the right of all individuals to define their person identities by telling their unique stories. Freedom from the state imposing its own conception of individual identities—including race-blind identity—is a liberty shared equally by all.

Consistent with this principle, the Court cannot mandate complete colorblindness because it would have the effect of stripping individuals of their identities. A constitutional principle of equal dignity protects the integrity of their identity as whole persons, including their race. Following these precedents, race consciousness has an even firmer constitutional ground than the post-Bakke affirmative action, which was always plagued by temporal limitations, as the Court emphasized in Grutter v. Bollinger, and the Court embraced in Students for Fair Admissions. Liberty and equality form a stronger bond, as Justice Kennedy explained, opening up protection for what he termed “freedom in all of its dimensions” without temporal or remedial restraints.

The advantage of affirmative consideration grounded in equal dignity is that all applicants can receive a benefit. Nor does it run afoul of the problem Justice Thomas emphasizes: that some will feel, and others might perceive, the beneficiary as an unworthy token of racial preference. Giving every applicant an equal opportunity to tell their story, including how constitutive features of their identity such as race and gender and class have impacted their lives, does not deny any person of positive consideration. One of the weaknesses of affirmative action, which the Chief Justice identifies, is that it unavoidably involves zero-sum racial tradeoffs among racial groups that produce backlash claims of inequality. Because it gives preferences for some but not others, affirmative action has not enjoyed broad majoritarian support. Affirmative consideration would not have this weakness. It focuses on recognizing the dignity of individualized identities of persons on an equal basis.

Affirmative consideration is both more modest in its aspirations and more ambitious in its reach. But unlike affirmative action’s pursuit of diversity, it is a race-conscious practice capable of generating broad and lasting support, grounded in constitutional values shared by all, and focused on the complex mosaic of individual identity.

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Thomas P. Crocker is Professor of Law at the University of South Carolina School of Law and author of Equal Dignity, Colorblindness, and the Future of Affirmative Action Beyond Grutter v. Bollinger and Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism published by Yale University Press.

President Biden Has Fallen Behind His Predecessor on Judicial Confirmations

As of August 1, President Biden has fallen behind his predecessor on the number of federal court vacancies he has filled. President Biden has had 140 federal judges confirmed thus far, whereas former President Trump had had 144 judges confirmed by the end of July of his third year.

This lag is disappointing from a White House and Senate that have taken pride in exceeding the pace of judicial confirmation set by the previous administration. However, with 31 judicial nominees pending with the Senate, it is hard to blame the White House for this undesired milestone. President Biden falling behind Trump is predominantly the result of the Senate majority deprioritizing judges since November of last year. There remains an opportunity, albeit an up-hill one, for President Biden and the Senate to exceed the 187 judges that Trump had confirmed by the end of his third year, but it will require a much more concerted commitment by the Senate between now and the end of the year.

President Biden had 40 judges confirmed in 2021, 57 in 2022, and has had 43 confirmed thus far in 2023. If he and the Senate want to reclaim the lead in judicial confirmations this year, the Senate needs to confirm at least 47 more judges before the end of December. You read that right. The Senate will need to confirm more judges in four months than it did in the first seven months of the year, or in all of President Biden’s first year in office.

This uphill battle was both foreseeable and preventable. At the end of last year, Senate Majority Leader Schumer tweeted, “This Senate has confirmed 97 federal judges. That’s more than the first Congress in either of the two previous administrations.” While true, that 97 could have been much higher had the Senate better utilized the lame duck session to maximize confirmations. We at ACS urged the Senate to confirm at least 25 judges during the lame duck. Instead, the Senate only confirmed 13 judges.

There was another missed opportunity at the start of this year when the Senate did not confirm a single judge in the month of January. Much of the spring was hindered with attendance issues, which contributed to the Senate also not confirming a single judge in the month of April. However, the Senate majority has had full attendance since May and yet confirmed only six judges in June and four in July.

For months, we at ACS have been urging the Senate to expand its calendar to enable more time to confirm judges. As part of this, we urged the Senate to scrap its August recess, which would have provided the Senate with four more weeks to confirm judges. We’ve seen the Senate confirm as many as 12 judges in a week. A determined Senate could have used the month of August to confirm a significant chunk of the necessary 47 needed to exceed Trump by the end of the respective third year, certainly the 17 nominees currently pending on the Senate floor.

Instead, the Senate has opted to take its full August recess, leaving it with more nominees to confirm in less time when it returns after Labor Day. It is possible for the Senate to confirm 47 judges before the end of the year, but the Senate will need to consistently prioritize confirmations and use every tool in its toolbox, including:

  • Expanding the calendar immediately upon returning in September. This means having the Senate in session Monday through Friday, and potentially on the weekends. The good news here is that the Senate majority controls when the Senate is in session.
  • Amending the Senate rules to require only two hours of post-cloture debate time for circuit court nominees, akin to the two hours required for district court nominees.
  • Amending the Senate rules to enable multiple nominees to be considered by the Senate simultaneously.
  • Scrapping what remains of the blue slip tradition. During the previous administration, the GOP-controlled Senate Judiciary Committee eliminated blue slips for circuit court nominees. The current Senate majority should scrap the tradition for district court nominees, which enables individual Senators to effectively veto nominees for vacancies in their state. Scrapping blue slips does not in any way prevent the White House or the Senate Judiciary Committee from consulting with home state Senators about candidates for vacancies in their state. It simply prevents a single Senator from hijacking a vacancy.

The White House and Senate have already made history in the diversity of the judges they’ve put on the federal bench. President Biden’s 140 judges represent unprecedented racial and gender diversity, and many bring professional diversity to the bench. However, the total number of judges matters. Diversity is absolutely needed. Diversity and numbers are needed even more. If we are to achieve a judiciary that reflects the diversity of the public it serves, we need many, many more diverse judges.

The confirmation of diverse, qualified federal judges is one of the most impactful things this White House and Senate can do with a divided Congress. It is also one of the most long lasting with judges having life tenure and routinely staying on the bench for decades. Right now, there are 68 federal court vacancies and 22 future vacancies, for a combined 90 vacancies. The White House and Senate have an incredible opportunity to fill each and every one of those vacancies with a diverse, qualified judge who is committed to vindicating our fundamental rights, safeguarding democracy, and upholding the rule of law. The fate of those vacancies – whether they are filled or left empty – will be a lasting part of the legacy of this administration and this Senate.

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Zack Gima is ACS Vice President of Strategic Engagement.

 

 

 

 

New Challenges Threaten U.S. Rule of Law Recovery

This piece was originally published by the World Justice Project. 

Starting six years ago, a global rule of law recession has rippled and raged through communities around the world. Authoritarian trends compounded by the Covid-19 pandemic have eroded government accountability, rolled back human rights, and delayed justice in dozens of countries.

By 2021, the United States was among the countries with the sharpest deterioration in the rule of law. Declines in U.S. rule of law performance were roughly on par with those in Myanmar, Nicaragua, and the Philippines.

Then last fall, the U.S. score on the annual World Justice Project (WJP) Rule of Law Index rose for the first time since 2016. The country’s gains across all eight factors that the Index measures made it one of the world’s biggest rule of law improvers in 2022. Suddenly, it seemed imaginable that the United States could bounce back, although there was still a hill to climb.

But months later, an onslaught of escalating headlines suggest that U.S. rule of law not only remains at risk, but that it could unravel in new directions.

The former U.S. president appears to be facing criminal indictment for alleged schemes to undercut elections, an essential cornerstone of U.S. democracy and rule of law. Campaign speeches and a recent New York Times article suggest that if reelected, Donald Trump would work to dramatically consolidate presidential power and eviscerate congressional oversight of executive branch agencies. And the crown jewel of the government’s third branch, the judiciary’s Supreme Court, is embroiled in ethical controversy.

Some of these currents evoke the U.S. rule of law indicators that have fallen most sharply in recent years, notably those related to weakened checks and balances. Even with some recovery last year, the WJP Rule of Law Index measure for “Constraints on Government Powers” in the United States has fallen 15% since 2016. The capacities of the legislature, the media, and the judiciary to rein in executive power have all fallen significantly, as has confidence in election processes.

To create the Index, WJP draws on in-depth surveys of legal practitioners and subject-matter experts, as well as nationally representative polls. Those household polls show a stunning decline in people’s belief that Americans can vote freely without feeling harassed or pressured. In 2016, 91% of people surveyed believed this to be true. By 2021, only 58% still agreed.

Belief in government accountability has also taken a huge hit. In 2016, more than half of Americans (56%) believed that high-ranking officials would be held accountable for breaking the law.  Five years later, less than a quarter of Americans (24%) agreed.

However, one area of public and expert confidence that has remained strong over the years relates to judicial integrity. The proportion of Americans who say all or most members of the U.S. Congress are corrupt has steadily climbed in recent years, with more than half (54%) holding this belief in 2021. In contrast, less than a fifth of Americans (19%) believed judges to be corrupt, the same as a decade ago.

For years, the United States has scored highly on the judicial integrity indicator in the WJP Rule of Law Index. In 2022 it scored 0.91 out of 1, making it the country’s second-highest strongest rule of law indicator among 44 Index sub-factors. Only the U.S. score for lack of civil conflict (1.0) was higher.

In October, the 2023 WJP Rule of Law Index will show whether this previously solid U.S. strength may start to weaken. It’s a significant trend to watch because confidence in the judiciary is a bedrock of healthy rule of law.

The latest polling suggests that public confidence in the Supreme Court has taken a hit in the wake of recent controversies, including revelations of justices accepting lavish gifts from billionaires with business before the Court. Whether falling trust will persist and filter down to engulf the wider judiciary remains to be seen. But these new vulnerabilities couldn’t come at a more critical time.

After all, the courts will decide the fate of the former president as he faces criminal charges, including those already filed for financial malfeasance and the mishandling of classified documents. And the future course of U.S. rule of law could rely on wide respect and acceptance of court decisions, including, and perhaps particularly, in any election-related disputes.

Just last week, the former president and current presidential candidate said that it would be “very dangerous” for a special prosecutor to even talk about sending him to jail. That’s because, Trump explained, “we do have a tremendously passionate group of voters.”

Voters’ ultimate response to former President Trump’s legal troubles is an open question. WJP data suggests the nation is not divided when it comes to the principle that no one is above the law.  For example, an overwhelming number of Democrats and Republicans believe it is important to obey the laws of the government, no matter who you voted for (Democrats 78%, Republicans 79%) and that the president must always obey the law and courts (Democrats 87%, Republicans 86%).

Keeping a focus on these core values can hopefully contribute to continued recovery from the backsliding the United States experienced between 2016 and 2021 and help the country maintain its historically strong rule of law.