State Preemption and Local Responses in the Pandemic

Over the past decade, the misuse of state preemption has significantly limited the power of cities and other local governments to solve problems for their residents. Now, with the nation facing the COVID-19 pandemic, the high cost of undermining local authority and independence has become apparent. Existing and new COVID-19-related state preemption has hampered local government response to the crisis, made it harder to protect the lives and livelihoods of their residents, and impeded early efforts towards equitable recovery.

State Preemption before the Pandemic Left Deep Vulnerabilities

As an ACS Issue Brief explored in detail, there has been a steep increase in state preemption over the past ten years across a broad and growing range of economic, labor, health, environmental, and social issues. Many of the local policies preempted by states would have been most beneficial to people of color, low-wage workers, and women—the same communities disproportionately hurt by the health and economic effects of COVID-19.

A decade of preemption has left cities starting from behind in their response to the pandemic in critical policy areas such as paid sick leave, tenant protections, and access to critically needed broadband. To begin with paid sick leave, while local policies proliferated in some states to protect workers, 23 states with preemption in place as the crisis emerged prevented cities from acting. Some preempting states, including Indiana, Michigan, and North Carolina, were forced to enact emergency paid sick leave policies to cover health care and other workers on the frontlines. In other states, including Tennessee and Florida, advocates have asked their governors to suspend paid sick leave preemption so local governments can do more to protect residents.

The economic fallout from the pandemic, moreover, turned America’s housing crisis into an emergency that forced local and state governments to implement eviction and foreclosure moratoria to keep families from losing their homes. But as state-level moratoria have been ending, preemption has interfered with local governments’ ability to protect vulnerable tenants in crisis. In Wisconsin, the Tenant Resource Center explained, “While other communities take necessary action to enact moratoriums on eviction proceedings, we’re prevented from doing so.” By contrast, in California, in a welcome sign of a cooperative state-local relationship, Governor Gavin Newsom used an Executive Order to suspend state preemption of local eviction regulations.

COVID-19 has made fast, affordable, and reliable Internet access essential as Americans have been forced to work, learn, and find medical treatment online. But in 19 states some form of state preemption has kept local governments from building or expanding access to municipal broadband—limitations that disproportionately hurt people of color, low income, and rural residents even before the pandemic. Many states have acted to increase internet access and decrease costs—including states where preemption is in place. For example, in Nebraska, the Public Service Commission has allocated a million dollars to reimburse internet providers for providing service to low-income families.

State Preemption Hampered Local Emergency Responses

In addition, state Executive Orders that included express preemption issued during the emergency blocked or weakened local public-health responses. Certainly, in some states, governors issued statewide stay-at-home orders that served as a regulatory floor that allowed local governments to be more protective of public health based on local conditions. In Maryland, for example, Governor Larry Hogan allowed for a flexible community-based approach to lifting the state’s stay-at-home order, with county leaders making decisions regarding the timing of reopening in their jurisdictions. Prince George’s and Montgomery Counties and the City of Baltimore, home to the state’s largest African-American and Latinx populations, opted to move on a slower timeline.

But that collaborative approach was not the norm. In many states, including Arizona, Georgia, Florida, Mississippi, South Carolina, Texas, Tennessee, West Virginia and others, statewide stay-at-home orders established a regulatory ceiling barring efforts by cities and counties to impose stricter requirements than the state was willing to impose to protect the health and safety of residents. In Arizona, Governor Doug Ducey issued an Executive Order prohibiting any county, city, or town from issuing any order or regulation “restricting persons from leaving their home due to the COVID-19 public health emergency,” or closing the long list of businesses Ducey deemed “essential.” While several Arizona mayors believed the Governor’s list of essential services was too broad, they also believed Ducey’s Order preempted them from closing businesses included on the state’s list of essential services.

Georgia Governor Brian Kemp set the most aggressive reopening course when his statewide shelter-in-place order expired at the end of April, stressing that in lifting his directive, “local action cannot be taken that is more or less restrictive.” Atlanta Mayor Keisha Lance Bottoms condemned the decision. “It is the governor’s prerogative to make this decision for the state, but I will continue to urge Atlanta to stay at home, stay safe and make decisions based on the best interests of their families.”

Mississippi Governor Tate Reeves’s statewide mandatory stay-at-home order preempted localities from enforcing stricter restrictions, forcing the cities of Tupelo and Oxford to rescind local measures already in place. When Texas Governor Greg Abbott let his state’s stay-at-home order expire, he made it clear that his new order “supersedes all local orders.” Texas Attorney General Ken Paxton then warned officials in Austin, Dallas, and San Antonio to roll back “unlawful” local emergency orders that imposed local public health safety measures, hinting that there would be lawsuits if the cities did not comply.

And some states did not issue any stay-at-home orders but still preempted local governments from issuing their own orders. Iowa Governor Kim Reynolds, for example, did not issue a statewide stay-at-home order, but local officials, including Cedar Rapids Mayor Brad Hart, were prevented from issuing local orders under their emergency mayoral powers. As Hart lamented: “This week I spoke directly with the Governor who confirmed her opinion, which is supported by the Iowa Attorney General, that cities and counties in Iowa do not have the authority to close businesses or order people to stay in their homes.”

State Preemption and the Long Road to Recovery

Local governments are going to be on the front lines of recovery efforts and state preemption will continue to be a barrier to an equitable path forward. The fact that 48 states limit local fiscal authority, many quite significantly, will impede the economic recovery of cities, towns, and counties, with weighty consequences for the people who rely on local public health, police, fire, education, and other services.

In the aftermath of the 2007–08 housing crisis, moreover, local fiscal distress led to municipal bankruptcies, the imposition of state emergency managers, and other state takeovers of local governments. As the devastating experience of Flint, Michigan, attests, this kind of fallout can have dire consequences. Given the impact of the current downturn on local finances, we are likely to see similar state interventions in the recovery ahead.

Similarly, housing will be as critical an issue in the recovery as it has been in the emergency, and preemption will be a significant barrier to local policy. Evictions and foreclosures disproportionately affect people of color, women, and low-wage workers, and local governments are looking at a range of tenant protections in the weeks and months ahead. But tenant protections are among the range of equitable housing policies of various kinds preempted in 31 states, including rent regulation, inclusionary zoning, and source-of-income anti-discrimination.

Finally, the federal government has failed to issue mandatory protections or standards to protect workers from exposure to COVID-19 meaning that states and local governments are not preempted from adopting their own protections. Some cities like Los Angeles and Dallas have moved to fill in the gap for workers, for example adopting clear mask requirements. Already, however, states are interfering with local efforts to provide workers with protections that help keep workers safe. Governor Abbott in Texas issued an Executive Order that banned local governments from enforcing an individual mask mandate. When mayors pushed back, the governor said local governments could order businesses to require face masks in their stores, but localities could not mandate mask wearing in public. In Nebraska, Governor Pete Ricketts went further, telling local governments they won’t get any federal COVID-19 money if they require people to wear masks.

Conclusion

The COVID-19 pandemic has laid bare more than the ongoing intergovernmental struggle over individual policies. It has exposed the need to reform the fundamental balance of power between cities and states. We are seeing daily reminders that the misalignment between city and state governments is not just theoretical—it has life and death consequences. As the Local Solutions Support Center and the National League of Cities recently argued in a new vision for home rule—and a blueprint for legal change—the powers of cities to rule themselves need to be updated to reflect the fast-changing demands and challenges of pandemics, racial and economic equity, climate change, and more.

DACA: Supreme Court Victory, Uncertain Future

On June 18, 2020, the Supreme Court issued a long awaited decision in DACA or Deferred Action for Childhood Arrivals. The decision was authored by Chief Justice Roberts in a 5-4 opinion holding that DACA is reviewable by the Court. On the merits, the Court held that the agency’s (Department of Homeland Security) decision to end DACA was “arbitrary and capricious” under administrative law.
While the Court upheld DACA on a narrow issue of administrative law, the human impact of this decision is significant and means that the DACA policy, implemented 8 years ago under the Obama administration, will continue. The DACA decision means that more than 600,000 people who came to the United States before the age of 16, have lived in the United States for more than one decade, and have contributed profoundly to America, a country they call home, will continue to be protected under a kind of prosecutorial discretion called “deferred action.” Last week’s outcome opens the door for thousands of new dreamers to request deferred action for the first time since the policy ended and realize their potential, while serving on the frontlines, going to college, providing for their parents, and building their own families. The future is uncertain but the victory of today’s decision is crystal clear.
One focus by Chief Justice Roberts was on agency memos issued by the Department of Homeland Security about the end of DACA -- one in 2017 (Duke Memo) --  announcing the end of DACA, and the other in 2018 (Nielsen Memo), nine months later. As described by the Court, both memos rested the termination of DACA on the conclusion that it was unlawful but the Nielsen Memo went one step further by listing three policy reasons for ending DACA, including but not limited to the importance of congressional action and ‘sending a message’ about immigration enforcement. The Nielsen Memo mentioned the reliance interests of DACA recipients but found they were outweighed by the law and reasons for ending DACA. The Supreme Court viewed these policy reasons as “impermissible post hoc rationalizations” and in doing so stressed the value of “administrative accountability”, shedding light on the basic rule as follows: “An agency must defend its actions based on the reasons it gave when it acted.”
The Court next turned to whether the decision for ending DACA was “arbitrary and capricious” under administrative law and to do so focused on whether the Duke Memo considered the “hardship” or alternate options for protecting DACA recipients. The Court found that Duke failed to consider reliance interests, and underscored this point through its own examples “Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.” These defects made the Duke Memo “arbitrary and capricious.”
Justice Kavanaugh issued a dissent, believing that the the court should have considered explanations given by DHS in 2018. He opined that he was unaware of any other case that has used the legal doctrine of “post hoc” justification to exclude an agency explanation and opined that the decision “seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with more elaboration.”
Justice Thomas wrote a dissent, joined by Justice Alito and Justice Gorsuch. Though the case was not about whether DACA is legal, Justice Thomas made his views clear at the start of his opinion by labeling DACA as “unlawful from its inception.” Much like the announcement by former Attorney General Sessions, he declared DACA unlawful without providing explanation, confused “lawful presence” and “lawful status” (a distinction with a difference in immigration law), and misunderstood the critical role of prosecutorial discretion in immigration which in turn operates as a system where people are removed and others are left alone. With limited resources, DHS can only target a fraction of the people who qualify for immigration enforcement. Justice Thomas concludes that DACA has “fundamentally altered the immigration laws” but the reality is that deferred action policies like DACA operate in law’s domain.
How the story of DACA continues or ends remains to be seen. The Supreme Court “remanded” or sent the case back to the lower courts to issue opinions consistent with today’s ruling. This means that the agency (DHS) will be given specific instructions about how to reinstate DACA as it existed in 2012. The openings are wide but so too are the opportunities for DHS to revisit and create a new memorandum to end DACA with “more” explanation. Meanwhile, Congress still has the right and responsibility to pass a solution that provides legal status to those with DACA, their families and others who have lived in limbo and outside an immigration statute that has not been updated in more than 30 years.
DACA decision resources:DACA Decision: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
DACA Resources from Penn State Law: https://pennstatelaw.psu.edu/immigration-time-of-trump#DACA/DAPA
Amicus Brief to the Supreme Court by Immigration Law Scholars: https://medium.com/@shobawadhia/daca-at-the-supreme-court-immigration-law-scholars-brief-cfef6e7e7262
Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases: https://nyupress.org/9781479829224/beyond-deportation/
This originally appeared on Medium.

Reflections from a Black Lawyer on Juneteenth

I knew that I wanted to be a lawyer early on in my childhood.

If you had asked me for the source of this career aspiration ten years ago, I likely would’ve referenced the John Grisham novels that I consumed as a kid. Then I would’ve told you about the inspiring example set by my aunt Joy, a solo practitioner based in Louisiana.

I became a lawyer at 25 and took great pride in fulfilling that dream - both for myself and my family. Now, with four years of practice behind me, I can stop and reflect more incisively on what it means to be a Black lawyer in the twenty-first century.

As a preliminary point, my 2020 self will be more forthcoming about why I became an attorney. It is a thought process that Black people have employed for nearly 250 years in this country and for more than 400 years on this land, all in an effort to survive: I wanted to become a lawyer to prove that I am worthy. To demonstrate that I am deserving of the accommodations I occupy, the work in which I engage, and the existence that is my own.

I became a lawyer to validate my bookish ways, to show that Black people can be attorneys, and to tell the world that I’m exceptional. Taking this reasoning to its logical conclusion, I should therefore be given what my ancestors were consistently denied.

Not surprisingly, I played right into the hands of respectability politics with this rationale.

By diving into my legal career and reading more about America’s deep-rooted investment in anti-Black racism, I learned how tenuous my true justification was.

Grappling with the works of writers like Isabel Wilkerson, Toni Morrison, and Ibram X. Kendi, I saw that the consistent denial of the full humanity of Black people was integral to every era of this country’s development. Despite our tenacity and ability to adapt within inhumane conditions, armed forces - whether white vigilantes or organized police departments - rose up to destroy any progress that had been made and slaughter entire communities of Black people.

I think of Black people across the South who sought and won elected office during Reconstruction, only to be thwarted by the Compromise of 1877 and the removal of federal troops from the South. I consider the circumstances of the prosperous Greenwood community in Tulsa, Oklahoma - burned to the ground in mere hours as Black adults and children were massacred by their white neighbors. I look back to the MOVE bombing in Philadelphia 35 years ago, and I recognize how all levels of the United States government have either been complicit in the racial violence inflicted upon Black people or have been the direct perpetrators of it.

In my work for two racial justice organizations in D.C. - the Lawyers’ Committee for Civil Rights Under Law and Advancement Project’s National Office - I witnessed how the school-to-prison pipeline and voter disenfranchisement laws attempt to relegate Black people to a subhuman category in present times. I tracked the legacies of centuries-old racist policies that operate to keep Black people away from decent housing, adequate health care, the ballot box, educational opportunities, and employment prospects. I heard from directly impacted people who fought to dismantle draconian laws and policies in their communities. I began to more fully understand how deep of a commitment this country has to white supremacy.

But, through all of this state-sanctioned violence and white domestic terrorism, at least I could proclaim that I’m an attorney?

Arriving at this moment - in the midst of a global pandemic and international uprisings against police violence - I feel compelled to reject the tenets of respectability politics even more forcefully. I am certainly determined to use my occupation on the quest to Black liberation, but my career definitely won’t be the thing that saves me.

Black people have done everything imaginable to prove our humanity; we shouldn’t feel any pressure to do anything else.

Despite that truth, I draw much inspiration from what feels like the present revolutionary moment. Black people find themselves alongside multiracial throngs of protesters - all speaking out against police violence and proudly shouting that Black Lives Matter. Local government bodies are taking significant steps to defund police departments, yielding to the pressure placed on them by organizers and community members for years. These notions fit squarely within the framework of prison industrial complex abolition, with the work of Black women like Dr. Angela Davis, Ruth Wilson Gilmore, and Mariame Kaba increasingly entering the public discourse.

Most encouraging of all, people continually acknowledge that the experiences of all Black people must be elevated. A historic march for Black trans lives occurred a day prior to the Supreme Court ruling that the protections of Title VII of the Civil Rights Act of 1964 extend to LGBTQ people. Such actions are critical in a moment where so many people are calling for a radical reimagining of public safety.

One outside of police, surveillance measures, and prisons. One where Black people, especially women and LGBTQ people, feel as though thorough systems of accountability are in place to address harms that may occur.

This Juneteenth, as I look toward the future with a sense of optimism, I take great joy in my individual journey as a Black person and attorney, as well as the collective sojourn of my people. I will continually push back against that urge to be respectable or otherwise perfect to fully engage with my humanity.

I thank the Black people who received word of their freedom in Texas 155 years ago for providing blueprints for a proper celebration and an on-going struggle for justice.

Safe Policing for Safe Communities: Trump’s Non-Reformist Order

Professor Ravenell has written extensively on Civil Rights Litigation and Police Liability. She thanks Austin Skelton for his assistance with this project and credits him for the photographs included herein.

After more than three weeks of civil protests and widespread calls for police reform, President Trump finally has issued an Executive Order calling for “Safe Policing for Safe Communities.” With a perfunctory reading, one might think that the order hits many major points for reform:

Certification and credentialing of state and local law enforcement agencies
Databases and information sharing regarding incidents of excessive force
Enhanced training for policing mental health, homelessness, and addiction
Additional federal programs and funding for police.

However, a closer examination reveals that, from beginning to end, Trump’s order is light years behind the reform that activists are demanding and that state and local legislatures are considering. The order, like so many of Trump’s earlier statements, reflects an antiquated, law and order approach to policing.

The Executive Order begins with a familiar phrase: “all persons are created equal and endowed with the inalienable rights to life and liberty,” the same line that Thomas Jefferson wrote to open the Declaration of Independence. Yet, for many Americans, this phrase recalls a time when blacks were slaves and viewed as 3/5 a person. As Chief Justice Taney stated in Dred Scott, “[i]n the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.” For Trump to issue an executive order about policing in 2020, a time when protestors are chanting “Black Lives Matter,” with this particular opening phrase, is at best ignorant and at worst, another example of the race baiting that has and continues to underscore his presidency. Given his recent decision to hold his first political rally since March in Tulsa Oklahoma, the site of the Black Wall Street Massacre, on Juneteenth, a date that commemorates the end of slavery, it seems that between ignorance and race baiting, it’s more likely the latter. (Fortunately, Trump moved the rally to the next day, still in Tulsa, after his “African American friends and supporters” “reached out to suggest that [he] consider changing the date.”)

The title of the order itself, “Safe Policing for Safe Communities” reflects the idea that police are necessary to keep communities safe. Yet, a recent Vice article offers strong evidence that police are not a prerequisite for a safe community and, may actually expose some community members to unnecessary dangers. The article details how some cities have assigned traditional police duties to other professionals. For example, Eugene, Oregon’s CAHOOTS program sends specially trained teams to answer certain calls traditionally assigned to the police, like homeless, intoxication, and mental illness. Rayshard Brooks, a black man who was killed in Atlanta after a 911 call reporting that he was sleeping in a Wendy’s drive-thru, exemplifies the danger of “routine” police interactions. Police officers shot Brooks in the back three times, killing him, after he fled with one of the officer’s tasers. To be clear, the solution is to call the authorities. But systematic police reform requires that we imagine authority beyond police. Had an unarmed interventionist, like CAHOOTS, arrived and escorted Brooks home, he, in all likelihood, would still be alive. As Atlanta’s mayor Keisha Lance Bottoms observed following Brooks’ killing, “there has been a disconnect with what our expectations are and should be, as it relates to interactions with our officers and the communities in which they are entrusted to protect.” Trump’s Executive Order starts from a point upon which many disagree –that police make our communities safer.

Rather than transferring responsibilities from over-burdened police officials to other professionals better equipped to deal with the challenges posed by mental illness, homelessness, and addiction, Trump’s Executive Order doubles down on the role of police officials. The Order does little to change the status quo. Yes, it is true that “law enforcement officers often encounter such individuals suffering from these conditions,” but this need not be the case. Emergency response systems currently assign different responsibilities to firefighters, EMTs, and police officials. It is hardly a stretch to imagine adding other professionals, like counselors and interventionists, to this system.

Cities and municipalities have looked to police officials to solve far too many problems. As Abraham Maslow observed in 1966, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” To its credit, Trump’s Executive Order does suggest the possibility of pairing “social workers or other mental health professionals working alongside law enforcement officers so that they arrive and address situations together.” Yet, having police present in these circumstances is like taking your hammer when you all you need is your screwdriver. Progressive police reform does not depend upon the presence of police officials. It expands the toolbox.

Section 2 of the Order charges the Attorney General with allocating funding to state and local agencies that create “independent credentialing bodies.” Given what transpired in Lafayette Square on June 1, this seems particularly ironic. Not only does the Order fail to address unlawful uses of force by federal law enforcement officials (like the National Guard), but it tasks the Attorney General with overseeing this particular provision; the same official who ordered police to use force against protestors and news media in Lafayette Square. Attorney General Barr has stated, “When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies.” Recently, more than 1,250 former Justice Department officials have petitioned for an investigation into Barr’s role. This is who is charged with police reform.

Section 5 of Trump’s Executive Order promises more funding for police to, among other things, pay for credentialing programs and retain “high-performing law enforcement officers.” This is a sharp contrast to protestors rallying cries to “defund the police.” Of course, “President @realDonald Trump stands against radical efforts to defund police departments.”

Trump introduced this Order by declaring that “the vast majority of police officers are selfless and courageous public servants. They are great men and women.” Drawing attention to “good police” is convenient because when the problem is limited to a “few bad apples” there is no need for systematic reform. This Executive Order is not systematic reform. It is hardly reform. But why does America need reform when, according to Trump, “Americans know the truth: Without police, there is chaos; without law, there is anarchy; and without safety, there is catastrophe”? Trump wants us to believe that we need police to keep us safe. He wants his base to believe that disagreeing with this statement is Unamerican. America probably needs police. America definitely needs systematic police reform. Trump’s Executive Order offers police without the reform.

Bostock: A Textualist Trump Appointee Delivers a Landmark Victory for LGBT Equality

Steve Sanders

Professor of Law, Indiana University Maurer School of Law

Professor Sanders has written and spoken widely on LGBT legal issues. On behalf of the Human Rights Campaign, he co-authored an amicus brief to the U.S. Supreme Court in Obergefell v. Hodges (2015), which established nationwide marriage equality.

The Supreme Court ruled Monday that employment discrimination against gay, lesbian, bisexual, and transgender individuals violates Title VII, the federal statute that outlaws discrimination “because of [an] individual’s … sex.” As happened after the Court’s marriage-equality rulings in 2013 and 2015, memes popped up juxtaposing the Court’s marble temple with rainbow flags. The message seemed to be: “SCOTUS – even today’s more conservative, post-Anthony Kennedy SCOTUS – still loves LGBT people!”

Viewed purely by its result, the Court’s 6-3 decision in Bostock v. Clayton County, Ga., is a head-snapping, landmark victory for LGBT equality. But the majority opinion is not a manifesto for LGBT rights or social equality. Unlike Justice Kennedy’s three decisions about marriage and sodomy laws – which were based on constitutional law, not statutory interpretation – it does not rely on lofty concepts like “dignity,” or “emerging recognition” about LGBT people’s lives.

Instead, the opinion is an exercise in pure, academic textual analysis. If an employer fires a man for dating a man, but wouldn’t have fired a woman who dates a man, the employer has engaged in discrimination “because of … sex.” The same goes for an employer who fires a transgender man because his sex at birth was assigned as female, but wouldn’t fire a woman because her sex was assigned as female. “The statute’s message for our cases,” wrote Justice Neil Gorsuch, is “simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” More generally, “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Only Gorsuch could have written this Platonic archetype of textualism. As Professor Richard Primus observed after the arguments in Bostock and its two companion cases, “being a principled textualist is a big part—perhaps the biggest part—of Gorsuch’s public identity as a jurist.” If Gorsuch’s opinion doesn’t scramble our understandings about what it means to be a “conservative” versus a “liberal” justice, it does at least show that those labels can be an oversimplification. As Professor Katie Eyer wrote on the ExpertForum last fall, “Neither textualism nor originalism are inherently ‘conservative’ approaches, in the sense of necessarily leading to politically conservative results.”

Be that as it may, it will be entertaining to watch the religious right – which sold its soul to Donald Trump in return for judicial appointments – set its hair on fire over the fact this LGBT rights slam-dunk came from the pen of Trump’s first Supreme Court nominee.

There will also be much speculation about Chief Justice John Roberts’ vote to quietly join the majority. Jonathan Adler has argued that Roberts, in statutory interpretation, prefers “a ‘Burkean minimalism’ that seeks to reduce seismic effect of the Court’s decisions.” But Bostock is seismic. We must assume Roberts was won over by the sheer force of Gorsuch’s textualist logic, together with the ample examples he provided of how Title VII has been applied in ways not anticipated by Congress in 1964.

Gorsuch has been noted for the quality of his writing, and this opinion is highly readable. It is filled with analogies to everyday human activity. My Indiana University colleague Jennifer Drobac compared it to “a Chanel. Simple and elegant. It will not go out of style.” And it actually spends more pages refuting the arguments on the other side than laying out its affirmative case. Its backbone is textualist formalism, but it brims with intellectual and rhetorical passion. It is an opinion that suggests faith in the powers of reason, logic, and rigor.

Of particular note, but easy to miss, is that Bostock accepts without question the idea that it is possible for a person to transition genders. This may prove significant in future cases dealing with gender identity.

Since getting drubbed on the question of marriage quality, religious and social conservatives have devoted themselves to disparaging the very idea of gender transition as “lunacy” and a “disjunction between reality and perception.” The Heritage Foundation’s Ryan Anderson, who has made himself the religious right’s standard bearer on this issue, has attacked what he calls “transgenderism” as “a belief system that increasingly looks like a cultish religion.”

The plaintiff in one of the three cases encompassed by Bostock was Aimee Stephens, a transgender woman who had been born and lived for many years as a man. Bostock ignores any medical or political debates about gender transition, but it forthrightly accepts that there can be a difference between sex assigned at birth and a person’s gender identity. Consider this passage: “[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”

Looking to the future, Bostock may also reverberate in profound ways for its explanation of what it means to discriminate “because of … sex” – that the phrase means more than just disparate treatment of men and women qua men and women. The Fair Housing Act also forbids discrimination “because of … sex.” In schools and education, Title IX forbids discrimination “on the basis of sex.” Bostock’s logic surely will be invoked in litigation about related matters, such as the Trump administration’s rollback of protections against anti-LGBT discrimination in health care.

Does Gorsuch’s majority opinion succeed on its own terms as a work of textualism? That debate will continue for years in the law reviews, and it is beyond my scope here to pass judgment. But certainly Justice Samuel Alito wasn’t buying it.

In response to Gorsuch’s cool and confident 33-page majority opinion, Alito erupted in an outraged 54-page dissent. Money passage: “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

One might chalk up some of this opposition to the fact that, as Linda Greenhouse has argued, Alito is the Court’s most politically partisan and results-oriented conservative. But in the contest for maestro of textualism, Gorsuch outclasses Alito. For Alito, what it means to discriminate “because of … sex” was fixed when Title VII was passed in 1964. In that sense, his argument is more originalist than textualist. (The two are often confused.) For Alito, the question of how Title VII applies to LGBT people is settled by the fact the Congress that passed the law couldn’t have imagined the Bostock majority’s result. That’s an argument based on a paleo form of originalism that focuses on “original intended application.” By contrast, Gorsuch explains why, for a textualist, none of that matters: Congress wrote a broad and sweeping command not the discriminate “because of … sex,” and so that’s what courts are obligated to apply.

Alito’s dissent can be boiled down to this: the majority’s textualist formalism notwithstanding, everyone knows the issue here is not discrimination on the basis of “sex,” but rather discrimination against people because they are gay, lesbian, bi, or trans.

Is Alito wrong on that? And is a decision based on pure textualism something legal progressives should cheer? Oliver Wendell Holmes, one of the guiding lights of legal realism, famously said that “[t]he life of the law has not been logic: it has been experience,” and that law “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” Yet approaching anti-LGBT discrimination and Title VII through the lens of pure textualism almost turns those maxims on their head.

In the wake of last fall’s arguments in these cases, Professor Nan Hunter of Georgetown lamented in a public Facebook post that “for most of the more than two hours of arguments, there was no exchange in which any Justice voiced, with any emotion, a note of empathy” about the experiences of LGBT people. Yet that is the consequence of bringing anti-gay and anti-trans discrimination within Title VII. At oral argument, the attorneys for the gay and transgender employees, Pam Karlan and David Cole, stayed relentlessly on-message that their clients had suffered discrimination because of their sex.

And so, as welcome as it surely is, Bostock does not provide the doctrinal or theoretical foundation for the next phase of the legal revolution for LGBT equality. Queer Studies scholars have taught us that attitudes toward LGBT people are bound up with attitudes and stereotypes about sex and gender. But the Court’s laser focus on sex discrimination means it does not discuss, much less attack, root causes of anti-gay and anti-trans discrimination, such as attitudes of heteronormativity, transphobia, or right-wing natural law dogma about sexuality.

Another consequence of Monday’s decision is that it will set back efforts to pass legislation at the federal and state levels specifically protecting LGBT people against employment discrimination. Thus, Bostock will become fodder for ongoing debates over legislative versus litigation strategies for social change. And it is important to remember Bostock is only about employment. There is no federal law assuring LGBT people the right not to be turned away from businesses such as bakeries and florists, and fewer than half the states have such laws.

In sum, Bostock will join Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in the canon of LGBT rights decisions. There is no other minority group that has had such an unmitigated record of success at the Supreme Court. Bostock, as a statutory decision, differs from Justice Kennedy’s constitutional handiwork in those other cases in important ways. Nonetheless, it will advance the perception that history and justice, writ large, are on the side of LGBT equality.

The Federal Government Fiddles As Covid-19 Ravages Native Americans

Elizabeth Warren, a Democrat, represents Massachusetts in the Senate.

Deb Haaland, a Democrat, represents New Mexico’s 1st District in the House.

For generations, the federal government has failed to honor its promises to Native American people. Now, covid-19 is ravaging Native communities, killing young people and elders alike, and devastating tribal economies. We are fighting in Congress to ensure that sovereign Native nations have the resources needed to protect the health and well-being of their citizens during this pandemic. The novel coronavirus’s terrible impact in Indian Country underscores that the federal government must live up to its unique legal and moral obligations to Native nations and act as a partner to help build security and resiliency for the future.

The coronavirus has taken a tragic toll on Indian Country. The Navajo Nation had infection rates higher than any state as of last week. In New Mexico, Native Americans make up just 11 percent of the population, but account for more than half of the covid-19 cases. Native nations’ economies have been devastated. And American Indians and Alaska Natives also disproportionately suffer from health conditions that make them especially susceptible to complications from covid-19, in part because of environmental injustices that have left their communities grappling with the health impacts of poisoned water and air.

By disregarding the clear health crisis in tribal communities, the federal government continues a tragic pattern of broken promises to Native nations. During negotiations over the Cares Act, the major coronavirus relief package passed by Congress in March, the White House fought against any direct aid to the 574 federally recognized sovereign Native nations. Even when Senate Democrats and the Congressional Native American Caucus successfully ensured the legislation included this critical economic aid, the Treasury Department dragged its feet for weeks. More than a month after the Cares Act was enacted, Native nations still hadn’t received a penny of the $8 billion the law provided to them. Only after we and our colleagues pressed the Treasury Department did it release some of the funds to tribal governments.

The government has also failed to protect American Indians’ and Alaska Natives’ health. Even before the pandemic, the Indian Health Service (IHS) was woefully underfunded. A report by the U.S. Commission on Civil Rights stated, “In 2017, IHS health care expenditures per person were $3,332, compared to $9,207 for federal health care spending nationwide.” Although funding needs have only grown with the arrival of covid-19, the Cares Act provided less than Indian Country requested for pandemic health-care needs. Bureaucratic obstacles forced the Navajo Nation to wait for desperately needed funds as infections multiplied among its citizens. The IHS, tribal health authorities and urban Indian health organizations have struggled to access the Strategic National Stockpile, a federal repository of drugs and medical supplies for public health emergencies.

The federal response to covid-19 in Indian Country is unacceptable — and the American people strongly agree. New surveys from Data for Progress found a bipartisan majority of Americans support increasing funding for the Indian Health Service, holding the federal government legally responsible for upholding its treaty obligations, including health care, and allowing Native nations to interact directly with the federal government to receive aid instead of going through states. The same goes for prioritizing federal aid for hospitals and other essential services needed by communities of color and Native communities that are disproportionately exposed to air pollution and covid-19. There’s also broad support for letting tribes directly obtain resources from the Strategic National Stockpile without jumping through hoops at the state level — a proposal for which we introduced federal legislation.

It’s beyond time for the federal government to take decisive action to empower Native nations. The American people want it, and our moral and legal responsibilities require it.