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.

Face-Covering Requirements and the Constitution

To slow the spread of COVID-19, the federal Centers for Disease Control and Prevention (CDC) currently recommends the use of cloth face coverings in public settings such as grocery stores where other social distancing measures are difficult to maintain. Medical experts say that “Apart from avoiding crowded indoor spaces, the most effective thing people can do is wear masks.” Some state and local governments mandate the use of face masks or coverings in specific settings, typically in retail establishments and on public transportation. As face-covering requirements multiply around the country, lawsuits challenging them follow.  

In a public health emergency, can state or local governments require the general public to wear face coverings? More than a century has passed since face mask ordinances proliferated in U.S. towns and cities during the 1918-1919 pandemic flu. Face mask ordinances, where they existed, could be enforced with citations and fines, with municipal judges holding what journalists referred to as “influenza court” in which a citizen could contest the citation and hope to avoid paying a fine. Few reported court decisions (and none from federal courts) emerged from that era. But as a general rule, judges deferred to state and local elected officials on face-mask ordinances, as well as the decision to close businesses and schools and prevent public gatherings. 

In the face of that devastating pandemic, the judicial branch seemed to adopt a non-justiciable, political question-type approach to local health measures in an emergency. Typical is the Supreme Court of Arizona’s pronouncement, “Necessity is the law of time and place, and the emergency calls into life the necessity … to exercise the power to protect the public health.” In 1905, the U.S. Supreme Court had called for just such deference in Jacobson v. Massachusetts. In the midst of a small-pox outbreak, local authorities could mandate vaccination on penalty of a fine for refusal: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” 

Constitutional doctrine changed profoundly over the ensuing century, not only with respect to due process and equal protection but also individual and associational rights under the First Amendment. Yet Jacobson has continued to be the seminal decision on public health authority in an emergency, against which modern civil rights and liberties are balanced.

This is why Chief Justice John Roberts’s invocation of Jacobson in a recent religious liberty case is a significant signal. In South Bay United Pentecostal Church v. Newsom, the Chief Justice affirmed the central position of Jacobson v. Massachusetts:

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

The 5-4 decision generated a dissent by Justice Kavanaugh, joined by Justices Thomas and Gorsuch. Still, as the U.S. Supreme Court’s first foray into COVID-19 control efforts by state and local governments, Chief Justice Roberts clearly intended to provide broad guidance to lower courts. Jacobson v. Massachusetts counsels judges to afford wide latitude to the judgment of health experts, so long as such measures are neutral, generally applicable, and have a medical necessity a government can justify. Thus while courts must be deferential to the need to protect public health, courts must also be vigilant against abuses of public health powers. To do that they must ask what is reasonable, look at the public health evidence, and be attuned to the pre-textual or abuse of power.

A number of courts to date have affirmed the authority of state or local governments to impose social distancing measures such as temporary business closures, although religious freedom claims have a mixed reception. Are face-covering requirements different, though? At one level, the answer is clear: In the face of a virus spread through respiration where a significant percentage of contagious people have no symptoms, abundant medical justification exists for a state or local government to consider this a necessary public health measure. “Neutral” and “generally applicable” will be key in evaluating state-imposed face-mask requirements under both federal and state constitutions, as is the case for other public health emergency measures such as restrictions on gatherings and temporary business closures. 

Face mask requirements also should allow exceptions for medical need, such as persons with breathing problems. In KOA v. Hogan, the face-covering requirement included an exception based on guidance from the Maryland Department of Health: “People with disabilities who are unable to wear a mask are provided reasonable accommodations per the Americans with Disabilities Act.” In Pennsylvania, seven individuals have sued a grocery chain for failing to provide reasonable ADA accommodations when they tried to enter the store without a face covering. For state or local face-covering mandates, courts would likely require an exception for those whose medical condition prevent safely covering airways, as the court in Koa v. Hogan indicated. 

But face-covering requirements are different from other social-distancing measures in this respect: Is a face-covering requirement “forced speech,” or does it violate a right to freedom of expression, to identify with a political position, for example? At least one federal court has rejected this claim. In Koa v. Hogan, a group of military veterans alleged harm from association with capture on the battlefield and “subservience to the captor,” a meaning the court held not to be “overwhelmingly apparent.” More to the point, the court stated, “Requiring necessary protective equipment be worn to engage in certain public activities is simply not the equivalent of mandating expressive conduct.” Face-covering requirements regulate conduct, not speech. The State of Maryland had established a rational basis between the order to cover faces in public areas and the legitimate public interest in protecting citizens against COVID-19. 

Industry-specific regulation of employers present fewer constitutional hurdles. A 2016 New York case, Spence v. Shah, held that a healthcare employer could require a nurse to wear a protective mask if she refused to get a flu vaccine. New York courts have since upheld similar requirements. In Michigan, New York, and Rhode Island, Governors have ordered that all employers provide face masks and require employees to wear them if the employees will be in close contact with others. The EEOC reminds employers to provide reasonable accommodations for religion and disability if they do provide facemasks. Whole Foods has required that third party workers (e.g. Instacart shoppers) wear their own masks to shop. Some consumer retail establishments require customers to wear face coverings in the absence of a state or local mandate that they do so, such as Empire State South in Atlanta. 

No-smoking ordinances for restaurants and other retail establishments provide a useful comparison. Even in the absence of a public health emergency, state and local governments have ample authority to protect the health of the general public in indoor spaces. Smoking bans, for example, are designed to protect the health of employees and patrons, not the smoker, and such ordinances have been routinely upheld as within the police power of the state. Cumulative evidence of harm to health from second-hand smoke readily supplies a rational basis for state action. 

Similarly, the CDC estimates that up to 35% of people infected with the coronavirus have no symptoms, yet they may unknowingly infect others when in close contact in enclosed spaces. Masks reduce the chance of infected people transmitting the respiratory droplets that contain the virus.  State or local face-covering requirements rely on the current medical consensus that not wearing a face covering or mask may endanger others. Jacobson recognized that a state’s duty to “guard and protect…the safety and health of the people” includes the duty not to endanger others: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect to his person or his property, regardless of the injury that may be done to others.” 

In South Bay, Chief Justice Roberts himself recognized the extraordinary situation we find ourselves in:

The Governor of California’s Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others.

As noted in KOA v. Hogan, when leaders exercise “the powers given to [them] by the legislature in the face of the COVID-19 Crisis, [and] have made reasonable choices informed, if not dictated, by such data science and advice,” courts will generally uphold those orders. Neutral and generally applicable face-covering requirements are rational countermeasures adapted to rapidly changing data about a viral pandemic. (For that matter, face-mask requirements are also substantially related to an important government objective, should some form of heightened scrutiny apply to interests in bodily integrity.)  The Supreme Court has—and lower courts should—entrust the politically accountable branches with protecting public health and safety. 

ERA Must Take Its Rightful Place in the Constitution

Equal Means Equal, our nonpartisan human rights organization, has played a leading role in the revitalized movement to ratify the Equal Rights Amendment over the past decade. From broad cross-sector educational initiatives using traditional and new media platforms, to grassroots organizing in multiple unratified states, to legislative issue advocacy on the Hill and K Street, to finally seeking a legal remedy, we have been relentless in our battle to bring the United States to global standards on the rights of its women and girls, starting by validating ERA as the 28th Amendment to our Constitution.

Following the release of our eponymously titled award-winning documentary, Equal Means Equal (August 2016), we moved to the frontlines of the battle to resurrect and ratify ERA. We organized hundreds of screenings nationwide with dozens of local partners that served as recruiting hubs for women on the ground as well as voter registration drives. These newly formed groups mobilized for the legislative ERA ratification fights in Nevada in 2017 and Illinois in 2018. In 2019, after three years of stonewalling from Virginia state legislators, we implemented a massive voter education and get-out-the-vote campaign that helped flip that state’s General Assembly to a pro-ERA majority in November and a “yes” vote for ERA on January 27th of 2020, achieving the necessary three-fourths of the states.

Throughout our journey we have had to take the fight to the streets in the form of non-violent demonstrations; into legislative hearing rooms where we have offered expert testimony; to the ballot box with a coalition of voters united around equal rights advocacy; and ultimately in January to the federal courts.

Our complaint brought in U.S. District Court in Boston, calls on the courts to compel the Archivist of the United States to formally record ERA as the 28th amendment to the Constitution and declare the ERA as valid now that Virginia became the requisite 38th state to ratify the amendment. The Archivist has said he will not take action without a court order.

Along with Equal Means Equal, our co-plaintiffs include college sophomore Katherine Weitbrecht, a resident of Norfolk County, Mass., who was mocked and strangled by a man because she was wearing a rape whistle on campus late at night. She was not accorded equal protection under the law when her case was only charged as a misdemeanor because a hate crime was not possible. Massachusetts excludes women under its hate crime statute.

The third plaintiff is the Yellow Roses, a volunteer student organization founded in 2015 in Quincy, Mass., by a group of middle school girls, whose sole mission is to advocate for and raise public awareness about ratification of the ERA.

Together, we contend in our complaint that ratification deadlines imposed on the states are invalid. Article V of the United States Constitution nowhere grants Congress the power to impose deadlines. Under Article V, an amendment becomes valid when three-fourths of the states ratify it.

To quote Equal Means Equal legal counsel Wendy Murphy, “Even if Congress may impose deadlines, they may not be placed outside the text of the amendment itself, as happened with the ERA. Our position is that extra-textual deadlines are unconstitutional.”

As anticipated, the Department of Justice filed a motion to dismiss our complaint, arguing, among other questionable points, the ratification deadline for ERA had passed. There were no surprises in the DOJ’s response to our complaint.

“The government’s motion makes all the arguments we expected them to make about why they believe the ERA is dead," Murphy has explained. "We aren’t surprised because we know that some people in this country want very badly to keep women unequal under the Constitution, subject to unequal pay and disproportionately high rates of violence and abuse.”

Here is our response to the DOJ, filed today.

The Trump administration telegraphed its intent in January by publicly citing its opposition to adding the ERA to the Constitution when it advised the Archivist against officially recording the amendment as duly ratified.

So, while we are dismayed by this attempt to move the goalposts at the one-yard line, and we reject the intrusion of the executive branch into a matter properly belonging to the states, we are not at all surprised. Our opponents have tried to stop us every step of the way.

Before we made Equal Means Equal, people told us either the ERA had passed, or it was irrelevant; then we showed them why it still mattered. Before we won Nevada in March of 2017, people insisted the original ERA was dead and buried, that we’d have to start from scratch; but we kept pushing for the three-state strategy, unwilling to throw away 35 state ratifications and over a century of struggle by millions of American women and our allies.

After Nevada ratified, we were told that Illinois was impossible; for the last 25 years they had pushed for a yes vote in the House to no avail – it would never happen. We rallied groups, established and newly formed, to come together across the state: across ethnic and racial divides; in rural and urban areas; across party lines; and Illinois ratified ERA on May 30th of 2018.And finally, in Virginia, where deeply rooted incumbents responsible for the egregious racially gerrymandered maps in that state laughed at our efforts to mobilize women, youth and people of color around the Equal Rights Amendment. We were a source of some amusement and derision for the first three years. This past year? Not so much.

So here we are. American women have delivered what was asked of us almost a hundred years ago, three-fourths of the states, and now they are telling us that it’s not good enough. That we need to go back and start again. Stay in our second-class legal status for another few decades.

Ignore the pandemic of sexual violence in this country that the Thompson Reuters Foundation says puts the U.S, in a tie with Syria as the third most dangerous country on earth for women. Continue to do nothing about the underpaid mothers losing their kids to social services, the pregnant worker kicked off her healthcare in her eighth month. Accept and absorb the deep disrespect that the exclusion of women from our Constitution represents. Well, we won’t accept it any longer. We demand basic human equality and fully equal protection under the law for the first time in our nation's history.

The legal issues are indeed complex and unique, since the Constitution doesn’t get amended very often, but we are confident that our complaint stands on solid ground. We trust the arc of the moral universe has finally bent far enough to shelter us all with equality on the basis of sex.

Dedicated lawyers and diverse organizations from around the country are lining up in support of our case. As Alice Paul said, “there’s nothing controversial about ordinary equality.” We are, and will be, undeterred, until this war is won. We have come to the courts for answers and for justice.

 

 

Invoking “Terrorism” Against Police Protestors

Photo credit: Fibonacci Blue

This commentary was cross-published at Just Security.

On Sunday, President Donald Trump tweeted, “The United States of America will be designating ANTIFA as a Terrorist Organization.”  Attorney General William Barr followed the tweet with a statement committing to use the dozens of regional FBI-led Joint Terrorism Task Forces (JTTFs) against “violent radical elements,” which he reiterated on the president’s call with governors on Monday.  Much of the legal commentary that has followed focuses on the lack of presidential authority to designate Antifa, a loose network of anti-racist and anti-authoritarian protestors, as a terrorist organization under existing law.  (See examples here and here).

Such analyses, though correct, do not fully capture two important points:  first, terrorism frameworks for responding to a problem can have important legal, political, and cultural implications regardless of the lack of formal designation authority; and second, many on the left have irresponsibly advocated expanding such frameworks in recent years, despite concerns expressed by civil rights groups and communities of color about such an expansion.

Terrorism designations

Read sensibly, existing legal authorities do not permit the designation of Antifa as a terrorist group under either of the two primary legal processes available: the State Department’s process for designating foreign terrorist organizations and the Treasury Department’s listing of terrorists under Executive Order 13224, pursuant to the International Emergency Economic Powers Act.

Using the first process, the Secretary of State can designate foreign organizations that engage in terrorist activity threatening U.S. national security or U.S. nationals under Section 219 of the Immigration and Nationality Act.  One of the most important legal consequences is that individuals are prohibited from providing material support to designated organizations, regardless of their intent and even if their support consists of speech.

Under the second process, as modified by a Trump executive order from September, the Treasury Department can block the U.S. property and interests of foreign persons determined by the Secretary of State to have committed, or “pose a significant risk of committing,” acts of terrorism that threaten U.S. national security, as well as the property and interests of (foreign or U.S.) persons determined by the Treasury Department to have materially assisted acts of terrorism.  This executive order relies primarily on the International Emergency Economic Powers Act, which is limited to responding to “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.”

Despite the broad sweep of each of these legal regimes, and the fact that both have been applied to U.S. persons, it would be a stretch to target Antifa or Antifa-affiliated individuals through such authorities:  the first is limited to foreign terrorist organizations and the second stems from a statutory power restricted to extraordinary threats stemming in “whole or substantial part” outside the United States.  Antifa is not an organization nor presents a threat emanating substantially from outside the United States, even if individuals loosely claiming that identity sometimes engage in acts of violence or have international counterparts.

Other legal and political consequences

Nonetheless, the invocation of “terrorism” to respond to Antifa—and those protesting police violence more generally—has real consequences even if it does not create new legal powers.  For instance, Attorney General Barr’s call to use the existing JTTFs to target Antifa invites further use of structures that civil liberties groups and some cities have long opposed for conducting overbroad investigations of political speech, targeting Muslims and people of color, and undermining local oversight of policing.

The FBI already operates under guidelines that authorize far-reaching surveillance.  For instance, it has the authority to conduct “assessments” of potential criminal activity—including the use of secret informants—with “no particular factual predication.”  While the rules prohibit investigations based “solely” on the exercise of First Amendment rights, that limitation doesn’t prevent investigations of political activities so long as agents assert they’re acting to assess potential crimes.  A 2010 DOJ Inspector General review concluded that the FBI had, in fact, investigated anti-war and other activists without a sufficient factual basis and improperly classified lawful protest activities as terrorism.  Recent FBI threat assessments of “black identity extremists,” terrorism investigations of anti-racist protestors they identify as Antifa, and JTTF surveillance of the indigenous-led oil pipeline protest movement have amplified these concerns.

But beyond JTTF or FBI activities, the invocation of terrorism signals to state actors and ordinary people that police protestors are enemies of the state against whom extraordinary violence is acceptable. As press reports noted, Rep. Matt Gaetz tweeted: “Now that we clearly see Antifa as terrorists, can we hunt them down like we do those in the Middle East?”  Sen. Tom Cotton stated, “[L]et’s see how tough these Antifa terrorists are when they’re facing off with the 101st Airborne Division.” With police all over the country armed to the teeth with armored vehicles, riot gear, and grenade launchers that belong on battlefields, it doesn’t take deployment of the U.S. military to unleash military lethality on communities.

Once again, the risks of domestic terrorism expansion

The sad irony in all this is that, over the past two years, some on the left have vocally supported an expansion of domestic terrorism frameworks.  Some of the loudest calls for the creation of a new federal domestic terrorism law, for instance, have come from former national security officials who served in the Obama administration, while leading Democrats like Rep. Adam Schiff have introduced bills to create new federal terrorism crimes.  While long-overdue concern over white supremacist violence has prompted these proposals, such calls have neglected the many concerns that civil rights groups like the Leadership Conference on Civil & Human Rights or the Brennan Center for Justice have expressed over expanding terrorism frameworks.  (I have likewise argued against “ratcheting up” the terrorism criminal law regime, in legal scholarship, op-eds, and a written submission to a Senate committee assessing the domestic terrorism response).

Much of the civil rights opposition to expanding terrorism frameworks is rooted in the view that anti-terrorism activities—like law enforcement activities in general—especially target people in communities of color and others who challenge existing racial and socioeconomic power structures.  There is ample historical support for such concerns, based both on post-9/11 U.S. responses to terrorism and on the much longer history of domestic national security enforcement.  And contemporary examples confirm that powerful economic interests promote such policing: as one example, the oil and gas industry and its congressional supporters—including some sponsors of domestic terrorism bills—have urged the Trump administration to launch “anti-terrorism” investigations against protestors who disrupt oil pipelines.

In advocating for new federal domestic terrorism laws, some Democrats remarkably seem to believe that FBI agents, DOJ officials, and U.S. attorneys can generally be trusted with expanded powers—even when the head of the Justice Department is Jeff Sessions or Bill Barr.  The deeper problem seems to be the belief that anti-terrorism activities were generally fine during the Obama administration, and that only the Trump administration’s bad faith misuse of legal authorities—as in attempted Antifa designations—raises concern.

That belief is profoundly misguided.  If the events of recent weeks demonstrate anything, it is that many U.S. law enforcement institutions and officials see black and brown people as dangerous and are willing to deploy exceptional violence in response to them (or to others who seek to support them).  While those on the left may now oppose the administration’s calls to treat Antifa activists and others related to the protests as terrorists, some have long supported the expansion of punitive criminal and national security frameworks that make possible such treatment in the first place.  Rolling back those frameworks is the real need, not merely pointing out that Antifa can’t be formally designated.

Can President Trump Defund the WHO?

He probably can—but only because existing appropriations laws give him the authority to do so.

After delaying payments to the World Health Organization (WHO) last month, President Trump sent the WHO a letter two weeks ago cataloguing alleged failures in the organization’s response to COVID-19 and threatening to make the temporary freeze “permanent and reconsider [U.S.] membership in the organization” unless it “commit[s] to major substantive improvements in the next 30 days.”  Then on Friday (well before the 30 days had elapsed), President Trump declared, “Because they have failed to make the requested and greatly needed reforms, we will be today terminating our relationship with the World Health Organization and redirecting those funds to other worldwide and deserving, urgent global public health needs.”

It is not clear to me whether by “terminating our relationship” the President means simply to withdraw support or to take some more drastic step like ending U.S. membership.  As always, it is also unclear whether his administration will follow through on his statements.  In this post, I will analyze just one issue raised by the President’s escalating threats:  Assuming the United States remains a member in some form, can the President just end U.S. funding for the WHO on his own?

As I explained in this article on Congress’s power of the purse, the President has no constitutional authority to deny international aid if Congress mandates the aid by statute.  For better or worse, however, current appropriations laws do seem to give the administration some flexibility over WHO funding.  Congress could choose to eliminate that flexibility and mandate WHO contributions, but until it does so it looks to me like the administration has authority to withhold some or all of the U.S. contribution.

Constitutional Background

Let me start with the constitutional background. As discussed in my article and this earlier blog post, Congress has authority to control foreign aid through its so-called “power of the purse,” that is, its authority over federal expenditures.

Unlike certain other foreign affairs functions, such as recognizing foreign governments and communicating diplomatic positions, providing aid is not something the President can do on his own; he depends entirely on congressional appropriations to provide funds for it.  For that reason, any presidential authority to provide aid is “resource-dependent,” as I put it in the article.  Only Congress can appropriate funds for the aid, and accordingly Congress has authority to dictate the terms and conditions on which the funding is available.

In this case, that means that Congress can mandate funding for the WHO, just as it could mandate expenditures on, say, AIDS treatment in Africa, foreign aid to allies, or—just hypothetically—Ukrainian military defenses.

President Trump’s impeachment of course actually centered on delayed assistance to Ukraine, and I’ll return to that example shortly.  Amid debates over the impeachment, some argued, and the administration itself hinted, that the President has preclusive authority to withhold aid if he chooses.  This view is wrong.  It is at odds with the constitutional text, which empowers Congress to appropriate funds by statute and then obligates the President to “take Care” that all federal laws, including appropriations statutes, are faithfully executed.  In addition, although Presidents have claimed on occasion that they have a foreign-affairs prerogative to withhold mandated aid, I am aware of no significant pattern of actual executive behavior based on this theory.

Before 1974, Presidents did regularly “impound,” or decline to spend, appropriated funds when they felt the spending was unnecessary.  But Congress repudiated this presidential authority in the Impoundment Control Act of 1974 (ICA).  As a result, with limited exceptions defined by the Act, Presidents are now obligated to spend funds that Congress has appropriated.  As then-Judge Kavanaugh observed in a D.C. Circuit decision, “a President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program.  But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds.”

Current Appropriations

So what do current appropriations laws say about WHO funding?  The United States in the past has not only paid its required annual dues to the WHO, but also provided extensive voluntary funding for particular programs.  I will focus here on the required annual dues, which are obligatory for member states under international law.

Applicable Statutory Language

For the current fiscal year, Congress made no specific appropriation for WHO dues, but instead made a general appropriation of $1,473,806,000 for all dues to international organizations.  Specifically, the statute provided that this sum was made available “to meet annual obligations of membership in international multilateral organizations, pursuant to treaties ratified pursuant to the advice and consent of the Senate, conventions, or specific Acts of Congress.”

With respect to defunding the WHO, then, the key question is whether the administration could spend the full balance of this appropriation, less any sums it has already provided to the WHO and other organizations, on “annual obligations of membership” in organizations other than the WHO.  Although I have not seen any precise tabulation of the relevant amounts, I suspect that it can, in part because the United States has often failed to pay its full dues in the past and thus often owes substantial arrears to international organizations.  For some perspective on the numbers, the United States has already paid $60 million towards its $120 million WHO assessment this year, but as of October last year the United States owed the United Nations some $381 million in unpaid dues from earlier years; in December, we apparently covered this debt and then some with a $563 million payment, but still owed some $674 million in arrears from 2019.  (The United States also owes billions in arrears for peacekeeping missions, but those are typically covered by a separate appropriations account.)

Assuming the administration can find such alternative ways to spend the money, the statutory language appears to give the administration discretion to prioritize other organizations’ dues over the WHO’s.  Administration sources in fact floated this interpretation of the appropriations language to reporters, and unless I am missing something it appears to me to be essentially correct.

It is true that in the 2019 fiscal year, the conference committee report accompanying similar appropriations language indicated that the conferees “assume[d] the payment of the full United States assessment at each respective organization funded under this heading.”  This year’s conference committee, however, did not include such language, which in any event was not legally binding.  This year’s explanatory statement indicated that Congress meant to “provide[] not less than $67,397,000 for a United States contribution to the North Atlantic Treaty

Organization (NATO) for fiscal year 2020.”  By indicating which organization the President should prioritize, the committee arguably implied that the President in fact has prioritization authority in the first place—authority the administration is now apparently employing to halt funds to the WHO.

The Ukraine Analogy

The House Appropriations Committee spokesperson has indicated that by withholding funds from the WHO, the President “is violating the same spending laws that brought about his impeachment.”  That does not seem quite right to me.

President Trump was impeached over allegations that he delayed mandatory military assistance to Ukraine in hopes of inducing the Ukrainian government to dig up dirt on his political opponent Joe Biden.  The Government Accountability Office concluded in a legal opinion that the Ukraine spending delays violated the Impoundment Control Act, even though the money was ultimately released within the same fiscal year, because the delays amounted to a “deferral” under the Act.

Under the ICA, a deferral is the “withholding or delaying” expenditure of appropriations “provided for projects or activities” or “any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority.”  The ICA allows deferrals only if certain procedures are followed, and it does not allow the President to make them based on policy disagreement with Congress’s funding choices.  Instead, the statute allows deferrals only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.”  In addition, the GAO has understood the statute to allow “programmatic” delays when an agency is doing its best to implement a program, but “because of factors external to the program” money cannot immediately be spent.  The GAO concluded in the Ukraine case that the delay was an unlawful deferral because it was made for reasons of policy, rather than any reason allowed by the ICA or because of a programmatic delay.

In the WHO example, as with the Ukraine funds, the administration’s reasons for withholding WHO funds might be matters of policy rather than programmatic implementation.  But it is not clear to me that the administration has made a deferral at all if it is continuing to spend the full appropriation for purposes consistent with the statutory language.  The appropriation for Ukraine applied only to Ukraine.  The appropriation here covers spending for all international organizations.  Hence, diverting money away from the WHO to other organizations does not necessarily delay or preclude any activity Congress has specifically funded.

Trump’s Impeachment

For its part, the House of Representatives impeached President Trump not for violating the Impoundment Control Act as such, but instead for acting with the abusive and corrupt purpose of harming a political opponent.  That theory also does not seem squarely applicable here.  The President may have political reasons for picking a fight with the WHO, but Presidents have political reasons for nearly everything they do, and this would hardly be the first time that politics led to bad policy.  The President’s actions with respect to Ukraine were corrupt and abusive in a much more specific sense.

That said, the President’s letter is vague about what exact reforms the administration is seeking from the WHO in exchange for continued funding.  The President’s duty ultimately is to faithfully execute Congress’s funding choices, and the President could breach that duty by pursuing foreign policy goals fundamentally at odds with Congress’s policy in providing the funding.  (In a somewhat analogous context, for example, I have argued that executive officials should not presume authority to conditionally waive requirements in regulatory statutes so as to impose different requirements at odds with the statutes’ particular features.)

Absent more specific appropriations language, however, or at least more information about the President’s negotiating objectives, it is hard to say that the President has yet breached this limit.  Congress might wish to provide money no questions asked, but the appropriations law it passed instead gave the administration at least some discretion over how to allocate funds for international organizations.  In that context, employing that discretion to seek improvements in the WHO’s effectiveness, as the administration is at least ostensibly aiming to do, does not seem clearly out of bounds.

The Bottom Line

To sum up, then, failing to pay our WHO dues could be bad policy, and it could carry international-law consequences, such as loss of voting rights at the WHO, but for better or worse it appears to me to be permissible under this year’s appropriations.

As I noted at the outset, all my analysis presumes that the size of the governing appropriation is small enough to give the administration wiggle-room over which organizations it funds and in what amounts.  If I am wrong about that assumption, then my bottom-line answer would change as well.  Although the applicable appropriations statute grants some authority to “reprogram” funds from one account to another, this power is limited; emergency authorities such as those the President used to divert funds for his border wall would not obviously provide a lawful means of diverting these funds; and the general ICA restrictions on deferrals and other types of impoundments limit any non-payment of appropriated funds.  Given, however, the extent of U.S. obligations and arrears for other organizations, I expect that the administration can find ways to spend the money here even if it fails to pay its full dues to the WHO.

What To Do?

What, then, can those who disagree with the President do?  If Congress wishes to ensure continued WHO funding, there is an easy fix:  Congress can mandate payment of WHO dues in the next annual appropriation, with or without the conditions the President is trying to impose.

Because annual appropriations require Presidents to come back each year seeking new funding for their priorities, Congress holds leverage each year to override or modify presidential choices—and it should use that leverage here and in other areas to keep unilateral presidential policy-making in check.  Congress should also exercise oversight to compel greater transparency from the administration about its legal theories and foreign policy goals.  As Eloise Pasachoff has suggested, it might also consider reforms to reinforce congressional authority over appropriations and improve the transparency and accountability of executive decisions.

But on the WHO issue specifically the ball is in Congress’s court.  If I am right about the discretion afforded by current appropriations, then Congress will need to decide whether to limit this discretion in future years.  If it does, then the President will lack constitutional authority to defy Congress’s mandate—and he should not be allowed to claim otherwise.