The Narrowness of the Supreme Court’s Decision in NYSRPA

New York State Rifle & Pistol Association Inc. v. City of New York, the first Second Amendment case to receive a Supreme Court hearing in a decade, was supposed to be the Second Amendment decision of this generation.

In the briefing in that case (of which I participated as amicus on behalf of neither party) all the hopes and fears of ten years of waiting appear on full display. What methodological tools should courts use to decide a Second Amendment case? Should they use the two-part framework adopted by all the circuits, with historical/categorical reasoning in step one, and tailoring through strict or intermediate scrutiny in step two? Or should they abandon this framework as illegitimate “balancing” and apply something perhaps more originalist: a test focused solely on the text, history and tradition of the Second Amendment? Is the Second Amendment confined to the home – as some readings of District of Columbia v. Heller would suggest – or does the right extend to bearing firearms for personal protection outside of the home as well?

But the shoulders of NYSRPA were always too narrow to support the weight placed on them. First, the regulation was a strange outlier. New York City prohibited persons from transporting firearms locked and unloaded from a home in the city to most other places, including to another home in New York, or to firing ranges or pistol competitions outside city limits. It was the only regulation of its kind in the nation. Further, the major undecided issue after Heller – whether and to what extent a person can carry arms outside the home for self-defense – was governed by a different New York regulation, not at issue in NYSRPA.

Then came the procedural problems. While the case was pending in the Supreme Court, the city repealed the regulation. And for good measure, the State of New York preempted it. So any ruling on the merits would be on a regulation that no longer existed. Notwithstanding, the Court refused to dismiss the case as moot prior to oral argument. But the questions at oral argument signaled where the Court – and especially Chief Justice John Roberts’s – concerns lay, and they weren’t with the merits. Three quarters of oral argument focused on whether the Court should even decide the case; only one quarter addressed the substance.

So when the per curiam decision in NYSRPA came down Monday, holding the suit to be moot on appeal, few were surprised. Justice Brett Kavanaugh concurred in the mootness ruling but signaled (quite rightly) that there were several more vehicles for a Second Amendment case waiting in the cert pool. Justice Samuel Alito wrote an impassioned dissent, joined by Justice Neil Gorsuch, and Justice Clarence Thomas (in part). Alito disputed the majority’s reasoning on mootness, castigated the city and state for their actions, and took a swipe at five Democratic senators’ amicus brief for warning the Court away from ruling on the merits.

Given all the fireworks on mootness, you’d think the merits portion of Alito’s dissent would have been equally feisty. After all, gun rights advocates had leveraged then-Judge Kavanaugh’s opinion in the D.C. Circuit case District of Columbia v. Heller (Heller II) to push a text, history, and tradition-only approach to gun litigation, and Kavanaugh’s opinion in Heller II was a dissent. To be honest, I fully expected the NYSRPA dissent to be equally combative and to serve as grist for hundreds of legal briefs by movement conservatives and judicial opinions by Federalist Society-endorsed judges. Instead, the merits portion was strangely muted.

First, Alito’s dissent doesn’t reject tiers of scrutiny as part of the conventional two-step process. In fact, it uses some form of it as an alternative justification to hold New York City’s regulation unconstitutional. (Justice Thomas notably did not join this portion of the decision.) Second, and more significantly, the great prize of NYSRPA for gun rights advocates – a broad statement on the constitutionality of public carry – is nowhere to be found in the dissent.

As Justice Alito wrote:

We deal here with [a]  . . . core Second Amendment right, the right to keep a handgun in the home for self-defense. As the Second Circuit “assume[d],” a necessary concomitant of this right is the right to take a gun outside the home for certain purposes.

* * *

It is true that a lawful gun owner can sometimes practice at a range using a gun that is owned by and rented at the range. But the same model gun that the person owns may not be available at a range, and in any event each individual gun may have its own characteristics. . . . . Once it is recognized that the right at issue is a concomitant of the same right recognized in Heller, it became incumbent on the City to justify the restrictions its rule imposes, but the City has not done so. (Second alteration in original.)

At best, what the dissent does here is articulate a theory of incidental rights appurtenant to keeping arms, including some kind of transport. The NYSRPA dissent treats this litigation as a right to keep case, not a right to bear case.

In doing so, Justice Alito’s dissent echoed the initial position of one of the earliest academic champions of gun rights in America, the late Don Kates, who wrote in the Michigan Law Review:

Largely as a result of gun-owner organizations’ own legislative proposals, the laws of every state but Vermont prohibit at least the carrying of a concealed handgun off one’s own premises. A common proposal, already the law in many jurisdictions, is to prohibit even the open carrying of handguns (or all firearms), with limited exceptions for target shooting and the like, without a permit. . . . .

The constitutionality of such legislation under the [Second] amendment can be established on the same basis as the unconstitutionality of a ban on possession. (Emphasis and second alteration added.)

Kates wrote those words in 1983 (and slightly modified them shortly thereafter). Since that time things have changed dramatically. Today, every state in the United States permits some type of public carry. Some states allow individuals to carry firearms with no license and no training whatsoever.

The Court has distributed several Second Amendment cases for this Friday’s conference. Very soon, the Court may decide the extent to which the Second Amendment protects a right to bear arms unrelated to a right to keep them. That in forty years the debate has gone from rights incidental to keeping, to rights to nationwide public carry, shows just how far the gun rights movement has broadened its ambitions, and how successfully it has moved the center of the conversation.

The Constitution, COVID-19, and Growing Healthcare Disparities in U.S. Territories

COVID-19 has illuminated many unseemly cracks in the U.S. healthcare system. It’s shocking to hear some of the country’s premiere hospitals described as “war zones” and to see medical professionals begging for protective gear on Twitter. The challenge is even greater for the nearly four million Americans living in U.S. territories, whose invisibility and seeming expendability is reflected both on maps of the crisis that erase them from the United States and through federal healthcare policies that deny the equal value of their lives. This discrimination is clearly wrong. Whether it is constitutional will likely soon be decided by the Supreme Court, following the First Circuit’s historic ruling that denying federal assistance to aged, blind, and disabled people in Puerto Rico is unconstitutional.

Healthcare Funding Inequality Leaves Americans in Territories Behind

Disparities in federal Medicaid policy leave citizens in U.S. territories without the funding that ensures a basic level of healthcare sustainability to most American communities. Throughout the country, Medicaid enables providers to care for low-income Americans and to invest in equipment, infrastructure, and health-worker salaries. Congress allocates Medicaid funds to states based on residents’ per capita income. But it has historically allocated funds to U.S. territories at rates associated with the wealthiest states, like California, rather than the higher rates associated with states with similarly low per capita incomes. Congress also caps territories’ funds at an arbitrary dollar amount that falls well below actual need. Although Congress increased Medicaid funding to all territories in response to Hurricanes Irma and Maria, this funding bump expires in  2021—setting the stage for a Medicaid cliff that has life or death consequences.

The federal government’s unpredictable and discriminatory policy leaves territorial healthcare systems in a permanent state of uncertainty and inadequacy. In the U.S. Virgin Islands (USVI), for example, doctors and specialists that the islands need are unable to set up practices because they cannot count on a steady source of income from patients with Medicaid coverage. And USVI officials, like their counterparts in other territories, have hesitated to expand Medicaid eligibility, lest the federal government reduce funding in the next fiscal cycle.

None of the territories has an Affordable Care Act insurance exchange, and in smaller territories, individual healthcare plans are largely unavailable. This means that a disproportionate number of Americans in U.S. territories rely on the federal government for their healthcare needs. But the government has refused to provide the same levels of support to these Americans as it does to other vulnerable communities.

Even before the pandemic, the healthcare situation in the territories was bleak. Over the past three years, the USVI, Puerto Rico, Guam, and the Northern Mariana Islands have suffered devastating infrastructure damage from record-breaking hurricanes and typhoons fueled by climate change. In the wake of the storms, all of these territories report insufficient healthcare resources, including a shortage of doctors and nurses, difficulty providing services to low-income residents, and inadequate hospital space.

The hospital in St. Croix, USVI, has one working operating room to service a community of more than 50,000. USVI residents who can afford it purchase air ambulance insurance, enabling them to be transported off the islands for emergency procedures, while hospitals grapple with the cost of providing uncompensated care to those who can’t afford to pay. The need for mental health services is so critical that the USVI’s governor declared a state of emergency in the territory. And despite its aging population, the territory’s two publicly run nursing homes have long waiting lists for a vanishingly small number of beds.

It gets worse.

The federal government also prohibits residents of all but one territory—the Northern Mariana Islands—from receiving federal Supplemental Security Income (SSI). SSI is a lifeline for millions of Americans, providing a basic level of income to adults and children who have limited resources and are sixty-five and over, blind, or living with disabilities. Yet if you are a citizen living in California who receives SSI and you move to Guam, you’ll lose your SSI. (You also lose your right to vote for President, but that’s another story.)

Inequality in Territories Represents Failed Colonial Experiment

The experience of the USVI and other territories is not a bug: this systemic discrimination results directly from more than a century of America’s failed colonial experiment.

Following the Spanish-American War in 1898, the United States obtained Puerto Rico, Guam, and other overseas territories whose inhabitants it had no intention of treating equally to Americans on the mainland. These turn-of-the-century territorial acquisitions instigated contentious legal debates about the constitutional status of both the territories and territorial residents—who were (and are) overwhelmingly racial and ethnic minorities.

In a series of cases that first reached the Court in 1901 and have come to be known as the Insular Cases, the Supreme Court constitutionalized the acquisition and temporary congressional governance of  so-called “unincorporated” territories, where the rights and protections of the U.S. Constitution would not necessarily “follow the flag.” For residents of unincorporated territories, the Court questioned, or deemed inapplicable, many rights that most Americans take for granted: citizenship, the right to vote, and the right to a trial by jury.

Explicit racism undergirds the territorial incorporation doctrine. The Court that decided the Insular Cases also decided Plessy v. Ferguson, which constitutionalized the “separate but equal” doctrine in the mainland United States. Justice Henry Billings Brown, who authored Plessy, wrote in one of the Insular Cases that the “alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought” who inhabited the territories made “the administration of government and justice, according to Anglo-Saxon principles . . . impossible.”

Despite their controversial history and subsequent Supreme Court decisions questioning their continuing application, the Insular Cases and their twisted doctrine of territorial incorporation remain on the books. As a result, the federal government continues to argue in court that the rights to birthright citizenship,  an independent territorial judiciary, and even a democratic territorial government are all “privileges” that exist by the grace of Congress. In its view, the Insular Cases, alongside the plenary power doctrine, empower Congress to retract the grant of these rights at any time.

Constitutional Challenge to Inequality Will Soon Reach Supreme Court

Efforts to challenge the unconstitutional and undemocratic status quo in the territories may soon reach the Supreme Court.

In 2016, the federal government sued José Luis Vaello-Madero to recover $28,000 in SSI benefits it had inadvertently paid him after he moved from New York to Puerto Rico. Vaello-Madero, who was only entitled to receive SSI in the first place because he had little to no income, was unable to pay. Instead, he argued that SSI discrimination against territorial residents violated the Constitution’s Equal Protection Clause. Last year, Chief Judge Gustavo Gelpí of the District of Puerto Rico agreed, writing that “United States citizens residing in Puerto Rico are deprived of receiving SSI benefits based solely on the fact that they live in a United States territory. Classifying a group of the Nation’s poor and medically neediest United States citizens as ‘second tier’ simply because they reside in Puerto Rico is by no means rational.”

Earlier this month, a unanimous First Circuit panel led by Judge Juan Torruella affirmed Vaello-Madero, observing that “the Fifth Amendment does not permit the arbitrary treatment of individuals who would otherwise qualify for SSI but for their residency in Puerto Rico.” This ruling should be dispositive to claims raised in Peña Martinez v. Azar, another ongoing case in the District of Puerto Rico that raises affirmative equal protection challenges to both Medicaid and SSI discrimination against residents of Puerto Rico. The First Circuit decision could also prove influential in Schaller v. U.S. Social Security Administration, a similar SSI discrimination suit brought by a resident of Guam in the Ninth Circuit. One or more of these cases will almost certainly be taken up by the Supreme Court in the coming months.

How the Court reacts to these healthcare discrimination cases may be foreshadowed by its forthcoming decision in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, a case that raises significant constitutional questions, concerns billions of dollars, and, perhaps most importantly, addresses Puerto Rico’s ability to govern itself democratically. In briefing before the Supreme Court, parties on both sides argued that the Court should take the opportunity to overrule the Insular Cases. But when pressed at oral argument, Chief Justice Roberts and Justice Breyer expressed reluctance to act. Until the Court overrules the Insular Cases, however, residents of U.S. territories cannot achieve meaningful equality.

Judicial and Congressional Action Needed Now

The federal reaction to COVID-19 and the government’s broader approach to healthcare in U.S. territories epitomize the Insular Cases’ suggestion that “separate and unequal” is all Americans in the territories  deserve.

The CARES Act—the stimulus bill recently passed by Congress—guarantees less funding for territories (and the District of Columbia) relative to states and provides a lump sum to be distributed among all U.S. territories according to their populations. Residents of U.S. territories had little say in this outcome: although territories elect delegates to Congress, territorial delegates lack voting power. Thus, the prospects for bipartisan legislation introduced this month that would create Medicaid parity for the territories remain uncertain, at best. Disenfranchisement in Congress is problematic at all times, but doubly so in the midst of a health crisis.

Too few Americans are aware of the legal status of the territories, the racist origins of that status, and America’s ongoing failed colonial experiment, which enables these disparate impacts to endure. As COVID-19 overwhelms the nation’s healthcare systems, it is imperative that the courts and Congress take action to ensure healthcare equity for every American, whether they call a state or territory home.

 

The Supreme Court Rejects a Narrow Reading of the Clean Water Act in County of Maui v. Hawaii Wildlife Fund

On April 23rd, the Supreme Court handed environmentalists a victory in County of Maui v. Hawaii Wildlife Fund, holding that the Clean Water Act (CWA) regulates discharges of pollution into groundwater that emerge in surface water if “functionally equivalent” to direct surface water discharges. Justice Breyer wrote the six to three majority opinion, joined by the Chief Justice, Justice Kavanaugh and the liberal wing of the court.

The case arose from a dispute over a wastewater treatment plant in Maui that pumps millions of gallons of treated sewage into the ground, which then emerge in the Pacific Ocean a half mile away damaging a coral reef. Environmental groups sued arguing that the plant violated a CWA provision requiring a permit for “any addition” of “any pollutant” “from any point source” to jurisdictional waters, which are described in the statute as “waters of the United States.” The County, supported by the United States as amicus curiae, argued that the CWA does not apply to groundwater discharges.

While the current Supreme Court can fairly be characterized as inhospitable to environmental plaintiffs, the result is not entirely a surprise. In his plurality opinion in Rapanos v. United States, Justice Scalia rejected a narrow interpretation of the CWA as only covering direct discharges into jurisdictional waters. As Justice Kavanaugh’s concurrence identifies, in so doing, “Justice Scalia. . . explained why Maui’s interpretation . . . is incorrect.”

The decision is, nonetheless, a big win for the efficacy of the CWA. While the Court articulated a test that is narrower than the one relied upon by the lower court, functional equivalence would appear to provide the EPA with significant latitude to regulate groundwater discharges that are causing serious harm to surface waters.

More importantly, however, is what the Court didn’t do. Had the Court narrowed the CWA to direct discharges into jurisdictional waters the result would have been profound and disastrous.  Consider my home state of Arizona. Most of our waterways flow only during the rainy season. Under the Trump Administration’s new “waters of the United States rule,” those are not jurisdictional waterways. Put aside the legal challenges that are bound to come, even under the Trump rule the EPA can regulate discharges into non-jurisdictional waters if pollutants eventually flow downstream and enter jurisdictional waters. Put differently, the Court could have restricted the scope of the CWA in a manner far more extreme than even the current EPA has proposed.

As Professor Lisa Heinzerling explains over at SCOTUSblog, the decision is also a victory for those of us who believe that statutes should be read in light of their purposes, rather than based on a myopic focus on grammar and a recitation of the dictionary definitions of statutory terms. Justice Breyer’s opinion is steeped in the basic purposes of the Act—to protect America’s waterways—and the Chief Justice and Justice Kavanaugh sign on in full.

The case also provides another example of the folly of deregulating at break-neck speed. For many years, the EPA had interpreted the CWA to regulate groundwater discharges so long as they had a direct hydrologic connection to surface water. That interpretation proved manageable and effective, and I suspect the Court would have deferred to it.

During the litigation, the EPA announced a new, radically different, interpretation that all groundwater discharges are categorically beyond the reach of the CWA. The Court rightly declined to defer to that newly minted and untenable interpretation. But since the EPA’s older, long-standing view is no more, there is no obvious doctrinal mechanism for the Court to resuscitate it, rather than articulate a test of the justices’ own devise.

The extent to which the EPA’s old hydrologic-connection test and the Court’s new functional-equivalence test diverge remains to be seen. What we do know, however, is that the lower courts, the EPA, and regulated parties will have to sort that out in the years ahead. In other words, rather than relieving industry of regulatory obligations, the Trump Administration has simply created uncertainty that will imposes costs on all concerned.

The mode of analysis of much of the majority and dissenting opinions also demonstrates to my eye the reasons that agencies, rather than judges, are better equipped to interpret technical statutes. The justices engage in a spirited battle over grammar based on flights of linguistic fancy that have nothing to do with the way that water systems work.

For example, the majority offers:

"When John comes to the hotel, John might have come from the train station, from Baltimore, from Europe, from any two of those three places, or from all three. A sign that asks all persons who arrive from Baltimore to speak to the desk clerk includes those who took a taxi from the train station. There is nothing unnatural about such a construction."

Justice Alito rejoins:

"The traveler who flies from Europe to Baltimore—illustrates the problem. If we apply the Court’s interpretation of §1362 to this traveler’s journey, he would be “from” Europe for the first part of the flight, but at some point he might cease to be “from” Europe and would then be from someplace else, maybe Greenland or geographical coordinates in the middle of the Atlantic. This is a very strange notion . . . ."

Separately, the majority turns to the culinary realm to understand what the word “addition” might mean, offering that “A recipe might instruct to ‘add the drippings from the meat to the gravy’; that instruction does not become incomprehensible, or even peculiar, simply because the drippings will have first collected in a pan or on a cutting board.” Justice Thomas rejoins “if the drippings from the meat collect in the pan before the chef adds them to the gravy, the drippings are added to the gravy from the pan, not from the meat.”

This deep dive into linguistics makes for good reading. But is this really the best way to interpret the CWA? Wouldn’t it make more sense to interpret the text based on the realities of hydrology—the technical field providing the backdrop for the Act’s operation? And isn’t the EPA best suited to that task? Of course, the EPA has fallen down on the job. Still, this is an opinion that has me yearning for scientific expertise, rather than clever prose.

Finally, I think it’s worth returning for a moment to the short Kavanaugh concurrence because it takes such great pains to invoke Justice Scalia. During his career, Justice Scalia handed environmentalists a number of surprising and significant victories when he believed textualism demanded it. Perhaps a commitment to textualism will, at least sometimes, overcome ideology for Justice Kavanaugh too.

Justin Pidot is a Professor of Law and the Co-Director of the Environmental Law Program at the University of Arizona James E. Rogers College of Law

The First Amendment and the Protests Over COVID-19 Shutdowns

Photo credit: City Pulse/Kyle Kaminski

Governors across the country are facing protests by those who want executive orders closing non-essential businesses and ordering people to stay at home on account of the COVID-19 pandemic lifted. Would enforcing these restrictions run afoul of the First Amendment?

Assuming that the restrictions apply across the board and are directed neither at expressive activity generally, nor at the communication of any particular messages -- as seems clearly to be the case, then the First Amendment argument is a difficult one. These are restrictions that have only an incidental effect on speech and on these particular protesters. As a general rule, laws having only an incidental effect on speech -- meaning that they are directed neither at expressive conduct nor at any particular message -- come with a very strong presumption of constitutionality.

As a general rule, courts do not want to get into the business of figuring out when laws having only an incidental effect on speech violate the First Amendment. For example, in United States v. O'Brien (1968), the Supreme Court held that a law prohibiting anyone knowingly to destroy a draft card was not unconstitutional as applied to someone who burned a draft card for expressive purposes because the law had only an "incidental" effect on speech. Similarly, if someone is arrested for speeding and claims the conviction violates the First Amendment because he was speeding to protest speed limits, he would lose because the anti-speeding law was not directed at speech.

There are a few Supreme Court decisions, though, where the Court has held laws unconstitutional even though they had only an incidental effect on speech. In NAACP v. Alabama (1958), for example, the Court invalidated an Alabama law, similar to laws in many other states, that required all out-of-state organizations (including businesses) that operate in the state to disclose the names of all Alabama residents who are members of the organization. The Court held the law unconstitutional as applied to the NAACP, even though the law had only an incidental effect on First Amendment rights, because disclosure of one's affiliation with the NAACP in Alabama at that time would have led to a serious chilling effect on the willingness of Alabama residents to affiliate with the NAACP. And in Boy Scouts v. Dale (2000), the Court invalidated a law prohibiting discrimination on the basis of sexual orientation as applied to the Boy Scouts because the law had an incidental effect on the First Amendment rights of the Boy Scouts effectively to express its hostility to gays.

Thus, although First Amendment doctrine is very reluctant to invalidate laws having only an incidental effect on speech, the Court has made exceptions in a few cases where the incidental effect seriously interfered with the First Amendment right to express one's views and where the incidental effect was especially significant on certain points of view.  Assuming that's a reasonable understanding of the existing First Amendment doctrine, how does it apply to the current situation?

Frankly, it all depends on three primary considerations: First, how substantial is the state's interest in incidentally restricting the expressive activity at issue. Second, are there alternative ways in which individuals can make their views known without violating the incidental restriction. Third, are there ways in which the state can reasonably accommodate the speakers while still serving its goals.

These aren't open-and-shut questions. With respect to the first one, it's clear that in the current extraordinary situation the state has an extremely important justification for prohibiting significant gatherings of people. With respect to the second factor, there are certainly alternative ways the protesters can make their views known without having public protests that significantly undermine the state's extremely important interest in preventing the spread of the pandemic. Social media, for example, is a powerful means of communication that could serve the protesters’ expressive interests without creating a serious risk of illness. With respect to the third factor, the state can probably find ways to accommodate the protests on public property by insisting that the participants keep their distance from one another. That's clearly challenging, but it might be a reasonable solution if the protest takes place, for example, in a large public park or perhaps in a large stadium. If I were a lawyer for the protesters, I would try to work out a deal along those lines. Whether that’s realistic depends on whether it’s . . . realistic.

 

Trump’s Unconstitutional View of Presidential Power

During an evening news briefing on Monday night, President Trump declared that he, and not individual governors and mayors, would make the decision about when and how to reopen the country. Explaining his authority by stating that “[w]hen somebody’s president of the United States, the authority is total,” President Trump claimed vast executive powers in relation to the ongoing fight against COVID-19, including the power to reopen businesses, send children back to school, and end stay-at-home orders. Legal scholars across the ideological spectrum were quick to reject his arguments. Pointing out that under our federal structure the 10th Amendment reserves these powers to the states, these scholars explained that the constitutionally enumerated powers of the national government simply do not cover the powers that President Trump alleges to have.

Two days later, on Wednesday evening, President Trump was back with another remarkable claim, this time arguing that he could adjourn Congress. Bemoaning his inability to push through recess appointments during the COVID-19 crisis, President Trump took to Twitter saying that the “Senate’s practice of gaveling into so-called pro forma sessions where no one is even there has prevented me from using the constitutional authority that we’re given under the recess provisions.”

Although scholars were again quick to explain that President Trump’s claimed adjournment power is “empty, both formally and functionally,” it is important for us to read President Trump’s claims of executive power and disregard for constitutional norms and structure, in context.

From the beginning President Trump, aided first by Attorney General Sessions and now by Attorney General Barr, has held expansive views about what the president should be able to do. Under the guise of the so-called “unitary executive theory,” this administration has claimed the authority to fire the FBI director for any reason, argued that the president is immune from criminal investigation let alone prosecution, and bypassed the congressional appropriations process to use military funds to build a wall on the southern border. Recognizing that the federal judiciary might be unreceptive to these claims, the administration has been busy appointing a record number of judges who embrace their views on presidential authority, stacking the decks, so to speak, for when executive power cases inevitably come before our federal courts.

When we put President Trump’s comments this week into this larger context, we must ask, why are we surprised? Why are we surprised that President Trump thinks he can seize power from our state leaders? Why are we surprised that President Trump thinks he can silence Congress? As Professor Neil Kinkopf wrote on the ACS Expert Forum last year, this is an “imperial presidency, in part because no [administration] has ever come so close to accepting Louis XIV’s motto ‘L’etat c’est moi.’”

So, what can we do? Although social distancing limits our capability to have in-person, strategic conversations, like we did at ACS’s day-long February 2020 symposium on presidential power, it doesn’t limit our ability to raise our collective voices and speak out against presidential overreach. I’ve only been the President of ACS for a few weeks, but I have learned in that time how unique this organization is, and how powerful our voices can be. Let’s use them.

In addition to a March 6th ACS-wide briefing call on government authority during a health crisis, several ACS chapters, including Puget Sound, Buffalo, Memphis, and our At-Large Chapter have already held virtual programming on COVID-19 and presidential authority.

We can do more. Members of the ACS network are already writing OpEds in local and national papers challenging President Trump’s claims of extra-constitutional authority in the face of COVID-19. We can write more. But we’re not asking you to do this on your own. We’re here to help. ACS has extensive resources on presidential power and the unitary executive theory, including an Issue Brief by Georgetown Law Professor Victoria Nourse, and countless posts on the ACS Expert Forum by Nourse and other scholars including Aziz Huq, Neil Kinkopf, Deborah Pearlstein, and Peter Shane. Need help identifying a speaker? We’re here – we can make introductions, provide guidance, and even help with technology.

In a recent paper, the Carnegie Endowment for International Peace explained that governments around the world are using the COVID-19 “pandemic to expand [executive] power and restrict individual rights.” From Hungary to the Philippines and Cambodia, illiberal leaders are using this crisis as an opportunity to disrupt democracy and weaken governing institutions.

We simply can’t allow that to happen here. Together, we can use our ACS voice to stand up for the rule of law and protect American democracy.

 

 

 

The Wisconsin Election Debacle

In June 1919, Wisconsin was the first state to ratify the Nineteenth Amendment, expanding the vote to women. This was a proud moment for progressive Wisconsin. Today -- given the actions of our Legislature -- on the issue of voting rights, Wisconsin is sadly a national embarrassment. One questions how Wisconsin would have acted in 1919 under our present leadership.

A brief chronology of Wisconsin’s recent voting rights actions should embarrass us all:

  1. In 2011 — in an act of pure political gerrymandering — Wisconsin’s voting map was redrawn to cement Republican Party power. In 2012, federal judges found the line-drawing unconstitutional and berated leadership for their “desperate attempt to hide” their methods. While the US Supreme Court ultimately allowed the flawed map to stand, the Court acknowledged the map was drawn for purely political reasons, but said the courts had no power to address political gerrymandering as that was an issue solely for legislative bodies.
  2. Again in 2011, the Wisconsin legislature passed the first of eight laws enacted over the next four years that transformed the Wisconsin election system. Each of these laws made it more difficult to register and vote. In July 2016, Wisconsin’s federal court found these laws unconstitutional as they related to voting ID requirements, time limits on in-person absentee voting, and student ID and registration requirements.
  3. In 2018 — after the statewide election of a new Governor, Lieutenant Governor, and Attorney General — the Wisconsin legislature ignored the federal court injunction and passed almost identical laws making it more difficult to register and vote. In January 2019, the federal court struck down these new laws as clearly unconstitutional, and in violation of the court’s order, saying “This is not even a close question.”

Now it is 2020. As we approached the April 7 election all of us watched with growing horror as the Coronavirus pandemic spread, killing an increasing number in Wisconsin and across the country. We all heard the medical experts telling us the numbers will become even more devastating, and that social distancing was the only way to “flatten the curve.”

And what was the response of the Wisconsin Legislature? They refused: (1) To take early steps to move the election; (2) To take early steps to mail ballots to all eligible voters; and (3) To expand the time for absentee voting. They watched as the number of polling places shrunk dramatically, making it increasingly more difficult for in-person voting, and guaranteeing there would be long lines with more people put in danger from the virus.

The leadership fought —  all the way to the U.S. Supreme Court — every attempt to postpone the election, or to provide even small changes that would have increased mailed ballots or the time for absentee voting.

And, finally, the leadership fought Governor Evers’ last-ditch effort to save lives by postponing the election. They argued, and the Wisconsin Supreme Court agreed, that it was only in the legislature’s power to move the election, knowing full well that they had consistently refused to use this power to protect the voters and the electoral process.

And now it is the evening of  April 13, 2020, and we await the results of this ill-advised election. It is horrible to write, but the facts must lead us to conclude that the Wisconsin Republican Leadership will be pleased if today’s voter turnout is historically low given their efforts over the past nine years to suppress the vote. What they couldn’t achieve by passing unconstitutional laws, they will perhaps achieve with the assistance of a deadly virus.

In a representative democracy, true leaders must take all possible steps to encourage voting, remove obstacles to voting, and to guarantee that every vote matters. Depending on the election — primary or general — from 40% to 70% of eligible voters do not vote. This should embarrass all of us. Yet our state legislature ignores these numbers and keeps trying to make it more difficult, and today more dangerous, to vote. Please stop this madness and do your duty.