In 1986, the state of Georgia executed Jerome Bowden, a man with a full-scale IQ of 65. While Bowden was strapped to the electric chair, he thanked the prison for taking good care of him. State officials faced widespread criticism for the execution and vowed to ensure that the state would not execute a defendant with intellectual disability again. Two years later, the state passed a law prohibiting such executions.

It’s shocking to think that since the passage of the law 32 years ago, there has never been a single finding of intellectual disability at a trial involving intentional murder in Georgia. There is a simple reason for this: Georgia is the only state in the country that requires capital defendants to prove their intellectual disability beyond a reasonable doubt.

Long after Georgia enacted its law, the U.S. Supreme Court made clear in Atkins v. Virginia that the Eighth Amendment prohibits the execution of defendants with intellectual disability. However, Georgia’s unique standard means that, notwithstanding the Court’s decision in Atkins, the state still is doing just that. This unconstitutional practice has to stop. That is why our office, the Southern Center for Human Rights, along with the Roderick & Solange MacArthur Justice Center, filed an amicus brief in Raulerson v. Warden, No. 19-941, urging the Court to invalidate Georgia’s standard. As we explained in our brief, there are three primary reasons as to why the Court should declare Georgia’s statute unconstitutional.

First, there has not been a single finding of intellectual disability at trial in a case involving intentional murder in Georgia. In the words of one Eleventh Circuit judge, Georgia’s onerous statute “demands a level of certainty that medical experts simply cannot provide.” Because of this, capital defendants in Georgia do not have a meaningful opportunity to prove that they fall within the scope of Atkins.

Second, Georgia does not impose this standard for intellectual disability in any other context. For instance, in the education context, a student can be placed into special education as long as a comprehensive evaluation indicates intellectual deficits. In the social services context, an individual is eligible for disability services if she receives a diagnosis of intellectual disability. In both instances, the evaluation conforms with accepted medical standards. Georgia imposes an unattainable standard for proving intellectual disability only in the death penalty context—when the stakes are the highest.

Finally, it is clear that Georgia is not going to amend its statute to conform with the Constitution’s demands. The Georgia Supreme Court has repeatedly upheld the statute as constitutional. And the Georgia Legislature has consistently resisted efforts to change the standard, including as recently as 2018. Legislators have recognized that Georgia is an outlier, but nothing will change unless the Supreme Court intervenes.

The Court has warned that, if states are permitted “to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.” Georgia has confirmed the Court’s fear. Warren Hill could not prove his disability, even though every expert agreed that he was intellectually disabled. Hill was executed. Willie Palmer could not prove his disability, even though he struggled to put his shoes on the correct feet. Palmer remains on death row. And Billy Raulerson also could not prove his disability, even though testimony at his trial indicated that he functions at the level of a 12-year-old. Raulerson is now at risk of execution.

The state of Georgia has executed an individual with intellectual disability, and it will do so again so long as it employs its unconstitutional standard. The Court should grant certiorari in Raulerson and bring Georgia into compliance with the Constitution.

 

This article originally appeared in the Yale Journal on Regulation.

For those who spend much of their time litigating against the Federal Government, the routine invocation of standing, political question, ripeness, and no subject matter jurisdiction are reminiscent of the final words of Claude Rains in Casablanca: “Round up all the usual suspects.” Thus, it was no surprise when the House Judiciary Committee sought to enforce its subpoena to former White House Counsel Donald McGahn that the Department of Justice would argue that the Committee had no standing to go to court, even though it has no other way of obtaining McGahn’s testimony.

What is out of the ordinary is that the Department has blithely skirted around a major standing issue in the challenge to the constitutionality of the limits on removal of the director of the Consumer Financial Protection Bureau.[1] On closer inspection the reason for overlooking the standing issue in Seila Law is that the Government wants the Court to decide the merits and strike down the limits, whereas in the McGahn litigation it wants to do whatever it can to prevent the court from deciding the claim that all presidential advisers have an expansive immunity that precludes the House from gaining their testimony about potentially impeachable conduct by the President. To the extent that the law of standing has any flexibility to it, the Department has invoked it in the McGahn case in a way that will do serious damage to the ability of Congress to obtain information from the Executive Branch that it needs for legislative as well as impeachment purposes. And on the other hand, it has permitted a private party with no discernible injury with any connection to the alleged constitutional infirmity to raise a claim that is best raised in the context of an actual attempt by the President to remove the director, or one of the many other officers whom the Department claims have unconstitutional removal protections.

When standing is at issue, the plaintiff must show an injury, that is fairly traceable to the conduct of the defendant, and that the injury will be redressed by the relief that the plaintiff seeks. In McGahn, all three requirements are easily met: the Committee has been denied McGahn’s testimony by his refusal to obey the subpoena which he has said he will honor if the court allows him to do so. Nonetheless, the majority of the D.C. Circuit imposed what I see as a gloss on the law of standing, under which the courts are precluded from passing on disputes between Congress and the President, unless the injury is to a private party.

This is not the place to debate the law of standing as applied to that case, but it is vital to understand the impact of the McGahn ruling on Congress. First, this is not a case in which a few members sought to take the President to court. The lawsuit was brought by a major committee, with jurisdiction over the subject area, based on a resolution of the full House. Second, the subpoena had two goals—gathering informing for possible legislation and for impeachment. Third, the usual contempt of Congress remedy was foreclosed because the Justice Department, which defended the President, would have to bring such an action.

The majority does not dispute those facts, but responds by observing that the two branches have always worked out their differences in the past. The difficulty with that approach is that the possibility of judicial review was always lurking, as a way of bringing the President to the bargaining table. With that possibility gone, the President can stonewall, not every day, but on matters that matter, and Congress could do nothing.

The majority does mention other options for Congress, but they all are unrealistic. In theory the House could send the Sergeant at Arms out to arrest private citizen McGahn, but that would be grossly unfair to someone who is caught between competing demands of the two branches. And if he were still at the White House, the President could use the Secret Service to protect him. No wonder this tactic has not been tried since 1916. The opinion also mentions options that are either confined to the Senate (confirmations) or require both Houses, even when one is held by the President’s party. Of course, the House could refuse to pass any appropriations bills until the President caved, but is it really necessary or advisable to bring out a nuclear option instead of allowing the courts to pass on a legal claim of testimonial immunity, just as they did in the Nixon tapes case?

Now consider the CFPB case solely from the perspective of the refusal of the Department to raise standing. The lawsuit seeks to enforce a demand from documents from a law firm that the agency asserts is acting in violation of the laws that it enforces. The firm’s main defense is that, because the President is forbidden from removing the CFPB director without cause, the President’s ability to take care that the laws be faithfully executed, as the Constitution mandates, is seriously impaired. And for that reason alone, the lawsuit must be dismissed, with prejudice, but that is another story.

Under its traditional approach to standing, the Government would have moved to dismiss because, whatever injury the law firm had suffered in responding to the CFPB’s demand, had no connection to the unconstitutional removal provisions, so that if those provisions were struck today, the ruling would have no impact on the CFPB’s investigatory demand. In my view, the no standing argument is a slam dunk, but even assuming that the firm has a contrary argument, the real issue is why the Department’s reflexive invocation of standing as a defense is missing here? The answer is quite simple: the Solicitor General, who took over the litigation from the agency when the case got to the Supreme Court, wanted the merits decided because he wanted the restrictions struck down, even at the price of overlooking standing arguments and in creating a situation in which the Court was compelled to appoint an amicus (Paul Clement) to defend the statute (and also argue that the firm had no standing).

Perhaps the biggest contrast with McGahn is that the President could easily cure the standing in Seila Law, and obtain a ruling on the merits of the removal issue in a true adversary situation. He had such a chance when the former director Richard Cordray served for ten months after President Trump took office, and he has the chance now with the many other executive branch officials who have similar protections against removal at will. All he has to have is the courage to do what three prior Presidents did: discharge officers with restrictions on their removal and let them sue for their lost pay.[2]

The current Solicitor General is not the only one to overlook obvious standing issues when the political judgment is made that it is desirable to have the Court decide the merits of an important case. When the individual mandate portion of the Affordable Care Act was at issue in NFIB v. Sebelius, 567 U.S. 519 (2012), the Government chose not to argue that there was no current injury to the named plaintiff from the individual mandate even though the law did not go into effect for two years and the tax was not payable until the following April. But at least in that case, the decision to forgo standing was made in order to get an early ruling defending the law from a challenge that was certain to be brought in the not-too-distant future.

So what’s the right answer on standing? Is the jurisdictional doctrine so strong that it must always be raised and litigated to the hilt? Or is there some flexibility, so that the courts may take into account the impact of a finding of no standing and/or the availability of other means or other plaintiffs in obtaining a ruling? Whatever the answer may be, it is hard to defend on any doctrinal or pragmatic grounds the Department’s insistence on a strict reading of the law in McGahn, and a loose reading in Seila Law, unless the principle is that the law of standing means what is most convenient for the President in the particular case in which the issue might be raised.

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School where he teaches civil procedure and constitutional law.

[1] Seila Law, LLV v. CFPB, No. 19-7, argued March 3, 2020. The writer has filed an amicus brief in support of neither party in that case raising standing and other jurisdictional issues..

[2] See Myers v. United States, 272 U.S. 52 (1926); Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958).

 

The CFPB was the brainchild of Elizabeth Warren. In an influential article in 2007, she pointed out that though it is now illegal in America to sell people a defective toaster with a 20% chance of bursting into flames and burning down their home, it remained perfectly legal to sell them a defective mortgage with a 20% chance of pushing them into foreclosure and dumping their families out onto the street. She pushed to authorize and build a new consumer agency, dedicated entirely to addressing problems and challenges in the marketplace for household finance. In her book, A Fighting Chance, she told the story of the fight to pass her idea through Congress and of the earliest days of setting up the CFPB before she returned home to run for the Senate from Massachusetts. In Watchdog: How Protecting Consumers Can Save Our Families, Our Economy, and Our Democracy, I pick up the story from there, recounting my experience as the Founding Director of the Consumer Financial Protection Bureau (CFPB).

Watchdog describes a striking feature of modern America: the mass availability and marketing of consumer credit, which has grown in the past two generations from negligible levels to almost $40,000 in consumer debt per person. This has been conjoined with the increasing complexity of everyday financial matters, where any large purchase now requires close attention to the intricate details of financial products that pose hazardous tricks and traps even for the most sophisticated consumers. Every day across America, consumers face issues with credit cards, mortgages, car loans, and student loans. When they are cheated or mistreated, all too often they hit a brick wall against the financial companies. People are fed up with being run over by big corporations, and few have the resources or expertise to fight back on their own.

After growing problems in the increasingly one-sided finance markets created the financial crisis that blew up the economy in 2008, Congress created the CFPB. Sharing the stories of people who were hurt by the crisis – and continue to be hurt by companies that seek to exploit them in the financial marketplace – Watchdog shows how the Bureau quickly became a powerful force for good. It sued big banks for cheating or deceiving consumers, put limits on predatory lenders, simplified mortgage paperwork, and stepped in to help solve problems raised by individual consumers. The book tells a hopeful story of how our system can be reformed by putting government back on the side of the people – to strengthen our families, safeguard the marketplace, and establish a new baseline of fairness in our democratic society.

The book also lays out the dynamics of the political fight to hobble the agency and block it from protecting consumers against large financial companies. The more aggressive the CFPB’s actions to protect consumers, the more resistance it encountered from the financial industry, which has doubled in size just since 1970 and wields tremendous clout in Washington. Financial companies are the biggest source of campaign contributions to federal candidates and parties, spending about $1 billion annually on campaigns and another $500 million on lobbying. Each of the four biggest mega-banks now has over $1 trillion in assets. Financial products have become a mass of fine print that consumers can hardly even read, let alone understand.

Watchdog tells the story of how a dedicated group of people took the bare text of the Dodd-Frank Act, which created the CFPB, and turned it into a tangible reality that matters for consumers. Their work transformed the new agency into a champion for the people that could effectively take on the big banks, level the playing field for consumers, and protect our families and communities against financial abuses. In its first six years, the CFPB put $12 billion back into the pockets of 30 million consumers who had been wronged by violations of the law, handled 1.3 million consumer complaints to fix individual problems, and instituted new reforms to protect the economy by safeguarding the mortgage market.

Watchdog brings issues of consumer finance to life by relating stories of how individuals can be ensnared in problems both big and small, often through no clear fault of their own. It exposes the frustrating economics of life for the 99% of Americans, who often cannot even get answers – let alone any relief – when they have been wronged.

The book also highlights various features of our broken politics in Washington, in recounting the evolution and direction of the CFPB under first the Obama administration and then the Trump administration. Beginning with the political controversies over President Obama’s original appointment of me to head the CFPB, Watchdog traces the ebb and flow of congressional oversight and court challenges to the CFPB, which have culminated in a case testing the constitutionality of its leadership structure now pending before the U.S. Supreme Court.

Watchdog weaves together economic themes, political themes, and legal themes to present a more comprehensive picture of how our government can be made to work for average Americans instead of only the wealthy and the powerful. Many Americans across the political spectrum doubt whether this is even possible right now, and this book addresses those doubts by showing how the fight to get things done in Washington can strengthen America’s middle class.