Supreme Court Hears Arguments in DACA Case

Tomorrow, the Supreme Court will be hearing oral arguments on Department of Homeland Security, et al., v. Regents of the University of California, et al., a case challenging the Trump Administration’s decision to wind down the Deferred Action for Childhood Arrivals (“DACA”) program. United We Dream (“UWD”), joined by fifty organizations, including social service and advocacy organizations that work with DACA applicants and beneficiaries, filed an amicus brief in support of the respondents. First announced by President Obama in 2012, the DACA program allows certain individuals who entered the United States as minors to receive two-year, renewable deferred action from deportation and apply for certain essential benefits, such as work authorizations, Social Security numbers, bank accounts, and driver’s licenses, and—depending on the state—seek certain scholarships, financial aid, and occupational licenses. On September 5, 2017, then-Attorney General Jeff Sessions announced that the DACA program would be terminating, cruelly forcing the lives of some eight hundred thousand young immigrants—and the communities they support—into uncertainty.

Most DACA recipients arrived in the United States when they were just six years old or younger—indeed, nearly a quarter of DACA recipients were under the age of three—and two-thirds of DACA recipients no longer have any close family members in the country of their birth. For these promising young people, the United States is the only home they have ever known. They’ve grown up here, gone to school here, played sports here, and built families here. Despite these deep and longstanding ties to the United States, before DACA, many of these young immigrants who arrived in the country as children struggled to survive due to their undocumented status—often living in constant fear of deportation.

DACA was life-changing for these young people. According to one survey, after receiving deferred action, nearly 60% of DACA recipients—approximately 400,000 individuals—entered the American workforce for the first time. And about 71% of DACA recipients also pursued educational opportunities previously foreclosed to them. Altogether, 96% of DACA recipients are employed or enrolled in an educational program. Their greater educational attainment and better jobs have translated into increased financial independence—which has been crucial not only for supporting their families and social networks, but also for contributing to broader economic growth. One 2019 study found that DACA recipients and their households hold a combined annual spending power of $24.1 billion. Seventy-nine percent reported that their increased earnings have helped them become financially independent. For so many, DACA opened a world of financial independence and opportunity that was once inaccessible.

When freed from the fear of looming deportation and able to work legally, DACA recipients work harder, are more productive, and earn more. Overall, DACA recipients’ salaries doubled on average—from an annual salary of $21,012 (pre-DACA) to $42,132 (post-DACA). For DACA beneficiaries who completed licensing programs—in fields such as nursing, dentistry, and construction—the earnings boost is even more profound. For 68% of individuals in these programs, their salaries more than doubled from as little as $5 to more than $14 an hour. As a result, one of the most dramatic effects of DACA is to catapult low-income individuals with great potential into higher-skilled, higher-earning jobs. In short, DACA facilitates the American Dream.

These higher wages also increase tax revenues at all levels of government. Employers automatically deduct payroll taxes from DACA recipients’ paychecks—even though those individuals are ineligible for many of the social programs supported by these taxes. One report estimated that DACA recipients and their households pay a combined $8.8 billion in federal, State, and local taxes annually. Another study estimates that tax revenue for Social Security and Medicare alone would decrease by $39.3 billion over a decade if the contributions of DACA-eligible individuals were lost. And, even under a conservative estimate, the combined economic costs and fiscal impact of deporting DACA recipients amount to an eye-popping $283 billion over a decade. Other estimates are even higher. This substantial body of empirical data is borne out by the representative stories of the DACA recipients described the United We Dream’s amicus brief.

DACA was a promise made by our government to eligible young people. The realization of that promise unleashed tremendous personal, social, and economic opportunities for DACA recipients, and it established a foundation upon which many American communities now rely. The fate of these hundreds of thousands of DACA recipients and DACA eligible individuals will be debated and decided in this Supreme Court term. Over 80% of Americans think that these individuals should be given a path to citizenship. This Administration’s attempt to break faith with DREAMers is just another manifestation of its cruel, self-destructive immigration policies.

Related: Immigration law expert Shoba Sivaprasad Wadhia offers her quick analysis of the oral arguments. 

Welcome Developments on Limiting Non-Compete Agreements

A growing consensus leads to new state laws, a possible FTC rulemaking, and a strong bipartisan Senate bill. 

There is a growing bipartisan consensus that non-compete agreements harm workers and the economy. This bipartisanship scarcely seemed possible back in 2015 when we were government lawyers coordinating investigations by the Offices of the Illinois and New York Attorneys General into Jimmy John’s use of non-compete agreements for sandwich makers and delivery drivers. But earlier this month, in what seems like the first bipartisan federal effort in far too long, Senators Todd Young (R-Ind.) and Chris Murphy (D-Conn.) introduced a bipartisan bill that would effectively stop the abuse of non-compete agreements. This builds on a year in which six state legislatures also passed significant non-compete reforms. 

The growing use of non-compete agreements

Employer use of non-compete agreements has mushroomed in recent years. These agreements prevent people from working for their former employer’s competitors, and they were once used sparingly to prevent, for example, executives with trade secrets or confidential business information from sharing them with new employers. Now, they’re often used indiscriminately to chill job mobility for employees with no access to such information.  A 2015 study found that 40% of Americans have had a non-compete agreement at some point in their career. As lawyers, we’ve worked on cases involving non-compete agreements used for janitors, receptionists, customer service workers, fledgling journalists, even employees of a day care center.  

Why are non-compete agreements so bad? They fly in the face of our fundamental American belief that anyone can work hard, gain skills, and move on to a better opportunity to build a better life. Non-compete agreements can trap workers in jobs they want to leave—whether because of sexual harassment or other poor working conditions, or even just a bad boss. They limit the talent pool, preventing employers from hiring the best worker for the job. Non-compete agreements can also stifle economic dynamism, blocking people from starting their own businesses. 

Workers’ inability to leave their jobs because of non-compete agreements and similar limitations has also contributed to the wage stagnation of recent decades. Two studies released just last month found that non-compete agreements adversely affected wages and job mobility. This makes sense, given that the agreements erode the leverage that workers typically get from the threat of leaving their jobs to work elsewhere. That threat is now empty for millions of Americans subject to these provisions, showing that non-compete agreements aren’t really about trade secrets anymore. They’re about limiting workers’ bargaining power.

A new Senate bill could restore bargaining power

The new Senate bill, the Workforce Mobility Act of 2019, is notably robust, and should attract bipartisan support, from legislators motivated by concerns about economic liberty and entrepreneurialism as well as those focused on job quality and workers’ rights. The bill contains the following key provisions: 

  • Prohibition of non-compete agreements: The bill would prohibit use of non-compete agreements in almost all situations. The bill also declares that non-compete agreements are unenforceable. (While the bill does not explicitly address whether non-compete agreements already entered into would be automatically rendered unenforceable on the effective date, the plain language suggests that they would not be grandparented in.)
  • Limited exceptions: The bill contains limited exceptions that in our view are minimal and sensible, allowing for use of non-compete agreements with regard to owners and senior executives in the sale of a business.  
  • Trade secrets: The bill explicitly permits employers to protect trade secrets by requiring workers to sign more limited agreements not to disclose such secrets.  
  • Enforcement: If enacted, the law against non-compete agreements would be enforced collaboratively by both the Federal Trade Commission (FTC) and the United States Department of Labor (DOL). The bill also provides for civil fines of $5,000 per week of violation, and creates a private right of action, with damages and attorneys’ fees available for successful lawsuits. 
  • Public education and outreach: Given the lack of knowledge of many workers about workplace rights, the bill sensibly contains outreach and public education provisions, requiring employers to post a notice and also requiring the Labor Secretary to conduct outreach specifically on this issue. 
  • Regulations: The bill would allow the Labor Secretary to promulgate regulations.
  • Reporting: The bill requires a report from the two enforcement agencies one year after the Labor Secretary issues regulations. 

Other efforts to curb non-compete agreements

This strong bill comes in the context of many other efforts to curb non-compete agreements. At the federal level, the FTC is reviewing a petition submitted by the Open Markets Institute along with numerous labor groups and law professors, seeking a rule prohibiting non-compete agreements; a group of senators also urged the FTC to take this action. The FTC appears to be seriously considering the petition. Although last month in congressional testimony, FTC Chairman Joseph Simons said his team “couldn’t find enough existing economic literature to justify a rulemaking,” he also noted that the Commission would continue to examine the issue. 

Meanwhile, in the past several years, over 10 states have passed laws limiting employers’ ability to impose non-compete agreements on their employees. Many of these laws, including those reforms passed in Illinois, Maine, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, and Washington, ban non-compete agreements or make them unenforceable for some or most workers in the state based on their income. States like Illinois exclude only low-wage workers while others, like Washington, bar non-compete agreements for any worker earning up to $100,000 annually. Other states have recently limited use of non-compete agreements for certain professions such as physicians (like in Florida), broadcasters (like in Utah), and home health care aides (like in Connecticut). State reforms also vary in terms of whether they specify a time limit for the duration of non-compete agreements and whether an employer has to pay money to workers while a non-compete agreement is in effect.  

In addition, some states have other types of limitations for non-compete agreements. They’ve long been unenforceable in California; also, in most states, even without a statute on point, courts will generally only uphold a non-compete agreement if it protects an employer’s legitimate business interest and is reasonably limited in duration and geographic scope. The issue, of course, is that non-compete agreements are rarely reviewed by courts so this case-by-case approach is insufficient.

State and federal policy recommendations

At the federal level, the Senate bill and FTC petition are both positive developments that have the potential to address the abuse of non-compete agreements in a nationwide and holistic way that addresses both their individual and market harms. 

Meanwhile, more states can and should continue to act on this issue. Indeed, a bill was just introduced in the District of Columbia to ban non-compete agreements for individuals paid below $87,654 (3 times D.C.’s minimum wage). Here are some important considerations as policymakers consider their options: 

  • Non-compete agreements should be prohibited, not just unenforceable. This distinction is important, because if they are unenforceable, this just means that they won’t be upheld if they are challenged in court.  But most non-compete agreements never make it to court: workers assume they are valid or, even if they suspect the non-compete is too broad, most workers can’t afford to take on the risk and expense of possible litigation. This results in a chilling effect, as workers stay in their jobs regardless of the actual legality of their non-compete agreement.  It also fails to disincentivize employers from using overly broad non-compete agreements; the worst that can happen is that the provision would be found invalid. 
  • For this same reason, there should be penalties available for employers that include illegal or unenforceable non-compete agreements in their employment contracts.  
  • Non-compete agreements should be prohibited ideally for all workers, or for the vast majority of workers. Some states have limited the prohibition only for very low-wage workers. This approach does not address the larger impact on job mobility and competition, as well as basic fairness, as we have previously written. Non-compete agreements should also be prohibited for independent contractors and interns, as states like Washington have done.
  • Given limited public enforcement resources, laws should include a private right of action with attorneys’ fees. Legislators concerned about excessive litigation should note that this is not a complex topic and should be easy for employers to comply with: all they have to do is not include a non-compete agreement in their employment contracts. 
  • States that do decide to permit non-compete agreements for certain categories of workers or in certain circumstances, should consider:  
    • Adopting a relatively high, and also very clear, income cutoff below which employees cannot be subject to a non-compete agreement. This kind of bright-line rule is much more administrable for employers, workers, and enforcers, and leads to less litigation. 
    • Specifying that non-compete agreements must be clearly and fully disclosed to workers at the time a job offer is made, not after a job is accepted or after work has begun. 
    • Requiring, as Washington does, that employers pay workers a mandatory set amount (a reasonable percentage of their salary) during the time any non-compete agreement is in effect. This type of payment, known as “garden leave,” serves two important purposes: it provides income to a worker whose earnings are limited or nonexistent because of a non-compete agreement, and it creates a disincentive for employers to include such terms in their contracts, causing them to actually consider whether a non-compete agreement is truly needed to protect business interests. 
    • Clarifying that all non-compete agreements must still conform to that state’s case law, used only to protect a legitimate business interest, and reasonable in terms of duration and geographic scope.   

Whether the new federal proposals gain traction or the states continue to lead on non-compete agreements, it’s good to see that there are still some issues so fundamental to our economic well-being that policymakers can find allies across the aisle.

RELATED: Read Jane Flanagan's issue brief about how the federal government and states have been combating the overuse of non-competes.

ACS on Dark Money: Who Is Capturing Our Courts (Wisconsin Edition)?

Original research conducted for the American Constitution Society by Lisa Graves and Evan Vorpahl of Illumination Investigations. This blog is part of ACS’s ongoing project to document and explain the impact of dark money on the judiciary. 

A secretive, last-minute influx of campaign cash in the spring 2019 Wisconsin Supreme Court election by right-wing dark money groups could serve as a game plan for these groups and their allies to try to sway outcomes in future contests. Although the sources of these dark money funds are hidden from the public, they are a powerful tool for billionaires to carry out a reactionary agenda. State courts and state legislatures are key targets of such efforts. Defenders of democracy must be vigilant to expose these dark money assaults and demand action to restore transparency and accountability in our campaign finance system to secure fair elections and fair courts.

The 2019 Wisconsin Supreme Court Election

The state of Wisconsin continues to be a battleground with very close elections, including for the Wisconsin Supreme Court. Perhaps because the stakes in Wisconsin’s elections are so high, dark money spending has come to outpace spending by individual candidates themselves. In the best and most recent example of this trend, in 2019 the Republican State Leadership Committee (RSLC) spent more than $1.2 million in last-minute ads in the Wisconsin Supreme Court election to help the controversial Brian Hagedorn beat Lisa Neubauer by less than one percent of the vote, a margin similar to Donald Trump’s win in the state in 2016.

The support from these dark money groups was especially important for Hagedorn (who served as Republican Governor Scott Walker’s chief counsel before Walker appointed him to an intermediate appellate court) after he had apparently lost the support of traditionally conservative groups such as the Wisconsin Realtors Association because of his record of statements many observers considered to be homophobic. According to RSLC, Hagedorn was polling 8 points behind Neubauer, the Chief Judge of the Wisconsin Court of Appeals, who had been appointed in 2007 by Walker’s Democratic predecessor.

Both of these judicial candidates were spending similar amounts in the months leading up to the election, totaling less than $1 million each, with Neubauer spending slightly more to try to win the seat vacated by former Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

Hagedorn and his allies sought to make hay over the fact that former U.S. Attorney General Eric Holder’s National Redistricting Action Fund, a group organized under Section 501(c)(4) of the tax code, had committed $350,000 in outside spending in the race, with its focus on fair maps for legislative districts given Wisconsin’s extreme partisan gerrymandering under Walker. Meanwhile, the Wisconsin-based 501(c)(4) arm of billionaire Charles Koch’s Americans for Prosperity was spending a similar amount on mailers, door knocking, and more. However, Neubauer remained solidly in the lead.

As the Capital Times reported, Neubauer ran a traditional non-partisan style judicial campaign in which “[s]he strove to run on her qualifications, highlighting her support from nearly every judge in the state, her 12 years of experience as an appellate judge and her embrace of a ‘fair, impartial and independent court.’”

But RSLC’s last-minute surge of spending--entirely in the last week before the April 2 election--upended the race, which Hagedorn ended up winning by 5,981 votes. The victory gave the Right a 5-2 margin on the state’s highest court.

The Shape of Things to Come?

The stunning victory made possible by RSLC is even more significant because it is likely to foreshadow the tactics America could see in the 2020 elections: a massive surge in dark money spending at the last minute with hyper-partisan targeting, most of it spent below the radar of the media, in targeted online ads, mailings, and texts, rather than in trackable TV ads.

Hagedorn’s victory is an example of the trend in judicial elections away from the more transparent world of mass marketing and toward the stealthier and almost entirely unregulated universe of micro-targeting. That powerful trend is made even more potent by the capacity of some to spend enormous amounts at the last minute, with little time to detect and respond to the kind of “full-scale, micro-targeted voter education project” that RSLC deployed to secure Hagedorn’s election and the capture of the Wisconsin Supreme Court.

RSLC also represents an emerging hybrid in the dark money arena, because as a“527” political operation under IRS rules, it is required to disclose its donors--but many of its significant donors are dark money groups that do not disclose their donors.

One of the most significant of these dark money groups is the Judicial Crisis Network (JCN). Earlier this year, a Washington Post investigation uncovered how a very small group of super-elite and super-wealthy people are exerting secret influence to capture federal and state courts and advance a far-right agenda to reverse modern legal precedents. As the Post documented, the Federalist Society’s Leonard Leo is closely tied to nearly a dozen small groups—some of them mere shell groups—getting huge sums from secret sources to do PR to aid judicial candidates. JCN is one of those core Leo dark money groups.

JCN has given RSLC at least $5.24 million since 2014, when RSLC launched what it calls the “Judicial Fairness Initiative” (JFI) to spend money in state judicial elections. According to its own site, by launching JFI, “RSLC became the only national political organization focused exclusively on the electoral process of judicial branches at the state level.”

RSLC is required to report to the IRS on how much it gives to its affiliates, like JFI, and RSLC is JFI’s only listed donor. That is, money comes into RSLC from corporations and shadowy non-profits, but the reporting process does not specify all the donors whose funds are transferred to JFI. According to RSLC’s IRS filings, JCN was the largest donor to RSLC in 2018 and is the largest reported donor to RSLC so far in 2019. JCN’s donors are secret except for donations from other Leo-groups or non-profits that have to be disclosed--but those groups’ donors are secret. These transfers amount to a dark money shell game, meant to keep voters in the dark about who is financing the capture of our federal and state courts.

JCN is very focused on Wisconsin. For example, in 2014 JCN gave $1.4 million to a newly created group calling itself the “Wisconsin Alliance for Reform,” or WAR, which went on to spend $2.6 million to support another controversial right-wing candidate for the state Supreme Court, Rebecca Bradley. She’s another controversial Walker-appointee and she won her retention election against Judge JoAnne Kloppenburg. There is no disclosure to the public of where that $1.4 million from JCN came from, but we do know that the vast majority of JCN’s revenue that year came from a single anonymous $21.5 million donation. RSLC also buttressed Bradley’s election with a six-figure ad campaign that year.

Although in 2019 Judge Neubauer’s campaign turned out more voters than Bradley’s opponent in the last Wisconsin Supreme Court race, with the massive last-minute spending by RSLC/JCN in Wisconsin, Judge Hagedorn’s turnout increased over Bradley’s and led to his razor-thin 5000-vote margin.

How the Right Plays the Dark Money Shell Game

What happened in Wisconsin this spring is especially troubling from the standpoint of transparency and accountability. Right-wing operatives and the web of organizations they have created moved large sums of money in a coordinated effort to stage a last-minute advertising blitz and do so in a way that would keep the media and public from discovering who was responsible for the effort.

According to IRS filings, JCN gave RSLC $3.01 million in 2018 and JCN (which also goes by the name the Judicial Confirmation Network in filings) also gave $1 million to RSLC on March 19, 2019, just two weeks before the Wisconsin Supreme Court election. There were no other contested state Supreme Court elections in the country that spring.

After receiving those funds, RSLC then made cash transfers totaling more than $1.2 million to its affiliate focused on judicial elections, JFI.

A week after JCN’s donation, on March 25, RSLC made a required filing with the state of Wisconsin that it had raised zero funds for the Wisconsin Supreme Court race, but that filing only required funding and spending through March 18 for Wisconsin’s spring judicial election. The day of that filing, RSLC purchased a URL for a website called RadicalJudge.org, which was the base of its attack ads to come against the candidate they labeled “liberal Lisa Neubauer.”

In fact, on March 21st, four days before that filing, RSLC had also purchased a website called RuleofLawJudge.com, which it deployed to aid Brian Hagedorn in the week before the election.

But RSLC had actually raised one million dollars from JCN that escaped disclosure requirements. Just a few days before the election, RSLC filed a required 72-hour report stating that it had spent more than $200K, but the form also did not require any disclosure than that it was about to spend a million more.  On April 2--the day of the election--RSLC made the final of its amendments to that report to reveal that it had raised and spent more than $1.2 million in the last two weeks of that election, as voters went to the polls to vote.

There has been no consequence--besides winning the election--to RSLC for how it maneuvered through the timing requirement for its filings with the state of Wisconsin. This illustrates another reason for the need for substantial reforms to the laws governing our elections.

A million dollars is a huge amount for a candidate to raise and spend in the course of a state judicial election. But a million dollars in attack and support ads that all ran in week in a state with cheaper media markets like Wisconsin is like a nuclear bomb of campaign cash. And, of course, as a result of the shell game played by JCN, RSLC, and their shadowy, undisclosed donors, the state’s voters had no way to know who was piloting the stealth bomber that delivered this massive ordinance to influence the election.

JCN was not, however, the only donor to RSLC in the months before the Wisconsin election, although it is known that very few of RSLC’s donors were from Wisconsin. (The Milwaukee Chamber of Commerce gave RSLC $100,000 and the American Transmission Company, which is trying to build huge electrical towers across the state to Illinois, gave RSLC $25,000 this year, for example.)  Because RSLC combines its donations, it is not publicly known which other donors besides JCN, with its focus on capturing the courts, directed funding toward RSLC’s judicial election project in Wisconsin. But RSLC’s known donors are noteworthy, and they have included Koch Industries, The R.J. Reynolds Tobacco Company, casino magnate Sheldon Adelson, the U.S. Chamber of Commerce, and big pharmaceutical companies.

Other RSLC donors are less well known and deliberately so. Take for example this cipher of an organization. In October 2018 RSLC received $350,000 from a newly created Wyoming LLC called “Contract Drafting LLC.” Its address is that of a law firm. There is no indication at all what Contract Drafting LLC is or was. In fact, it appears to be defunct. Did some of that money from some unknown person or corporation in Wyoming get steered toward smearing Judge Neubauer to help capture the Wisconsin Supreme Court? The public will probably never know unless a state or federal regulatory agency either examines RSLC’s activities or the law is reformed to require greater transparency.

Other States and What Is to Come

Wisconsin is not the only state where RSLC is flexing its multi-million-dollar muscle to place corporate-friendly or right-wing judges on state courts in order to advance its funders’ interests. For example, in 2018 RSLC spent $2.6 million in Arkansas, $1.7 million in West Virginia, and over $600,000 in Ohio. And in years prior, JCN and RSLC have exerted their funded influence in judicial elections to numerous states, including Illinois, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Tennessee.

RSLC was created in 2002 but became better known after Ed Gillespie deployed it in 2010 for his “REDMAP” project to help GOP politicians take over state legislatures in order to gerrymander state and federal legislative districts following the 2010 census. That mid-term election was the first election cycle after the U.S. Supreme Court’s controversial and now discredited decision in Citizens United, which unchained non-profit groups from fair election rules adopted by Congress under the Bipartisan Campaign Reform Act, known as McCain-Feingold, and other laws.

RSLC’s REDMAP election activities that year operated alongside a surge of activity by the Kochs’ Americans for Prosperity propping up the Tea Party, which was launched shortly after Barack Obama was inaugurated, as documented by Jane Mayer in her book “Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right.” She described RSLC as "catchall bank account for corporations interested in influencing state laws."

What’s next for RSLC with respect to state court and other elections in 2020? According to IRS filings, JCN continues to be RSLC’s top donor since the beginning of 2018.

Thus, all signs point to more last-minute, hyper-partisan huge cash being spent to capture our courts in 2020 and change the interpretation of laws that determine all of our rights. The thicket of election laws and court decisions in which these secretive megadonors hide while launching their stealth assaults must be eradicated and replaced with a fair system that protects fair courts and requires election activities that are far more transparent and accountable to We, the People.

Trump’s Immunity Claim Isn’t Immune to Legal and Historical Logic

This blog was originally published in the New York Daily News.

Yesterday, in a New York City federal appeals court, lawyers for Donald Trump argued that a U.S. president is absolutely immune from criminal investigation while he or she holds office. Although that principle is nowhere stated in the Constitution, President Trump’s legal team argued that it necessarily must be inferred as a matter of constitutional law to protect the function of the nation’s chief executive. According to the president’s lawyer, the New York County District Attorney’s subpoena to Trump’s accountants for Trump’s tax returns violates that immunity and the court should therefore declare it void.

There is a fancy Latin phrase for what happened next in that courtroom: reductio ad absurdum. Translated, it means “reduction to absurdity.” It refers to a logical argument that disproves an assertion by showing that it ultimately leads to a ridiculous or absurd outcome.

Referring to then-candidate Trump’s infamous boast that he could shoot a person in the middle of Fifth Ave. and not lose any political supporters, one of the judges asked whether local authorities could do anything if, in fact, the president killed someone in the street. Dutifully (though remarkably) taking the president’s legal argument to its inevitable conclusion, Trump’s lawyer answered that law enforcement officials could take no steps against the president while he remained in office — not even if he murdered someone in public view.

Confirming that he actually heard that answer correctly, the judge repeated: “Nothing could be done. That’s your position?” Trump’s lawyer responded: “That is correct.”

That is absurd. It’s absurd even if we suspend simple common sense for a moment and instead examine our precise historical origins. The president’s legal theory breaks with the fundamental obligations of government embraced by our founders. It hacks at the roots of our freedom.

The signers of the Declaration of Independence explained in painstaking detail why we ejected the English King. They wrote that “a long train of abuses and usurpations...evince[d] a design to reduce them under absolute Despotism,” and it was therefore “their right...to throw off such Government, and to provide new Guards for their future security.”

Among the numerous grievances they catalogued, the founders condemned the British throne for having “plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.” They also decried the King’s use of mercenary armies “to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages.” Any “Prince whose character is thus marked by every act which may define a Tyrant, they concluded defiantly, “is unfit to be the ruler of a free people.”

This was our beginning. President Abraham Lincoln famously described us as having been “Conceived in liberty.” It is thus inconceivable that our founders — victims of such despotic power — would go on to design a government in which the chief executive could kill a person in the street, and nothing could be done.

All schools of constitutional interpretation, whether conservative or liberal, should agree on that point.

Fortunately, the courts are not yet faced with prosecuting a murderous president. They are not even faced with an indicted president. For now, the courts need only decide whether the district attorney can subpoena the president’s accounting firm for its client’s tax returns, which are relevant to a grand jury investigation. That’s a long way from Fifth Avenue.

The Supreme Court and the Future of Affirmative Action

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. Almost one year after the trial first began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964. In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.  She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination. Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies.

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit. Here, the district court’s ruling will likely be affirmed. It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them. One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body. This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies. Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely. The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher.

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is also sure to appeal subsequently to the High Court. The Court now has a solid conservative majority, with three of the Justices having previously voted to strike down race-conscious admissions policies: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas. Justices Neil Gorsuch and Brett Kavanaugh are also widely thought to oppose such policies. Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions. Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity. This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert. First, only three years have passed since the Court decided Fisher v. University of Texas II. Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II. In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings. Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body. Roberts may prefer that the Court wait a few years to take another case. If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter. In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028, which is only nine years away now. After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration. However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding. Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028. They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit.

By 2028, the political implications of an anti-affirmative action ruling may also be different. States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies. Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies. SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina. In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter. A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard.

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions. Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine. Four decades ago in Bakke, it saved affirmative action. Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies. But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion. Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter. And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action. Perhaps no major issue before the Court has so repeatedly bucked expectations. At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.

Burying the Dead Hand: Taking the Original out of Originalism

I was honored to be asked to give a talk about Originalism at the American Constitution Society's National Lawyers Convening. My talk began with the well-known history of what I call the Original Originalism of Judge Robert Bork, Attorney General Ed Meese, and Professor Raoul Berger, among others. I then transitioned to the New Originalism and ended up with a lengthy list of cases where Justices Scalia and Thomas (and now Gorsuch) voted for non-originalist results. But by far and away what caused the most commotion in the room was my descriptive summary of the so-called "New Originalism."

These New Originalists have found an interesting way to address the persuasive "dead hand" critique of the Original Originalists. In the 1980s, many liberal law professors made the argument that judges today should not defer to the values and views of slave holders, segregationists, and sexists, and people who lived in a completely different country technologically. One example that clearly demonstrated this problem was the Court's decision in 1872 upholding Illinois' ban on women being attorneys which accurately reflected the prevailing public meaning of the Fourteenth Amendment which very few people thought prohibited official state discrimination based on gender.

Professor Lawrence Solum of Georgetown Law School, a renowned New Originalist, recently addressed this issue by saying the following (which drew an audible gasp from the lawyers at the convention):

“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.”

The attorneys in the room quickly surmised that this form of constitutional interpretation is, of course, not originalist at all but sounds a lot like something Justice Brennan would have written, or Professor Michael Dorf or Dean Erwin Chemerinsky would advocate. Surely, they thought, this type of "originalism" must be an aberration, meant to address the unique problem of gender discrimination. But then I showed them what I think is the most important sentence in Ilan Wurman's book, An Introduction to Originalism: "Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Related: Watch ACS Board Chair Pam Karlan talk about constitutional interpretation

Again, I don't know any so-called Living Constitutionalist who would disagree with this sentence. I suggested to those assembled that the usual response to these quotes by originalists is that, well yes, we believe that the application of vague principles has to evolve when facts and circumstances change, but the meaning of the text is fixed and stays the same. To prove my point, I showed them these quotes from Justice Gorsuch's new book A Republic if You Can Keep It:

“Living constitutionalism comes in more varieties than ice cream flavors at Baskin-Robins. [These judge] share the conviction that the Constitution's meaning changes over time and that judges should determine what changes should be made based on external policy considerations…."

“Originalists believe that the Constitution should be read in our time the same way it was read when adopted but also teaches only that the Constitution's original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments and new technologies."

Of course, the folks in the room understood two important points. Living Constitutionalists do not think judges should just make up new principles out of thin air. After all, even Justice Douglas in Griswold v. Connecticut, which invalidated a state ban on contraceptives, relied on the "penumbras and emanations" of numerous constitutional provisions to justify the right to privacy which is no different in form from the Rehnquist Court's "reliance on the statement that "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms," to justify a non-textual principle of state sovereign immunity (agreed to by both Scalia and Thomas and most originalist scholars).

The second point is that in real life, in actual litigation, there is no difference between someone saying that the text of the Constitution needs to be updated to address changed facts and modern circumstances and saying that the principles in the text need to be updated. The result is exactly the same. And then I showed them what my friend, and self-identified Originalist scholar, Ilya Somin of the Antonin Scalia Law School has said:

“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”

This is exactly the method so-called New Originalists use to avoid the dead hand problem. They know that our country has changed dramatically since 1787 and 1868 and that the Constitution's imprecise provisions that often get litigated cannot be viewed through the lens of people who lived so long ago in a world far, far away from our own.

The mystifying question is why these judges and scholars pretend otherwise by donning the label "originalist" and saying that they are bound by what Solum calls the Fixation and Constraint theses. These theses are that the meaning of the text is fixed at ratification and is binding on today's decision-makers. But it makes no difference if the text is fixed if its principles are not, and if today's decision-makers are allowed to "update" those principles because, in Solum's own words, "fixed original public meaning can give rise to different outcomes given changing beliefs about facts." Changing "beliefs" about facts.... welcome to the world of Living Constitutionalism, and the only way to avoid the ultimately persuasive "dead hand" critique of the Original Originalists.

In other words, what we have today among all judges and most originalist scholars (though there are certainly exceptions), is Original Public Meaning without the original, the public, or the meaning. What we don't have, is rule by the dead hand of the past, and thank goodness for that, but originalists should be more transparent about what guides how they conduct constitutional interpretation.