Trump Administration Scores 0 Out of 10 on Title X

There’s a reason that birth control is considered one of the ten great public health achievements of the 20th century. Birth control allows women to plan and space their pregnancies. It helps women protect their health, meet their educational and employment goals, and support their families. Avoiding closely spaced pregnancies also reduces the risk of premature birth and low birth weight, and preventing unintended pregnancy can help women manage certain health conditions, such as diabetes, hypertension, and heart disease. That’s why the Title X program, which for decades has provided high-quality family planning services to low-income individuals across the country, is so important. It’s also why the administration’s attack on Title X is so devastating.

On February 22, the Department of Health and Human Services released a copy of its finalized “domestic gag rule,” which makes sweeping and damaging changes to the Title X program. The gag rule is the latest in a number of attacks on women’s health by the Department of Health and Human Services, which has been stacked with political appointees determined to dismantle women’s access to reproductive health care. The domestic gag rule recycles bad ideas from an old playbook: the rule reintroduces and expands upon provisions of a Reagan-era Title X rule that was never fully implemented and was suspended by presidential memorandum only a few years later. Then, as now, the rule was bad policy.

Among the rule’s most troubling new program provisions:

Title X health care providers are prohibited from referring for abortion care. In a blatant violation of medical ethics, the final regulation prohibits providers from giving a referral for abortion care. If they so choose, physicians and advanced practice providers are permitted, but not required, to instead provide a list of comprehensive primary health care providers, some but not the majority of which may be abortion providers. Neither the list nor the health care provider may identify which of the providers listed performs abortion services.

A requirement for strict physical and financial separation of Title X services from abortion services. This means that Title X grant recipients that also provide abortion care may be required to undergo expensive construction, or even build entirely separate facilities, to comply with the regulation, which suggests that compliance would require separate entrances and exits, separate staff and waiting rooms, and separate medical records, among other burdensome and costly requirements.

A shift away from medically proven contraceptive services toward abstinence-only education and faith-based, antiabortion counseling centers. The final rule rescinds a prior requirement that the range of family planning methods to be offered be medically proven, opening the door to funding grantees that refuse to offer a broad range of FDA-approved contraceptive methods. The rule also rescinds a prior requirement that all Title X funding recipients offer information and counseling to pregnant patients regarding prenatal care and delivery, infant care, foster care and adoption, and abortion, allowing providers to withhold basic information about a pregnant woman’s health care options.

In rulemaking, agencies are required by law to engage in a substantive cost-benefit analysis of the impact of the rule they are crafting. But despite hundreds of thousands of comments submitted in opposition to the proposed version of the rule, and vocal opposition from more than 100 family planning and public health organizations, the final rule fails to consider adequately the substantial harms the rule would cause, or provide a coherent reason for why this rule is needed.

The Title X program currently serves more than 4 million low-income, uninsured, and underserved clients, including communities of color, immigrants, LGBT patients, and rural residents who may otherwise lack access to care. In 2015, Title X-funded clinics helped women avert 822,300 unintended pregnancies, in addition to providing services that include STD and HIV testing, breast and cervical cancer screenings, and infertility services. Six in ten women receiving Title X services have reported that a Title X–funded health center was their usual source of medical care, and four in ten reported it was their only source of care. For some of these women, this rule threatens to eliminate their sole entry point into the health care system—all because this rule may force providers that are unable or unwilling to comply with its unreasonable requirements to close their doors.

The Department of Health and Human Services is tasked with enhancing and protecting the health and well-being of the public and providing for effective health and human services. With this rule, HHS has fundamentally failed in its mission —and has failed millions of women who have a right to, and an urgent need for, quality health care.

Against Establishment Clause Concession: Judicial Strategy in the Bladensburg Cross Case

This blog was originally posted on Take Care.

The Bladensburg Cross case is discouraging for liberals, progressives, and church-state separationists on many levels. The most obvious is that the Supreme Court is likely to uphold state displays of symbols that are clearly and irreducibly sectarian. And in doing so, the Court will undermine a fundamental principle of disestablishment, which is that the state may not favor one religion over another.

It seems clear from this week’s oral argument that there are at least four votes on the Court to abandon the Lemon and endorsement tests. Justices Gorsuch, Alito, and Kavanaugh all voiced explicit opposition to the application of Lemon. And Justice Thomas has long favored a radical federalism approach to the Establishment Clause that would allow states to decide for themselves whether to maintain religious establishments. For his part, Chief Justice Roberts seems drawn to Establishment Clause tests that would provide lower courts with more guidance. And although he kept his cards close, there is every reason to expect that he will vote to reject the Establishment Clause challenge in this case. In short, on the conservative side of the Court, there are an easy five votes for upholding state ownership and endorsement of the Latin Cross – the preeminent symbol of Christianity.

But this much is predictable. The more troubling thought is that some liberal justices might refuse to call out this egregious violation of Establishment Clause principles. In an effort to gain concessions or to limit the possible damage that this case might do to decades of Establishment Clause precedent, liberals on the Court might compromise or adopt one of the “ways out” offered by the petitioners and various amici. They could say that until now, the Bladensburg Cross hasn’t been the subject of divisiveness and, for that reason, should be grandfathered. Or they could say that the cross reflects a unique historical moment after World War I when it was customary to memorialize the war dead with the symbol of the cross. Or they could say that the cross represents only the war dead from Prince George’s County, who were all Christian (although this claim may be false). Or they could say that the plaintiffs had no standing to challenge Maryland’s memorial. Or maybe there are other creative ways to underenforce the Establishment Clause in this case.

But all of these strategies of avoidance are ultimately forms of Establishment Clause appeasement.* In the face of an aggressive charge by those who favor government religious preferentialism, including Christian nationalists, it is a mistake to ignore the threat posed by this case. The real issue is not whether a hundred-year-old World War I memorial will be allowed to stand, but whether religious conservatives can clear a doctrinal path to allow widespread government endorsement of Christianity. Failure to address that issue directly invites further challenges and hastens the demise of a state that respects the principle of religious neutrality.

We may, of course, regret the divided state of our constitutional politics around these issues. Ideally, Americans would debate each other in a reasoned way, with a lower level of bitterness, and strive for amicable resolutions in hard cases. But it is not obvious that offering a middle ground will actually reduce tensions at this historical moment, when the Roberts Court is engaged in a process of remaking Establishment Clause doctrine. Indeed, compromising here is likely to exacerbate conflict by allowing the government to endorse messages that differentiate citizens on the basis of religion. Division of the citizenry along denominational lines is what’s at stake in the Bladensburg Cross case, and presumably in a range of analogous cases concerning religious expression by the government.

There are reasons to worry about whether the liberal justices on the Court fully appreciate that we are at an inflection point in the history of the Religion Clauses. For his part, Justice Breyer has wavered in the application of the principle of religious neutrality. In two companion cases, McCreary County v. ACLU and Van Orden v. Perry, Justice Breyer split the difference, voting to strike down one set of Ten Commandments while providing a crucial fifth vote to uphold another. (And he cast the vote to uphold over the dissent of Justice O’Connor, who rejected both displays as violating the Establishment Clause.) And during argument in the Maryland case, he seemed to double down on that approach. He asked, “what about saying past is past . . . but no more,” signaling a willingness to grandfather the Bladensburg cross.

Similarly, all of the liberal justices joined Chief Justice Roberts’s unanimous opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which constitutionalized the ministerial exception and rejected a standard discrimination claim brought by a religious school teacher. None of the liberals seemed to recognize that Hosanna-Tabor would not only protect the ability of Catholics to preserve an all-male priesthood, as it should have, but that it would be used by conservatives to advance far-reaching claims for “freedom of the church” or the institutional sovereignty of religious groups. And none of them commented on the proposition that the First Amendment “gives special solicitude to the rights of religious organizations” as opposed to the rights of religious individuals. There was little sense that Hosanna-Tabor was the product of a larger social movement to strengthen the power of religious organizations, to extend their influence in the market, and to limit the civil rights protections of employees in this country. The case was seen in a vacuum, without recognition of its broader significance.

More recent cases, including those raised under the Free Exercise Clause, are also cause for concern. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justices Breyer and Kagan joined Justice Kennedy’s majority opinion, providing a lopsided 7-2 victory for a Christian baker who had violated Colorado’s antidiscrimination law. Although they wrote a separate concurring opinion arguing that Colorado could have applied its law in a manner that was religiously neutral, Justices Breyer and Kagan agreed with the majority that the Colorado Civil Rights Commission had expressed animus toward Jack Phillips, the Christian baker. But it is hard to believe that they would have found such animus had there been a working majority to uphold Colorado’s law. It seems more likely that they went along with Justice Kennedy’s majority to reach a narrower decision and to secure language that might, in some future case, insulate public accommodation laws from challenge. But with Justice Kennedy’s retirement, that possibility now seems seriously diminished. And instead what we have is a 7-2 decision majority that confuses the doctrine of religious animus and that isolates and marginalizes the perfectly reasonable view expressed by Justices Ginsburg and Sotomayor in dissent, namely, that public accommodations laws were applied neutrally – and that it was (and is) permissible for state officials to call out discrimination when they see it.

The dissenting opinion by Justices Breyer, joined by Justice Kagan, in Trump v. Hawaii was also somewhat puzzling. It focused heavily on an “elaborate system of exemptions and waivers,” which might have provided evidence of President Trump’s religious animus – as if any further evidence was needed beyond the relentless bigotry of his numerous statements purporting to justify the ban. Justice Breyer spent 15 odd paragraphs detailing all the statutory minutiae and inner workings of an arcane exemption system, only to conclude by half-heartedly saying that, if forced to choose, he would side with Justice Sotomayor’s straightforward dissent over the majority’s decision to uphold the ban. But then why not simply join Justice Sotomayor’s opinion in the first place and provide a clear, forceful, and unified dissent?

Perhaps such efforts should be understood as optimistic quests for common ground. Perhaps in some cases, such ground appears slim, but nonetheless possible to occupy. But this misses the larger picture, which is that Masterpiece, Trump v. Hawaii, and now the Bladensburg Cross case effect a generational shift in the meaning of the Religion Clauses. The Establishment Clause is being eclipsed, and religious free exercise has become a deregulatory sword against the advancement of civil rights.

We understand the appeal of deciding one case at a time. And we also understand the desire to compromise and to find grounds for agreement, however narrow. But in the Bladensburg Cross case, those impulses may come at the cost of emboldening those who seek to dismantle the Establishment Clause and the principle of civic equality for which it stands. As Justice Kagan so clearly and eloquently stated in her dissenting opinion in Town of Greece, “America’s promise in the First Amendment [is] full and equal membership in the polity for members of every religious group . . . .” As we have argued recently, it is a mistake to compromise that principle under current constitutional conditions. If the Court is unwilling to say that the state has violated the requirement of religious neutrality, it is time for a clear-eyed, forceful, and unequivocal dissent, one that we hope will be heard in the future by others who share Justice Kagan’s view that the First Amendment promises equal citizenship.

 

*Update (3/1/19): We have substituted the term concession for appeasement in the title of the piece, though not in the text. We are making this change because we recognize that the word appeasement has a potent historical connotation that we do not intend. But appeasement also has an independent and more general meaning that captures a complexity lacking in all the alternatives, including concession. Appeasement refers to a dynamic where one side yields ground for the sole purpose of avoiding conflict, but where that concession has the self-defeating effect of emboldening the other. We want to retain that meaning—we are changing the title only to avoid the unintended historical comparison that might be conveyed to those who glance at the title without reading the piece (including this update). We recognize that substituting the term concession might itself be seen as a concession, but we don’t think that’s correct—we have a nonstrategic reason for making the change.

We Need To Change the Way We Talk About Whistleblowers

They say that sunlight is the best disinfectant. When information about corruption or other wrongdoing comes to light, that transparency results in accountability, both against those who are culpable and for those affected by it. Whistleblowers are the ones with that crucial information.

Whistleblowers are people who bravely come forward with information about fraud, corruption, and other criminal behavior. A whistleblower may be anyone from an employee at a company who comes across fraud to a government employee who sees the law being disregarded and rights trampled to a member of an impacted community whose family is affected by environmental catastrophe because of negligence in the race for profit.

Despite enormous personal and professional risks, they bring to light what would otherwise remain hidden. Often, those who blow the whistle on wrongdoing are disparaged and retaliated against for their actions. Even still, they report such crime knowing they may lose their jobs and income, only to face a negative social stigma while fighting an uphill battle. For the sake of truth and transparency, they are willing to come forward, to step up, and to disclose what they know.

But at present our society does not honor whistleblowers, and because of that we don’t encourage them to step forward.

Studies have shown that individuals who report are then shunned – even in groups that follow the laws and are honest. That means that the stigma is so strong that even organizations that are not corrupt have an aversion to whistleblowers.

“Well of course it changed my life dramatically. It changed the life of my family dramatically…When you go home to your family and you can’t feed them…the stress on that house is unbelievable. That’s the hell that whistleblowers go through.” Nearly 20 years after Dr. Fredric Whitehurst exposed misconduct and forensic fraud within the FBI crime lab in 1997, he recounted how blowing the whistle uprooted his life. Dr. Whitehurst is not alone. Whitehurst’s bravery quite literally got innocent people off death row.

Whistleblowers should be viewed not as informers, but instead as members of an active civil society and as tools for good governance. What is too often overlooked is how whistleblowers actually serve to better the internal integrity of our businesses and democratic institutions.

Corporate culture should welcome whistleblowers as part of a well-run internal compliance program to root out malfeasance. Civil society organizations and grassroots advocacy groups should take pride in the whistleblowers in their midst. There should be widespread support for those who loudly – and without regard for themselves – stand up for transparency and democracy.  Whistleblowers are not “rats,” but rather courageous members of our community and a positive force in our democracy. A cultural shift in how we approach whistleblowers and the benefits they provide is necessary to encourage others to stand up for the truth as well. When information comes to light, transparency results in accountability.

Our legislative and law enforcement processes already recognize this. Government officials not only understand the importance of whistleblowers’ tips in detecting crime, but also the continued and increasing utility of appropriate whistleblower reward laws and protections. That’s because of both the net financial benefit of whistleblowers for those government programs and offices (bringing in millions and even billions per year when utilized well), and the saved time and energy (as whistleblowers provide the tips and so funnel crucial information to law enforcement, it allows for expanded capacity). A bipartisan parade of high-ranking government officials has heralded whistleblowers as the most powerful tools available to our democracy. That’s because, in many cases, whistleblowers make law enforcement possible.

Recent data indicates that whistleblowers are increasingly incentivized to come forward and, moreover, suggests the information they provide is reliable. The number of qui tam (whistleblower) civil fraud cases the Department of Justice has taken on over the past four decades has far eclipsed those that do not involve whistleblowers. In 2017, there were nearly 700 qui tam new civil fraud cases, as opposed to approximately 120 non-qui tam cases.

The Dept. of Justice’s increased reliance on whistleblower information demonstrates that these tips are high-quality and allow law enforcement to identify and prioritize the best cases – those frauds which include significant criminal activity and large amounts of illegal funds, and where the available or ascertainable evidence is strong.

Moreover, incentivizing whistleblowers to step forward through social benefits (for instance, honoring them publicly) and financial rewards can in fact serve to empower the community to protect its own democratic institutions. That’s because this system requires the involvement of the government and rule of law at its core. First, the investigation, prosecution, and sanctions phases necessarily require the involvement of law enforcement authorities. Additionally, this system does not encourage citizens taking the law into their own hands or other types of citizen enforcement. Instead, successful implementation of whistleblower rewards – as a function of law enforcement – encourages faith and trust in the rule of law. Finally, it is the strength of the rule of law in the U.S. that in fact inspires many whistleblowers – both in the U.S. and abroad – to contact American law enforcement agencies with tips about wrongdoing.

The public perception of whistleblowers, however, is much different. Recognition of whistleblowers as a positive aspect of civil society has not yet permeated the public discourse. This is partially because sensationalism surrounding whistleblower disclosures oftentimes shrouds their contribution to detecting and combating corruption down the line.

When whistleblowers come forward, their cases are often framed in terms of the political implications, and the story is dropped by the time there is a court decision months or years later.

However, the public often likes whistleblowers when they are on their side – exposing wrongdoing by their political opponents. In fact, new non-profit organizations have popped up specifically with the goal of fighting for whistleblowers in the current White House administration – and no one else. That is not to say those whistleblowers are not needed, just that blowing the whistle should be not be equated with partisanship, but with our very democracy.

If we change the way we think and talk about whistleblowers, we will also change the way we as a society behave toward those who blow the whistle.  And in doing so, we will encourage further transparency and accountability – further sunlight as disinfectant for the wrongdoing that we all know hides in the shadows.

Maya Efrati is an ACS Public Interest Fellow.

Trump's National Emergency and the Plausibility Gap

President Trump’s recent declaration of a counterfeit “national emergency” to build a wall on the U.S.-Mexico border subverts the separation of powers that has sustained our democracy for 230 years.

The President has brazenly defied the limits Congress imposed on his emergency powers. None of the statutes he invokes authorizes his actions. Under any comprehensible rendering of the English language, there is no “emergency.” As commonly understood, an “emergency” must be sudden, urgent, and compelling, not slow, longstanding, and gratuitous. Far from being sudden and urgent, the border wall advocated by Trump--which was necessary, he has suggested, because Mexican immigrants are rapists and murderers--was a feature of the 2016 campaign. As to a compelling need to act now, the President, in announcing his actions, conceded that he “did not need to” invoke the emergency statutes. He just wanted the wall sooner. Except perhaps in the Orwellian argot of this Administration, there is no such thing as an non-emergent emergency or an exigent need for unneeded action. Nor could the President credibly claim that the National Emergencies Act of 1974 extends the term “emergency” beyond its ordinary, everyday meaning. That Act, adopted in the aftermath of Watergate, sought to curb, not unleash, presidential emergency powers.

Beyond the damage wrought by the Administration’s broad, nonstop assault on the rule of law--which, standing alone, is alarming--the threat to constitutional order from this latest defiance of statutory restraints extends well beyond the present case. The National Emergencies Act is but one of many statutes empowering the President to act unilaterally if, and only if, he makes specified factual determinations (in particular, that there is an emergency). When Congress delegates such authority, it generally assumes, based on long historical practice, that the President will not debase his fact-finding obligation. Otherwise, Congress could never entrust the President with discretion. To allow the President’s current corruption of the Emergencies Act would discourage Congress from delegating important functions that the Executive Branch--in responsible hands--is better suited to address.

Some have suggested that the dispute regarding the President’s actions merely involves the interpretation of obscure, infrequently invoked statutes. But the lack of even a fig leaf of statutory authority to justify the President’s actions establishes that they are a bare-knuckled, if bumbling, power grab in derogation of clear constitutional limits. The President’s actions do not merely raise constitutional questions. They create a constitutional crisis.

The President did not act on a clean slate. He fabricated an invasion of immigrants from Central America who never invaded. He made the border wall a centerpiece of the 2018 Congressional elections, and lost the House. He threatened vetoes, tweeted accusations against opponents, and went on the road to dispense more phony claims of an immigration crisis. And when Congress nonetheless denied the funding he had requested for the border wall, he shut down the government for 39 days. After all these exertions, the President was forced to relent and sign legislation appropriating a fraction of what he sought. Only then did he declare an emergency to obtain what he plainly could not get through the legislative process.

In short, Congress specifically, and repeatedly, denied the President the funding he now purports to tap. Therefore, under Justice Jackson’s framework from The Steel Seizure Case, the President’s power to act unilaterally is “at its lowest ebb.” In fact, the President’s actions here are far more troubling than President Truman’s unsuccessful assertion of authority in The Steel Seizure Case. First, the asserted emergency in that case was more than plausible. President Truman invoked “emergency powers” in the midst of the Korean War and the Cold War, justifying seizure of the mills as necessary to provide equipment to the military. Second, President Trump is not just acting without constitutional authority; he is usurping perhaps Congress’s most organic, even existential, defense against Executive overreach--the power of the purse. By diverting money to fund a project that Congress has rejected, the President is displacing Congress’s Appropriations Power. The Framers wisely vested that power in Congress and Congress alone. To allow the President to override it merely by mouthing the empty words “national emergency,” to defer to his patently, even admittedly, implausible claim, would mock the checks and balances that protect American democracy.

If read to confer unreviewable authority to declare a national emergency and nullify contrary congressional decisions, the emergency statutes would raise grave constitutional issues. Therefore, at an absolute minimum, the principle of constitutional avoidance demands that courts interpret the emergency statutes to forbid the President’s actions here.

Trump’s “Emergency” and the Constitution

This blog was originally posted on The Regulatory Review.

President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower than among native-born Americans. Drug trafficking exists at the open southern border, but it pales by comparison with drug trafficking across legal ports of entry. And President Trump did not treat this as a legal emergency until he lost his battle for funding in Congress.

Notwithstanding the bogus nature of the current crisis, legal experts fear that the Supreme Court will turn a blind eye to President Trump’s obvious abuse of emergency power, just as it turned a blind eye to the thin basis for his third travel ban. The Court, however, has a constitutional responsibility to scrutinize an attempt to build a border wall that Congress, which has the power of the purse, has decided not to fund. Admittedly, in recent years, the Court has all too often deferred to Presidents claiming to protect national security on the ground that the President’s superior access to information and expertise make it unwise for courts to seriously review his national security and foreign affairs determinations. But the Court’s oversight responsibility has old, but too often poorly understood, roots.

Due process of law has always required that executive action be non-arbitrary. The Supreme Court recognized this repeatedly in late 19th and early 20th century, including in two cases where a President or a governor exercised emergency powers. Indeed, in the one case involving a fake emergency—a purported armed insurrection in Texas—the Court forthrightly held that it did not exist.

The Court also recognized the obligation to review executive branch fact-finding shortly before the New Deal in a forgotten passage of the “sick chicken” case. That case is famous as one of the two cases in which the Supreme Court struck down a statute for unconstitutionally delegating legislative authority. Although the part of that case dealing with the delegation issue is somewhat aberrational, the Court also confirmed in that case that the executive branch must make factual findings to support any exercise of delegated authority and that the Court must review them. It explained that this review is necessary to make sure that executive branch is not exercising a forbidden authority to legislate, but instead, is implementing a congressional policy in a particular field.

The Court’s holding built on a series of earlier cases that held that Congress may delegate broad authority to the President based on the need for a factual predicate for action. The Constitution only permits Congress to delegate emergency authority to the President because the courts have promised to seriously review claims that an emergency exists.

Justice Robert H. Jackson suggested that the Court has a special responsibility to ward off abuses of emergency power in a neglected part of another famous case, Youngstown Sheet & Tube Company v. Sawyer. In Youngstown, the Court struck down President Harry S. Truman’s use of emergency power to seize steel mills to support the Korean war. Justice Jackson, in an oft-overlooked part of his landmark concurring opinion, referred to the then-recent experience of Germany, where Adolf Hitler had abused emergency powers to destroy a democracy and establish a dictatorship. He said that the U.S. Constitution does not permit the President to manufacture emergencies in order to enhance his own power. In the part of the opinion that all first-year law students study, he also said that the emergency seizure of the steel mills could not stand, because Congress denied the President authority to seize the steel mills, just as Congress denied President Trump the funding needed to build a wall.

We cannot predict what this Court will do today, but we do know what it should do. The Constitution requires serious judicial review of President Trump’s invocation of emergency powers to avoid arbitrary presidential conduct.

The problem with Presidents manufacturing emergencies to deploy emergency powers goes beyond this current dispute over the wall on the southern border and even beyond this President. Congress has delegated a lot of emergency powers over the years on the assumption that Presidents will use them only in a true emergency. Given free rein to declare emergencies, this President or some future President may invoke the entire range of emergency powers delegated over the years to circumvent Congress and even to establish an autocracy.

Fulfilling the Framers’ intent to sustain a republic based on the rule of law requires that the Supreme Court fulfill its constitutional responsibility in reviewing a President’s invocation of emergency powers.

Federal Court Nominees Present Frightening View on Future Opinions

This piece was originally posted on the Chicago Daily Law Bulletin.

Whatever other accomplishments President Donald Trump may claim as president, in one area, he is creating a long-term legacy — the judiciary. Working with the 115th Congress Senate, which was led by Senate Majority Leader Mitch McConnell, the Trump administration achieved a historic confirmation of two Supreme Court justices, 30 appellate and 53 district court judges.

The confirmed judges are almost all white (92 percent) and a vast majority on them are male (76 percent). Many of the confirmations occurred due to the Senate majority changing the rules and disregarding norms that have been in place for many decades.

At the end of the 115th Congress, more than 70 nominees were returned to the White House following the Senate rules on end of a congressional term.

In early January, Trump renominated 48 of the 70 whose nominations were returned at the 115th Congress’ end. The first of those 48 likely to get a hearing is Supreme Court Justice Brett Kavanaugh’s proposed replacement on the U.S. Court of Appeals for the District of Columbia Circuit, Neomi Rao.

There are 11 numbered Circuits, the Federal Circuit and the D.C. Circuit. Though its jurisdiction is small, it has been referred to as the second highest court, because the D.C. Circuit has the responsibility of directly reviewing the rulemaking and decisions of many federal independent agencies of the U.S. government related to health, safety and civil rights issues in this country.

The court also would be the appellate court for challenges to executive power and Congress.

Rao currently serves in the Trump administration in the Office of Information and Regulatory Affairs, which is responsible for the implementation of governmentwide policies. In that role, she has implemented the president’s agenda of drastic changes in administrative policies, such as the rollback of Title IX protections.

As then-Sen. Obama noted, elections have consequences, and a president can nominate ideologues and hardliners, but at the same time, the public must be vigilant and understand what this means to the long-term rights and freedoms we share in the United States.

The senators must also understand the long-term impact of appointing hardline judges with lifetime tenures. Because Rao has no prior judicial experience, the public must closely review Rao’s past activities and writings that extend back to her college days at Yale University and that continue unabated to this date. A hard look at Rao’s published beliefs are troubling on various fronts.

1. Rao believes rape victims are partially responsible. In a 1994 Yale Herald article, Rao wrote, “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” She also stated, “Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility.”

2. Rao questions climate change and environmentalism. In a 1992 article in The Yale Free Press, Rao attacked climate change, stating acceptance of it as reality was “a dangerous orthodoxy” and labeled “the greenhouse effect, the depleting ozone layer and the dangers of acid rain” as the “three major environmental bogeymen.”

3. Rao believes sexism is dead. Rao wrote, “On this 25th anniversary of co-education at Yale, everything indicates that the transition has occurred smoothly. Women stand on equal footing in almost all aspects of student life.”

4. Rao attacked multiculturalism as a divisive force and discounted racial oppression. Rao wrote in a piece, “Myths of sexual and racial oppression propogate [sic] themselves, create hysteria and finally lead to the formation of some whining new group. One can only hope to scream, ‘Perspective, just a little perspective, dahling!’”

At Rao’s confirmation hearings, she said that some of her comments and writings she would not write today, stating that “certainly some sentences and phrases I would never use today.”

She stated, “To be honest, looking back at some of those writings … I cringe at some of the language I used.” She also noted, “I like to think I’ve matured as a thinker, writer and indeed as a person.”

What Rao has not said, and the Senate confirmation hearings never require or get is that she has changed her views about things she said, only that she would not use the same language today.

When asked about her views on Brown v. Board of Education, she would only repeat that it was ” a really important precedent.” She made the same responses to Griswold v. Connecticut and Roe v. Wade. Rao stated she would follow the precedents.

However, as we have seen, Article III appellate courts have not always followed precedent. On Thursday, the U.S. Supreme Court, by a 5-4 decision, approved a request in the case, June Medical Services v. Gee, to stay a Louisiana law that is the same in all material respects to a Texas law that the Supreme Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt.

So, the 5th U.S. Circuit Court of Appeals panel in a 2 to 1 vote apparently did not see fit to follow precedent. Chief Justice John G. Roberts Jr. joined the four justices appointed by Democratic presidents in approving the stay, pending “the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”

On Thursday, the Senate Judiciary Committee approved 44 of Trump’s judicial nominees, including six to the federal circuit courts, five of whom were advanced along party lines by the committee. One of the district court nominees, Wendy Vitter, like Rao, refused to state that Brown was correctly decided.

Rao will be up for consideration in the near future. Another Trump nominee to the 9th Circuit, Ryan Bounds, was withdrawn due to his similarly troubling undergraduate writings at Stanford University.

Rao’s beliefs and views from her college days are reflected in current administration policies and views on things such as climate change.

While the D.C. Circuit may seem irrelevant to Chicagoans, given the D.C. Circuit’s importance and role in our judicial structure, as well as the other federal courts, we must be informed and share our concerns with our senators and with others who soon will vote on Rao’s nomination and these 44 nominees.