Congress’s Woman Problem

Anyone who is paying attention knows that Congress has a woman problem—that is, in a nation where over half of the inhabitants are female, only 20% of Congress’s members are women.

There are subtle costs to the underrepresentation of women in government. For example, one recent study concluded that women in Congress are actually more productive legislators, introducing more bills spanning a wider range of issues than their male counterparts. Other studies have suggested that women legislators are more likely than men to prioritize issues such as health care, social services, reproductive rights, children’s rights, and the environment.

Day to day, it may be hard to notice that, with too few women in the room, many issues get short shrift. But then something dramatic happens, like the sexual assault charges levied against Brett Kavanaugh or the sexual harassment charges proffered against then-nominee Clarence Thomas. When that occurs, we notice all over again that in our current Congress, women’s issues are not part of the bread and butter of every legislators’ agenda. Instead, proposals identified with women’s interests too often serve as political footballs to be tossed around whenever members hope to distract feminist voters from the lack of women’s representation in Congress.

That was the situation this week with the Violence Against Women Act (VAWA). Though it has been languishing for months, with no Republican co-sponsors, there is no doubt that reauthorization of VAWA is critical to the nation’s efforts to combat violence against women.  First enacted in 1994, the original VAWA was pending before Congress in 1991, during the Anita Hill hearings. It was finally passed three years later, when the tragic circumstances of Nicole Simpson’s murder forced national attention to the issue of violence against women. VAWA has since been reauthorized three times.

The 2018 reauthorization bill would, among other things, provide law enforcement with more tools to remove firearms from domestic abusers who are not legally allowed to own them and would increase funding for local rape prevention efforts. Kim Gandy, President of the National Network to End Domestic Violence, calls it a “modest” bill, drafted with the intention of garnering bi-partisan support just as prior VAWA bills have since 1994.

This is legislation that matters in every congressional district in the country and that should be a priority for every Senator and Representative.

Instead, it appears that Senator Chuck Grassley and other Republican members are prepared to cynically use VAWA reauthorization to show that they care about women, even as they seek every possible means to minimize the significance of sexual assault charges made against Judge Kavanaugh. At the time of this writing, Senate Republicans are continuing their efforts to rush the Kavanaugh Supreme Court nomination through to a confirmation vote with little investigation of the attempted rape claims and without the benefit of expert testimony on the dynamics of sexual assault. Scheduling hearings on VAWA reauthorization will, they hope, help change the subject and show that Congress cares about women—at least when women aren’t making sexual assault accusations against powerful men in Washington.

Of course, VAWA should be passed whatever the reason, cynical or not, and Congress should take action before the September 30 deadline for reauthorization. But few women (or other voters) will be fooled into thinking that violence against women really matters to the congressional majority if they turn on their screens to see Anita Hill redux, as the Republican men of the Senate Judiciary Committee grill Dr. Christine Blasey Ford about her charges against Brett Kavanaugh. No, Congress can’t fix its woman problem just by reauthorizing the VAWA, though there’s nothing wrong with that. What we really need are more women in Congress, and more men in Congress to care about women even when it is not politically opportunistic.

 

Kavanaugh’s Confidential Emails Show He’s a Threat to Individual Liberty

Recently disclosed emails from Judge Brett Kavanaugh’s time working in the Bush White House appear to show him commenting on a landmark LGBTQ rights decision issued by the Supreme Court. These emails are a reminder why those who support robust individual liberties under the Constitution should oppose Kavanaugh’s nomination to the Supreme Court.

On June 26, 2003, Kavanaugh sent a cryptic email to other White House staffers saying: “read next to last sentence of Kennedy opinion.” On that day, in an opinion written by Justice Anthony Kennedy, the Supreme Court issued a groundbreaking decision in Lawrence v. Texas, which struck down Texas’s criminal ban on sodomy. The next to last sentence of his opinion read: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

From the limited documents released from Kavanaugh’s years in the White House, we cannot know for sure that he was referring to Justice Kennedy’s opinion in Lawrence. Nor can we know why he was flagging the next to last sentence in that opinion.

But everything we know about Judge Kavanaugh’s record indicates that he is ardently opposed to the approach to expansive personal freedom articulated in Lawrence by the very justice he’s been nominated to replace.

There have long been two competing jurisprudential approaches to recognizing individual liberties protected under the Constitution. The first approach applies liberty to fit the context of modern society, yielding greater protection for individual dignity and self-autonomy from government intrusion.

That’s what Justice Kennedy did in Lawrence to recognize a right to sexual intimacy for gay and lesbian people. And it’s also the doctrinal approach that has produced landmark decisions protecting a sphere of personal and intimate decision-making, such as the right of parents to direct the education and upbringing of their children, the right to use contraception, the right to abortion, and the right of same-sex couples to marry.

The second approach to individual liberty argues for limiting constitutionally-protected liberties to only those rooted in the nation’s history and tradition. That approach was used in 1986 to reject a right to sexual intimacy for gay and lesbian couples—a decision overruled by Lawrence.

It’s also an approach that has been wielded by the dissenters in a number of abortion cases. In cases like Roe v. Wade and Planned Parenthood v. Casey, Chief Justice William Rehnquist and Justice Antonin Scalia issued dissents arguing that the right to abortion had no constitutional basis because it was not grounded in the nation’s history and traditions.

On the question of how to evaluate the scope of liberty, Judge Kavanaugh has made it clear where he stands. He has repeatedly praised both Rehnquist and Scalia for tying liberty to only those rights “deeply rooted in this Nation’s history and tradition”—singling out their dissenting opinions in Roe and Casey for particular acclaim.

In a 2017 speech at the American Enterprise Institute, Judge Kavanaugh praised then-Justice Rehnquist’s dissenting opinion in Roe, in which Rehnquist wrote that the Constitution does not protect abortion as a fundamental right. Calling Rehnquist his “first judicial hero,” Kavanaugh credited Rehnquist for “stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

Similarly, in a speech that he delivered at the University of Notre Dame in 2017, Judge Kavanaugh recalled Justice Scalia’s advice: “don’t make up new constitutional rights that are not in the text of the Constitution.” And in an earlier speech in 2016, Kavanaugh singled out Scalia’s dissenting opinions in Casey and Obergefell v. Hodges, where the Supreme Court recognized a constitutional right to same-sex marriage. Kavanaugh said that these opinions illustrated how “For Justice Scalia, it was not the Court’s job to improve on or update the Constitution to create new rights.”

During his Supreme Court confirmation hearing, Judge Kavanaugh reiterated his support for the narrow “history and tradition” approach to defining individual liberty. He said, “All roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test” for determining the scope of individual liberty, referring to the Court’s decision rejecting a constitutional right to physician-assisted suicide because it was not deeply rooted in the nation’s history or traditions.

Moreover, while Judge Kavanaugh discussed at length his agreement with several Supreme Court decisions, he refused to say whether cases involving liberty rights were correctly decided. He refused to state whether Roe and Casey were correctly decided. And on Griswold v. Connecticut—which upheld the right of married couples to use contraception based on a constitutional right to privacy—he said he agreed only with a narrow concurrence issued by Justice Byron White that was based on a limited right to marital privacy.

Judge Kavanaugh also refused to say whether he thought Obergefell was correctly decided. In Obergefell, Justice Kennedy wrote for the Court, and notably rejected a history-bound method for identifying liberty rights. Kennedy asserted that “[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries,” because “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

Rather than carry on the robust and evolving liberty espoused by Justice Kennedy, Judge Kavanaugh has instead firmly sided with the cramped view of liberty endorsed by Chief Justice Rehnquist and Justice Scalia. That approach to liberty threatens the underpinnings of abortion rights, LGBTQ rights, and many other liberties under the Constitution. Judge Kavanaugh cannot be allowed to bring his hostile approach to liberty to the highest court in the land.

The Whistleblowers in the White House

I practice law. My clients have been called “sneaks” and “snitches.” I just call them "whistleblowers." If they sue under the False Claims Act against a culprit who has defrauded the government, I might also call them "relators."

I try to explain to people that the term “whistleblower” is quintessentially American. It is about challenging accepted but fundamentally wrong practices; indeed, ones carried out by established or respected people or institutions, including corporations and government. And though the term "whistleblower" was coined around the activities of Ralph Nader in the 1960s and 1970s, whistleblowers have been around since the birth of our nation. One need only consider challenges to British Rule and claims of taxation without representation.

We talk about the "progressive tradition," but isn't that tradition about second-guessing rules that are just not right - rules like slavery, "separate but equal," and a way of life that denied - and continues to deny - equal rights for women and minorities? And aren't the folks who stick their necks out to make these challenges just good old American whistleblowers? No doubt though, until their complaint is vetted and their cause pressed to completion, they will be called snitches – even if, at the end of the day, their epitaphs herald them as heroes.

Last week we learned that we have whistleblowers in the White House, some of whom cooperated with reporter Bob Woodward, and one of whom penned an op-ed for The New York Times.

True to form, feathers have been ruffled in some circles and our President has called the work of the op-ed author "TREASON." Some of these outcries were predictable; yet the cries for help from these particular "whistleblowers" were a bit surprising.

While we have laws that protect whistleblowers and legal channels for them to air their grievances, every now and then these channels are simply not viable; or perhaps, those who might be in a position to hear a complaint won't listen or are not inclined to take action. Maybe this is what the whistleblowers in the White House understand. It is probably why they took their concerns to the only viable outlet: the American press. After all, was the Republican legislature going to take up their cause?

And like the wide receiver always in the clear to take a pass, the free press - another quintessentially American phenomenon - exists as the outlet for whistleblowers when all else fails. No doubt, choosing that route comes with fewer statutory protections, but to be clear, whistleblowers working with the press have driven change for the better.

I am curious about these White House whistleblowers, particularly the individual whose words appeared in The New York Times. I wonder about the phrase in the op-ed hinting at the virtues of an agenda that specifically favors deregulation and perhaps even the appointment of judges deferential to the well-heeled and less receptive to those without a voice; maybe even judges who are less open to receiving a complaint challenging the status quo from say – for example – a whistleblower?

I wonder whether these whistleblowers in the White House have truly learned about what it feels to be the little guy taking on the system, always in search of a more powerful partner who will make the grievance heard. And I wonder if when they leave the White House and go back to corporate America, they will be the ones calling my clients “snitches.”

Summer’s Come and Gone: Children Remain Separated under the Trump Administration’s Cruel Policy

As a nation, we rose up and forced an end to the Trump Administration’s abysmally cruel separation policy. We must and will finish what we started.

In early June, word of young children taken from their parents at our southern border began to spread. Confusion initially reigned in the media. Why were families being separated? How many were there? Where were the children taken? What was the plan?

In mid-June, the Trump Administration announced that nearly 2,000 children had been separated from their parents, against a backdrop of Secretary of Homeland Security Kirstjen Nielsen’s defiant refusal to apologize and the administration’s continuing (and false) denial that family separation was its policy. Thanks to an ACLU lawsuit originally filed in February 2018, information on thousands of separated and transported children continued to surface as public furor grew. A report of the separation of “tender age” children caused journalist Rachel Maddow to lose control and tear up on camera. Thousands of her viewers did the same. Months later, the base cruelty of these separations is impossible to comprehend. What kind of person orders border officials to pull a nursing infant from its mother’s arms? What kind of person obeys that order?

No answer sufficient to this question exists. Hundreds of children remain separated from their parents and the process has ground to a halt. It’s time raise our voices once more.

 

Let’s review the topline details, from the beginning.

In the face of public outrage, President Trump issued an executive order on June 20 blaming Congress for family separations and stating that the Administration’s preference would be to detain families together. The Order directed the Defense, Homeland Security, and Justice Departments to prepare sufficient family detention facilities and to seek to suspend a prior requirement that children be detained for no longer than 20 days. The Order made no provision for reunifying families separated to that date.

Two days later, Judge Sabraw of the Southern California District Court presided over a status conference in the Ms. L. v. ICE family separation lawsuit filed by the ACLU in February. ACLU lawyer Lee Gelernt requested an immediate injunction that would order reunification and require the government to provide a list of parents and children “so that they can show they haven’t lost track of these parents and children.” The deadlines issued—July 10 for the under-5s and July 26 for all others—but hundreds of children remain separated.

July 26 was 40 days ago. The status report issued that day reported 1,442 of 2,551 children 5 and over reunited with their parents and 378 “discharged in other appropriate circumstances.” (The July 13 status report stated 57 children under 5 had been reunified.)

The August 2 status report indicated 1,569 children reunified with parents and 423 otherwise discharged. In one week, only 18 additional children were returned to their parents.

By August 9, 1,569 children had been reunified and 423 otherwise discharged—indicating the passage of seven days with no additional reunifications.

The August 16 report indicated that one child above the age of four had been reunified during the past week. Just one. It added a column addressing children four and younger, showing that of 103 separated “tender age” children, just 46 had made it back to their parents.

By August 23, 293 additional children 5-17 had been returned to their parents, for a total of 1,862. Fifteen additional tender age children had been returned for a total of 61, indicating that 42 children aged four and younger remained separated 43 days after the relevant deadline.

By August 30, fourteen additional children five and older were returned, for a total of 1,876. No additional babies and toddlers were returned.

The latest joint status report issued September 6. The Government claimed significant progress, some of which resulted—as Plaintiffs noted—from removing children from the August 28 list of eligible children (Plaintiff’s Steering Committee “continues to meet and confer with the Government regarding information explaining why parents and children have been removed from or added to the lists of class members or children in ORR custody previously produced by the Government.”). While the Government claimed inability to reach 4 parents (among those deported without their children), Plaintiffs noted 28 parents for whom the Government-provided numbers were inoperative or ineffective and 17 for whom there was no phone number at all. In the face of these difficulties, Plaintiffs reported, counsel traveled to Guatemala last week to meet with class members concerning their children detained in the United States.

Further, Plaintiffs requested complete information on parents alleged to be excluded from the Ms. L. class due to criminal history, requesting expedited briefing regarding two children in particular. In one, the Government has denied reunification to a mother and her four-year-old child (three when detained) based on an alleged outstanding warrant from abroad claiming gang membership, despite a U.S. court finding that the warrant is insufficient evidence that she is a danger to her child. In the other, a two-year-old child has been denied reunification with his father based on a 2010 guilty plea for assault—a history that, Plaintiffs claim, “has no bearing on his current dangerousness or ability to care for his child.” These cases of tender-age children held apart from their parents for no good reason—compounding, day by day, the lifelong traumatic impact such separation will inflict.

As with prior reports, mismatches between the parties’ September 6 accounts illustrate a Government that has washed its hands of reunifying many of the children in its charge. Today, over six weeks after the deadline, a total of 1,937 children aged 0 to 17 have been returned to their parents. Of the original 2,654 children, 717 remain separated from their families; 220 have been “otherwise discharged.” As a result, today 497 children remain in custody with the Office of Refugee Resettlement. (The August 30 status report also states that 528 are still in custody, reflecting problems with reconciliation of numbers in various lists that plaintiffs describe in the report.) Many parents have been “red flagged” as ineligible for reunification, without explanation; the ACLU continues to ask for relevant information.

As of August 30, the government admitted that 343 of these children have parents that were removed from the United States. Credible reports indicate many of them signed forms giving up their right to claim asylum and accepting removal as conditions of reunification; they were then removed without their children. Some did not understand the language the forms were printed in. Incredibly, the government has repeatedly tried to shift responsibility for reunification with deported parents to the ACLU as plaintiffs’ counsel. The court has refused to go along with this request. But the government continues to drag its feet, create confusion, and delay information sharing with disingenuous and shameful excuses. At no time has the government admitted that it broke the law and violated human rights when it separated families, despite the court’s finding that these actions violated our Constitution. Instead, the government normalizes and bureaucratizes its unconscionable actions.

The American Medical Association, American Academy of Pediatrics, American Psychological Association, American Professional Society on the Abuse of Children, and many other professional associations have issued statements condemning the practice of family separation and noting its acute impact on physical and mental health, both short- and long-term. Many observers have reported the heavily detrimental impact on parents as well, including depression, anxiety, and suicide attempts. Heartbreaking accounts of some reunions have indicated that children may initially reject the parent. Some reports state that American officials told children their parents had abandoned them. Some children were separated without being able to say goodbye. The damage done to attachment, as well as health, can be permanent. In this light, the government’s entire failure to formulate a plan for reunification prior to separation and failure to carefully track parents and children—failures noted by Judge Sabraw—are all the more shocking.

The Government’s argument that current laws force its hand when separating families—an argument planted long ago—has been definitively rejected by the courts. And when the Government subsequently petitioned the Central District of California to lift restrictions on family detention imposed by the Flores litigation settlement agreement, the court roundly rejected the request based on its limited jurisdiction. Not to be gainsaid, the Government has simply proposed regulations that would constructively withdraw it from the settlement.

The regulations enable the Government to detain children with their families indefinitely. Historically, that means an average of six months in detention, though the wait can be considerably longer. The current grant rate in the United States is 26% for FY2018, down from 45% in FY2015. Together, this means that a significant number of families may be detained for many months, only to be denied and sent back to the danger they fled, especially if Attorney General Sessions’ new guidance eliminating many forms of gender- and gang-based violence withstands court challenge. For migrants from Honduras, Guatemala, and El Salvador—torn by abject poverty, terrible violence, and the failure of the state to protect children—detention followed by deportation will be devastating.

Why isn’t family detention an acceptable alternative to family separation? Because detaining children does them traumatic harm, whether or not they are detained with their families. Such was the conclusion of a 2017 policy statement by the American Academy of Pediatrics, which found that “the Department of Homeland Security facilities do not meet the basic standards for the care of children in residential settings.” Children should be released into the community with access to a medical home and supports such as education, child care, and interpretation and legal services, especially considering the trauma they experienced prior to entry into the United States. While standards referenced by the ICE website govern the treatment of children in detention facilities, the AAP has found “discrepancies between the standards outlined by ICE and the actual services provided, including inadequate or inappropriate immunizations, delayed medical care, inadequate education services, and limited mental health services.” Human rights groups and professional associations within the United States and abroad condemn child detention. Studies have found that the negative impacts of detention on children often do not fade after release. The suffering impacts both mental and physical health, with one survey finding that internment survivors had a “2.1 greater risk of cardiovascular disease, cardiovascular mortality, and premature death” compared to those not interned as children. Given all we are learning about the long-term impacts of adverse childhood experiences and other trauma, these results are not surprising. And given that these children had no part in the choices that brought them here, their detention is all the more horrifying. Advocates point out that release of families into the community is a highly successful alternative: an American Immigration Council study found that 96% of families requesting asylum who were initially detained showed up for their court hearings. Family detention is both cruel and unnecessary.

Today, hundreds of children remain separated from their families. As many as 42 are younger than five years old. Hundreds of parents have been deported without their children and may well have been coerced into forfeiting their asylum rights in exchange for promised reunifications that never occurred. NGOs comb remote villages in Honduras, Guatemala, and El Salvador in search of parents whose children languish in captivity within our borders. Our government continues to duck and dodge and push responsibility onto the parties whose constitutional and human rights it incontrovertibly violated—including babies and children.

Though the story no longer makes headlines as it did earlier in the summer, we Lawyer Moms of America—a community 17,500 strong that formed in early June—will not quit. LMoA spent the summer raising awareness and money to support organizations that have aided refugees and immigrants for years, including RAICES and KIND. We raised bond money and donated airline miles. We coordinated volunteers traveling to detention centers to represent separated parents. We held press conferences and delivered letters to members of Congress. Like the immigration rights organizations we support, we will not stop until all the children are returned. As a nation, we rose up and forced an end to the abysmally cruel separation policy. We must and will finish what we started.

Join us: https://lawyermomsofamerica.squarespace.com/. You don’t need to be a parent or a lawyer. You just need to care.

Christopher Collins and Congressional Conflicts of Interest

On August 8, Geoffrey S. Berman, the interim U.S. Attorney for the Southern District of New York, announced the indictment of Representative Christopher Collins (R-NY), his son Cameron Collins, and Stephen Zarsky, father of Cameron Collins’s fiance. The 13-count indictment alleges insider trading and related crimes: one count of conspiracy to commit securities fraud, seven counts of securities fraud, one count of conspiracy to commit wire fraud, one count of wire fraud, and three counts of making false statements to FBI agents - one count of lying for each of the three defendants. The indictment is here.

Media attention to the Collins indictment was brief; it was displaced by, among other events, the Manafort trial and convictions, the Cohen plea, the passing of Senator McCain, and the Kavanaugh confirmation hearings. The significance of the indictment, however, should be undiminished, especially in light of the imminent Congressional midterm elections.

The factual predicate for the crimes alleged in the indictment is uncomplicated. Representative Collins owns shares in Innate Immunotherapeutics Limited, an Australian company that developed a drug called MIS416. According to the indictment (see paragraph 3), Collins served on the board of directors of Innate, was one of its largest shareholders, and “...regularly had access to material, non-public information about MIS416...”

Collins encouraged his son and Stephen Zarsky to buy shares. Other family members and friends also bought shares, including Zarsky’s spouse and daughter, who was Cameron’s fiance. (Several of Collins’s Republican colleagues in the House also bought shares in Innate, but none of them are implicated or even mentioned, passim, in the indictment.)

On June 22, 2017, during the Congressional Picnic at the White House, Representative Collins learned from Innate’s CEO that MIS416 had failed its trials - before Innate publicly disclosed the information. Although he could not sell his shares at that time (more about that below), Representative Collins allegedly called his son immediately and shared this material, non-public information. Also before the information was publicly disclosed, Cameron Collins allegedly passed it on to Stephen Zarsky and three other shareholders. In turn, Zarsky allegedly shared the same material, non-public information with three more persons who’d bought shares in Innate.

Before Innate publicly announced the failure of MIS416, Cameron Collins, Zarsky, and several of the six other tippees sold their shares. The sellers thus avoided, in the government’s estimation, $768,000 in losses they would have incurred “...if they had sold their stock in Innate after the Drug Trial results became public.” The basis for the government’s arithmetic: after Innate publicly disclosed MIS416’s failure, its stock crashed, losing approximately 92% of its value in just one day of trading.

Unlike Cameron Collins, Zarsky, and the tippees who sold their shares, Representative Collins didn’t take advantage of his insider knowledge and trade out of his position in Innate before the stock cratered. The indictment alleges that Representative Collins held his shares in Australia and was, therefore, subject to a trading halt on the Australian Stock Exchange that Innate had requested around the time it privately notified Collins of the results of the drug trial, but before the public announcement of the drug’s failure in trials. During the subsequent criminal investigation, Rep. Collins, Cameron Collins, and Zarsky allegedly lied to FBI agents when interviewed about their conduct.

The securities fraud and wire fraud charges - and associated conspiracy counts - arise, therefore, out of this alleged insider tipping and/or trading by the Congressman, his son, and Mr. Zarsky. The false-statement charges arise from the defendants’ alleged lies to FBI agents about their conduct. To date, none of the other tippees have been indicted.

The FBI and the U.S. Attorney for the Southern District of New York are not the only government entities interested in Rep. Collins’s Innate activities. As the indictment also notes, the Congressman “...was already under investigation by the Office of Congressional Ethics (‘OCE’) in connection with his holdings in, and promotion of, Innate.” Per the indictment, Rep. Collins had been interviewed by OCE personnel about his involvement with Innate 17 days before he was confidentially informed by its CEO about the drug’s failure in trials and allegedly tipped other investors. On July 14, 2017, the OCE referred its investigation of Collins to the House Committee on Ethics.

It’s possible that the House ethics committee’s investigation will be suspended while the criminal prosecution proceeds. Meanwhile, Rep. Collins announced that he is suspending his campaign for re-election to the House.

All of this investigative activity might, on the one hand, end in exoneration of Rep. Collins by the House ethics committee and acquittals on, or dismissals of, the criminal charges against Collins, his son, and/or Zarsky. On the other hand, there could be some combination of pleas and convictions, with censure or expulsion of Collins by the House (though House action will be moot if Collins does not win reelection).

Regardless, there is a threshold issue that deserves substantial attention in this election season: Article I, Section 5, clause 2 of the Constitution provides that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member." On this constitutional basis, Congress sets and enforces its ethical requirements for its members.

As noted on his Congressional website, “Congressman Collins serves on the House Energy and Commerce Committee in the 114th Congress. He currently serves on three Subcommittees: the Communications and Technology Subcommittee, Health Subcommittee, and Oversight and Investigations Subcommittee.” (Emphasis added.) The Office of Congressional Ethics referred Collins to the House ethics committee in part for this conduct:

Representative Collins attended a meeting at the National Institutes of Health (“NIH”) in November 2013.  In that meeting, Representative Collins discussed Innate and requested that an NIH employee meet with Innate employees to discuss clinical trial designs.  If Representative Collins took official actions or requested official actions that would assist a single entity in which he had a significant financial interest, then he may have violated House rules and standards of conduct.

The linchpin of this syntax is that Collins’s conduct “may have violated House rules and standards of conduct.” The standard for Congressional conduct ought to unambiguously prohibit corporate board-membership and active ownership or other financial interests in businesses by members of Congress.

Rules of professional conduct generally regulate and limit how lawyers may acquire or hold financial interests in clients. See, e.g.,  ABA Model Rule 1.8(a). The rules of judicial conduct likewise contemplate that judges will limit their financial activities vis-a-vis their duties on the bench. See, e.g., Canon 3, Rule 3.11 of the ABA Model Code of Judicial Conduct.

Legislators write and amend laws and investigate the outcomes of their law-making - and they investigate the federal agencies charged with enforcing the laws they enact.  Legislators can advantage or disadvantage themselves or other stakeholders through their legislative duties. They should, therefore, be subject to strict ethics requirements.

During the current election cycle, the public should insist that candidates for Congress pledge that, if elected, they will divest themselves of their significant financial interests before taking office. More generally, the public also should insist that Congress institutionally require its members to divest before taking office or, at a minimum, to transfer their significant financial assets to blind trusts. In either event, members also should be required to recuse themselves from participation in any legislative activities where they know or believe - or a reasonable person would know or believe - that their personal financial interests might be affected by their legislative work.

Of course, devising Congressional conflict-of-interest rules that account for all of the variations and complexities in individual legislators’ financial affairs might not be easy or simple. For example, tax laws affect the economics of home-ownership (as underscored by the recent changes to federal income-tax laws). A home is an asset - and perhaps the only substantial asset - that many lower-income legislators might own. That said, divestment to the fullest feasible extent should be the default setting for members of Congress.

Legislators should serve only the public interest and not their personal financial interest. There might be sacrifices or inconveniences involved in public service, but strict - and strictly enforced - legislative conflict-of-interest laws might have multiple benefits: screening out legislative candidates who see public service primarily or only as a means to personal gain; deterring corruption of the legislative process; and, perhaps most importantly, diminishing cynicism about legislative processes.

In an era when the President hides his tax returns from public scrutiny and retains beneficial stakes in his private businesses, more Congressional accountability is in the public interest.

How the Supreme Court Created a Constitutional Case Against the Administrative State

One of the Supreme Court’s first cases in October threatens to unsettle the power of federal agencies to implement laws through regulation.

In the first week of the Supreme Court's upcoming term, the justices will hear argument in a case asserting that a federal statute is unconstitutional because it gives an official in the executive branch insufficiently precise instructions about how to implement the law. Although the case has attracted little attention from progressive groups so far – not one amicus brief was filed in support of the federal law – there is reason to believe that conservative justices may view the case as an opportunity to revitalize a long-moribund constitutional doctrine and, in the process, rework the balance of power in modern government.

Watch Lisa Heinzerling's pre-argument analysis of Gundy v. United States

The Supreme Court has long interpreted the Constitution to require Congress to provide intelligible instructions when it delegates authority to the executive branch to implement legislation. This principle, known as the doctrine of "nondelegation," aims to ensure that Congress does not cede its legislative power to the executive. Only twice in history, however, has the Supreme Court invalidated a federal statute on nondelegation grounds – both times in 1935, at the height of the Court's resistance to President Roosevelt's New Deal legislation.

Since then, the Court has not rejected a single federal statute because the instructions given by Congress to the executive were insufficiently precise. As Justice Scalia once wrote, given the "multifarious" and "highly political" nature of the relevant inquiry, the Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying that law." A large worry is that unelected judges applying a revitalized nondelegation doctrine would be left to follow their own, personal impulses in drawing the line separating acceptable from unacceptable delegations.

Nevertheless, four of the Court's current justices have in recent years expressed constitutional anxieties about Congress's broad delegations of power to administrative agencies. Justices Alito and Thomas have complained that the Court has gone too far in condoning broad delegations of power to administrative agencies. Chief Justice Roberts has openly lamented the power of administrative agencies and has questioned the practice of deferring to agencies' interpretive judgments. Likewise, as a lower-court judge, Justice Gorsuch also expressed dissatisfaction with the Court's policy of "Chevron" deference, citing the constitutional constraint on delegation as a reason for his uneasiness.

It seems fair to surmise that the Court's conservative justices have been itching for a fight on nondelegation. They've now found one, and it may prove to be just what they've been looking for.

In Gundy v. United States, set to be argued the first week of October, a convicted sex offender argues that the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by giving the Attorney General the authority to decide whether the law's registration requirements apply to offenders convicted before the statute was enacted. Failure to register as required under SORNA is a criminal offense, carrying a penalty of up to ten years in prison.

A sticking point during legislative debates was how the law should deal with pre-Act offenders. Congress defined a "sex offender" as "an individual who was convicted of a sex offense," thus apparently including within the Act's requirements individuals who were convicted either before or after the law was passed. Yet Congress also provided that "[t]he Attorney General shall have the authority to specify the applicability of the requirements" of the statute to pre-Act offenders.

These provisions together raised a question: do the Act's registration requirements apply to pre-Act offenders by the force of the Act itself, or do they apply only once the Attorney General specifies that they apply? Under the first interpretation, the statute would present no nondelegation problem, since Congress itself would have made the choice to create criminal liability for pre-Act offenders. Under the second interpretation, however, the Act would appear to give to the Attorney General the power to decide whether to impose registration requirements, backed by criminal penalties, on the 500,000 sex offenders whose convictions pre-dated the Act.

In Reynolds v. United States, decided in 2013, the Court chose the second interpretation. Writing for a lopsided majority, Justice Breyer found that the Act's conferral of authority to determine the Act's "applicability" to pre-Act offenders was "more naturally read as conferring the authority to apply the Act, not the authority to make exceptions" – meaning that the Act's registration requirements did not apply to pre-Act offenders until the Attorney General said they did. Chief Justice Roberts, who at oral argument had asked counsel for the government whether delegating this degree of authority would create a nondelegation problem, joined Justice Breyer's opinion without comment. As did Justices Alito and Thomas.

Justice Scalia dissented, joined by Justice Ginsburg. Justice Scalia saw no reason to interpret the statute in the way the majority did, but he did see a good reason not to: "[I]t is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide – with no statutory standard whatever governing his discretion – whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable…" Justice Scalia observed that it was thelis Court's "settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question." Indeed, the Court has in the past chosen a narrow interpretation over a broad one precisely because it thought the broad interpretation might be inconsistent with the nondelegation principle.

The basic problem in Gundy is that SORNA, as interpreted by the Supreme Court in Reynolds, provides not just imprecise guidance, but no guidance to the Attorney General in deciding whether to apply the law to pre-Act offenders. The government made no bones about this limitless discretion in Reynolds itself; indeed, it used the unconstrained nature of the authority given to the Attorney General to argue against making the application of the statute to pre-Act offenders turn on the Attorney General's action. Under the provision on the Attorney General's authority, the government said, the Attorney General could apply the Act to "every" pre-Act offender or to "some but not all" or could "do nothing at all," and could "change his mind at any given time." Despite these cautions, the Court ruled against the government in Reynolds.

In defending SORNA against the constitutional attack in Gundy, the government now attempts to create a limiting principle for the Attorney General's authority. It argues that "the text and context" of SORNA convey an instruction to the Attorney General to "specify the applicability of SORNA's registration requirements to pre-Act offenders 'to the maximum extent he finds to be feasible.'" In Gundy, the government has thus discovered a limiting principle that it could not locate when it litigated Reynolds. The trouble is that the limiting principle – "to the maximum extent he finds to be feasible" – does not appear in the statute.

By interpreting SORNA to require action from the Attorney General before the law's registration requirements may apply to pre-Act offenders, the Court in Reynolds created the constitutional conflict that Justices Scalia and Ginsburg sought to avoid. In this way, Reynolds gave birth to the constitutional controversy in Gundy.

Unless the Court is willing to overturn its decision in Reynolds – which is unlikely, especially given the recentness of the decision – the Court in Gundy will not be able to wriggle out of the constitutional question posed there. Given the four conservative justices' apparent desire to police nondelegation problems with a firmer hand, one cannot help but wonder whether the legal box they've put themselves in suits them just fine. Add Judge Kavanaugh to the mix, and one may have a solid majority for reworking present understandings of the separation of powers.

If the Court invalidates SORNA as an unconstitutional delegation of legislative authority, the consequences could be gigantic. A reawakened nondelegation doctrine could run like a scythe through the scores of statutes that grant broad authority to administrative agencies. Operating that destructive instrument would be the least politically accountable of all the branches of government.

The Court could try to limit a decision invalidating SORNA, citing such factors as the criminal context; the worrisome power of the Attorney General as both prosecutor and quasi-legislator; and the backward-looking nature of the application of registration requirements to pre-Act offenders. But given that this is the very fight that the conservative justices appear to have been spoiling for, and given that they could have easily avoided it in Reynolds, it seems fair to say that no matter how Gundy comes out, this will not be the Court' last word on nondelegation.

I am grateful to Jonathan Adler for helpful comments on an earlier draft.