Standing to Sue: A Brief Post-Script

Over the years, I have spoken the following words to numerous American Government classes:

If you go into the legal profession, and if you are ever working for an interest group and using litigation to achieve policy goals from court rulings, make sure that you have a plaintiff with an actual “standing to sue,” because no matter how good your arguments are, the case can get thrown out if you don’t have that.

I’ve been reflecting on that in relation to the new Texas law, because that law totally subverts that concept by making it possible for anybody who disapproves of abortion to file suit against an abortion doctor, or against anybody who aids and abets an abortion in any way (like giving a woman a ride to the abortion clinic, or paying for the abortion) and collect $10,000 for doing so.¬† The question is, how can this be possible?

I’m looking into the question, so this post is merely a progress report on what I’ve found so far.¬† What I’ve found so far is that the Supreme Court has made itself very clear on “standing to sue,” but only (as far as I know) as far as federal cases are concerned.¬† In the 2016 decision¬†Spokeo v. Robins, the Court noted that Article III of the Constitution assigns federal judicial power over “cases” and “controversies” and says that limiting the power of the judiciary to resolving cases and controversies is crucial to preserving the balance of power among the three branches and the limits of the judicial branch’s power. Justice Alito, in that ruling, wrote:

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood…. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong….

Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements….¬†The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.

Alito cites a number of precedents, most notably Lujan v. Defenders of Wildlife (1992) and Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000).

But again, that’s just for the federal courts.¬† There are two questions that I don’t know the answer to, in this regard:¬† (1) Is there any case law precedent that empowers the federal courts to apply this principle to state courts?¬† (2) Is there a body of case law precedent at the state level in Texas that would facilitate getting this law challenged in a Texas state court on the basis of “standing to sue”?¬† I’m still working on how to find out those two things.¬† But in any event, it certainly goes against years, probably centuries, of judicial tradition for there to be a law that empowers any ordinary person to file suit against another on the mere basis of personal disapproval of an action committed by that other person.

A New Chapter Begins in the Abortion Fight

First, the basics of the new Texas law:

  1. It’s illegal to perform an abortion in the state, or to aid and abet someone getting an abortion in the state, after the sixth week of pregnancy.
  2. State authorities are not the enforcers, and it’s not the criminal courts that will hear the cases.¬† Rather, it’s for the civil courts.
  3. Now, here is the kicker:  anybody can file suit against an abortion provider who violates this law.  If the plaintiff prevails, the defendant is liable for $10,000 in damages plus court fees.  (But only one plaintiff is entitled to sue for one abortion.)
  4. The woman who gets the abortion is not liable, but if someone pays for her abortion, either an insurance company or a friend, the payer is liable for aiding and abetting.

The Supreme Court refused to block the law from going into effect.¬† In a 5-4 decision, the majority made clear that this was not a ruling on the merits of the law, but rather, the Court declined on procedural grounds.¬† Here’s an excerpt:

[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves…. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas‚Äôs law.

This law would appear to be constitutionally problematic on a number of counts.¬† Obviously, it totally flies in the face of the 1973¬†Roe v. Wade decision, which ruled that states can’t interfere with the right to an abortion during the first trimester, and can only regulate abortion in the second trimester for reasons of medical safety.¬† Subsequent rulings have struck down laws that placed an “undue burden” on women seeking abortions.¬† But there’s another big problem that should get some attention from the courts:¬† What ever happened to “standing to sue”?¬† One of the basic textbook principles of the judiciary is that you can only file suit if you can show that you yourself have been injured by the action that you’re challenging.¬† It takes more than an opinion to justify filing suit.¬† But according to this law, any anti-abortion activist can bring any doctor to court (or any friend of a woman getting an abortion who helps her pay for it) and get $10,000.¬† Again, what ever happened to “standing to sue”?

It’s not clear what the ultimate fate of this law will be.¬† At the moment, abortion providers in Texas seem inclined to simply obey the new law, much as they deplore it.¬† If the law is going to be challenged effectively, it’s probably going to take a doctor willing to break the law, be sued, receive a judgment ordering to pay $10,000, and then appeal it to the federal courts.

But it needs to be remembered that there are six justices on the Court who disapprove of Roe v. Wade, and at least five seem in favor of overturning it.

There are other states with tough new abortion laws that got passed after Trump appointed his second justice, Brett Kavanaugh, to the Court.¬† The Supreme Court has already agreed to hear a case involving Mississippi’s fifteen-week law.

Full text of the Texas law

Full text of the Supreme Court decision and the dissenting opinions

Article on the Texas law at SCOTUSBLOG, September 1, 2021

Article on the Mississippi law and related case at SCOTUSBLOG, May 17, 2021

 

 

 

House Investigation of January 6 Riot Begins

I want to start by saying a few words about the difference between political opinion and truth.¬† Democrats and Republicans usually differ from each other on what should be the role of the government in social welfare and other matters.¬† They differ on policy preferences.¬† And when we talk about who’s right and who’s wrong, we’re expressing political opinions.¬† We may at times be very unhappy about the policies that get enacted, or that don’t get enacted, but that’s still political opinion.¬† When things are normal, the worst that members of one party can say about those of the other party is that they have bad political opinions, where “bad” means “different from mine.”¬† That’s political opinion.

But the conflicts surrounding the events of January 6 are not matters of political opinion, but rather, matters of truth versus falsehood.¬† It is a fact that Joe Biden won the election.¬† Being glad or sorry that he won is political opinion, but it is a fact that he won.¬† It is, therefore, a fact that Donald Trump, in the rally that he held that day, when he claimed that the election had been fraudulent and that he was the real winner, was spouting falsehoods.¬† He also seemed to believe–falsely–that there was some way that Vice President Pence could change the election results, and that it was a simple matter of whether Pence was going to be a “patriot” or a “pussy” (Trump’s words, and not the first time we’ve heard him say that latter word).¬† Moreover, he clearly wanted the crowd at the rally to try to pressure members of Congress into reversing the election results.

Maybe Trump didn’t expect the crowd to attack the Capitol physically.¬† Maybe all he wanted them to do was stand outside and shout.¬† He was still encouraging contempt for the election process.¬† It was not the job of Congress that day to vote on whom they wanted for a president.¬† It was their job to¬†count¬†the electoral votes that had been certified and submitted by the states.¬† So regardless of political opinion, it’s really rather hard to justify any aspect of Trump’s behavior that day–even if one doesn’t think he was expecting the crowd to attack the Capitol.¬† (His initial way of asking them to stop the attack, by the way, was to say “This was a fraudulent election. But we can‚Äôt play into the hands of these people. We have to have peace. So go home. We love you, you’re very special.”)

In any event, a violent attack did occur, with many of the rioters being not only Trump supporters but white nationalist extremists.¬† Several people died, and many other people’s lives were put in danger, including Capitol law enforcement officers and also including members of Congress who were assembled to count and make official the election results.¬† Ultimately, the results were certified, but with six Republican senators and one hundred twenty-one Republican representatives voting against accepting the results.¬† Again, they weren’t voting on whether they¬†liked¬†the results; these dissenters were actually siding with the Trump view that the results were illegitimate.

In recent weeks, the Democrats in Congress tried to create a bipartisan commission to investigate what happened.¬† Be clear: The point of a bipartisan commission, whose members would not be senators and representatives, was to have an investigative body that would not be controlled by political allegiance, whose mission would be to sift through the evidence and let the chips fall where they may.¬† Republicans in Congress, influenced by Trump, did not go along with the plan, and so it didn’t happen.

Then, the Democrats in the House voted to set up a House committee to conduct the investigation.¬† The original idea was for there to be eight members appointed by House Speaker Nancy Pelosi and five members nominated by Republican Minority Leader Kevin McCarthy, subject to Speaker Pelosi’s approval.¬† Pelosi chose her eight:¬† seven Democrats plus conservative Republican Liz Cheney, who voted with the Democrats for Trump’s impeachment and has been a vocal critic of Trump’s behavior in the affair.¬† Then McCarthy put forward his five picks:¬† five Republicans, including two who had voted to reject the election results: Jim Jordan and Jim Banks.¬† Pelosi refused to let Jordan and Banks be on the panel, whereupon McCarthy refused to have any of his other appointees on the panel either.¬† Pelosi added another Republican to the panel: Adam Kinzinger.¬† Like Liz Cheney, he is a conservative who voted for Trump to be impeached.

So now the special committee has nine members:¬† seven Democrats and two Republicans.¬† Cheney and Kinzinger have very different political opinions from the seven Democrats on the panel, but they all agree that Trump’s behavior that day was not all right.¬† As for Jordan and Banks, well, undoubtedly from McCarthy’s point of view, putting them on the committee represented “balance”; he apparently wanted the view that the election was stolen to be represented on that committee.¬† But it raises an interesting philosophical question:¬† how much balance do you need between truth and falsehood?

The hearings have begun.

NPR report, July 27, 2021

More from NPR

More from NPR

Article in Politico, July 27, 2021

For your convenience, this OpenLab site is equipped with news updates at the right of the page, so you can keep on checking back for more.

 

Another Conservative Voting Rights Decision by the Supreme Court

It should be remembered that back in 2013, the Supreme Court ruled in¬†Shelby County, Alabama, v. Holder¬†that the section of the Voting Rights Act of 1965 requiring certain states to ask permission from the federal government to change their voting laws was no longer constitutional, on the grounds that the problems that existed in 1965 were no longer relevant.¬† In that decision, all five Republican appointees were in the majority and all four Democratic appointees on the Court were in the dissenting minority.¬† Now, there are six Republican appointees, three appointed by Trump, and this new ruling has all six of them voting that Arizona’s new voting laws are okay, and the three liberal justices feeling otherwise.

This case is¬†Brnovich v. Democratic National Committee.¬†¬†The DNC had successfully persuaded a lower court that Arizona’s new voting laws, because they were going to have the greatest impact on nonwhite voters, violated the Voting Rights Act of 1965, specifically the provision which states that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” ¬†The suit specifically challenged two voting laws:¬† the law saying that ballots cast in the wrong precinct would not be counted even for offices not affected by precinct, and the law restricting who can collect and deliver a mail-in ballot (designed to prevent “ballot harvesting”).¬† But by a 6-3 majority, the Supreme Court ruled that those laws do not violate the Voting Rights Act.

The majority decision was written by Justice Samuel Alito.¬† He wrote that the state has a compelling interest in preventing voter fraud.¬† In response to the argument that no voter fraud was proven in the most recent election, Alito retorted that the state does not have to wait till voter fraud happens to pass laws to prevent it.¬† Moreover, he wrote, the Voting Rights Act has been interpreted as meaning that all persons must have equal access and opportunity to vote.¬† It is still inevitable that there have to be some voting laws, and any voting law is likely to impose some degree of burden or inconvenience on the voters, but that isn’t enough to make it an impermissible hindrance.¬† He then addressed racial inequality.

To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified.

Justice Elena Kagan wrote the dissent.¬† “Much of the Voting Rights Act‚Äôs success,” she opined, “lay in its capacity to meet ever-new forms of discrimination.”¬† She then quoted the late Justice Ruth Bader Ginsburg’s dissenting opinion in the¬†Shelby County¬†case: “Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.‚ÄĚ

In recent months, State after State has taken up or enacted legislation erecting new barriers to voting…. Those laws shorten the time polls are open, both on Election Day and before. They impose new prerequisites to voting by mail, and shorten the windows to apply for and return mail ballots. They make it harder to register to vote, and easier to purge voters from the rolls. Two laws even ban handing out food or water to voters standing in line. Some of those restrictions may be lawful under the Voting Rights Act. But chances are that some have the kind of impact the Act was designed to prevent‚ÄĒthat they make the political process less open to minority voters than to others.

Arguing that the majority on the Court had not interpreted, but remade, the Voting Rights Act, she concluded:

The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

It should be noted that in this case, unlike in the 2013 Shelby County case, the Court did not strike down any part of the Voting Rights Act of 1965 as being unconstitutional.  It did, however, make it harder to apply to state laws that make it harder for persons who need a little extra prodding, a little extra convenience, or a little extra assistance to cast ballots in future elections.

Article in Politico, July 1, 2021

Full text of the ruling and the dissent

Advice to Mr. Biden, from Me

UPDATE:  Biden got the message and walked it back (see below).

While I never wish I were a politician, I have my occasional moments of wishing I could be a presidential adviser.  Right now is one such time.  In my present fantasy, my conversation with our current president would go something like this.

BIDEN:¬† Well, Ben, I’ve got good news.¬† We’ve reached a deal with the bipartisan group in the Senate.¬† Both sides made some major concessions, and eleven Republicans are on board with this deal.

ME:¬† Congratulations, sir.¬† What’s the deal?

BIDEN:¬† Roughly a trillion dollars on infrastructure–the kinds of things the Republicans agree on calling infrastructure, you know, roads, bridges, rail transport, broadband…

ME:  That is good news indeed.  Of course, progressives will be wondering what happened to your other infrastructure proposals, plus the American Families Act.

BIDEN:¬† Oh, they needn’t worry.¬† I’m about to issue a statement announcing that I won’t sign the infrastructure bill unless the Democrats also pass my other proposals through budget reconciliation.

ME:¬† You’re joking, aren’t you, Mr. President?

BIDEN:¬† Joking?¬† Of course I’m not joking.¬† Why do you ask?

ME:  You said a moment ago that both sides made concessions.

BIDEN:¬† That’s right.

ME:¬† But Mr. President, I must respectfully ask, how are you making a concession when you’re saying that you’ll only sign the bipartisan deal if you also get everything else that you want in a budget reconciliation bill?

BIDEN:  Ben, I thought you wanted my American Families Act to pass.

ME:  Of course I do, Mr. President.

BIDEN:¬† Then what’s the problem?

ME:¬† The problem is, Mr. President, I don’t know how you expect Republicans to go along with the deal if they know that you’re not really conceding on anything.¬† If you issue that statement, you’ll be letting them know up front that you’re not conceding anything.¬† May I offer a suggestion, sir?

BIDEN:  Of course you may.

ME:¬† Keep your mouth shut about the rest of what you want until the infrastructure bill has been passed, and then push for the rest of what you want.¬† Holding the infrastructure bill hostage isn’t going to do it.¬† Thing is, while you’re the president, the Republicans’ incentive to pass anything is limited at best, and from their point of view, blocking your “socialist agenda” is more important to them than anything else.¬† McConnell has come right out and said that.

BIDEN:  Yes, he has.

ME:  So, will you take my advice and not make that announcement?

BIDEN:  I will, Ben, I definitely will.

Of course, we didn’t have that conversation, he did make that announcement, and now he is getting some blowback from the Republicans.

Article in TheHill.com, June 25, 2021.

UPDATE:  Biden got the message and walked it back.  Article in Politico, June 26, 2021.

The Farm Workers Ruling: A Case of Conservative versus Liberal

We have noted that not all Supreme Court rulings pit the conservatives justices against the liberal justices.¬† There are, indeed, some cases that have combinations of justices on each side–majority and minority–that have nothing to do with who’s conservative and who’s liberal.¬† There are also some cases where we see one or two of the conservatives vote with the liberals–or vice versa–sometimes surprisingly.¬† However, there are also some cases where the alignment is purely based on ideology, where the Republican appointees all vote one way and the Democratic appointees all vote the other.¬† Such was the case in the ruling issued Wednesday, June 23, 2021, in¬†Cedar Point Nursery v. Hassid.

The question was a simple one:¬† whether a law in the state of California requiring farm owners to allow labor union organizers onto their land to recruit laborers into their union was constitutional.¬† The Court ruled, 6-3, that no, it isn’t constitutional, that it represents a government seizure of their land without just compensation.¬† All six Republican appointees voted for that ruling; all three justices who were appointed by either Bill Clinton or Barack Obama dissented.¬† Chief Justice Roberts wrote the majority opinion; Stephen Breyer wrote the dissent.

Back in 1935, as part of the Roosevelt New Deal, Congress passed the Wagner Act, or the National Labor Relations Act, requiring businesses to recognize labor unions and to bargain collectively with them and creating the National Labor Relations Board (NLRB, an independent regulatory agency).¬† The provisions included requiring businesses to let labor union representatives into the workplace to organize workers.¬† This act, like the Social Security Act, excluded farm laborers, so many of whom were southern African Americans.¬† In 1975, the state of California passed the Agricultural Labor Relations Act, which extended those protections to farm workers.¬† The act set precise limits on the number of labor organizers who could go onto farm property and the length of time they could be there, subject to supervision by the state’s own labor relations board.

The¬†Cedar Point¬†ruling does not touch the provisions of the Wagner Act, but it totally strikes down the provisions of the 1975 California act that allows union organizers onto privately owned farm property for purposes of union member recruitment.¬† The relevant clause is from the Fifth Amendment:¬† “nor shall private property be taken for public use, without just compensation.”¬† In the opinion of the six Republican appointees on the Court, private property ownership involves the discretionary right to exclude persons from coming onto one’s property, and denial of that right amounts to seizure of the property owner’s land.¬† Chief Justice Roberts, in his majority opinion, wrote: “The access regulation appropriates a right to invade the growers‚Äô property and therefore constitutes a¬†per¬†se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers‚Äô land for three hours per day, 120 days per year. Rather than restraining the growers‚Äô use of their own property, the regulation appropriates for the enjoyment of third parties the owners‚Äô right to exclude. . . .¬† The access regulation amounts to simple appropriation of private property.”

In deciding the case, the justices had to consider a body of case law precedents involving the definition of “taking” and also the criteria for reasonable ways in which the government can limit property owners’ use and enjoyment of their property through regulation.¬† Much of it hinged on the question of whether California’s law fell into the category of “taking” or mere regulation, wherein the precedents involving regulation would apply.¬† It was on this question that Justice Stephen Breyer differed from the conservative majority in his dissent, which Justices Kagan and Sotomayor joined.¬† According to precedent, when what is involved is a regulation or a temporary invasion, then the courts must consider whether the government action in question “goes too far.”¬† In Breyer’s view, the California law is precisely that–a regulation and a temporary invasion–and it does not “go too far.”¬† Breyer wrote:¬† “The regulation does not¬†appropriate¬†anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone. What does it do? It gives union organizers the right temporarily to invade a portion of the property owners‚Äô land. It thereby limits the landowners‚Äô right to exclude certain others. The regulation¬†regulates¬†(but does not¬†appropriate) the owners‚Äô right to exclude.”

The issue is hardly abstract.¬† Most farm workers in California are Latino or Indigenous.¬† They work long hours for low pay and are denied a lot of the basic protections that other types of workers enjoy.¬† United Farm Workers, founded in the 1960 by Cesar Chavez and his associates, has been working to organize these vulnerable laborers.¬† Their job just got harder, and this is definitely a case in which political ideology–the question of whether there is a compelling need for labor unions to be able to fight for vulnerable laborers–affected the way the justices voted.¬† Moreover, many feel that this ruling foreshadows future rulings that will go farther along similar lines.¬† It should be remembered that, in the early twentieth century, the federal courts were ruling that even minimum wage laws violated individuals’ right to the use of their property under the Fourteenth Amendment.¬† While there’s no expectation of a return to that, it is still felt by many that the ruling represents a rollback of labor and labor union rights, with more to come.

Full text of the ruling and the dissent

Article in Slate, June 23, 2021

 

Catholic Charities and Foster Care in Philadelphia: A Freedom of Religion Case

When a state (or local) law has an adverse effect on a religion, and when a religious organization challenges that law in federal court on the basis of the “free exercise” clause, two key precedents usually come up: the Navajo peyote case and the Santeria animal sacrifices case.¬† In the Navajo peyote case,¬†Employment Division v. Smith¬†(494 U.S. 872, 1990), the Supreme Court ruled that the state of Oregon did not have to give Native Americans an exemption to its law against the use of the hallucinogenic drug peyote so that they could legally use it for ritualistic purposes. The basis of the ruling was that when a law is religiously neutral and “generally applicable,” and its adverse effect on a religious practice is incidental, then the law can stand.¬† Moreover, such a law does not, under such circumstances, have to hold up to strict scrutiny.¬† In the Santeria animal sacrifices case, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520, 1993), the Court ruled that a city ordinance banning animal sacrifices for religious purposes could not stand because it had been clearly passed to single out a religious group for exclusion.

The city of Philadelphia routinely contracts with private agencies for the providing of foster care, where the agencies certify families as being suitable for taking in foster children.¬† For many years, Catholic Social Services was one of those agencies.¬† But in 2018, when a spokesperson for CSS told a newspaper interviewer that the agency could never certify a same-sex couple, the city government canceled its contract with CSS on the grounds that it was violating the city’s nondiscrimination law.¬† CSS sued.

(And it should be noted that this decision by the city of Philadelphia did have the potential to do some tangible harm, in that it would drastically reduce the number of children able to receive foster care and even disrupt arrangement for foster care that were already in place.  It should also be noted that at the same time that CSS was providing foster care certification only for opposite-sex married couples, there were other agencies in the city certifying same-sex couples, which CSS was doing nothing to interfere with.)

Given that the city of Philadelphia was not either requiring or forbidding CSS to do anything and was certainly not stopping anybody from practicing a religion freely, but rather, was merely ceasing to do business with CSS, and given that discrimination on the basis of sexual orientation was involved, one might have expected CSS to lose the case.  At minimum, one could reasonably have predicted that the three Democratic appointees to the Court would vote on the side of the city of Philadelphia.  As it happens, not only did CSS win the case, but the decision in Fulton v. Philadelphia was unanimous.  However, the Court did not entirely agree on the constitutional reasoning.

For the majority of justices, it hinged on the words “generally applicable.”¬† The majority felt that the policy instituted by the city of Philadelphia was not generally applicable, and thus it was not the precedent from the Navajo peyote case, but rather the precedent from the Santeria animal sacrifices case, that applied in this case.¬† The majority also drew upon the Colorado baker case, noting that “government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”¬† What stopped the justices from seeing Philadelphia’s law as generally applicable was that it allowed the city government to consider exemptions to its requirements on a case by case basis.¬† Where exemptions were available for some, the Court ruled, if the city withheld an exemption from an agency simply because its reason for seeking the exemption was a religious hardship, then the city would have to show that it had a compelling interest in doing so.¬† The Court also considered the fact that the relevant section of the law was added after the city of Philadelphia had decided that it was going to require CSS to accept same-sex couples or forfeit its contract to provide foster care services.

The justices who ruled on this basis were Roberts (who wrote the decision), Kavanaugh, Barrett, Sotomayor, Kagan, and Breyer.¬† While the Court was unanimous on awarding victory to CSS, three justices–Alito, Gorsuch, and Thomas–wanted to set a broader precedent.¬† They wanted to overturn the precedent of the Navajo peyote case.¬† Alito and Gorsuch wrote concurring opinions to this effect.¬† (A concurring opinion is an opinion that agrees with the Court’s overall decision in the case but disagrees with certain parts of the reasoning.)

As noted above, the precedent in Smith v. Employment Division (abbreviated as Smith in the excerpt below) is that if a state law places a burden on a religious group, but if that state law is generally applicable, then it does not have to withstand strict scrutiny and the state is not likely to be required to make a religious exemption.  Alito, Gorsuch, and Thomas disagree with that.

From Alito’s concurring opinion

There is no question that Smith’s interpretation can have startling consequences. Here are a few examples. Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine. . . . The Act would have been consistent with Smith even though it would have prevented the celebration of a Catholic Mass anywhere in the United States. . . . Or suppose that a State, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious. That law would be fine under Smith even though it would outlaw kosher and halal slaughter. Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants. A San Francisco ballot initiative in 2010 proposed just that. A categorical ban would be allowed by Smith even though it would prohibit an ancient and important Jewish and Muslim practice. Or suppose that this Court or some other court enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court. The rule would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men, and many Muslim women from appearing. Many other examples could be added.

We may hope that legislators and others with rulemaking authority will not go as far as Smith allows, but the present case shows that the dangers posed by Smith are not hypothetical. The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church‚ÄĒproviding for the care of orphaned and abandoned children.

Like the ruling in the Colorado baker case, this one is limited in the precedent that it sets.  In fact, as Alito also notes in his concurring opinion, the city of Philadelphia may well be able to evade it just by rewriting its law to remove the exemption clause.

Full text of the ruling, with all opinions included

Article in Politico, June 17, 2021

Infrastructure and the Democrats’ Precarious Position in Congress

First, consider President Biden’s proposed infrastructure package, a program of government spending of over $2 trillion.¬† I would ask you to glance through this summary, courtesy of CNN, updated March 31, 2021.

There are two ways that the Democrats in Congress can proceed.¬† They can act without any Republican cooperation, which would mean that in the Senate they would need all 50 Democrats to pass the bill with Vice President Harris’s tie-breaking vote.¬† For that, they would need only to pacify centrist Democrat Joe Manchin of West Virginia, which would mean a little trimming off the spending and some modifications on the tax plan.¬† They can do that by calling it “budget reconciliation,” a process limited to bills that are just about taxing and spending.¬† Otherwise, it could be filibustered, in which case it would need 60 votes rather than just 50 + 1.

Or, they could get some Republicans on board.¬† But that would mean agreeing to some major cuts.¬† As you look over that summary (see the link above), it should be clear that much of what’s in that package isn’t what is normally understood as “infrastructure.”¬† Infrastructure usually means transportation, but this package has elements that would seem more like social welfare, precisely the area where Republicans think the Democrats spend too much.¬† Biden’s package also includes measures to address climate change, so much so that critics charge it has the Green New Deal embedded in it.¬† Making a deal with Republicans would mean kissing a good deal of that goodbye–and, in the process, infuriating Progressives, many of whom are already talking about forming their own party and leaving the Democratic Party to twist in the wind.

But the Democrats’ position in Congress is precarious.¬† They control the House by a margin of fewer than ten seats, and in the Senate, they have no margin at all, just a tie with the vice president as the tie-breaker.¬† What that means is that all it takes is for one Democratic senator, especially a Democratic senator from a state where the Democrats do not have a secure advantage, to die or be caught in a big scandal.¬† If the Democrats lose even one seat in the Senate, the Republicans will have a majority.¬† And at that point, the Republicans will be in a position to exact a high price for even a little bit of cooperation on matters like infrastructure.

What makes the Democrats’ position even more precarious is that in midterm congressional elections, the president’s party usually loses seats.¬† And you can be sure that the Republicans, as we speak, are strategizing to win back the majority in both chambers of Congress.¬† If we just remind ourselves that back in 2016, the Republicans’ majority in the House was so secure that the Democrats barely even tried to upset it, and if we remind ourselves that the Democrats, even while keeping their majority in the House, lost some seats in the 2020 election even while Trump lost the presidency, it becomes clear: the Democrats’ position in Congress is precarious now, and it will be particularly so next year.

 

Coming Soon: A COVID Relief Bill (one hopes)

I want to start by reviewing the basic situation in Congress with the two parties.¬† The Democrats have the majority in both chambers, but it’s a precarious majority, especially in the Senate.¬† The Democrats lost seats in the House in the last election, keeping their majority but narrowing it.¬† In the Senate, there are 50 Democrats and 50 Republicans, which means that when there’s a vote that requires only a simple majority, the Democrats will only prevail if all 50 Democrats agree on it, in which case Vice President Harris, in her constitutional capacity as president of the Senate, casts the tie-breaking vote.¬† All it takes for the Democrats to lose that precarious majority is for one Democrat in the Senate to die or have a big scandal that forces a resignation, and not be replaced by a Democrat.

Of course, for most bills to pass the Senate, it takes not just a simple majority but a 60-vote supermajority to overcome a filibuster.¬† The Democrats could take a vote to abolish the filibuster, but they would have to all agree on it, and Democratic Senator Joe Manchin of West Virginia, the most conservative Democrat in the Senate, has made it clear he won’t vote to abolish the filibuster.¬† But certain kinds of vote can’t be filibustered.¬† Confirmation votes can’t be filibustered, and neither can budget reconciliations.¬† The Democrats can therefore pass just about any bill, if it’s purely about taxing and spending, as part of budget reconciliation, bypassing the filibuster and the need for the 60-vote supermajority.¬† Again, though, to do that, they need all 50 Democrats in the Senate to agree in order that Kamala Harris can cast a tie-breaking vote in the Democrats’ favor.¬† (She is going to be busier in the Senate than most vice presidents, these next two years.)

And now about COVID relief. The Democrats have two choices: they can make a deal with the Republicans to pass a bill with at least 10 Republicans votes, or they can pass their own plan using the budget reconciliation process.¬† Because the Republicans want the bill to be for just over $6 billion and the Democrats’ plan comes to $1.9 trillion, it doesn’t look as if they’ll be coming to an agreement.¬† Rather, it looks as if it will be passed by budget reconciliation.

The Democrats in the Senate have already paved the way for that with a nonbinding budget resolution, which makes the next step possible.¬† They’re still working out some details.¬† The Democrats insist that the payment per person needs to be $1,400, but the Democrats and the Republicans agree that upper-income earners don’t need to be included.¬† Joe Manchin’s amendment provides that persons making over $50,000/year will get a little less, and persons making over $75,000/year won’t get a relief check at all.¬† The Republicans think the amounts should be lower all-around.¬† ¬†Democrats also give greater priority to aid to state and local governments.

An important difference between the two parties is that the Democrats are more Keynesian than the Republicans.¬† Keynesian economics, it should be remembered, posits that when there’s an economic crisis, the government should undertake massive spending, which can include making direct cash payments to individuals so they can spend it, in order to pump up the economy with more money being put into circulation.¬† To Keynesians, the amount of the federal deficit isn’t something to worry about when there’s a recession or a depression, but rather, deficit spending in time of recession or depression is a good thing, and the time to worry about paying down the debt is when the economy is recovering, when it’s in the boom of the boom and bust cycle.¬† Thus, while Republicans worry that the relief bill could be too big, the Democrats are more concerned with making sure it’s big enough.

Article in TheHill.com, February 7, 2021

(There’s lots more happening.¬† The news feed links on the OpenLab site are there for your convenience in following the latest in national politics.)

 

Trump’s Second Impeachment

On Wednesday, January 13, 2021, the House of Representatives voted 232-193 to impeach Trump, making him the only president ever to be impeached twice. ¬†Most Republicans in the House voted against the measure, but ten Republicans voted with the Democrats to impeach, making this the most bipartisan vote on a presidential impeachment in the country’s history. ¬†Some other Republicans, even while voting against impeachment, had sharply critical words for the president. ¬†House Minority Leader Kevin McCarthy said that he would support a censure resolution.

“Impeach,” of course, merely means accuse. ¬†There still has to be a Senate trial. ¬†In this instance, the Senate trial will begin when Trump is already out of office, the first time this has happened in a presidential impeachment. ¬†The big point of that trial is that if a two-thirds majority can be mustered up to convict Trump (which would take 17 Republicans voting with the 50 Democrats), the Senate can then vote by a simple majority to disqualify Trump from holding office again.

It remains to be seen whether 17 Republicans in the Senate can be persuaded to vote to convict Trump. ¬†However, Senate Minority Leader (formerly Majority Leader) Mitch McConnell has said that he will make his decision after he hears the evidence, which is more than he was willing to say and do last year, in Trump’s first impeachment. ¬†Back then, he said it was “dead on arrival” (McConnell’s own words) and that he was going to “coordinate with the president (also McConnell’s own words). ¬†It should be noted that back on Wednesday, January 6, only six Republicans voted against accepting the results of the electoral vote.

And what, exactly, did Trump do? ¬†Let’s start with what he had been doing for the past two months, ever since the election. ¬†He had been declaring, not even that the results were questionable and should be investigated, but that it was an absolute fact that the results were fraudulent and he was the rightful winner of the election. ¬†He thus encouraged his base–a base that we know includes (though is by no means limited to) militant extremists, a subset of whom are hard-core ideological racists, members of groups that make the Ku Klux Klan look like the Rainbow Coalition–to feel that something had been stolen from them and to feel enraged about it. ¬†During those two months, he also contacted numerous Republicans in positions of authority or influence in the swing states that he had lost (Michigan, Pennsylvania, Wisconsin, Arizona, and Georgia), tried to manipulate them into finding some loophole or technicality with which to change the results and make him the winner, and lobbed attacks on their character when he did not get what he wanted from him.

January 6 was the day that the House and the Senate, in joint session, counted the electoral vote, which is usually a very routine and mundane ceremonial act. ¬†It should be noted that none of the states submitted conflicting returns or registered any dispute over the results. Mike Pence, as president of the Senate, would be presiding. ¬†Pence had previously made speeches supportive of Trump’s claim that the election was stolen from him, which apparently got Trump’s hopes up that Pence would try to change the outcome (even though he couldn’t). ¬†On the eve of the count, he told Pence that he would go down in history as either a patriot or a pussy, and that morning he sent out a tweet that he hoped Pence would do the right thing. ¬†Later in the day, he sent out a vicious tweet blasting Pence for not coming through.

Now, about the rally: ¬†Trump organized that rally, calling it the “Save America Rally.” ¬†He sent out repeated reminders on Twitter, and many tens of thousands showed up. ¬†He delivered a 75-minute speech in which he repeatedly said that the election was fraudulent and that his listeners had good reason not to “take it.” ¬†He referred again and again to “weak Republicans.”

“All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved.¬†Our country has had enough. We will not take it anymore, and that is what this is all about.”

He then dispatched them to the Capitol. ¬†His words suggest that what he wanted them to do was shout: just stand outside the Capitol, in the area where they had the right to stand, and shout, let their feelings be known. ¬†If we look at it in the light most favorable to Trump–assuming that that really was all he wanted them to do–we’re still left with the fact that he was showing complete complete contempt for the independence of Congress and for the judgment of individuals–including many Republicans–who had decided that the vote was legitimate and that Biden had won. ¬†What is more, if Trump was confident that all they were going to do was shout from outside, then he was completely disregarding the obvious fact that there were militant extremists in the crowd. ¬†With that in mind, it should still be clear how Trump’s own words could easily be taken as encouragement to do more than shout.

“We’re going to walk down. Anyone you want, but I think right here, we’re going to walk down to the Capitol– And we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.¬†Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.¬†We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.”

And now, let’s consider what Trump’s first message to the rioters was, when it became clear that there was a riot.

“I know your pain, I know you’re hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt.

“It’s a very tough period of time. There’s never been a time like this where such a thing happened where they could take it away from all of us ‚ÄĒ from me, from you, from our country. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil.

“I know how you feel, but go home, and go home in peace.”

He had changed his tune by Thursday evening.  At that point, he made a video in which he totally condemned the attack on the Capitol and said that the perpetrators would be punished.  He also announced that there would be a peaceful transition of power on January 20.  He appeared to have been a bit chastened, warned that he was going to be in serious trouble for the events of January 6.

Now, there are reports that more violence is feared, and that security on inauguration day–which even under normal circumstances would be very tight–is going to be considerably tighter, with a huge military presence guarding the area of the Capitol.

It’s very abnormal for the president of the United States to be encouraging insurrection, or even encouraging a crowd to protest with their voices a proceeding on Capitol Hill. ¬†What is more, the claims that Trump is making about the election are false by any reasonable standards. ¬†There will always be some who would say that I should be “objective” on the subject, maybe suggest that there are two schools of thought as to whether the election was fair and two schools of thought as to whether Trump’s efforts to pressure Republicans into finding a way to declare him the winner are justified. ¬†Sorry, I can’t. ¬†I would be lying. ¬†And there’s enough lying going on already.

Article in Politico about the impeachment vote, January 13, 2021

Transcript of Trump’s speech at the rally

Transcript of Trump’s message after the riot began