Monthly Archives: June 2021

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, 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’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ 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’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate) the owners’ 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 does not have to hold up to strict scrutiny and is likely to be able to stand without any religious exemption being required. 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 arrangements 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—providing 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