Blog

I’ve really enjoyed the recent posts on the 10th Anniversary of PrawfsBlawg. Howard Wasserman’s post makes a very important point about junior faculty members blogging:

I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle–the more you use it, the more you are able to use. Rather than distracting from “real” scholarship, being on this site has allow me to fulfill the need to do “other stuff” while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).

I couldn’t agree more. Everyone told me not to blog when I was a law clerk. Everyone told me that it would doom any chances of my ever becoming an academic. I can say, without much qualification, that I got my job in large part because of my blog. But more importantly, the exercise of blogging has trained and conditioned me to become a better writer. People often ask me how I can write so much. My answer is usually the same–I work quickly. And that isn’t by accident. Writing is a muscle. The more you write, the better you get at it. I can now type out a pretty detailed post in a manner of minutes. The same agility carries over when I am writing a law review article. Blogging isn’t for everyone, but it provides an intensive regimen to hone your analytical skills.

 

The lecture notes are here. The live chat is here.

Individual Liberty II

• Eisenstadt v. Baird (1494-1500).
• Roe v. Wade (1500-1516).
• Planned Parenthood v. Casey (1516-1540).
• Notes (1540-1544).

Eisenstadt v. Baird

This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.

This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.

This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.

This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . .  and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”

 

Roe v. Wade

This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.

 

Here is McCorvey in 1985.

Roe didn’t even make top billing in the Times. LBJ died on decision day.

In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.

Here is the portrait of Taney that Scalia references in his Planned Parenthood dissent:

 

 

 

When I teach United States v. Virginia, I try to think of laws that involve gender classifications that would survive intermediate scrutiny. One of the the most useful examples I’ve come up with is a state policy of having separate bathrooms or locker rooms for men and women. I explain that a law providing for locker rooms segregated by race would easily flunk strict scrutiny. But locker rooms separated based on gender would survive intermediate scrutiny, right? In light of the developing caselaw in this arena, I don’t know if the answer will remain so clear. Two cases decided in the last week speak directly to this issue.

First, in an opinion by Judge Kim R. Gibson (for whom I clerked from 2009-11), the court rejected the claim of a transgender man who was denied access to the men’s bathroom and locker rooms at the University of Pittsburgh at Johnstown. Judge Gibson frames the issue in terms of the competing interest:

At the heart of this case are two important but competing interests. On the one hand is Plaintiff’s interest in performing some of life’s most basic and routine functions, which take place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex. Additionally, the Court finds controlling the unique contours under which this case arises. Namely, the context is a public university, whose mission is primarily pedagogical, but which is also tasked with providing safe and appropriate facilities for all of its students.

What is the state’s interest in favor of the sex-separated bathrooms? The court answers, allowing people to have a “safe and comfortable environment.” Why is excluding the plaintiff inconsistent with a “safe and comfortable environment”? The question can only be answered with the next rationale offered by Judge Gibson: because of “society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex.” Substitute the word “sex-segregated spaces” with “marriage,” and you have a page out of the Respondents brief in the upcoming marriage cases. Gibson adds further, “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”

If the Court holds this June that LGBT status is given heightened scrutiny under the equal protection clause, I don’t think these rationales will work anymore. I can see the government’s reply to this argument–the belief that the plaintiff’s presence in the bathrooms would eliminate this “safe and comfortable environment” is based on stereotypes and antiquated notions of socially-constructed gender roles.

The University offered this defense: “its policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.” But this begs the question. Why is the desire of some to disrobe around people of the opposite sex warranted in justifying this form of discrimination?

Another possible rationale is that the state claims that excluding transgender people from the bathroom can be used to prevent sexual gratification. This conflates gender identity and sexual orientation–they are not always connected–and again reinforces stereotypes about sexual attraction based on so-called antiquated mores.

Even though there are physical differences between men and women, can’t the state achieve a more narrowly tailored solution by installing stalls in the bathroom to permit those who want privacy to have privacy, and those who don’t to use the open space? Unisex bathrooms may be reasonable accommodations, but still have the effect of stigmatizing and othering people like the Plaintiff in this case who declined to use a single-occupancy bathroom. The Virginia Military Institute created accommodations for female cadets. Why can’t the same be done in public bathrooms and locker rooms? If the doctrine continues to develop in the direction it is currently developing, I don’t see how public bathrooms can continue to exist as they do now.

Relatedly, the Times offers this story from the White House:

Officials also announced the creation of an “all-gender restroom” in the Eisenhower Executive Office Building, where many of the White House staff members work, to provide an additional option for transgender individuals who are not comfortable using either the men’s or women’s restrooms.

The second case of note involves not the Equal Protection Clause, but Title VII and bathrooms. Title VII, unlike the equal protection clause, applies to private businesses. As Chris Geidner reports, the EEOC held that “some of the most common problems transgender people face in the workplace — including bathroom restrictions” violate Title VII.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor….

In the EEOC decision, provided to BuzzFeed News by Lusardi’s lawyers, the independent agency found that in addition the disparate treatment violation of Title VII, the Army also was guilty of harassment, subjecting her to a “hostile work environment based on sex” due to the restroom restrictions and by allowing the misgendering to continue “well after [the supervisor] was aware that [Lusardi]’s gender identity was female.”

(Three years ago, the EEOC took the position that discrimination against transgender people is a form of sex discrimination under Title VII. Just last week, DOJ filed suit against Southeastern Oklahoma State University, which allegedly denied tenure to a professor over her identity as a transgender woman.)

As I read the opinion, no medial procedure is necessary for a person to establish a gender identity, and others are prohibited from discriminating on this basis–including by denying access to a bathroom.

“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else),” the opinion states. “An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” …

Later, when discussing the Army’s claim that it restricted Lusardi’s restroom use due to potential discomfort of other employees, the EEOC found that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. … Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”

In a somewhat cryptic-comment, after noting the ebullience of the plaintiff and Transgender Law Center, Geidner suggests that not everyone in the LGBT community may be happy with the ruling:

It was not immediately clear how the EEOC decision will be received by government agencies and LGBT organizations. When the Macy decision came down in 2012, there initially was some reticence from other LGBT groups to discuss the ruling’s potential impact and from some areas of the federal government to apply the ruling to related legal provisions. Eventually, though, almost all LGBT groups and federal agencies joined in pressing the case that Title VII’s sex discrimination ban includes anti-transgender discrimination.

What is this “reticence” to discuss the “potential impact” of the law? Geidner does not say.

Judge Gibson’s opinion recognizes, implicitly, that this may not be the rule of law for long:

At the outset, the Court notes that society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identify, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identify, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.

As I’ve noted before, the Court’s upcoming decision on same-sex marriage is a lot harder than most people acknowledge.

 

Echoing a post from Jack Goldsmith, Ben Wittes argues that Congress’s inaction on opposing the President’s incursion against ISIS amounts to a de facto ratification of the President’s reading of the 2001 AUMF.

Today, I want to focus on another area where Congress is poised to do nothing: authorizing force against the Islamic State.

Specifically, I want to argue that this inaction has important consequences—though less in the fight against ISIS than in the relationship between the executive and legislative branches over war powers. In the context in which it is taking place, this inaction—in my opinion, anyway—constitutes a meaningful congressional acquiescence in the President’s bold and relatively attenuated claim of authority to confront ISIS under the 2001 AUMF.

…

Yet let’s review the inter-branch bidding so far. First, the President asserted that he didn’t need an additional congressional enactment because the 2001 AUMF already covered operations against the Islamic State. Then prominent key members of Congress moaned for months that he was operating without congressional involvement and argued that he should seek a separate authorization. In response, while continuing to maintain that he did not need one, the President sent up a draft authorization that would supplement—but not replace—the 2001 AUMF, thus effectively taunting Congress with the duplicative nature of its potential involvement in this space. In effect, President Obama told Congress to go through the motions of passing a resolution if it wished but to do so understanding that its actions wouldn’t matter.

This had the effect of relieving Congress entirely from responsibility—except perhaps moral responsibility—for authorizing force. Congress’s vote would only have operational importance if it somehow circumscribed the 2001 AUMF, in addition to passing a new one. So it’s not too surprising that, having been told that its action or inaction was symbolic only, Congress has not rushed to pass an AUMF.

But it’s worth pointing out that this inaction effectively embraces the President’s interpretation of the 2001 AUMF. Because almost nobody in Congress is arguing that current operations in Iraq and Syria are illegal. Indeed, the pressure is all in the other direction. People are complaining that Obama is not doing enough against the Islamic State, that we are showing weakness and lack of commitment, that our airstrikes alone are ineffective. Well, if you put those pieces together—(1) Congress is not complaining about the legality of what the President is doing, (2) Congress, in fact, seems to want the President to do more, and (3) Congress declines to pass a specific authorization to cover what he’s doing or to circumscribe the statute under which he claims to be operating—it follows that Congress must accept the claim of authority the President is making under current law.

I don’t think you have to be an enthusiast of executive power to read things this way. And this seems to me have potentially far-reaching implications for future interpretation of the AUMF.

This is a point I presaged in my article last summer Gridlock and Executive Power. Inaction, resulting in acquiescence, amounts to a ratification of the President’s flawed constitutional arguments.

Update: More from Jack Goldsmith on acquiescence and Bergdhal here and here.

Marcia Coyle writes in the National Law Journal about how the 5th Circuit’s decision tossing Mississippi’s challenge to DACA may impact Texas’s challenge to DAPA. In contrast with my friend Stephen Legomsky, I do not think it makes that much of a difference, but for the first time in a while, the DOJ gets some good news on this case.

As the U.S. Department of Justice readies its defense of President Barack Obama’s immigration executive order in the U.S. Court of Appeals for the Fifth Circuit, its arguments have drawn an unexpected boost from a panel of that same court.

A unanimous three-judge panel in Crane v. Johnsonheld on Tuesday that the state of Mississippi and several federal U.S. Immigration and Customs Enforcement agents lacked standing to challenge the 2012 Deferred Action for Childhood Arrivals program, known as DACA.

“This decision has major implications for the appeal pending before the same court in Texas v. United States,” said immigration law scholar Stephen Legomsky of Washington University in St. Louis School of Law.

The government may find “slight” encouragement in the ruling, said Josh Blackman of South Texas College of Law. Still, he cautioned, the records in the two cases are very different.

…

Washington University’s Legomsky, who joined an amicus brief supporting the administration in the Texas case, said, “This conclusion wipes out the entire premise—that DACA and DAPA are not discretionary—for Judge Hanen’s determination that the APA required notice-and-comment rulemaking.”

Mississippi’s inability to show that the DACA program would decrease its net revenue rather than, as the administration claimed, increase it, applies to Texas’ arguments on standing, he added.

However, South Texas’ Blackman, who field an amicus brief in the district court supporting Texas on behalf of the Cato Institute, said, “I think the difference between the two cases is the record.” Mississippi filed its DACA challenge a week after the program was announced in 2012, he said.

“The record is very sparse,” Blackman said. “Mississippi had almost no evidence it would be injured by DACA. There was no track record. It relied on a 2006 study on the effect of illegal immigration on the state. It couldn’t prove concretely what the impact would be.”

Texas, to the contrary, has amassed a “huge file” establishing an impact, he said. The state had “very detailed affidavits from a number of state officials on the specific costs of applicants in terms of drivers’ licenses, down to the penny.”

On the alleged discretionary nature of the program, he added, “We’ve now had DACA for three years and almost everyone gets granted.”

On the standing ruling in the Mississippi case, the administration “doesn’t get much,” he argued. The “most troubling portion” of the opinion for Texas is the panel’s comments on the discretionary aspect of the program.

“Based on the record the court had before it, that was probably accurate, but the record before Hanen is different. Maybe the federal government has a slight benefit,” he said.

Panel rulings bind other panels within the circuit court.

While it is certainly true that conclusions of law from one panel are binding on another, the question of abdication is a factually-intensive question, based on the record before the court. A different panel could come to a different determination.

I should also note that contrary to some chatter that the Crane panel may also be the panel for Texas’s case, a colleague who is a frequent litigant in the 5th Circuit writes that the “5th Circuit’s Internal Operating Procedure’s don’t allow for games with assignments like the 7th or 9th Circuits.” (He means Posner and Reinhardt).