Balkinization  

Friday, November 21, 2014

Two Rationales for Administrative Relief

Guest Blogger

Ahilan Arulanantham

For the Symposium on Administrative Reform of Immigration Law

Much of the initial reaction to the President’s newly-announced administrative relief program will likely focus on the decision not to extend relief to the parents of individuals who have obtained relief under the Deferred Action for Childhood Arrivals (DACA) program, even though it does extend relief to parents of children who are U.S. citizens or lawful permanent residents. At first blush the decision appears quite curious. After all, the President expanded DACA as part of the new program, and he offered strong support for the Dreamers in his remarks, referring to “the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha.” But apparently he did not think the Dreamers are quite American enough to save their parents from deportation.

While the President’s speech offered no explanation for that apparent anomaly, the Office of Legal Counsel’s memo defending the legality of the President’s program concludes that he would have lacked authority to provide relief to the parents of DACA recipients. While we may never know whether the tail wagged the dog or vice versa, exploring the strength of the distinction drawn by the memo provides a fruitful entry point into understanding the rationales behind the President’s new program as a whole.

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Executive Discretion and Congressional Priorities

Guest Blogger

Adam Cox & Cristina Rodriguez
 

For the Symposium on Administrative Reform of Immigration Law


As we noted last night, in the debate leading up to the President’s announcement of administrative immigration relief, most commentators acknowledged that his prosecutorial discretion was not unlimited—that somewhere a line would be crossed from permissible effectuation of enforcement priorities and to an unconstitutional failure to enforce the law.  Yet most commentators—especially proponents of the President using his discretion to provide relief to broad categories of unauthorized immigrants—have been reluctant to specify where that line might be.  We think this is because the line cannot be drawn with precision using conventional legal analysis.  Last night the debate changed with the OLC opinion’s decision to draw a sharp line.

               The OLC opinion is a fascinating and important legal document, and in our view it reflects a novel conception of the President’s enforcement authority.  The memo ties the President’s use of his prosecutorial discretion directly to “congressional priorities.”  Again and again, the memo emphasizes the importance of whether a discretionary decision is “consistent with . . . the priorities established by Congress” in the Immigration and Nationality Act.  Where the decision to grant relief tracks priorities reflected in the statute, such as keeping intact the families of citizens and lawful permanent residents, it falls within the zone of discretion. But where the relief cannot be linked to statutory provisions, the executive is constrained.  This is the reason OLC concluded that providing relief to the parents of DACA recipients would not be lawful.
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Strategic Supreme Court Resignations

Mark Tushnet

Do NOT take the following seriously.

Suppose you are a sitting Supreme Court Justice. To some degree you are concerned about who your successor will be. As the political scientists put it, your ideal point is, well, you.  You want your successor to be as much like you as possible (if you're a conservative, just as conservative -- but no more conservative -- than you are, if you're a liberal, just as liberal -- but no more liberal -- than you are.) [I ignore the possibility that your actual behavior is itself strategic -- that is, you would like to be more liberal or conservative, but the conditions of the current Court are such that you are constrained to be no more liberal or conservative than your votes indicate.]

Consider the calculations you do today. Right now, your successor will take his or her seat as a result of a process in which a Democratic President is constrained by a Republican Senate. If you wait, there are four possibilities: another Democratic President similarly constrained, another Democratic President with a Democratic Senate, a Republican President with a Republican Senate, and a Republican President constrained by a Democratic Senate. You have to place probabilities on each of those possibilities, and then figure out how close a successor chosen under each of those conditions would come to your ideal point.

Without going through all the details, I suggest that, placing reasonable probabilities on each of the possibilities, it wouldn't be irrational for either Justice Ginsburg or Justice Scalia to conclude that retiring now would yield a successor closer to her or his ideal point than waiting.

But, of course, I'm asking you to suppose that you are sitting Supreme Court Justice. Which means that you have a quite high (probably irrationally high) sense of the contribution to the public good that you, and only you, can make. (Put more formally, you think that any successor will be so far from your ideal point -- again, you -- that small differences can be ignored.)

Mark Twain comes to mind: "Suppose you were an idiot, and suppose you were a member of Congress. But I repeat myself." 

Thursday, November 20, 2014

What it is not: Dispelling the myths of the new DHS immigration initiative

Marty Lederman

[For the Symposium on Administrative Reform of Immigration Law]

Rarely has the legal basis for an important government action been so misunderstood and mischaracterized.  In the coming days, Balkinization's symposium devoted to this subject will include posts from several scholars who are much more familiar than I with the particularities of the immigration statutes at issue.  For starters, however, I thought it might be useful, and important, to dispel some of the more commonly heard myths about the DHS enforcement priorities and “deferred action” policies that the President just announced.  (See also Walter Dellinger's take here.)

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however—a question that, as mentioned above, I’ll leave to others who have greater expertise than I do—the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional ”executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

3.  It does not “cut out Congress”—indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32) and because it would not be analogous to deferred action programs that Congress has implicitly approved in the past (pp. 32-33).

4.  As that same OLC analysis demonstrates, the new deferred action policy is not premised on a theory of unlimited enforcement discretion—to the contrary.  Moreover, it is not unprecedented.  Conferral of “deferred action” status is a longstanding and regular feature of the immigration removal system that has been acknowledged by the other two branches (p.13), and Congress has never acted to disapprove or limit it; indeed, Congress has enacted laws that appear to have acquiesced in the practice, and OLC makes a strong case that the legislature has in some instances actually endorsed it (pp. 18-20, 23-24).

5.  It is not an "amnesty," nor does it afford anyone a license to violate any law.  That is to say, it is not the exercise of a “dispensation” power that the President does not have.  And it does not give the covered aliens any status as lawful immigrants, or provide a means of them obtaining citizenship or permanent resident status.

6.  The oft-invoked “What if the next President did not enforce his own set of ‘disfavored’ laws?” scenarios are not analogous--nor does the deferred action initiative create a precedent for any and all such nonenforcement hypotheticals.  [UPDATED for clarification.]  What if the next President were to announce that he or she were not going to prioritize clean-air enforcement, or prosecution of estate-tax evaders?  Doesn't the deferred action policy sanction such future executive "lawlessness"?   Three points in response to such hypos:  To begin with, the rationale of the OLC opinion might actually preclude, rather than authorize, many such hypothetical future presidential policies:  "[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences," OLC writes.  "In other words, an agency's enforcement discretion should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering."  Some of the "future President" hypos, that is to say, might be more like the DHS proposal to grant deferred action status to the parents of DACA aliens, which OLC concluded would not be lawful.  Second, even in such hypothetical cases involving wholesale decisions not to prosecute violations of criminal laws, the executive's announcement would not give companies a free pass to pollute, or taxpayers a license to withhold taxes.  A general nonenforcement policy in those contexts would leave the violators culpable, and subject to subsequent punishment, for the actions they undertook during the period of the executive’s nonenforcement policy:  Their potential fines would accrue every day, and they would remain in danger of being convicted as criminal malefactors.  Here, by contrast, there’s no duty for the aliens in question to leave the U.S., let alone any criminal conduct that is being ignored.  Finally, and most importantly, nothing the President and Secretary have announced tonight would give any aliens an immunity from culpability from, or a defense to, any unlawful conduct, or a legal “green light” to violate the law.  (Nor will this initiative increase the odds that future Republican administrations would implement their own enforcement priorities, since they already do so:  For example, in recent decades, when the DOJ Civil Rights Division has been in Republican control it has prosecuted very different types of race discrimination cases than it has under Democratic administrations.) 

7.  The new policy will not result in “underenforcement” of the immigration laws or constitute any other “abdication of the duties assigned to the agency” (OLC Opinion at 7); nor is it akin to a Nixonesque “impoundment” of funds.  The OLC opinion explains that DHS will likely spend the same amount of its appropriated funds on removal actions, and thus the deferred action policy (which covers only about one in every 30 undocumented aliens in the country) will almost certainly not even affect the total number of aliens the agency removes from the U.S.—what it will do, instead, is merely to adjust, in relatively small measure, which particular aliens are removed.

8.  The policy will not even guarantee aliens in deferred action status that they won’t be removed.  For one thing, DHS could revoke its policy—tomorrow, or next year, or in the next Administration—and at that point it could start removing the very same aliens who are covered by this initiative.  Moreover, even in the much more likely case that DHS does not change its new policy, that policy authorizes Immigration and Customs Enforcement Field Office Directors to order the removal of any covered alien if it would serve “an important federal interest.”

9.  It does not accomplish what the President has asked Congress to do, and what can only be done by enacting a new statute.   Again, it is not an “amnesty,” and does not confer any permanent status on any group of aliens, let alone afford them a legal entitlement to remain in the United States.  That remains something that requires legislative action . . . and that the President therefore continues to implore Congress to do.

10.  The new policy will not “deter bipartisan cooperation,” or put a crimp in any statutory reform efforts that might become law.   Congress can enact a bill tomorrow if it wishes—the Senate has already passed a bill that awaits action by the House, and the Executive’s initiative this evening will not prevent Republicans from discussing or proposing alternatives, especially after they control both houses of Congress next year.


Symposium on Administrative Reform of Immigration Law

Guest Blogger

Adam Cox & Cristina Rodriguez

Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.

Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators.  While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative.  Now we know the basic facts.  The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time.  This action is estimated to encompass 3.3 million unauthorized immigrants.  When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.

As the President’s announcement made clear, however, there will be limits to his exercise of discretion.  The parents of DACA recipients will not be included.  This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one.  Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far?  Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located.  Tonight that changed.  An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore.  Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.

We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has.[1] But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act. 

The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief.  First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality.  Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?

These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.

Adam Cox is Professor of Law at NYU School of Law and can be reached at adambcox@nyu.edu. Cristina Rodriguez is Leighton Homer Surbeck Professor of Law at Yale Law School and can be reached at cristina.rodriguez@yale.edu.
 




[1] For our early work thinking about these issues, see Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale Law Journal 458 (2009).


Wednesday, November 12, 2014

Call for Papers -- Family Law Workshop at University of Illinois

Jason Mazzone

My colleague, Robin Fretwell Wilson, is organizing the inaugural Harry Krause Emerging Family Law Scholars Workshop at the University of Illinois College of Law on Monday, January 19, 2015. The workshop is an opportunity for junior scholars (teaching for seven years or less) to present papers and receive feedback from more senior scholars -- in family law and related fields. The deadline for submission of brief paper proposals is December 1, 2014. Full details about the event and submission information at this link.

Tuesday, November 11, 2014

For Veterans Day, Read about a Soldier

Mary L. Dudziak

November 11, or Veterans Day, was once called Armistice Day, the official ending of World War I. Congress created the official national holiday in 1926, noting that "it is fitting that the recurring anniversary of this date should be commemorated with thanksgiving and prayer and exercises designed to perpetuate peace through good will and mutual understanding between nations." Peace would be fleeting, however, and the United States would have many more veterans to honor. Along the way, November 11 became a day to honor all veterans. In the 21st century, the holiday receives more notice than a few decades ago, even though fewer American families participate in war service. As the work of war becomes an abstraction for most of us, the earlier hope for peace has been replaced by public celebrations of militarism.

Soldiers perform labor that the nation desires, but that most Americans never contemplate doing themselves. Americans support war without engaging its costs, or even paying close attention to the work soldiers do. To mark Veterans Day, we can get beyond shallow accolades and actually read about it. My choice this November is the extraordinary memoir of Bruce Wright, "World War I as I Saw It: The Memoir of an African American Soldier," edited by his grandchildren and published in the Massachusetts Historical Review. (It is behind a paywall, but perhaps the $10 it may cost you on JSTOR can be your Veterans Day contribution to his memory.)

The work of war, at the ground level, involves death and dying. This experience was widely shared during the Civil War, as Drew Gilpin Faust has shown, but is attenuated in the long U.S. history of distant war. Here's a snippet of Wright's own experience:
Finally the day broke and everyone there welcomed the dawn of that first day in the Argonne forest and we got our very first look onto "No Mans Land" that we had heard & read so much about. Masses of barbed wire, skeletons of men, tin cans, rotted clothes and an awful smell greeted our eyes & noses....It was raining but not hard and some of us I guess would be almost tempted to pray for a quick death to end it all.... 
At 11 A.M. in Broad daylight the command came "Over Boys Over" and that first wave made up of colored boys, with bayonets fixed dashed through no mans land in a perfect formation: It was 3 or 4 minutes before the buglers sounded the call to start firing. The [Germans] leaped out of their 1st trench and started falling back, so after they abandoned that first trench we fell in it head first but no sooner had we got to our feet the word came like lightning. "Up Boys and at 'em." Then that was the [beginning] of the most fierce struggle that I ever was in.
The rest is here. 

Cross-posted from War Time

Sunday, November 09, 2014

Ready to Throw in the Towel

Gerard N. Magliocca

Over the past few years, Jack and I have had a friendly disagreement about how to characterize the Obama presidency.  I've argued that Obama was a reconstructive president (in the mode of Ronald Reagan or Andrew Jackson) who was in the process of creating a new constitutional regime.  Jack has taken the view that President Obama is a preemptive president (more like Bill Clinton), who takes  opportunities when he can but has not fundamentally changed the political order.  I based my view on the President's broad victory in 2008, the enactment of the Affordable Care Act in 2010, and the fact that he was reelected in 2012 and held the Senate majority for his party.

How is my prediction looking now?  Pretty not good.  The issue is not that the the Democrats lost the Senate this time around.  Republicans lost the Senate in 1986, after all, and that did not mean that the Reagan Revolution was dead.  One reason why Obama's legacy is shaky is that Affordable Care Act, his signature achievement, is now in peril again before the Supreme Court.  If King goes against the Administration, then that's a big political and policy blow.  (We'll see--of course.)

The other reason, which I've mentioned here before, is that the best case scenario for the President is that his successor will be his primary opponent from 2008.  It is unprecedented in modern times for a two-term leader to be succeeded by a rival within his own party (as opposed to a loyal ally).  Exactly what was the 2008 primary race about if Hillary Clinton is elected in 2016?    

Saturday, November 08, 2014

States’ rights—to block the flow of federal funds to their citizens?

Joey Fishkin

As a matter of statutory interpretation, the plaintiffs’ argument in King/Halbig—that the ACA as a whole clearly requires no subsidies to go to anybody in a state with a federal exchange—is sufficiently implausible that I think it is fair to characterize it as fundamentally a political argument.

To say that is not necessarily to knock it.  As a descriptive matter, it is hard to dispute the fact that, like the French Conseil Constitutionnel, our Supreme Court sometimes plays a role in our system that is irreducibly political.  From Bush v. Gore through NFIB v. Sebelius, there are plenty of recent high-profile constitutional disputes that illustrate why the founder of this blog and others very plausibly describe much of constitutional law as “high politics.”  Thus, while a challenge to an IRS regulation interpreting the language of the ACA is, on its face, simply a matter of statutory interpretation, it seems pretty clear that the King case is about more than that—not only in the eyes of the plaintiffs but also in the eyes of those who voted today to grant cert.  And so I think it is important to ask what high-politics principle the Justices sympathetic to the plaintiffs aim to vindicate.

(1) The most cynical interpretation is that this is not high politics, but low politics.  In other words, the principle is that Obama’s Affordable Care Act must fall because Obama and his party must lose.  Call this the “partisan Court” theory.  I often have students who are so firmly convinced that law is nothing but politics that they propose interpretations like this.  But I think it is too cynical.

(2) A different, slightly less cynical interpretation would be that the principle is this: the Affordable Care Act must be undone through any means or loophole possible, because it is a deep affront to individual liberty.  Call this the “covert Lochner-revivalist” interpretation.  This interpretation views King through the lens of the joint dissent in NFIB v. Sebelius.  The surface of NFIB may be about the Commerce Clause (just as the surface of King may be about statutory interpretation)—but the broccoli gives the game away.  The real underlying principle, on this view, is: you can’t make me eat the broccoli, you can’t make me buy health care, and indeed you can’t build a society in which everyone’s health insurance is subsidized and intertwined with taxes and the state because deep libertarian principles require, instead, a society in which we all voluntarily purchase whatever health insurance we want, or not.

(3) Or maybe the principle is not Lochner revivalism.  Maybe instead it is about federalism.   This interpretation proceeds as follows: view King through the lens of the Medicaid expansion portion of the Court’s decision in NFIB v. Sebelius.  In some ways that’s the closest fit.  In that portion of the case, many Justices seemed inclined to turn the Affordable Care Act into a very different kind of federal-state program than the one enacted by Congress—one in which the states could decide for themselves whether they wished to expand Medicaid or keep it as it was.  The plaintiffs in King, similarly, would create a system, never contemplated by Congress, that would allow states to opt in—or not, as they choose—to the federal subsidies for purchasing health insurance on the exchanges.  Just as many states now refuse the Medicaid expansion, states would be empowered by King to block all federal subsidy money for their citizens by declining to set up a state exchange.

Read more »

Friday, November 07, 2014

Certiorari Granted in King v. Burwell

Gerard N. Magliocca

When King was decided, I said in a post here that four Justices would be waiting on the courthouse steps for the certiorari petition.  Get ready for some fireworks in the Spring!

Wednesday, November 05, 2014

An Impeachment Primer

JB


For those of you who want a refresher course on the constitutional law of impeachment, Akhil Amar and I created a primer, organized around the issues raised by the Clinton impeachment. We offered it as an online supplement for the 4th edition of the Brest Levinson casebook, which was published in 1999.  We never incorporated it into the 5th edition in 2006 because it no longer seemed all that important to teach.  As Mark Tushnet suggests, however, there is a slight chance that the issues may become relevant again.

And, by the way, the 6th edition of Brest Levinson was published this past month, and is available at fine bookstores near you.

Obama's Repudiation

Guest Blogger

Sandy Levinson

There is no other way to read the election results than a repudiation of President Obama's style of leadership (not to mention campaign finance, etc.). Might we not be better off with at least a quasi-parliamentary system that would allow the Democrats to replace him with Biden?  Cf the Tory's dismissal of Thatcher and Labour's forcing Blair out of office. Is this unfair to Obama?Sure. But politics, like life, is often unfair, and Obama has simply lost whatever charisma and mandate he once possessed. So sad, because in some ways he has been a fine president. But in too many other ways....

But, of course, we know he's not going anywhere, and we can all look forward to what Francis Fukuyama accurately describes in his new book as the further "decay" of our already dysfunctional system as what he calls the "vetocracy" operates with ever greater strength. No appointments for Obama, and, of course, I hope that he doesn't hesitate to use his own veto power to the fullest even though, as a delegate to my proposed constitutions convention, I'd strongly advocate limiting that undemocratic power. But this is not the occasion for unilateral disarmament.

Obamacare is Not Settled--Part XVII

Gerard N. Magliocca

Here are a couple of observations about yesterday's results.  One is that GOP control of the Senate means that there will be no voluntary retirements from the Supreme Court until 2017.  Like it or not, Justice Kennedy will continue as the swing vote.  Another is that House Republicans now control around 250 seats, which is their largest number since Al Capone was powerful and flagpole sitting was popular.  There is no way that Democrats can make up that deficit in one election cycle, thus we are looking at a GOP House for at least four more years.

Here's my big takeaway though.  The Affordable Care Act is still not settled law.  While Congress cannot repeal the Act over the President's veto, the issue will remain a live one through 2016.  More important, the election results may influence the Court's thinking on whether to take the cert. petition in King.  Court watchers noted the other day that the petition was relisted, which is often (though not always) a prelude to a grant.  The timing of the relist to correspond with the midterm election may be a coincidence, but in any event the election result may embolden the Justices who dissented in NFIB to take a statutory crack at the Act.

Time to Dust Off Impeachment Scholarship?

Mark Tushnet

Languishing on our bookshelves since 1999.

Monday, November 03, 2014

Tempered Support for a Cultural Change Agenda

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

 Linda McClain has usefully brought together so many threads from this symposium, and her post goes to the heart of the central challenge facing family law—how best to strengthen families in light of the sharp decline in marriage. I am particularly intrigued by her question about where my proposals fit in Isabel Sawhill’s taxonomy of “traditionalists” and “village builders.” McClain is absolutely right that I am more of a village builder (although that term makes me want to sing YMCA, which, appropriately enough, contains lyrics about helping young men down on their luck). Much of my book is a call for greater state support to address the structural challenges facing families, from the brutal low-wage workplace to the atomistic neighborhoods that do not promote social ties—all of which have “village” connotations.

McClain is also right that I am a bit of a traditionalist to the extent that I am strongly in favor of stable environments that nurture the relationships children need to thrive. I am more agnostic, however, about the kinds of family forms that can provide these relationships than the typical traditionalist. Above all, we need to pay close attention to whether any particular family form is able to promote a commitment to childrearing by both parents or by other adults in the child’s life such as a grandparent, aunt, or uncle.

It is a closer call whether I am on board with Sawhill’s argument for cultural change. In her recent book, Generation Unbound, Sawhill divides the world of parents into “drifters” and “planners,” (pp. 6-7) with drifters becoming parents unintentionally and planners becoming parents by design. Sawhill wants to change the drifters into planners. As McClain explains, the centerpiece of Sawhill’s strategy is increasing the accessibility and use of long-acting reversible forms of contraception (LARCs). These highly effective methods of birth control would prevent almost all unwanted pregnancies and would mean that a woman needs to take an affirmative step—going to the doctor to have the IUD or implant removed—to become pregnant. For the reasons I elaborate below, I agree, although warily, with Sawhill’s project to inculcate a stronger norm of parenting by design.
Read more »

Sunday, November 02, 2014

Like Looking for a Vacuum

Joey Fishkin

Some really close readers of Balkinization may have noticed the lack of blog posts from me for a few months, which is for a happy reason (my daughter was born).  It’ll be a little while before I return to regular blogging.  But with the election looming Tuesday, I wanted to put up a brief post.

I have already voted in this election—early, and conveniently, using my driver’s license as my ID.  For me, the burden of showing this license in order to vote was literally zero.  Like most Texans, I drive a car and I drove to my polling place—at which point, obviously, I had my license with me.  Being asked to produce it was no more burdensome than being asked to produce my left hand.

My fellow citizen and Austin resident Eric Kennie will not vote in this election, for the first time in his adult life, for reasons described in careful detail in this article in a British newspaper, the Guardian, by journalist Ed Pilkington.  In brief, Kennie does not have a way, short of hiring a lawyer, to obtain the documents he would need to obtain the ID card Texas now requires.  A very poor man who by his own account has never left the boundaries of the city of Austin where he was born, Kennie lives on the $15-20 a day he makes by collecting recyclables.  Yet he spent several days on multiple buses and quite a bit of his very limited funds attempting, ultimately without success, to obtain the necessary documents.  Short of some sort of dramatic pro bono legal intervention, Kennie will not be able to vote at all this year or any time in the future until SB14 is enjoined or repealed (or he becomes eligible to vote an absentee ballot, which would require waiting until he turns 65, becoming disabled, leaving Austin for the entire early voting period, or going to jail for a misdemeanor).  If SB14 is enjoined, Kennie will go back to voting using one of the forms of ID that were allowable under prior Texas law, which include the voter registration card the state mails to his home address.  I won’t recount his situation in detail.  I recommend reading the article, which is excellent.

Eric Kennie’s situation is just the sort of fact pattern one might expect plaintiffs challenging voter ID laws in court to highlight.  Such fact patterns, or stories, come in many varieties.  Some voters are stuck voting absentee instead of in person as a result of laws like SB14; others face burdens of varying magnitude that prevent them from voting at all, with Eric Kennie’s situation sitting at what must be close to the most burdensome end of the spectrum.

Yet, actual litigation about voter ID laws is often puzzlingly unmoored from these individual stories.  The first challenge to a photo ID law to reach the Supreme Court—Crawford v. Marion County (2008)—was a disaster for voter ID opponents in part because they had no individual plaintiffs in the suit at all who could show that the law would disenfranchise them personally.  Since then, plaintiffs have done a better job, in some cases a much better job; the current litigation in Texas involves a number of plaintiffs’ specific stories, although none of them is quite as stark as Kennie’s.  But even now, five years after Crawford, most of the factual development in voter ID litigation still tends to take place in the airless realm of expert testimony about statistics and database matching.   The focus is on counting large numbers of people: how many Texans are already registered to vote, yet lack ID that complies with SB14, that sort of thing.

In part this is a problem rooted in the identity of the litigants, as I’ve suggested elsewhere.  For political parties, and in many cases even for civil rights organizations, voting is about aggregate numbers.  What matters is how laws like SB14 will shape the electorate and shift the outcomes of elections.  There is plenty of evidence that this is why Republican legislators support voter ID laws and why Democratic legislators oppose them.  From this perspective, it doesn’t actually matter precisely how difficult (or impossible) the state of Texas has made it for Eric Kennie to vote.  What matters is the aggregate numbers.  And judges often seem to agree.

But in part this is a different kind of problem entirely: Voter ID opponents just seem to have a hard time locating people like Eric Kennie.  State defendants commonly argue, sometimes successfully, that this is because such people do not actually exist.  Kennie, anyway, does exist.  But he seems to be difficult for lawyers, advocates, scholars, journalists, and other middle-class people to find.  Why?  That is what brings me to the title of this post.

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Saturday, November 01, 2014

On “Traditionalists,” “Village Builders,” and the Futures of Children

Guest Blogger

Linda McClain

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

I introduced this week-long symposium on Clare Huntington’s recent book, Failure to Flourish, by suggesting it is a propitious time to focus on what government can do to support families.  As I noted there, the prominent rhetorical place given to families in every presidential campaign –including, most likely, the upcoming one – amply demonstrates the common premise that (as I observed in my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard Univ. Press, 2006)):  “a significant link exists between the state of families and the state of the nation,” while “the weakening of families both reflects and leads to moral and civic decline and imposes significant costs on society.” (McClain, p. 1) In addition, even as marriage becomes available to more same-sex couples wrongly excluded from it – with child well-being often asserted as a reason for ending that exclusion, policy analysts and politicians worry about another marriage equality problem:  the class- and race-based marriage divide and the growing separation of parenthood from marriage.  The posts this week  have expressed different views about whether marriage should be a central part of governmental efforts to promote healthy families and child well-being (Emery) or whether family law’s “marriage-centric” focus “entrenches” inequality (Huntington, reply to Robin Lenhardt)  and misses opportunities to strengthen co-parent relationships outside of marriage (Lenhardt). I must  defer my full analysis of these issues to a forthcoming essay, "Is There a Way Forward in the 'War  Over the Family'?" (Volume 93 of the Texas Law Review), in which I situate  Failure to Flourish in the context of decades of calls to strengthen families as well as the present-day debate about the future of marriage. Here, I will suggest that it might be fruitful to bring into the conversation about what government can do to help families flourish the perspective offered by Brookings Institution senior fellow and economist Isabel V. Sawhill, in her recently published book, Generation Unbound: Drifting Into Sex and Parenthood Without Marriage.
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Friday, October 31, 2014

Citizenship-Enhancing Family Law for All

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

Robin Lenhardt’s critique—of my book and family law scholarship more generally—is spot on. In the book I explore the many ways that family law structures family life, often for the worse, but I do not apply these same tools to find the layer she identifies, where family law structures race. Her post is a reminder that when we talk about fundamental social phenomena like family and race, it is essential to be attentive not only to the constitutive process but also the intersections when these forces combine.

To take up Lenhardt’s challenge to imagine a citizenship-enhancing family law, a useful place to start is Maxine Eichner’s book, The Supportive State.  Eichner contends that the state should protect and foster a broader array of goods than simply liberty and equality. She argues that liberal theory should incorporate caretaking and human development into the conception of the goods that the state should further and that the state and families have a shared responsibility to care for children. With this broader conception of liberal theory, Eichner concludes that the state must “actively support individuals in receiving the caretaking and conditions for human development necessary for them to become responsible, self-directing citizens.” (p. 52)

Drawing on this first principle and using Lenhardt’s analytical tools, we can see the many ways in which the state, acting through family law, does not further human development for all families and instead shapes inequality broadly and race particularly. Consider family law’s approach to unmarried, low-income, African American families.
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Thursday, October 30, 2014

Structuring Families, Structuring Race

Guest Blogger

R.A. Lenhardt

For the book symposium on Clare Huntington, Failure  to Flourish: How Family Law Undermines Family Relationships(Oxford University Press, 2014)
  
Several years ago, I invited a lawyer and social worker from the Bronx Defenders’ family defense unit to speak to my family law class.  In outlining their work defending indigent parents accused of child neglect or abuse in New York City, the two women, both white, described their own, personal experiences with the child welfare system upon becoming new mothers.  The speaker trained as a social worker -- who lived in a predominantly poor and minority neighborhood in the Bronx – described receiving an unscheduled, but under policies then pertaining to her neighborhood, apparently standard visit from a government social worker soon after she delivered her first child.  The social worker inspected this woman’s apartment, checked the cabinets for food, and interrogated her about potential drug use and future plans for childcare, but offered little in the way of affirmative support.  In contrast, the speaker trained as a lawyer -- who lived in an affluent, predominantly white area of Brooklyn – did not get so much as an email upon bringing her baby home from the hospital for the first time.  She was relieved to escape the intense scrutiny leveled at her colleague, not to mention many of the clients she represented.  At the same time, though, this woman observed that her odds of securing support in acclimating to motherhood were significantly decreased because the racial character and income profile of the neighborhood in which she lived marked her as a presumptively “good” parent.

Clare Huntington’s excellent new book, Failure to Flourish: How Law Undermines Family Relationships directly addresses one of the key criticisms of family law implied in the story just conveyed.  After cogently charting the multiple ways in which government involves itself in the lives of families, the book makes a compelling case that, inter alia, the structures and systems of family law – broad policies and practices stretching from matters of adoption to zoning that Huntington calls “structural family law” -- are too often punitive and do too little to support the effective functioning of families.  In doing so, however, Huntington’s analysis overlooks equally important criticism communicated in my guest speakers’ presentation: that family law also structures conceptions, norms, and even the experience of race, and does so in ways that disadvantages racial minorities.  The surprise visits to residences in low-income, predominantly minority areas of New York City, but not to affluent white neighborhoods, described lay bare the troubling ways in which race and poverty intersect in the lives of families.
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Strengthening Families Close to Home

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships  (Oxford University Press, 2014)

I love Robert Emery’s challenge. These issues can feel overwhelming, and it is easy to think there is little that we can do as individuals, acting in our corner of the world.

The first step is grasping the problem. We had to understand the dynamics and causes of climate change before we could begin to convince people that they needed to alter their behavior (an ongoing project). So we should be optimistic about the potential for reform in family law—more so than with climate change—given the broad consensus that strong families matter, even if we disagree about how to achieve that goal.  

Emery’s own work has been foundational in our understanding of the need for family law reform. Among the many aspects of positive family law, Emery’s work focuses on marriage and divorce, and he has made a brilliant career out of advancing our understanding of the importance of marriage and the possibilities for healthy divorce. His work  on the lasting impact of mediated as opposed to litigated divorce, for example, has supported a sea change in family law. So, Emery has already changed the world and inspired others by the clarity of his thinking and the depth of his research. That’s a whole lot more than changing a light bulb.

There are equivalents for all of us, academics or not, and we can each find our own corner to tend.
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Benjamin Gregg on Human Rights

Andrew Koppelman

Benjamin Gregg’s book, Human Rights as Social Construction, propounds an understanding of human rights that is based upon ‘a wholly naturalistic conception’ of humanity, one ‘that takes human nature as biologically understood and eschews supernatural explanations, whether theological or metaphysical’ (p. 185). He oscillates between two conceptions of this project: an abstemious, neo-Rawlsian political liberalism, and a comprehensive view that rejects religious and metaphysical claims.

I review the book, with a response from Prof. Gregg, in the current issue of Contemporary Political Theory, here.

Wednesday, October 29, 2014

Families in the Legal Ecosystem: Thinking Globally, How Do We Act Locally?

Guest Blogger

Robert Emery

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

I am awed by Clare Huntington’s sweeping and impressively detailed analysis of how the legal ecosystem, especially “negative family law,” pollutes contemporary family life. Huntington argues that the law shapes family forms and family relationships in ways far beyond the obvious. Of course, she highlights essential influences like education, childcare, marriage, and divorce policy. But Huntington argues that families also are affected by a myriad of other factors such as job opportunities and demands, neighborhoods, health care, and taxes.

In one sense, Huntington’s systemic perspective is not new. Sociologists, economists, and historians often argue that families are shaped by the broad forces of society, making a living, and history. Yet, no one has focused a lens more sharply than Huntington in identifying how the contemporary network of laws not only shapes but undermines stable, loving relationships across a diversity of family forms.

I am convinced by Huntington’s arguments, which she buffers with careful, detailed analysis of evidence from at least a dozen fields of study. Like her, I have been captivated by the positive psychology movement, and I want to join Huntington in her quest to promote a new, positive family law.

And yet, I am daunted in my awe. As I sometimes feel when reading about global warming – or the myriad of peer and media influences on my children, I wonder: What can I do? It’s all so much. Where do I begin?
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Flourishing Fatherhood

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships  (Oxford University Press, 2014)

Solangel Maldonado is right that family law is too quick to devalue low-income, unmarried fathers, especially those who do not live with their children and who have a history of incarceration. In the book, I talk a lot about low-income, unmarried “parents” but do not separate out fathers. After I finished the book, I felt this deficit and so starting exploring the place of unmarried fathers in family law.

The resulting article, which will be published this winter, argues that there is a fundamental mismatch between family law, which is still based on marriage, and family life, which increasingly is not. Unmarried fathers bear the brunt of this mismatch. I had not realized until I started researching the article that fifteen states grant sole custody to a mother when a child is born to unmarried parents. And no state has a default rule awarding custody to both parents upon birth. Instead, family law assumes either that parents are living together and so do not need to divide custody or that the child is living with the mother. These kinds of rules foster what sociologists term “maternal gatekeeping,” where mothers control fathers’ access to shared children.

Fathers could go to court to protect their right to visitation or even gain a portion of custody, but most low-income fathers do not, for a combination of financial, cultural, and practical reasons. This means that unmarried parents are left without an effective institution to help them transition from a family based on a romantic relationship to a family based on co-parenting. Thus, the parents do not have the benefit of clearly established expectations for their rights and responsibilities following a breakup.
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Tuesday, October 28, 2014

Helping Families Flourish: Committing to Children, Mothers (and Fathers)

Guest Blogger

Solangel Maldonado


For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

When I tell people I teach family law, I brace myself for the negative reaction.  Everyone knows someone who has been treated unfairly in a divorce, has been ordered to pay more child support than he could afford, or has a child in foster care due to poor housing or inadequate child care arrangements.  Individuals who have had contact with the family courts often say that “the system made things worse.”  In Failure to Flourish, Clare Huntington demonstrates how the law’s adversarial approach has failed to help families resolve disputes without aggravating conflict and recommends numerous legal reforms to help individuals repair family relationships that the law deems broken.  These proposed reforms are comprehensive, ambitious, and far-reaching.  They range from changing the rules that govern how parental responsibility for children and parenting time is allocated after parental separation to adopting alternatives to litigation such as collaborative divorce and family group conferencing.  Importantly, Huntington demonstrates how lawyers often exacerbate family conflicts and challenges law schools to teach future lawyers to help their clients focus on the need to repair family relationships.

While tackling the law’s tendencies to exacerbate family conflicts would be a daunting undertaking for most scholars, Huntington does not stop there.
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Framing Family Interventions

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Thanks so much to Linda McClain for organizing this symposium and Jack Balkin for hosting it. I am delighted to engage in a week-long conversation about family law, which is, as I argue in my book, an under-appreciated factor contributing to inequality in the United States.

Elizabeth Scott has provided a terrific start to the symposium, raising a host of important issues. Scott has already given a brief overview of the central argument of the book—that families are essential to human flourishing but that too often family law undermines family relationships—so I will jump right into her arguments. Scott contends that although the U.S. should adopt my proposals, it is unlikely that the country will do so, at least to the extent I recommend. Scott identifies both political and pragmatic reasons for resistance. She notes the unwillingness to re-think the current distribution of wealth as well as a preference for programs that focus on tangible harms and produce positive outcomes in the near-term rather than programs that focus on diffuse harms and have either a remote or unclear payoff. She thus distinguishes teen pregnancy prevention programs (more likely to win support) from efforts to encourage co-parenting by low-income, unmarried fathers (more likely to face opposition). I agree with this view as a predictive matter, but much of what I call for in the book, even those programs that might seem to address diffuse harms with remote payoffs, can be re-framed in the way Scott suggests. 

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Monday, October 27, 2014

The Politics of Family Law Reform -- Getting from Here to There

Guest Blogger

Elizabeth Scott
For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Many scholars and advocates have argued that American law does little to support families, and that our society would benefit greatly from reforms that aim to assist parents in raising their children to become healthy and productive adults. What Clare Huntington has done in her wonderful book, Failure to Flourish, is to describe in remarkable detail the ways in which the law undermines families across a range of policy domains—and then to offer a comprehensive reform agenda for strengthening positive family relationships.  Her proposals range from the surprising (highway design) to the more predictable (early childhood education, child care programs and custody law reform). In combination, they provide a blueprint for a policy regime that would go far to correct the legal deficiencies that cause harm to families across the socio-economic spectrum, but particularly to poor families. The book is meticulously researched and her arguments are supported by sound social science evidence and particularly by outcome research on a broad range of programs. Huntington is persuasive (to me at least); I have little doubt that, if lawmakers were to embrace her regulatory vision, substantial benefits would follow for American families, and social welfare  would be enhanced greatly.  The book provides an extraordinary guide to assist family advocates in the pursuit of law reform.
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Introduction: Book Symposium on Clare Huntington, Failure to Flourish

Guest Blogger

Linda McClain
Introduction to book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

It is my pleasure to introduce a symposium this week on Professor Clare Huntington’s recent book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014). A staple in political rhetoric, particularly in presidential election cycles, is the premise that there is an important relationship between strong families and a strong nation. As 2016 draws closer, we can also expect to hear rhetoric about the need to close the gap between talking about “family values” and adopting policies that value families. Even now, the future of marriage is a matter of intense discussion: even as marriage becomes available, in a growing number of states, to same-sex couples formerly excluded from it, policy analysts worry about the implications of the growing class-based marriage divide for child well-being and family stability. Thus, it is a propitious time to consider a new book that argues that  “strong, stable, and positive” relationships matter for child well-being, for adults, and for society, and insists that a "flourishing" family law and policy can do much more to support those relationships. This week’s book symposium will feature several commentaries on Failure to Flourish, as well as responses by Professor Huntington. 

Linda C. McClain is a Professor of Law at Boston University School of Law and may be reached at lmcclainatbu.edu

Not a Difficult Decision: Why the Court Shouldn’t Grant Cert. in King v. Burwell

Guest Blogger

Brianne Gorod

On October 31, the Supreme Court will consider whether to grant cert. in King v. Burwell, a case out of the Fourth Circuit Court of Appeals that is part of the latest round of challenges to the Affordable Care Act.  People following these challenges will no doubt be waiting for the Court’s decision with bated breath, but there shouldn’t be much suspense.  If the Court follows its usual practices and procedures, it won’t grant review in King

As Supreme Court practitioners all know, the most important factor the Court considers in deciding to hear a case is whether there’s a division of authority among the courts below.  As then-Judge Roberts explained at his confirmation hearing, “The job of the Supreme Court is to ensure the uniformity and consistency of Federal law . . . .”  This principle is expressly reflected in Supreme Court Rule 10, which identifies the factors the Court considers when deciding whether to grant cert.  The first factor Rule 10 lists is whether “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” 

Indeed, the justices themselves have repeatedly recognized the important role that circuit splits play in their decisions about cert.  A few years ago, Justice Scalia told the Senate Judiciary Committee that his colleagues on the Court “all have standards:  Is there a circuit conflict?  Is this a significant issue on which the lower courts are divided?”  He stated that “if there’s no disagreement below, we don’t get involved.”  And much more recently, Justice Ginsburg pointed to the same factor in explaining the Court’s decision not to hear any of the same-sex marriage cases.  As she explained, “[W]hen there’s no disagreement among the courts of appeals we don’t step in. The major job of the court is to keep the law of the United States more or less uniform.”

And there is no disagreement here.  Yes, on the same day in July that the Fourth Circuit in King upheld the IRS rule confirming that tax credits and subsidies should be available to individuals who purchase insurance on federally-facilitated Exchanges, the D.C. Circuit came out the other way in a 2-1 decision in Halbig v. Burwell.  But the D.C. Circuit Court of Appeals subsequently decided to rehear Halbig v. Burwell en banc, vacating the panel’s judgment, and thus eliminating any division among the circuits.  The law’s challengers continue to argue that there’s a circuit split because the order granting en banc review only vacated the panel’s judgment, not its opinion, but that’s a distinction without a difference.  What matters for present purposes is that there’s no division in the way the law is being applied in different parts of the country, and so no need for the Supreme Court to intervene now.  Indeed, the full D.C. Circuit could well end up agreeing with the Fourth Circuit, and thus there will be no need for the Court to intervene at all (assuming subsequent courts of appeals also agree). 

And that is why if the Court follows its normal practice, it will either deny the petition in King or wait to decide whether to grant cert. until the full D.C. Circuit issues its decision.  Indeed, an additional reason the Court often waits for circuit splits before granting cert. is to let issues percolate in the lower courts and to get the wisdom of lower court judges on contentious legal issues before the Court steps in.  Here, waiting would not only give the Court the benefit of hearing what the full D.C. Circuit has to say on the issue, but possibly the Tenth Circuit, as well, which is expediting its review of another case that raises the same issue. 

To be sure, there is one additional Rule 10 factor that could play a role in the Court’s cert. grant determination in King: whether “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.”  But it would be astonishing for the Court to decide that the question posed in King rises to this level given the Court’s recent decision that the questions posed by the same-sex marriage cases did not.  The marriage cases posed major constitutional questions affecting the rights of millions of Americans.  In contrast, the legal question King poses is a narrow and straightforward question of statutory interpretation.  Further, the marriage cases involved dozens of state laws and constitutional provisions being set aside on federal grounds.  Again, in contrast, there is no judgment from a court of appeals setting aside the federal regulation at issue in King.  Thus, whatever the merits of the Court’s decision not to hear the marriage cases, it makes far less sense for the Court to hear King. 

When the Supreme Court meets on Friday, the Justices will no doubt have a lot of difficult decisions to make about which cases merit the Court’s attention.  But the decision about whether to hear King shouldn’t be one of them.
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Brianne Gorod is appellate counsel at Constitutional Accountability Center. She served as an attorney-advisor in the Office of Legal Counsel and law clerk to Justice Stephen Breyer. You can reach her by e-mail at Brianne at theusconstitution.org

Thursday, October 23, 2014

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

Linda McClain

On October 21, Judge Juan M. Pérez-Giménez, a federal district court judge in the District of Puerto Rico, made headlines by granting the Commonwealth of Puerto Rico’s motion to dismiss in Conde-Vidal v. Garcia-Padilla, a federal constitutional challenge brought by four same-sex couples  to Article 68 of Puerto Rico’s Civil Code, which defines marriage as “originating in a civil contract whereby a man and woman mutually agree to become husband and wife. . . ” Understandably, news stories and legal commentary about this case highlight the court’s consciously departing from other post-Windsor  federal courts to rule that Baker v. Nelson (1972) required it to dismiss plaintiffs’ case, given that, in 2012, the First Circuit observed, in striking down DOMA on Equal Protection grounds, that it was neither  “empowered” to imply that the Supreme Court’s precedents since Baker implied Baker’s overruling nor  “willing to predict” the Court would overrule Baker. Nonetheless, another feature that warrants comment is the district court’s appeal to the Civil Code’s “long-standing definition of marriage, stretching against two legal traditions” – Spanish and United States – to  rule out “animus” and show a clear, coherent, and consistent  policy that marriage is between one man and one woman. The law of marriage, however, has been far from “consistent,” as the changing versions of the Civil Code illustrate.  Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent  concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.
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Saturday, October 18, 2014

Keynote Address: Public Health in the Shadow of the First Amendment

Guest Blogger

Joshua M. Sharfstein

For the conference on Public Health in the Shadow of the First Amendment

[The following is the text of the Keynote Address for the Conference on Public Health in the Shadow of the First Amendment, delivered at Yale Law School on October 18, 2014, by Joshua M. Sharfstein, M.D., Secretary, Maryland Department of Health and Mental Hygiene]


Thank you for inviting me to speak at this important and timely conference. As a pediatrician and state public health official, I especially appreciate the chance to talk with you  today.

I’d like to start by setting expectations.

My legal training is limited to two courses in health law and an introductory class in administrative law…which I audited.

So I am not angling for an honorary degree ... as much as I might like to show it to my brother, who did graduate from here and now teaches at Vanderbilt Law School.

Instead, I will speak from my judgment and experience.

Before I get into the substance of the topic, however, and as the only public health doctor speaking at this conference, I would like to clear the air of a misconception about people who work in my field ... specifically, that we are dour and humorless killjoys.

I recently spoke to public health graduates who had just earned their degrees in one of the many diverse fields, including epidemiology, environmental health science, laboratory investigation and immunology.
I had to remind them that each had passed the core curriculum.

Public Health 101 -- How to take all the pleasure out of eating and drinking.

Public Health 201 -- How to turn a conversation on any topic into a discussion of antibiotic resistant sexually transmitted disease.

And Public.Health 301 -- How to take all the pleasure out of eating and drinking … by talking about antibiotic resistant sexually transmitted disease.

The truth is that public health is a field full of people who enjoy life. Our premise is that the well-being of individuals, families, and communities has fundamental moral value. When people are healthy, they are productive, creative, and caring. They spend time with their friends and families, they strengthen their neighborhoods, and they help others in need.

In short, they get to live their lives.

When I think of who works in public health, I do not picture nanny-like functionaries sitting in cubicles.

Rather, I have in mind Dr. Albert Sommer, the ophthalmologist from my neighborhood in Baltimore who recognized that Vitamin A deficiency causes not only blindness but also early death among children in the developing world. This insight was proven through extensive clinical investigation in the field. Dr. Sommer’s work has saved millions of lives.

As a public health official in this country, my job has operated at a different scale. But the premise is the same -- to use tools of science to identify ways to reduce suffering and improve health.

In Baltimore, for example, after we identified a large number of babies dying in unsafe sleeping conditions … we designed and implemented a campaign to address the problem.

Working with experts in behavior change and communications at the Johns Hopkins Bloomberg School of Public Health, the city developed hard-hitting advertisements in which parents who lost babies to unsafe sleep told their stories. We showed these videos across the city, including in jury rooms, and in social services offices.

Safe sleeping increased, unsafe sleep deaths declined, and now more children in our city get to live their lives.

In this context, I would like to share my concern that recent court decisions involving the First Amendment are undermining the health and well-being of the American people.

The issues under discussion at this conference are not abstract questions of law; they are matters of life and death.

About 25 years ago, the Institute of Medicine defined public health as “what we, as a society, do collectively to assure the conditions for people to be healthy.”

I would like to discuss several “conditions for people to be healthy” that recent court decisions have put at risk … as a result of an ideology that gives tremendous weight to commercial speech but provides little deference to professional speech and public health expertise.
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