Tuesday, March 5, 2013

Section 2 of the Fourteenth Amendment and the Constitutionality of the Voting Rights Act

I have just posted to ssrn a draft of my new article on section 2 of the Fourteenth Amendment.  The article focuses on how this overlooked provision influences the scope of congressional enforcement authority and therefore has implications for the constitutionality of section 5 of the Voting Rights Act, currently at issue in Shelby County v. Holder.  The draft is available here.  Comments are welcome!

Saturday, March 24, 2012

Op-Ed on the Constitutionality of the Affordable Care Act

My op-ed in The Palm Beach Post arguing that the Affordable Care Act (or "Obamacare" as everyone likes to call it) is constitutional is available here.  Elizabeth Price Foley of FIU College of Law wrote a competing op-ed, arguing that the Act is unconstitutional, available here.  Enjoy!

Monday, January 9, 2012

Mitt Romney and Path Dependent Processes


Mitt Romney often justifies his moderate record as governor of Massachusetts (and subsequent leap to the right) as a deviation since he was the governor of a democratic state with a legislature that was, at the time, 85% democratic.  In the primaries, he has been criticized extensively for “flipflopping, or changing positions on issues such as abortion and health care and not being “a true conservative.”  But I wonder the extent to which the other candidates for the Republican nomination and the press are discounting the effect of path dependence on Romney’s alleged “shift” to the right in reviewing his record as governor. 

The fact that Romney became governor of a state that is historically democratic in almost every respect except the governorship limits his ability to govern to the right.  This is reflective of a state that has been a Democratic stronghold for years, but has voters who are willing to vote for moderate Republicans for at least some state offices.  Path dependence is relevant here because the investment in the rules, process and norms by Romney’s predecessors and prior legislatures into Massachusetts government over the past 250+ years make deviations by modern day officials very costly.  Even if we just consider the past century, Democrats have invested more into this governing framework than Republicans just by virtue of the fact that Democrats have won more elections.  While the governorship oscillates between Democrats and Republicans, the Democrats have (and have had) a supermajority in both Houses, meaning that legislation can be passed over the governor’s veto if the governor is a Republican.  Because of path dependent effects (and an overwhelmingly Democratic culture), there is a strong status quo bias that makes it difficult, if not impossible, for Republicans like Romney to shift the Massachusetts government to the right.  At best, all Romney could have done (if he wanted to get anything done) is govern in the middle.

Now you may argue that this has little to do with Romney being for abortion, on one hand, and then against it, on another.  Or passing universal health care in Massachusetts and then threatening to defund a similar program on the federal level.  Maybe it does not, but I think that it is worth recognizing that, in assessing Mitt’s policy positions, he was a red governor in a blue state and this fact did affect his ability to govern to the right.  At the end of the day, you may still conclude that he is a "flipflopper," but standing up for “core conservative principles” does not mean much if nothing gets done.  Governance requires compromise.      

Sunday, November 13, 2011

JoePa, Penn State, and (Dare I Say It) the Need for Moral Legislation

As the events involving the Jerry Sandusky/sexual abuse scandal continue to unfold at Penn State, I am struck by how these victims have been failed by both the adults in this situation and the legal system.  I am troubled by the fact that all Pennsylvania law required of Joe Paterno and the other coaches is to report the abuse to the head of the department and not to the police.  Pennsylvania’s Code § 3490.4 requires teachers and school administrators at public institutions to report child abuse, either to a superior or the authorities.  Joe Paterno was the most powerful man at Penn State so the requirement that he report the abuse to a superior didn't amount to much.  Although many in the media have focused on how these coaches failed in their moral obligation to report the abuse because they didn't go to the authorities, I am more troubled by the fact that there is a credible argument that, consistent with Section 3490.4, they were not required to go to the authorities.  I think Section 3490.4 reflects a larger issue --- the inconsistency with which the law approaches moral issues.  Perhaps the underlying basis of the law is that teachers and school administrators should not be required to go straight to the authorities because they will likely feel morally compelled to do so anyway.  For this reason, it is enough that, by law, they have to report the abuse to someone.  Yet this reporting requirement fell short in this situation, where you have a football program that brings in $70 million dollars a year, a powerful coach, and a group of low income, predominantly minority youth alleging sexual abuse. 

Moreover, the fact that people feel compelled to do the right thing in most circumstances has not stopped the law from mandating behavior that citizens would otherwise feel morally obligated to engage in.  For example, although many people would tell the truth under oath for moral reasons or otherwise, this does not prevent the law from imposing penalties for a failure to do so as a deterrent.  I know that the inconsistency with which the law approaches morality is obvious and should probably be expected given the disagreement that we, as citizens, have over moral issues, but I must admit that I am having a difficult time understanding what the “gray” area is in the circumstance of Penn State.   Why didn't Section 3940.4 require individuals to report abuse directly to the police? Was it viewed as needless moral legislation in a situation where individuals will feel compelled to report the abuse anyway?  In my opinion, this is a situation where moral legislation was needed (by saying that the "moral" thing to do is to report the abuse to the police and requiring it by law), to prevent abusers and their supporters from legally keeping the abuse in-house.  This is not one of those "gray" areas where folks disagree about the extent to which the government can pass moral legislation.   

In other situations, the fact that there is a gray area as to whether moral legislation is appropriate is quite obvious.  I teach constitutional law, and my students and I often have a lively discussion about whether the government should use the law in order to promote a certain view of morality.  Among the cases we discuss are the abortion funding cases (Harris v. McRae and Maher v. Roe), which hold that even though abortion is a fundamental right, the government does not have to make it easier for individuals to obtain an abortion by providing funding.  Notably, the Court held that funding childbirth, as opposed to abortion, does not infringe on this right, even though the government is, in a sense, expressing a moral viewpoint by funding one and not the other. 

In contrast, in Department of Agriculture v. Moreno, the Court held that excluding households containing unrelated individuals from foodstamp assistance in order to prevent “hippies” from taking advantage of the program is not a permissible governmental purpose.  In other words, excluding unrelated individuals because of moral disapproval of a particular lifestyle is not rationally related to the government interest in preventing fraud.  These cases reflect that although the government can promote certain moral views through its legislation, there are certain constraints on its ability to do so.  In the course of discussing these cases, my students and I often disagree about when and if moral legislation is ever appropriate, particularly given the extent of government involvement in our everyday lives (laws forbidding same sex marriage, alcohol sales on Sunday, narcotics and prostitution are just a few examples of moral legislation that citizens have to contend with).  Above all else, I am certain that there is no “right” answer to this question, or if there is, I don’t know what it is.      

But I question the government’s willingness to influence morals through law in virtually every situation but this one --- a situation involving the safety of children and the reporting requirements of adults who are aware of abuse.  While many (including myself) may disagree about the extent to which the state can use its legislative authority to influence moral behavior, I believe that requiring Joe Paterno and others to report this behavior to the police is one situation where few would object to the law promoting a certain view of morality.  I find comments in the media that Joe Paterno and others breached a “moral” obligation to report a massive understatement, particularly in light of the fact that all of this is coming out almost ten years after one of the coaches called his father and told him he saw assistant coach Jerry Sandusky raping a ten year old in the showers.  At the end of the day, I am just appalled at how many people failed these kids, including a legal system that should have required that the adults in the situation call the police.  Not the dean, the department head, the provost, or the campus police – the real police.  Now, instead of holding Joe Paterno responsible for downplaying this incident and reporting it to people who did nothing for almost a decade, we have to have a discussion as to whether or not Paterno was a "person in charge" and therefore was required to report the abuse to the authorities.  I wonder where we would be now if JoePa had to, by law, call the police when he found out about the abuse instead of reporting the information to "superiors" who were considerably less powerful than Paterno in the world of Penn State.  That would be moral legislation I could live with.      

Wednesday, November 2, 2011

“Our whites are so much better than their whites” (or still waiting on my apology from Ann Coulter)

Imagine that it is 1998 and the House has filed articles of impeachment against Bill Clinton for perjury emerging from his affair with Monica Lewinsky.  A political pundit, who happens to be African-American, remarks that Bill Clinton is being persecuted because of his efforts to help minorities in this country, and that efforts to impeach him are consistent with conservative goals to effectively “end” the middle class in this country and relegate minorities to permanent underclass status.  This unnamed pundit ends his comments by observing that the efforts of Bill Clinton to help minorities and his persecution by conservatives is indicative of the fact that “Our whites are so much better than their whites.”  

What would follow these comments is the immediate resignation of this pundit from the network and an apology to all who were offended.  This fact pattern is obviously a spin on Ann Coulter’s recent defense of Herman Cain, who is currently under fire for sexual harassment allegations made against him while he was the head of the National Restaurant Association.  She noted that “there is nothing liberals fear more than a black conservative” and she observes that, ““Our blacks are so much better than their blacks” because “you have fought against probably your family, probably your neighbors... that’s why we have very impressive blacks.”

Despite the controversial nature of these comments,  I suspect that there will be no apology or resignation, but here is why there needs to be an apology for a couple of reasons.  First, I think Ann Coulter is continuing a theme that Herman Cain himself started – that African-Americans who support the Democratic party have been brainwashed into doing so.  This view of African Americans as passive participants in politics, reinforced by a cowherd mentality, is a statement that in and of itself suggests a hierarchy within the race that is reinforced by Coulter’s remarks.  In other words, “the talented tenth” vote Republican and are rich because they “choose” not to be poor.  This is not a theme that the Republican Party, who has already been accused of being anti-gay and pro-death, wants to run with going into 2012.      

Second, Coulter’s statements bring to mind many of the divisions that were present during the Antebellum period – notably, the division between house slaves and field slaves as a result of the fact that house slaves were treated better and therefore more loyal to the master than field slaves.  That is why her statement, which claims possession over African-American conservatives and references the dissension caused in African-American families when an individual family member decides to vote Republican, is so troubling.  In fact, the reason I started this post with “Our whites are so much better than their whites” is because I want readers to get a sense of how ludicrous it sounds when a minority claims ownership over a group of white people and how this would be discrediting to the speaker, but how troubling and disturbing it sounds when a white person claims ownership over a group of minorities because it harkens back to a historical truth.  Coulter paints African-American conservatives as the “house negros” who are brave and loyal because they dare to stand up to the “field negros” who would betray the master.  This makes her comments dangerous in a way that demands a response, either from Fox News, the so-called “liberal” media, bloggers, Bill Maher, Herman Cain --- someone needs to remind Ann Coulter that this is 2011, not 1811. 

Monday, October 31, 2011

The Ghost of Clarence Thomas: Herman Cain, Sexual Harassment, and “High-Tech Lynchings”

Politico posted a story alleging that Herman Cain, who is running for the Republican presidential nomination, sexually harassed two female employees of the National Restaurant Association while he was head of the Association in the 1990s.  Given that Cain is running for the Supreme Court, this story immediately brought to mind the Clarence Thomas/Anita Hill dispute during Thomas’s confirmation proceedings to the Supreme Court and what, if anything, we have learned since then.  Thomas has publicly stated that he felt like he endured a “high tech lynching” and Hill, a respected law professor, also had her credibility and integrity attacked throughout the proceedings.  In the twenty years since Justice Thomas’s confirmation proceedings, I think that there are some powerful lessons that we (hopefully) learned that resonate in the Herman Cain controversy. 

The first is that men of power often abuse that power, and this is true regardless of race.  But black men who abuse their power (or are accused of doing so) have to factor in that it is going to be potentially more costly, even if the allegations are later proven to be false.  In fact, Justice Thomas referred to his confirmation hearings as a “high tech lynching” in part to give the impression that he was treated more harshly because he is a black man.  The reality is that there are still stereotypes about black masculinity that impact the public’s perception of black men who are accused of wrongdoing, independent of the actual truth of the allegations.  This has particular force in the context of sexual harassment, given that the stereotype surrounding black masculinity often turn on black men being portrayed as aggressive and sexually deviant.  Contrast this with Arnold Schwarzenegger, who was elected governor with 48% of the vote (with the candidate who came in second receiving only 32% of the vote) despite admitting to 25 years of sexual inappropriateness on various movie sets, but Justice Thomas was barely confirmed to the Supreme Court by a vote of 52-48.

The second lesson has to do with how the public treats the victims of black men who abuse (or are alleged to have abused) their authority.  What gets lost in the Clarence Thomas controversy is that his accuser is a well-respected law professor who was also crucified in the national media and by some leaders in the black community for telling her story.  There is a racial dynamic that is relevant when the harasser is an African-American who has “made it” and that success is potentially undermined by another African-American who should understand how difficult the journey is.  Thus, instead of Anita Hill’s background lending to her credibility, it was used to discredit her.  For this reason, I was very relieved to see that Politico opted not to publish the names of the women who filed sexual harassment complaints against Cain.  But I think that we should not be surprised if these allegations put an end to Cain’s frontrunner status to be the Republican nominee.