Today is Native American Heritage Day. Respect and Protect Native Families.

The day after Thanksgiving is “Native American Heritage Day,” since 2008 by law (as poetic injustice? irony? Where was law from 1606 to 2008?)

I think it might be presumptuous and maybe tone-deaf to wish anyone a “Happy Native American Heritage Day” today, but I’ll invite members of the Native community to share their thoughts.

To be honest, when I think “Black Friday,” I think of what happened after the myth of Plymouth, the 1621 feast followed by famine and removal of indigenous peoples. And as we drive around today for all our packages, let’s reflect how today’s crazed commercialist “Black Friday” is a very American re-packaging of the capitalist/commercialist legacy after what Thanksgiving Thursday also re-packaged.

And do we even pause on the irony of calling today “Black Friday” when the same legacy after the Plymouth myth of 1621 was so soon after 1619, the arrival of two dozen Africans in Viriginia on the English ship “White Lion”? (How is that for on-the-nose color coding?)

We should be thankful every last Thursday of November.

The day after, I acknowledge as an American, whose ancestors were lucky enough to make it out of Eastern Europe alive, and whose wife’s family fled Nazi Germany to eventually settle in Canada, that we have the luck and privilege to live on stolen land that we inherited by theft, murder, and colonialism.

And that great privilege comes with great responsibility.

That privilege and responsibility is before the Supreme Court this term in Haaland v. Brackeen and the integrity of the Native American family.

This Thanksgiving, I am thankful for the courageous Nikole Hannah-Jones and her team, and I am thankful for the many Native American scholars who are writing and speaking truth, such as Maggie Blackhawk (NYU Law), who is writing the influential Foreword to this year’s Harvard Law Review, and Elizabeth Hidalgo Reese (Yunpovi) (Stanford Law), who published “The Other American Law” in the Stanford Law Review last year and recently gave this powerful interview on a Slate podcast about the Supreme Court case and the Indian Child Welfare Act.

Make Reparations. Respect Sovereignty. Respect the Native American family.

Dread Pirate John Roberts and the Independent State Leg Case

Remember “Princess Bride”? Dread Pirate Roberts had a scary reputation and manipulated it to secretly get what he wanted, avoiding open violence but using stealth, misdirection, and trickery. Inconceivable? No, it’s the Roberts Court.

The independent state legislature case Moore v. Harper (to be argued Dec. 7) is the perfect Overton window Roberts Court cynical pseudo-credibility case.

The right-wing argument has a patina of textual plausibility, so the left publicly freaks out.

I predict the Roberts Court rejects it 6-3…

and then it gets undeserved credit for its neutral non-partisanship. And its use of historical arguments plus common sense legitimates its otherwise ideological misuse of originalism.

(I think it may be 7-2. Gorsuch is the unknown. But he signaled his prior ideological bias for this argument in the Wisconsin Covid-access election 2020 case DNC v RNC. But the historical arguments against this nonsense are clear and are well represented in the amicus briefs and the media by conservative law professors and conservative judges.)

The stakes: Under an extreme theory at the core of the Trump fake elector Jan 6 plot, a state legislature could override the voters and certify its own slate for Trump. Some key state legislatures for the 2024 electoral college are still in Republican control (some due to gerrymandering): WI, AZ, NC, GA. Democrats have flipped Pennsylvania and Michigan. So the theory is dangerous, but I don’t think the Roberts Court allows it, at least not on this extreme application.

Podcast Ep. 4: Diversity in Crisis? The Affirmative Action Oral Arguments

Constitutional Crisis Hotline, episode 4, here.

Subscribe on Apple Podcasts here.

Just hours after the oral arguments on Halloween (Mon, Oct. 31st) in Students for Fair Admissions v. the University of North Carolina and Students for Fair Admissions v. Harvard, we asked five experts for their immediate reactions, analysis and predictions: Eleanor Brown (Penn St/Fordham Law, co-signer of Black Women Law Professors’ amicus brief), Jonathan Feingold (Boston U. Law) and Vinay Harpalani (U. New Mexico Law) (co-authors of a critical legal studies brief questioning Legacy+ policies as a racial privilege), Tom Lee (Fordham Law, co-director of Fordham’s Center for Asian Americans and the Law), and Kimberly West-Faulcon (Loyola Law) (expert on constitutional law and civil rights, former attorney at the NAACP).

Two of our students join to ask questions: Tristan Betz and Josephine Amon.

Jonathan Feingold (BU Law) and Vinay Harpalani (UNM Law) filed this amicus brief on the role of Legacy-Plus as a non-race-neutral policy, and thus race-conscious admission programs are a balance.

Amicus from Black Women Professors (the brief Eleanor Brown signed), here.

Podcast Ep. 3: Chile: A Constitutional Cautionary Tale?

Episode 3 of our podcast “Constitutional Crisis Hotline” is hot off the presses:

“A Constitutional Cautionary Tale?” What can we learn from Chilean voters’ rejection of a new progressive constitution last month?

With Camila Vergara: Critical legal theorist. Marie Skłodowska-Curie Fellow at University of Cambridge writing a book on a plebeian theory of rights “from below” —developed from the point of view of resistance to and emancipation from oligarchic domination— that traces de rights of the common people, from the ancient world to the 21st century.

Sergio Verdugo: Secretary-General of the International Society of Public Law (ICON-S), Editor of the International Journal of Constitutional Law (I.CON), Assistant Professor (tenure track) at the IE University Law School (Madrid, Spain).

Sam Issacharoff: Bonnie and Richard Reiss Professor of Constitutional Law, NYU Law, co-author of the Law of Democracy casebook (with Stanford Law School’s Pam Karlan and NYU School of Law’s Richard Pildes), and Fragile Democracies: Contested Power in the Era of Constitutional Courts (2015).

Follow us at @CnCrisisHotline

Podcast episode on Apple here.

Constitutional Crisis Hotline, Podcast Episode 2: Dahlia Lithwick on her new book “Lady Justice”

“Women Lawyers to the Rescue.” In this episode of Constitutional Crisis Hotline, our guest Dahlia Lithwick talks with our students about women lawyers’ heroic efforts to save American democracy and the challenges that lie ahead.

Thank you, Dahlia, for having this heartfelt conversation with us and our law students!

Apple podcasts here.

Simplecast link here.

Spotify link here.

Audible here.

Google podcasts here.

The Biden Student Debt Plan likely will get struck down, maybe 9-0

My Atlantic piece from September here. The solution would be to shift from the pretext of a Covid emergency under the 9/11 Heroes Act to a much better fit under the Higher Education Act of 1965.

Instead of fixing the policy, President Biden announced the “Covid emergency was over,” which is fodder for every legal challenge to underscore the already fatal pretext problem, citing NY v. Commerce Dept, in which the liberal wing of Court plus Roberts struck down the Trump administration’s citizenship question on the 2020 census for offering bad faith pretexts for what was really a partisan agenda.

An update thread on how the Biden administration Department of Education tried to “solve” the problem by dodging standing, but they only made the problem much worse. Twitter explanation here.

Bottom line: the administration took a bad legal and political situation and made it worse by:
1) arbitrarily cutting off millions of student debtors for the random luck of which debts were outsourced;

2) tacitly conceding that their legal argument was so weak, they needed a standing dodge;

3) The “solution” of this arbitrary exclusion of privately serviced debt creates a huge clear group of plaintiffs w/ standing to enjoin the program on Day 1…

4) with a much worse set of facts that the administration knew it was invalid w/r/t the private servicers.

The Case for Prosecuting Donald Trump

Nobody is above the law, not even the former president.

Alan Rozenshtein (U. Minnesota) and I argue it’s time to indict Trump, while protecting the 1st Amendment. Surrendering to a fear of backlash would be surrendering democracy & the rule of law. On Yascha Mounk’s site Persuasion:

A Declaration of Independence from Roberts Court Originalism

WHEN in the Course of human Events, it becomes necessary for one People to dissolve and declare independence from the Methods of Constitutional Interpretation, though valid in Theory, when they have become Methodologically Unreliable, Ideological, Political, and Partisan.

Originalism had once promised to honor the Political Bands and Bonds which have connected us with one another, a fidelity to our history and our democratic origins. Our common history, both the good and the bad, is our shared community, or it could be, when we tell the story with balance and inclusion. Originalism once had been true to what makes law legitimately law: text and context, open deliberation and democratic ratification. A commitment to historical evidence once held out a hope that judges will respect democracy and concrete evidence as a check on judges picking their own preferences. Originalists, with good reason, claimed to defend the rule of law against judicial activism. One might have borrowed from an old aphorism about democracy, that originalism is the worst form of constitutional interpretation, except for all the others.

To assume among the method interpretation that contemporary originalism still deserves such respect, we must review the last generation of judicial judgments claiming to follow original public meaning. In particular, the last few terms require us to declare the causes which impel a Separation.

We hold these Truths to be self-evident, that all Humans are created equal, that they are endowed by their Creator(s) with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. 

However, history is not self-evident, but depends on evidence; assiduous research, not reflexive assumptions. The eighteenth century and nineteenth century did not have simple, monolithic understandings that somehow line up with modern conservative ideology. 

And yet, when a long list of recent abuses of this form of interpretation arises, we are compelled to both name them, and act in opposition to them:

Roberts Court Originalism has refused to respect precedent, disregarded the text, context, purpose, and precedent for privacy and bodily autonomy, and ignored the history of slavery’s domination of reproductive autonomy and family domination as part of the background for the 14th Amendment.

The Founders and the mid-Nineteenth Century Radical Republicans and Abolitionists had mixed and complicated ideas about life, liberty, and the pursuit of happiness. The Bible, Jewish law, Christian sources, and English tradition had a mix of views on the status of fetuses. American history offers a conflicting record. On the other hand, the Founders and the Radical Republicans had at least inchoate and general commitments to privacy and bodily autonomy.

The Bill of Rights is guided, in part, by a commitment to the sanctity of conscience, the protection of the body from government intrusion and instrumentalism, and the privacy of house and home.

One of the chief evils of slavery, as understood in the 1850s-60s, the generation that ratified the 13th and 14th Amendments, was the domination of women’s bodies and their reproductive rights, and the role of state governments in violating the freedom to have -or not have – a family of one’s choice. This was the very plot of Uncle Tom’s Cabin by Harriet Beecher Stowe, the “little lady that started” the Civil War,” according to Abraham Lincoln. (See David Gans, Peggy Cooper Davis, Dorothy Roberts, Michelle Goodwin.)

There is a solid and coherent argument that the original public meaning of the Bill of Rights or the Reconstruction Amendments would protect privacy, bodily autonomy, and family choice. “Originalism” should not ask whether a founding generation originally expected abortion rights or applied such amendments to abortion rights, but instead should ask about original purposes, especially when enshrined in deliberately broad and open-ended texts like due process, equal protection, and privileges and immunities.

Even if originalists are right that history should prevail over precedent, precedent should stand if the history is conflicting and the evidence is unclear. The evidence supporting privacy and equality is strong. Reasonable people can disagree if this evidence extends to robust reproductive rights — if this question were new. However, the evidence against abortion is insufficient to overcome 50 years of precedent and leave no protection for any stage of conception or for any tragic exceptions.

Some Roberts Court Originalists would not only overturn Roe, but would also overturn a long list of other precedents protecting privacy, birth control, a right to travel, and marriage equality. None of our fundamental rights are safe under Roberts Court Originalism.

Roberts Court Originalism has forbidden States from passing Gun Laws and Environmental Regulation of immediate and pressing Importance.

Even if the Second Amendment protects an individual right, they disregard a long history and tradition of gun regulation, and they cherry-pick from the historical record to create a new right to carry guns. They probably believe that George Washington did not chop down a cherry–tree, he blasted it down with the heavy AR-15 he was carrying, and that gave the Roberts Court an inalienable right to cherry-pick.

Roberts Court Originalists have revived the Non-Delegation Doctrine, which, though arguably valid in some very basic form on informal separation of powers, does not have historical support for the aggressive doctrine they press in concurrences. Instead of cogently reviewing the balance of historical evidence, a Roberts Court Originalist (Gorsuch) merely offers a cynical string cite to a dozen articles with no analysis. The Non-Delegation Doctrine could be a meaningful check on prosecutorial or executive abuses and Congressional carelessness and laziness, but instead, some Roberts Court Originalists seek to use it to Burn Down the Modern Administrative State.

Roberts Court Originalism has refused the Accommodation of minority Religions, though it invalidates laws to Accommodate Majority Religious Practice. Roberts Court Originalists sustain law and regulations banning Muslims, and voted against Law and Regulations protecting Dreamers – the Childhood Arrivals who share in the American dream that animated the Original Declaration.

Roberts Court Originalists use the 14th Amendment to prevent the remedying of past racial discrimination from Slavery through Jim Crow to the present, with an assumption that “equal protection” means only formal “anti-classification,” not “anti-subordination.” They ignore a robust historical record of equal protection and laws against “discrimination because of race” as anti-subordination and anti-white supremacy, and they ignore a long line of precedents which take our nation’s history of racial injustice seriously, and which support public and private actors trying to address that history and taking diversity seriously.

Roberts Court Originalists repeatedly have voided some of the most important parts of the historic Voting Rights Act, by inventing a supposedly “originalist” theory of “Equal State Sovereignty,” and then watering down its requirements, at time when access to voting is under attack, and when democracy and the peaceful transition of power has been under attack – literally.

Some Roberts Court Originalists voted to protect a lawless President, enabling or giving comfort to his Obstruction of the Administration of Justice.

Roberts Court Originalists subscribe to a Royalist Theory of the Presidency, the Unitary Executive Theory, that the President is Effectively above Checks and Balances, even though this theory has no basis in the Text of the Constitution or the History of the Founding.  The Roberts Court Unitary Executive Theory has made and would make independent agencies and experts dependent on the President’s Will alone, dependent on the President’s “Pleasure,” literally, for the Tenure of their Offices. The Roberts Court shows deep skepticism about “unwritten rights,” but it is actually deep cynicism, because they conveniently find unwritten presidential powers like the removal of officers. None of their sources support their theory: not the Executive Vesting Clause, not the Take Care/Faithful Execution Clause, and not the First Congress.

There is no textual or historical basis for their version of the unitary executive theory or a general or default executive removal power “at pleasure.” They cite no source from English history showing a general royal prerogative or royal removal power, and for good reason: the English treated offices as property, which could often be bought, sold, or inherited. Some offices were removable, some were not. There is no American source from the Convention or Ratification reflecting a general presidential removal power, and to the contrary, Hamilton and Madison rejected the unitary theory on removal in Federalist Papers 39 and 77. And they rely on a mythical “Decision of 1789,” which they assume endorsed presidential removal, when, if one actually sits down, reads the speeches and sources, and counts votes in the decisive debates, it becomes clear that the First Congress did the opposite. 

The Roberts Court Decisions on the Presidential Removal Power show that they are not Originalists, but are Royalists.

Spouses of Roberts Court Originalists excited domestic Insurrections amongst us. (Yes, that phrase is in the original Declaration).

Roberts Court has called together advocates of the Independent State Legislature Theory, which was part of that domestic Insurrection conspiracy to overturn a free and fair election of the People, and will entertain this theory next year.

Please allow me to have the chutzpah and the honor to quote and paraphrase Frederick Douglass today: 

“Fellow Citizens, we are not wanting in respect for the framers of this republic. The signers of the Declaration of Independence were brave men. They were great men, too, great enough to give frame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.”

Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak here to-day? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us?  Are the Roberts Court Originalists staying true and faithful to the text and meaning of the Declaration, the Constitution of 1787, the Bill of Rights, and the Reconstruction Amendments written to overcome a legacy of racial slavery and white supremacy?

 Are we all, therefore, called upon to bring our humble offering to the Supreme Court altar, and to confess the benefits and express devout gratitude for the blessings resulting from your pseudo-methodology, a false facade of “objective” historical inquiry?

We say it with a sad sense of the disparity between us. Our national history is not truly included within your historical assumptions. Your high Judicial Supremacy, only pretending to be serious about democracy and ratification, only reveals the immeasurable distance between us. 

The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by us. The sunlight that brought light and healing to you, has brought stripes and death to me. 

This “Originalism” is yours, not mine. You may rejoice at overturning Roe – and countless other precedents, statutes, federal and state regulations for the public good – but we must mourn.”

We, therefore, declare our independence from Roberts Court Originalism, and we declare that we must turn to the only remedy available at this moment – which the Original Constitution gives the people and the Congress: the right to reform the Judiciary and to add seats to the courts, including the Supreme Court.

To secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Juristocracy and Judicial Supremacy becomes destructive of these Ends, it is the Right of the People to alter and to expand the Supreme Court , and to institute new Justices, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Courts long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Courts to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under Judicial Despotism, it is their Right, it is their Duty, to add seats to such Courts, and to provide new Justices for their future Security. Such has been the patient Sufferance of this Nation; and such is now the Necessity which constrains them to alter their former Courts of Justice. The History of the present Supreme Court is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of Judicial Tyranny over this Nation. 

We the People, therefore, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That this Nation is, and of Right ought to be, Free and Independent of the Roberts Court Originalism; and that as a Free and Independent Nation, they have full Rights to Bodily Autonomy and Privacy, the Power to regulate Guns, regulate air pollution and greenhouse gasses, remedy past discrimation on the basis of race and sex, and guarantee equality, equity, diversity, and inclusion of all orientations. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Cassidy Hutchinson’s Testimony Changed Our Minds about Indicting Donald Trump

Before Tuesday, we opposed indicting Trump on 1st Amendment grounds.

But Trump’s alleged overt acts were a crime-changer on Incitement, Obstruction & Insurrection.

In particular, Hutchinson testified to hearing Trump order that the magnetometer (metal detectors) used to keep armed people away from the president be removed: “I don’t fucking care that they have weapons, they’re not here to hurt me. They’re not here to hurt me. Take the fucking mags [magnetometers] away. Let my people in. They can march to the Capitol from here; let the people in and take the mags away.”

This alleged order, in the context of these other statements, constitutes an overt or material act that increased the risk of imminent danger, reflected awareness or intent of increasing imminent danger, and easily distinguishes this case from protected political speech using phrases such as “fight like hell.”

More with Alan Rozenshtein in Lawfare here.