Sunday, October 15, 2017

A Free Pass for Corporations in Human Rights Suits?

      Seven years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad. That result was the consensus prediction following arguments last week [Oct. 11] in a case seeking to force the Jordan-based Arab Bank to pay millions of dollars in damages to victims of violent attacks in Israel and the West Bank for helping to finance the militant Palestinian group Hamas.
      The plaintiffs in Jesner v. Arab Bank, PLC are relying on a 225-year-old federal law granting federal courts the power to hear damage suits for violations of international law. Congress included what is now called the Alien Tort Statute as a single sentence in the Judiciary Act of 1789, the foundational statute for the federal judiciary. The provision lay mostly dormant until the 1980s, however, when human rights lawyers in the United States began using it to haul accused international human rights violators into U.S. courts to be held accountable for their conduct.
      The Supreme Court has been less than receptive to claims under the law despite its seemingly clear "plain text." Federal courts, the law states, have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [emphasis added]." In a pair of recent decisions, however, the Court has moved to limit the scope of the law — its substantive content and its geographical reach — and questioned use of the law to sue corporations, not just individual defendants.
      In the present case, the New York-based Second U.S. Circuit Court of Appeals accepted arguments by Arab Bank and supporting U.S. business groups that the law does not authorize suits against corporations. Judging from the three-sided arguments at the Supreme Court, the four most conservative justices along with Anthony M. Kennedy are ready to agree despite the four liberal justices' evident doubts about the basis for any broad exemption for corporations.
      Representing the plaintiffs, Jeffrey Fisher, a Stanford law professor and director of the school's Supreme Court litigation clinic, opened by stressing what he called the "traditional presumption that corporations can be held liable in torts." He acknowledged that the court's most recent decision, Kiobel v. Royal Dutch Petroleum Co. (2013), required that the alleged misconduct have some sufficient connection to the United States for a suit to proceed in federal court.
      The suit in Kiobel that the Supreme Court rejected stemmed from environmental depredation by the Dutch company from oil drilling in the Niger River delta in Nigeria. Fisher contended that the Arab Bank's financing of Hamas met the jurisdictional test  because the bank has a U.S. branch and its transactions clear through a New York financing facility.
      Representing the bank, Paul Clement, the former U.S. solicitor general and now the go-to Supreme Court advocate for conservative causes, discounted the claimed basis for federal jurisdiction over the suit. But he argued more broadly and most strongly that there was no "norm for holding corporations liable for violations of international law" in circumstances like those alleged in the suit.
      In a split-the-difference stance, the government agreed with Clement that the Arab Bank's use of a New York clearinghouse was insufficient to establish federal jurisdiction over the case. But Brian Fletcher, an assistant U.S. solicitor general, argued that Clement's argument for a "categorical rule" exempting corporations from suits under the law was "wrong."
      Chief Justice John G. Roberts Jr. led the conservatives in questioning the suit, just as he had done earlier in the Kiobel argument. He repeatedly voiced concern about the likely "foreign entanglements" if federal courts entertained suits arising from events abroad. Fisher and Fletcher both argued for dealing with those concerns case-by-case without any categorical exemption for corporations.
      All four liberal justices echoed those doubts in questions from the bench. Justice Stephen G. Breyer aptly asked who could be held liable for financing terrorism if not a bank: only a billionaire, he suggested. Justice Elena Kagan asked the same question about use of slave labor. And Justice Sonia Sotomayor answered the conservatives' doubts by noting that "many countries" hold corporations civilly liable in tort suits.
      From the conservative side, Justice Neil Gorsuch, he of the plain-text statutory construction school, questioned whether Congress in 1789 really had corporations in mind when it passed the law. The law originated from an assault on the French ambassador, an alleged violation of the international law of diplomatic immunity. Kagan batted away Gorsuch's doubts by asking "what difference" it would have made if the ambassador's assailant had been hired by a corporation.
      The U.S. Chamber and other business groups now count this as a major issue because of the proliferation of suits against U.S.-based multinational companies — for example, against Ford and IBM for supplying cars or computers to South Africa's apartheid regime or against Wal-Mart for buying from suppliers abroad with inhumane working conditions. With the conservative justices evidently sharing that concern, Fisher noted that the number of suits has dropped since the court's decision in Kiobel.
      The Roberts Court's conservative majority has been solicitous of business interests in a variety of areas — most controversially in the 5-4 decision in Citizens United v. Federal Election Commission (2010) giving corporations a First Amendment right to engage in political spending. Against that background, a decision to give corporations a free pass for violating international law seems a flat contradiction.

Saturday, October 7, 2017

'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.

Sunday, October 1, 2017

A Republican Justice Settles In as GOP Cheers

      As a Supreme Court nominee, then-Judge Neil Gorsuch assured the Senate Judiciary Committee of his impartiality by saying that there is "no such thing as a Republican judge or a Democratic judge." Americans apparently disagree. Gorsuch's first few months in office have instantaneously raised Republicans' approval of the Court and driven Democrats' approval down to a near record low.
      A Gallup poll taken in the first week of September found that Republicans' approval of the Court had jumped from 26 percent a year ago to 65 percent as approval among Democrats fell from 67 percent to 40 percent. Whether wittingly or not, Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.
      Most troublingly, Gorsuch allowed Senate Majority Leader Mitch McConnell to take him along as a trophy of sorts as the justice spoke at two law schools last month in McConnell's home state of Kentucky. McConnell was responsible for stealing the Supreme Court seat that Gorsuch now occupies by leading the Republican-controlled Senate in refusing to consider President Obama's nominee for the position, Judge Merrick Garland. McConnell openly boasted of the nakedly partisan maneuver in an earlier home-state appearance by saying that the change in political climate in Washington could be summed up in "three words: Justice Neil Gorsuch."
      Gorsuch again put any concern for the appearance of impartiality off to the side by agreeing to speak to a conservative organization in Washington last week [Sept. 28] at the Trump Hotel. President Trump's financial stake in the hotel raises an issue under the Constitution's Emoluments Clause, an issue that is quite likely to reach the Supreme Court in one or more of the cases now being litigated in federal court.
      With no evident appreciation of the irony, Gorsuch used his appearance before the Fund for American Studies to call for civility in public discourse. “To be worthy of our First Amendment freedoms, we have to all adopt certain civil habits that enable others to enjoy them as well,” Gorsuch declared.
      Gorsuch spoke less than a week after President Trump had used his bullying pulpit to question the patriotism of National Football League players who "take a knee" during the pregame national anthem to protest racial injustice in the United States. Trump went even further by labeling the protesting athletes as "sons of bitches" and urging NFL owners to fire them.
      Gorsuch's host organization is nominally nonpartisan in its goal of promoting "limited government and free-market economics," but it is thoroughly Republican and conservative in its origins and current leadership. The Fund for American Studies was founded 50 years ago by, among others, the godfather of modern conservatism, commentator William F. Buckley Jr. One reporter at last week's luncheon reported that the audience was filled with "the conservative legal firmament."
      Gorsuch has already agreed to a second speaking engagement in November that will amount to a another victory lap for those responsible for putting him on the Supreme Court. Gorsuch will speak in Washington in November to the annual meeting of the Federalist Society, the conservative-libertarian organization that has touted its role in vetting Gorsuch for the Supreme Court seat.
      Writing in USA Today, Gabe Roth, executive director of the reformist organization Fix the Court, complained that Gorsuch's appearance before an audience of "well-heeled conservatives" illustrated the regrettable tendency of justices to “stick to U.S. audiences whose ideologies closely follow their own." Roth noted that in the previous year conservative justices but none of the liberals had spoken to Federalist Society events, while liberal justices but no conservatives had appeared before the progressive American Constitution Society (ACS).
      Roth's evenhanded plea for justices to get out of their ideological cocoons is well taken, but misses an important point. ACS has never played nor claimed a role in judicial appointments comparable to the role that the Federalist Society has played going back as far as the Reagan administration. Trump tasked the Federalist Society and the conservative Heritage Foundation during his campaign with vetting potential Supreme Court nominees. And he marked Gorsuch's confirmation in April by hosting Federalist Society leaders for a celebration at the White House the next day.
      The Gorsuch effect is seen not only in the shifting partisan lines on the Court's approval rating but also in the justices' case-selecting process. With Gorsuch in his first "long conference" last week [Sept. 25], the justices added nine new cases with unusual speed, including one that represents a major financial challenge to a core Democratic constituency: public employee unions (Janus v. American Federation of State, County, and Municipal Employees).
      Gorsuch, son of a Reagan-era Cabinet member, has cheered Republicans from Trump down by lining up with the Court's other archconservatives, Clarence Thomas and Samuel A. Alito Jr., on issues ranging from Trump's travel ban to capital punishment and gay rights. Democrats are left to rue the results of the Republicans' in-plain-sight theft of the seat. As NPR's Nina Totenberg recently remarked, "All those liberals who thought there might a liberal heart beating somewhere in Justice Gorsuch now know that is not true."

Sunday, September 24, 2017

'Straight Weddings Only' Equals Discrimination

      Carl and Angel Larsen wanted to break into the wedding video business, but as "Bible-believing Christians" they wanted to announce on their company's website that they would not shoot gay or lesbian ceremonies. Anticipating legal problems, the St. Cloud, Minn., couple filed a suit in federal court in Minnesota in December 2016 asking in effect for a constitutionally based exemption from the state's anti-LGBT discrimination law.
      In a thorough, 63-page opinion, Chief U.S. District Court Judge John Tunheim ruled that the Larsens' Telescope Media Group would be violating the state law by posting a notice that he likened to a "whites only" sign from the pre-civil rights era. "Posting language on a website telling potential customers that a business will discriminate on the basis of sexual orientation is part of the act of sexual orientation discrimination itself," Tunheim wrote in the Sept. 20 decision.
      The Larsens, represented by the anti-gay religious liberty group Alliance Defending Freedom, argued that the state law amounted to an attempt to stamp out opposition to same-sex marriage. Tunheim rejected the argument but specified that the couple was free to post a notice opposing same-sex marriage and free to decide not to post their videos of same-sex weddings.
      Tunheim's decision is in line with rulings in somewhat similar cases by state appellate courts in three other states: Colorado, New Mexico, and Washington. Over the span of a few years, the state courts enforced anti-LGBT discrimination laws by penalizing a photographer in New Mexico, a florist in Washington, and a baker in Colorado for refusing to provide services for same-sex weddings.
      The Colorado baker's appeal is now before the U.S. Supreme Court, which is likely to hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission during its December calendar. Despite the uniformity of rulings in such cases, however, Supreme Court advocates and experts previewing the case in advance of First Monday expect a closely divided decision with Justice Anthony M. Kennedy likely to cast the pivotal vote.
      The case was identified as one of the new term's potential blockbusters as soon as the justices finally agreed to hear Jack Phillips' appeal as the previous term ended in late June. The case drew that much extra attention when the Trump administration intervened earlier this month [Sept. 7] with a precedent-defying friend-of-the-court brief supporting Phillips' claim for a free-speech exemption from Colorado's anti-LGBT discrimination law.
      Phillips, a self-identified Christian like the Larsens in Minnesota, operates a family-friendly bake shop in the Denver suburb of Lakewood and views his personalized cakes as artistic expressions protected by the First Amendment. David Mullins and Charlie Craig came into his shop one morning in July 2012 to order a cake for a reception to celebrate their earlier wedding in Massachusetts. Phillips told them he would sell them an off-the-shelf cake but said he did not make customized cakes for same-sex weddings.
      Mullins and Craig got a cake, for free, from a different baker, but only after publicizing the confrontation and filing a complaint with the Colorado Civil Rights Commission. The commission ordered Phillips to make cakes for same-sex weddings on the same terms as opposite-sex weddings, to re-educate his staff on the state civil rights law, and to provide quarterly reports of compliance with the order. The Colorado Court of Appeal upheld the order, and the Colorado Supreme Court declined to review.
      Phillips raised separate but related constitutional claims in asking the U.S. Supreme Court to review the case. He contended that the order to serve same-sex weddings amounted to compelled speech in support of same-sex weddings and an unconstitutional burden on his free exercise of religion. The government had not been asked for its views, but the Trump administration backed Phillips in a brief signed by the then-acting solicitor general Jeffrey Wall but by none of the career attorneys in the solicitor general's office.
      The government narrowed the case somewhat by passing over the free-exercise issue and by acknowledging well known Supreme Court precedents generally rejecting claimed First Amendment exemptions from generally applicable public accommodations laws. Phillips' compelled speech claim was viewed as an exception, however, because a custom-made cake was an "inherently expressive" product — unlike, for example, a hotel room or a limousine for the happy couple.
      Earlier, the commission had urged the justices not to hear the case by noting that Phillips had cut Mullins and Craig off before they had any chance to ask for a particular design. Some commentators have now picked up on the point by suggesting the compelled-speech claim cannot be decided on the basis of this record.
      In the American Civil Liberties Union's term-opening preview, deputy legal director Louise Melling described the government's brief as the first time ever that the government had backed a constitutional exemption from anti-discrimination laws. As to the compelled speech claim, Melling contended that Phillips should still lose even if Mullins and Craig had asked for a design or decoration specifically celebrating same-sex unions.
      The case poses a seeming quandary for Kennedy, who can rightly claim gay rights and freedom of speech as parts of his three-decade legacy. The conservative bloc that dissented in the marriage equality decision two years ago, with Neil Gorsuch now in Antonin Scalia's seat, may have no qualms about narrowing rights for same-sex couples. But given the weight of authority, they should hesitate before blowing a constitutional hole through well-established anti-discrimination laws.

Sunday, September 17, 2017

Trump's Election Commission: A Fraud on the Public

      Justice John Paul Stevens delivered an impassioned dissent when the Supreme Court voted 5-4 in Bush v. Gore to block a complete recount of Florida's vote in the 2000 presidential election. "[W]e may never know with complete certainty the winner of this year's Presidential election," Stevens said. He added regret at what he saw as a loss of public confidence in the court as "an impartial guardian of the rule of law."
      With the wounds of the 2016 presidential election still fresh in mind, both of the rival candidates — Donald Trump and Hillary Rodham Clinton — are doing what they can to undermine confidence in the results of the election. Trump has peddled the blatant lie that he would have won the popular vote if not for a supposed 3 million to 5 million votes cast illegally by non-citizens.
      Clinton, in her sour grapes memoir What Happened, has complained with more substantiation that she might have won at least one other state, Wisconsin, and perhaps others if not for the vote-suppressive effects of  newly enacted state voter ID laws. Clinton lays blame for the Wisconsin law not only on the state's Republican legislature and Republican governor but also on the Republican-majority Roberts Court for allowing the law to stay on the books despite legal challenges.
      The effects of the various voter ID laws passed in Republican-controlled states over the past two decades would be a good subject for detailed, bipartisan examination by a presidential or congressional commission. But Trump's Presidential Advisory Commission on Election Integrity is intent instead on following its creator in perpetuating the completely fraudulent charge of widespread voter fraud in U.S. elections.
      Kris Kobach, the Kansas secretary of state who is the commission's vice chair and eminence grise, set the stage for the commission's second public session last week [Sept. 12] by describing the state's junior senator, Maggie Hassan, as holding a "stolen seat" because of supposed voter fraud in her 743-vote margin in the November balloting. Kobach's accusation is easily debunked, but it takes a paragraph or so.
      To start, the ostensibly bipartisan 12-member commission is fraudulent in its very composition: "flawed from the very start," according to the good-government group Common Cause. The seven Republican members are for the most part veterans of the voter ID law movement, which depends for its very existence on the imaginary epidemic of voter impersonation fraud. Besides Kobach, the other Republicans include Vice President Mike Pence, the nominal chair; Ohio's former secretary of state, Kenneth Blackwell; Indiana's current secretary of state, Connie Lawson; and two former officials in the Bush administration's Justice Department: Hans von Spakovsky, now with the Heritage Foundation, and J. Christian Adams, president of the self-styled Public Interest Legal Foundation.
      Before the selections, Von Spakovsky wrote an email to Attorney General Jeff Sessions urging him to keep Democrats or moderate Republicans off the commission entirely. Von Spakovsky denied writing the email after it surfaced in response to a Freedom of Information Act, but a Heritage spokesperson acknowledged his authorship. Von Spakovsky's advice may have been rejected, but the five Democrats on the commission are mere tokens: only two have statewide election responsibilities, Maine's Matthew Dunlap and New Hampshire's Bill Gardner, while the other three have only minimal expertise in the area.
      Kobach's imputation of fraud in New Hampshire stems from his discovery of 5,313 votes cast by individuals who same-day registered with out-of-state driver's licenses. But, surprise: New Hampshire allows anyone living in the state to vote even if their legal residence is another state. For example: college students. New Hampshire Public Radio easily ascertained that most of Kobach's supposedly fraudulent votes were cast in college towns. End of story.
      The commission's other evidence of voter fraud is a Heritage Foundation database that goes back to 1948 to identify 1,071 "proven instances" of election fraud cases. Out of nine categories, however, only two — and those with the fewest in number — might be prevented by voter ID laws: impersonation fraud and false registration. The other categories included absentee ballot fraud, vote-buying, vote-counting alteration, and so forth.
      In a detailed dissection, the Brennan Center on Justice concluded that the voter impersonation and false registration cases represented "a molecular fraction" of the total in the Heritage Foundation compilation. Heritage's database "undermines its claim of widespread voter fraud," according to Brennan Center senior counsel Rudy Mehrbani. Among ineligible voters who cast ballots, most had prior felony convictions and could have been unaware of their disqualification, Mehrbani suggested.
      In its critique, Common Cause recalled that three previous election commissions over the past two decades came up with useful recommendations that could be adopted by red or blue states alike. Those commissions were truly bipartisan, the group explained: the current commission "an aberration."
      The Trump commission's congenital defects are all the worse because of the many issues that Common Cause and others have identified as needing substantive and bipartisan attention. Those issues include "how to ensure access for all eligible voters; enhancing enthusiasm for and participation in our electoral processes; and modernizing voting machines and systems to ensure their safety from external interference."
      That last point deserves emphasis. Despite evidence of Russian election hacking attempts in 2016, state and federal election officials have done little to study the problem or prevent it in the future.

Sunday, September 10, 2017

For Workers, Trump's Policies Hurt More Than Help

      President Trump marked Labor Day with a perfunctory tweet that sounded "Make America Great Again" themes with only a glancing recognition of American workers. "We are building our future with American hands, American labor, American iron, aluminum and steel," Trunp tweeted. "Happy #LaborDay!"
      The tweet passed silently over the foreign-made goods sold by first daughter Ivanka Trump's company and similarly omitted any specific benefits for U.S. workers from Trump administration policies. Just as well: Nearly eight months into his presidency, Trump has done more to hurt than to help U.S. workers, as the New York Times former labor correspondent Steven Greenhouse pointed out in a Labor Day weekend article.
      Trump's photo-op events taking credit for keeping jobs in the United States have mostly been debunked. In addition, as Greenhouse and others have pointed out, many of the administration's deregulatory moves have actually weakened protections for workers in the workplace and reduced protections for workers' savings and retirement plans.
      Now, the administration is set to open the Supreme Court's new term next month [Oct. 2] by siding with business interests and against organized labor in a case testing employees' ability to join with other workers in contesting workplace policies that violate state or federal law. In a critical legal showdown, the Trump administration's solicitor general's office reversed the position previously taken by the Obama administration and decided to support employers' right to dictate contract terms that prevent workers from collective or class actions in job-related disputes.
      The three consolidated cases the justices will hear in its first argument of the October 2017 term pose a conflict between the pro-arbitration policy of the Federal Arbitration Act and the National Labor Relations Act's protection for workers' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The three employers involved in the cases — Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil Co. — all required employees to sign contracts agreeing to individual arbitration of any disputes.
      Federal appeals courts in Epic Systems and Ernst & Young ruled that the labor law's "concerted action" provision, enacted in 1935, overrides the provision in the 1925 law safeguarding enforcement of arbitration clauses in private contracts. The National Labor Relations Board (NLRB) similarly blocked enforcement of an arbitration clause in the third case, but on appeal the Fifth U.S. Circuit Court of Appeals cited the earlier law in rejecting the position that the agency had adopted in a 3-2 vote with the commissioners divided along partisan lines.
      The issue of seeking relief in individual arbitration versus class action whether in arbitration or in court may seem like the extra-credit question on a civil procedure exam. But the employer-dictated prohibition against any class or collective action can effectively prevent an employee from seeking any relief whatsoever.
      The employees in Epic Systems and Ernst & Young claimed that the companies had wrongfully classified them as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and sought to file class action suits in federal court on behalf of all other similarly situated employees. Business interests rail about the abuses of class actions, but as a practical matter employment law attorneys are unlikely to take on an FLSA case just to win a few hundred or maybe a few thousand dollars for an individual worker improperly denied overtime pay.
      The Roberts Court has continued the legal trend that first emerged under Chief Justice William H. Rehnquist of allowing the Federal Arbitration Act to take precedence over legal remedies allowed under other federal or state laws. Many of the decisions came on 5-4 votes with the justices divided along the usual conservative-liberal lines. The late justice Antonin Scalia was the most outspoken of the conservatives in criticizing the supposed abuses of class actions and defending the supposed advantages of arbitration.
      The labor law issue simmered at the NLRB for several years until several cases reached federal courts of appeals with decisions that resulted in a conflict between circuits: the Seventh and Ninth Circuits siding with employees in Epic Systems and Ernst & Young respectively and the Fifth Circuit ruling against the NLRB in Murphy Oil.
      Under the Obama administration, the solicitor general's office represented the NLRB in urging the justices to back the agency's position. In June, however, the solicitor general's office filed a new brief — "after the change in administration" — rejecting the agency's position. The NLRB did not give "adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA," the brief stated.
      For Trump, the change in position continued the trend of siding with business interests on regulatory issues over the forgotten American workers that he claimed in his campaign as his base. In other contexts, the administration has rejected an Obama era policy aimed at extending overtime protections to an estimated 4 million U.S. workers. Greenhouse also noted that the administration postponed rules to protect workers from silica dust; scrapped rules to require federal contractors to disclose labor law violations; and indicated likely rejection of the so-called "fiduciary rule" to require Wall Street to manage retirement funds in workers' best interests.
      In the Times, Greenhouse's article appeared under the headline, "Is Trump Really Pro-Worker?" Trump's tweets to the contrary notwithstanding, the answer is a resounding no.


Sunday, September 3, 2017

Trump's Bid to Drop Arpaio Case Worse Than Pardon

      The disturbing news of President Trump's unprecedented pardoning of Arizona's federal court-defying sheriff Joe Arpaio reached me in Europe while trying to enjoy a vacation undisturbed by legal news. Back home, however, I learned the pardon was not the worst of Trump's offenses against the rule of law.
      Before the pardon, Trump violated a well established political and legal norm by personally asking Attorney General Jeff Sessions to drop the criminal charge against Arpaio. Trump apparently backed off after Sessions demurred, but in breaking the story, the Washington Post quoted Chiraag Bains, a former senior counsel in the Justice Department's civil rights division, as calling Trump's call to Sessions "beyond the pale."
      Former Attorney General Eric Holder had an apt if snarkier comment on Twitter. "Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO." But a tone-deaf White House press secretary Sarah Huckabee Sanders saw nothing amiss. "It's only natural the president would have a discussion with administration lawyers about legal matters," Sanders was quoted as saying.
      The president has the broadly stated power under Article II, section 2 of the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The impeachment exception implies a separation-of-powers concern, limiting the president's power to override a congressional judgment to remove a federal official after a conviction for "high crimes and misdemeanors."
      Trump's pardon of Arpaio for criminal contempt of court is apparently the first instance of a presidential pardon for violating a federal court order. The same separation-of-powers concern that underlies the impeachment exception ought to caution a president against using the pardon power to undermine a federal court's power to enforce its orders.
      Instead, Trump has absolved Arpaio of flagrantly defying a federal judge's order to drop the Maricopa County sheriff's unconstitutional policy of racial profiling against suspected illegal immigrants. In Trump's eyes, his onetime comrade in arms in the birtherism controversy is not a scofflaw but a "patriot," his documented abuses in running the Maricopa County jail not worth a mention.
      Presidential pardons are typically granted to defendants convicted under dubious circumstances, given unduly harsh sentences, or seen to be rehabilitated based on model conduct in prison. Politically motivated pardons, however, are not unheard of. The first president Bush granted pardons in his final month in office to six former Reagan administration officials who had been convicted of, for example, withholding information from Congress in the Iran-contra investigation.
      Frank Bowman, a law professor at the University of Missouri, argued in an article in the online magazine Slate that Trump's pardon of Arpaio amounts to an impeachable offense. Bowman called the pardon "a direct attack on the constitutional powers of the judiciary." Trump's action, he went on, "threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law."
      Bowman is legally correct, of course, in the sense that the House of Representatives has broad discretion to determine what counts as an impeachable offense. Politically, however, the current Republican-majority House of Representatives has shown even less interest in challenging Trump than the largely supine GOP-controlled Senate. Even with Trump's approval at the historic low level of 34 percent, impeachment is a dead letter in the House and conviction equally impossible in the Senate.
      Apart from the pardon, Trump's personal intervention in a pending criminal case ought also to be listed as an impeachable offense. Recall that the House Judiciary Committee in 1974 listed President Richard M. Nixon's intervention in the criminal justice system and the Internal Revenue Service's enforcement of tax laws as one of the particulars in Article II of the four articles of impeachment.
      Nixon, who famously maintained an "enemies list" of political critics and opponents, was accused of having directed the IRS to initiate or conduct tax audits "in a discriminatory manner." He was also charged with having "knowingly misused the executive power by interfering with agencies of the executive branch," including the CIA, the FBI, the Justice Department's criminal division, and the Watergate special prosecution force.
      Trump's interference in Arpaio's case represents abuse for the opposite purpose: preferential treatment for a political friend rather than discriminatory treatment for a political enemy. But his action represents the same constitutional violation laid to Nixon. As the ex-DOJ official Bains put it to the Post, Trump "has a sense that the chief executive controls everything in the executive branch, including the exercise of criminal power. And that is just not the way the system is set up."
      Trump's prospective pardon of Arpaio played well to the crowd at the campaign-style rally he held in Phoenix before the formal announcement, but it has played poorly in virtually all other quarters. The conservative Washington Times gave its blessing a week before the actual pardon, but House Speaker Paul Ryan distanced himself after the fact by saying that it would have been better for Trump to have allowed the appellate process to continue.
      Among prominent columnists, criticism came from both sides. The conservative Michael Gerson called the pardon "a further step in Trump’s normalization and entrenchment of bigotry in our public life," while the liberal E. J. Dionne called it Trump's "largest single step toward autocracy." Bigotry and autocracy: reprehensible, no doubt, and impeachable but for the lack of will on Capitol Hill.