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Podcast: Should the Government Regulate Speech on Campus?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People, a weekly show of constitutional debate. The national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution among the American people on a nonpartisan basis. Recently President Trump announced that he will soon sign an executive order that requires colleges and universities to “support Free Speech if they want Federal research dollars.” On today's episode of we the people we ask, would the order be a good idea? What would the consequences be and would it be consistent with the Constitution? Joining us to debate the Constitutional and legal merits of the proposed executive order are two great friends of the national Constitution Center and two of America's leading experts on campus free speech. Sitting with me here at the NCC studio is Sigal Ben-Porath who is a professor of Education, philosophy and political science at the University of Pennsylvania. Her work focuses on citizenship education and political philosophy. And she's the author of the recent book free speech on campus. Sigal thank you so much for braving the cold and joining us here today in studio.

Sigal Ben-Porath: [00:01:21] Thank you so much Jeffrey. It's great to be here at the national Constitution Center and in my own city of Philadelphia.

Rosen: [00:01:27] Wonderful and Adam Kissel Is visiting scholar at American University and former deputy assistant secretary for higher education at the US Department of Education. He previously oversaw higher education grants at the Charles Koch foundation and served as vice president of programs at the foundation for individual rights in education. That's the great Fire organization. Adam it's wonderful to have you with us.

Adam Kissel: [00:01:53] Thanks so much for having me.

Rosen: [00:01:55] Wonderful. Let's begin with a policy question that is also relevant ultimately to the legal and constitutional question, which is simply this: is it a good idea for private universities who are not currently Bound by the First Amendment to respect the First Amendment? Adam?

Kissel: [00:02:15] Private universities have a very large diversity of mission. Some of them start with some premises that they build from, others are much more open to an entirely free Marketplace of ideas and in the American system, there's enough room for both. But what we find at almost every college and university in the United States that is a private one is a dedicated published commitment to free speech and academic freedom in more than one document, sometimes so that regardless of whether the First Amendment principles directly apply as they do in California even against private secular colleges under the Leonard law, they still dedicate themselves on their own to First Amendment principles. They say for instance at Yale: here we can think the unthinkable and mention the unmentionable and most colleges and universities will have adopted the AAUP the American Association of University professors statement on academic freedom that says that faculty members have a very wide range of freedom in their teaching research and other activities, so there's a very important set of principles that gives universities the reason to do this voluntarily and that's the search for truth. So in the idea of a liberal society that is searching for truth without bias, even a private university that's not bound to the First Amendment will say we want everything that comes out of this University to be at the highest level of quality we can muster and that means leaving faculty members free to think their best thoughts and do their best work.

Rosen: [00:04:08] Sigal, Adam points out that in California private universities are already bound by the First Amendment and many others have voluntarily committed themselves to free speech principles. Do you believe they should be formally Bound by the First Amendment?

Ben-Porath: [00:04:22] Well we start the podcast I think with a raging agreement. I'm sure we will find ways to diverge later on but I definitely agree with Adam's points and I would add that by my view private universities have a very strong public service that they are committed to and they are institutions that while private in their legal standing are in effect public in other senses. So they are public in the sense that they are providing various types of public service that relates to the mission that Adam was mentioning. We are training students which has both the public and the private benefit. We are promoting various types of research which again have a diverse set of public benefits. So we serve a public Mission and we are also in diverse ways dependent on the Public's Goodwill, right? So we are benefiting from a tax status for instance, we benefit from tax exemptions of different types, even as private institutions because of the public role that we serve so there are different ways in which private universities are also public institutions. I don't know that they necessarily need to be bound by the First Amendment formally although I think in effect, they practice and should practice their work and they should go about their business as if they are bound by the first amendment. I think it's going to be hard to do it formally particularly because of the various exemptions that religious institutions enjoy, which I don't know that people would want to meddle with. It creates a lot of tension around whether private religious institutions should be required in different ways to promote types of speech that they are- their mission stands in opposition to, but I think broadly speaking private universities should operate as if Bound by the First Amendment.

Rosen: [00:06:54] Great, so we have framed the debate with a broad agreement that in principle private universities should respect First Amendment values but a disagreement about whether they should be formally bound and Sigal has mentioned the case of religious institutions. Terry Hartle, vice president of the American Council for Education recently said, would Yeshiva University be required to host a holocaust denier? Would religious institutions be required to have speakers whose views were antithetical to the college? Adam let us now take up the question of why you believe that private universities should formally be bound by the First Amendment? You wrote a great piece in National Review 'An executive order on campus Free Speech' which I recommend to listeners which thoughtfully sets out the arguments in favor of the order. Give us the history of the order and why you think that private universities should formally be bound by an executive order to respect the first Amendment?

Kissel: [00:07:53] Thanks for those questions. There are really two different questions. I'll start with what I see is the origin of the interest in such an order. I think the idea that even private institutions serve a public benefit in particular cases is an important point, but I think the impetus for having the government get involved is that there's a pervasive sense that colleges and universities have not in fact done their job with respect to free speech and academic freedom, and we see over a long period of time, a generation really, that speech codes have existed at colleges and universities. These are unconstitutional at colleges and universities and they violate the university's own promises of free speech to their students and faculty members in most cases at private universities. So it's not just that those things are on the books, but they're used against students and faculty members and that happens across the political spectrum as well. To take a quick example of something that people were paying attention to in the Justice Department a couple of years ago. It was Constitution Day and there was a student who wanted to hand out spanish-language constitutions on Constitution Day, but outside of the free-speech zone at one of the colleges of the Los Angeles Community College District. The district had declared that all of the public areas of Campus were no longer open to robust Free Speech, but that Free Speech was really only fully allowed in a speech area, a free speech area at each campus, and the student wanted to exercise his regular First Amendment rights and be outside of the Free Speech Zone, and he was not permitted to do that without penalty. A court later said that that's not okay and the entire LA Community College District had to reverse its policy of having restricted speech in almost the entire system. So we have lots more examples like that and my work at Fire is available and Fire's work remains available now 20 years later. There's plenty of continued examples that have given us this impetus, especially in the past couple of years not just outside speakers coming to campus but again these internal issues where a student or a faculty member is threatened or punished either before the fact or after the fact for constitutionally protected speech or promised speech. So what we don't know with the executive order is what it will cover. So will it only covers speech codes? Will it cover outsiders who want to come to campus. who don't normally have a right to be there? First Amendment jurisprudence often says that the people who have the best level of free speech rights are the ones who already have a right to be there. Students and faculty staff members are in a somewhat different position, then outsiders who want to come onto campus are in a different position altogether, so we don't know that and will it cover such as in the recent UC Berkeley case where a non student was attacked by another non-student, but it was on the campus? We just don't know, so the interesting question will be what kinds of cases will the executive order cover?

Rosen: [00:11:32] Sigal, Adam gives examples where private universities are violating the First Amendment and says that it would be good to prevent them from doing that. He notes that there's some uncertainty about the reach of the executive order, in particular whether it will apply to just speech  codes or to outside speakers, but broadly says, to the degree that you both agree that private universities should respect the First Amendment and to the degree that they're not doing that now, it would be a good idea to require them to do so. What is your response about why you think that the executive order is not the right way to do that?

Ben-Porath: [00:12:09] Well, I agree with a lot of the description of what Adam was stating here. Speech codes clearly are an effort that is in significant decline. The most recent Fire statement suggests that about a quarter of the universities in the United States have some types of speech codes. I think many of them are not enforcing them. This is anecdotal. I don't have hard data on this in the same way that Fire collects about the existence of free speech codes on the books. But they are clearly not very effective beyond being unconstitutional which is of course the most important aspect. They are not an effective way of creating a culture of open expression on college campuses and I think universities public or private would do best- again, there is no distinction here from where I stand in terms of the extent to which they should just not use speech codes as a mechanism for enforcing a certain climate or a certain environment on their campus. Similarly Free Speech Zones are not I think a useful way of thinking about how we encourage students to be civically engaged, how we support an environment of open expression, and how we allow for people to distribute the constitution on Constitution Day as Adam's example shows or how we even allow them to protest, whether it's protesting political perspectives or actions or whether it's protesting the university administration's actions. They should not be confined to a little free speech Zone all the way over there by the parking garage where nobody can hear what they have to say. The whole point of engaging in free speech on a college campus is actually distinct from the point of engaging in free speech in the public square or in a democracy more generally because in the public square, the point of myself being allowed to speak is to express and reflect my equal dignity as a citizen right? I'm allowed to speak because I'm an equal citizen same as everybody else, but on a college campus, being allowed to be heard is actually a significant dimension of that. And so the construction of how free speech is enacted and practiced on a college campus is actually quite significant. So I want to agree that the engagement of private universities in an effort to stifle speech in these different ways  - speech Codes, free speech zones - is not a productive effort and it should be eliminated. However, exactly, we're going to do that- Fire has their way of reporting on this and giving green light and red light and trying to nudge institutions to become more open to free expression; if there are going to be other ways of doing so, I think that it really; I know the English phrase is the devil is in the details. I just want to say that in my language we say God is in the details.

Rosen: [00:15:35] What is the Hebrew version of that?

Ben-Porath: [00:15:37] God- *speaking in Hebrew* God is found in the small details. And so I just think, whoever we can find over there in the details, I think it's important to look exactly at how we're going to do that. I just have another quick point to make which is that other ways in which constitutionally protected speech is being stifled right now on college campuses, beyond the speech codes, etc. that were mentioned here is through recent bills that were passed in some state legislatures that prevent or punish student protest including for instance in Wisconsin where students engaging in protests are repeatedly- are expelled from their public system and there are similar bills going through in Arizona and Ohio and some other states. And so I think this is an additional concern where actually public universities are being called on to stifle students' constitutionally protected speech in the name of free speech, right? Because these bills are being passed in an effort to protect certain forms of expression which are marginalized on college campuses and to elevate them by preventing protests from taking place. So this is, I think, just along the same lines, I would like to see diverse forms of expression protected on college campuses and avoiding all of these tools that would that would limit, prevent, or punish open expression, and just about your example Jeffrey, I don't think it's just Yeshiva University that should be exempt from inviting a holocaust denier. I don't know that any University should be compelled to invite somebody who is propagating both hatred and lies. So it's not a question about whether the university's Jewish necessarily in the context of this type of speech but that's, you know, I think the example is more difficult than it needs to be.

Rosen: [00:18:01] Thank you so much for that. And thank you for the beautiful phrase “God is in the details,” which could be a motto of the We the People podcast because we need to wonk out and delve into these important legal and constitutional details in order to make up our own minds about this difficult issue. So let's get into the details now. Adam, Robert Zimmer, the president of the University of Chicago, sent an email recently opposing the proposed executive order on two grounds. He said the first troubling feature is the precedent of the federal government establishing its own standing to interfere in speech on campuses. This opens the door to any number of troubling policies over time that the federal government, whatever the political party involved, might adopt on such matters. The second feature is the inevitable establishment of a bureaucracy to enforce any government position, a committee in Washington passing judgment on the speech policies and activities of educational institutions, judgment that may change according to who is in power, would be a profound threat to open discourse on campus. So tell us about how this order once it's issued might be enforced even though we don't know the details. What's your response to this concern about a government bureaucracy located in the Department of Education or somewhere else in the executive branch making judgments about whether or not the first amendment has been violated and opening up the possibility of punishing universities in contested cases?

Kissel: [00:19:32] President Zimmer is not wrong to be concerned about both of those elements. The article I published this week represents both of those arguments as well. And Sigal's example about student protesters is maybe a good way to get into the issue. So the laws in question in these states are against student protesters who substantially disrupt the speech of others rather than everyday protesting. Now that might become a contested topic and if someone has to decide especially at the federal level, do those protesters during that minute disrupt the other event for too long or not? now you have a federal investigator or decider reaching all the way in to that detail and that can become a matter of deep contention, especially on contentious issues, which is why the protesters were there in the first place. So there is a pretty significant danger in empowering federal investigators to decide case-by-case, did something really happen or not happen that violated the First Amendment? What might make it easier as I also argue is that the executive order may not cover any of those specific cases. Certainly the Berkeley case would be one of those cases that is the application of free speech principles either working or not working, but instead to look at the black letter policy. Maybe training documents for how would adjudication is made but certainly speech codes. Those are the policies that are right there, and in many cases violate the constitution or the University's other statements and promises. So if the executive order is limited to black-letter policy rather than even standard practices, the administration would be on safer ground and secondly, if the administration waits for a federal court to say that that black-letter policy is unconstitutional and only then acts - even safer grounds. So there's no role for the executive branch. Maybe the executive branch would only wait until the judicial branch has decided before taking executive action to punish. Now in terms of precedent, it's true that if you want a federal grant, you have to certify to the government already that you're going to follow the law of the land. There's a form among many government forms, standard form 424 b for non-construction programs. You assure the government that you will comply with all applicable requirements of all federal laws, executive orders, regulations, and policies governing this program as well as eighteen other sets of things which include the Wild and Scenic Rivers Act of 1968, the civil rights laws against non-discrimination, the davis-beacon act, the Copeland act, the contract work hours and safety standards act, the anti-human trafficking provisions and the trafficking victims protection act of 2000, the lead based paint poisoning prevention act, and many more, so there's already quite a solid precedent for federal agencies being able to enforce violations of the law through the grant making power. And if you look at the authority say of the Secretary of Education, probably Health and Human Services secretary has similar authority and in fact HHS gives something like thirty billion dollars a year for fellow research whereas the education department gives much less, but the general authority of the secretary and 20 us code 1221 e 3 says: the secretary to carry out functions, otherwise vested in the secretary by law or by delegation of authority pursuant to law, is authorized to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of, operation of, and governing the applicable programs administered by the department. Also 20 USC 34 74 says almost the same thing. So there's quite a lot of precedent for federal agencies to enforce through the grant making authority various regulations and rules and restrictions that apply to those particular sets of grants.

Rosen: [00:24:05] Many thanks for those two powerful points. First, you've suggested that one way of limiting the executive order might be to private universities that adopt speech codes that are clearly inconsistent with the First Amendment or that courts have so ruled, and second you say that the current secretary has authority to require universities to comply with existing federal law. Sigal let's take the first point first because there's a lot to say about it. Private universities that have speech codes are not currently bound by the First Amendment and therefore are allowed to restrict speech in ways that the First Amendment would not permit and many have harassment codes that in the views of some courts would violate the First Amendment if they were adopted by public universities. So what do you- what's your response to Adam's narrowing suggestion that an executive order limited to private universities that adopted speech codes inconsistent  with the First Amendment should have their funds withheld?

Ben-Porath: [00:25:16] Well, I think it makes sense for both the courts and the federal government to make an effort to support the alignment of rules and practices within, again, both public and private universities to align them with the expectations and the spirit of the law as well; as Adam was saying, the black letter of the law. I actually though, I suspect that an executive order is both not necessarily going to do that and also is not in fact intending to do that. It seemed to me both because of the venue in which this executive order was first mentioned or rolled out to the public even though it hasn't been signed yet of course, and because of the context in which it was presented, it seems to me that the effort has little to do with speech codes because look at the content of the speech codes, right? What are- I mean, obviously we can talk about their legality. But what are speech codes trying to institute or promote or prevent on college campuses? There are particular words you cannot say, particular phrases you cannot use on the college campus which may or may not be a good idea. I actually do sympathize with the suggestion that this is unconstitutional also in private universities and that it might make sense to try and push either through the courts or through the federal government, ideally not through executive order, which I just don't think is the most effective or justified means to try and correct for that. Again there are other ways, as we mentioned the Fire ways, etc. But I really do think that the executive order as suggested is trying to do something different. It's trying to create a greater space for conservative voices or it's trying to create a greater space for more viewpoint diversity on college campuses. The interest here is very- is not really limited to trying to change these long-standing, and as I said rapidly declining, practices on college campuses such as speech codes and Free Speech zones. The effort is to say, look at colleges and universities or certain ones that are not hospitable to diverse viewpoints, diverse ideological and political viewpoints and we are going to try to enforce a greater or a more friendly environment for diverse political views through the use of all of these sticks, right? So if you don't do that, if you cannot represent in your actions as an institution that you are supporting specific types of speech which are currently not by the view of the federal government properly represented on your college campus, then federal dollars are going to be withheld in different ways. And I think it also matters specifically which ones and in what ways, right, but the - so we can still talk about that - but the overall effort here is not one that has to do with aligning university, including private university, practices to you know the current interpretation of the Constitution or the original intent of the Constitution or whatever other legal guideline. The effort is to promote political and ideological viewpoint diversity. And so I think we should just be clear on what the executive order is attempting to do if it was only just about updating the current efforts from the old-fashioned or arcane focus on speech codes and Free Speech zones and to move to a more contemporary vision and more of course constitutionally aligned vision of what you need, how universities can and should act. I'm all on board. I mean, I don't think there would have been much of a debate and I don't think we would have needed to talk about an executive order because this would just be a part of the you know, every day common work that's being done in the Department of Education or the efforts that are being undertaken in the Department of Education. The executive order is directed more towards a political ideological view which you know, I'm not saying in a pejorative way necessarily, but I'm just trying to frame it as what the effort here is about. And possibly we can look at a very similar effort that is just concluding in Ontario in Canada where the provincial government has put out the very similar statement last fall saying that the universities and colleges in Ontario in Canada should all endorse a free speech, their robust free speech statement or else they would be barred from the provincial government's financial support. And I mean the result of that was that they all signed off on a statement and you know the deadline for that was January first. It was a very quick turnaround. So they just signed off on, you know, an agreement that they're going to support free speech based on the Chicago statement and that was about that. I don't think this is what we're trying to get at, right? This is not what- so, you know updating our efforts, our actual efforts around free speech on college campuses is not what this executive order is about.

Rosen: [00:31:52] Adam, Sigal suggests that the executive order in an effort to promote viewpoint diversity, which the First Amendment would require, might potentially infringe on the free speech and free association associational rights of the private universities themselves. And in this sense, she amplifies a point made by Noah Feldman in Bloomberg: “Trump's plan to protect free speech on campus is a bad idea.” Feldman notes that private universities have their own free speech and associational rights; they are permitted to choose what their speakers will say and what they won't say and for the president to stop campuses from making their own choices about speakers would infringe on their academic freedom with regard- respect to determining the truth according to scholarly standards and creating an atmosphere of Civility, and to the degree that both Sigal and Feldman are suggesting that the executive order might violate the First Amendment rights of the universities to endorse some speakers and not others then would it raise constitutional difficulties under the Solomon Amendment case, Rumsfeld and FAIR, where the Supreme Court in 2006 said that the Department of Defense could deny contracts to higher education institutions that prevent the military from establishing an ROTC program, but only because requiring ROTC spokespeople was a form of conduct not speech and would not violate the speech rights of universities.

Kissel: [00:33:26] If I understand the Solomon opinion correctly, the court said that the law does not force the university to speak or not speak simply by hosting or not hosting folks in a neutral forum who are there say for general recruiting day. So whether it's ROTC or the military or anybody else, if there's equal treatment of everybody in that forum, the university is not taking a position on whether it likes or dislikes any of those participants. I may not have that exactly right. But what's important for institutional academic freedom, which I think is the issue we're talking about, is that the institution as a whole has associational rights and speech rights. So the question would be, would the government be violating the first amendment by saying to a private university whom it may and may not associate with, or in some strange affirmative action for diverse viewpoints perspective, being forced to add people to a panel or to a presentation simply to balance out the views. I don't see any such interest from what I've seen in the Justice Department's official statements of interest in the three cases that it intervened in in First Amendment law suits. Instead what I see is attention to the actual rights of the students whose rights were allegedly violated and probably were, so we don't know what's in the executive order, we also don't know really the reasons that the executive order has come to be, but we do have insight from the statements of interest filed by the justice department in some cases with cooperation from the education department as you could find online. What's interesting about the nexus for research funds is as an academic freedom matter, the one who pays for the research in this case, the government, has a pretty strong interest in that research being good and that also means that it's unbiased. So if the university, even a private one, promises free speech to its researchers, but says, but actually because of our sexual harassment policy, you can't say this or this and maybe not even study that or that because that's just politically incorrect. Then that colors deeply what the researcher feels like he or she can even study and then even in the research grant what they can say about what their findings are. So if you have money going to that private university with a speech code you say hmm maybe I can't trust that research. And so that's a pretty close nexus between the grant program and the results that you want to get out of the program. So even at a private university that has made a free speech promise, there is an important role for the federal government to protect the public's dollars because that's what the dollars are for. Now if the university has not promised free speech, they are not going to be held, I don't think ever, to First Amendment principles. So that will be an interesting question for how that gets worded if that's part of the executive order, but otherwise thinking about the bias caused to the academic researcher, not because of what he or she wants to do, but because of it being a policy of the university and the reason that being a problem for federal research dollars.

Rosen: [00:37:10] Sigal once again Adam notes that if the executive order really is limited just to speech codes, that would be unconstitutional under the First Amendment, then the associational and expressional rights that you raised would be less front and center. So let's focus on that. If, and this is a big if, all the executive order did is basically forbid private universities from having speech codes that federal courts have already said that public universities can't have, in cases like the 2010 case of Macaulay versus University of the Virgin Islands where the third circuit held that a policy prohibiting the infliction of emotional distress created a blanket chilling of protected speech, would your concerns go away or do you believe that private universities should have the ability to take positions that would be impermissible by the First Amendment such as Liberty University refusing to invite speakers who reject its religious doctrines or other progressive universities refusing to invite conservative speakers?

Ben-Porath: [00:38:25] Well, I think these are two very different examples, right? So I think to answer your question directly, if it's just about the speech code, I think our differences are quite small. I think if we're talking about universities permissibly preventing certain voices from being heard, we have to be clear about how this prevention aligns with the mission of the University. I actually don't really agree with Adam that it would be useful to only just refer back to the University's own statements and policies because this would really just invite universities to avoid making any commitments or statements about free speech in their policies or to retract their sign off on the AAUP statement of principles, etc. So, I don't know that this would be actually an effective way of promoting free speech on college campuses, which I think is everybody's goal here, right, even as we may have different interpretations or different visions of what this protection of free speech might look like, I think the way that universities have to be judged and the way that they should be assessed on their protection of free speech does have to relate back to their mission; if they are religious unity, if they are Catholic universities and they don't want to give voice to you know, student organizations or speakers for instance that are pro-choice and there are some cases around that as well, I think there is more reason to- for students and faculty people in these universities to expect that for a Catholic University that the part of its mission relates to issues related to abortion, for instance, that they would not give equal representation to views from the other side. Again, there are details here regarding, are we talking about a faculty person saying something in class? Are we talking about equal funding to a student organization that supports Planned Parenthood? I mean what exactly are we talking about in terms of giving an equal voice to people on the other side? And- but I do think that the mission of the University matters here, both the broad mission of all higher education institutions, which is to search for the truth, and to educate students, and this mission does have as one of its cornerstones a commitment to open expression because we do have to be able to hear different sides in order to assess our own views, you know going back to arguments from John Stuart Mill, right? If you cannot respond to a counter argument your view is nothing but dogma, right? You really cannot make the case for why you believe whatever it is that you believe. So I think it's beneficial for, as you mentioned, progressive universities to give enough space to conservative or other voices, because we don't have progressive universities that their mission is progressive in the same way that Liberty is- Liberty University's mission is religious, right? It's a different thing you're talking about; the actual formal mission of a religious University that's promoting a certain denomination or religious views, versus the university that happens to evolve in a way or because of historical and other reasons, cultural reasons, social reasons, has become or has come to lean more progressive. And in the second case, we really do need to maintain more space for diverse views, including conservative and other views assuming that we continue to support all of our students and to make sure that not only just all ideas can be heard but also all people and particularly all members of the university community can be heard. But you know, I think the way you phrase your question Jeffrey is really important here, because it's important to remember that the university is not one entity, right? The university actually has a very small voice in most of the speech that is happening on campus. Faculty people, student organizations, centers, department chairs, school administrations; I mean you have a lot, you know, you have a whole cacophony as you would know or recall if you were ever on a college campus, of very diverse voices, perspectives, and opinions and I think the main goal of the University as framing is to make sure that these voices are protected and supported in a neutral and effective way, right, so that if we have different student organizations, that we support them in a neutral way rather than prioritize one perspective over another. That they are able to speak to each other. We need to support academic freedom as Adam mentioned as well so that different faculty people can do their research effectively, etc. And I don't think the federal government's statements about a commitment to support and protect free speech is going to make a significant difference. I'm not saying that universities currently are doing it in a perfect way and I also agree with Adam that the federal government's effort to regulate or to meddle with the ways in which we conduct our research and promoting certain perspectives over others in some instances is either desirable or effective. I don't think it is either, but I think calling for the federal government to have an even greater role in the institution of free speech practices on college campuses is going to create a better environment for open expression. I don't think this is the right way. I think it leads us in, as you mentioned in your original question to Adam, leads us in the direction of a greater bureaucracy. You know, it's like some kind of a specter of a thought police right, like, you know expecting people to report on each other to let us know whether their institution is supporting them effectively in the way that we- instead of figuring out within their institution the proper ways in which they can respond to infringement on speech.

Rosen: [00:45:40] One last question and then we'll have closing arguments. Adam one genesis for this policy was a series of articles by Frederick Hess and Grant Addison from the American Enterprise Institute: “free inquiry and federally funded research,” which was published in a long piece in National Affairs in 2018, and they argued that as a condition of eligibility for federal funds, colleges and universities should first assure that they don't restrict constitutionally protected speech or engage in viewpoint discrimination. They should commit to safeguarding free inquiry to the best of their abilities. And third they should formally acknowledge that in accordance with federal policies, those in violation of these commitments should refund the balance of funds. They had proposed originally that this be done by Congress as was done in the Solomon Amendment, but they said a tactic less permanent, but easier to initiate, would be an executive order and they invoked as a model President Obama's 2009 memo on scientific inquiry which mandated that Federal government agencies modify their policy to better reflect Principles of Scientific Integrity. My question is, is this a good idea to do it by executive order? Is it stable and does doing it by executive order raise legal and constitutional vulnerabilities that would not be present if it were done by statute, in particular given the line of cases like South Dakota versus Dole which say that the president can't unilaterally condition funds but needs Congressional support?

Kissel: [00:47:22] The reason it's a good idea to protect research dollars is that we really do want those dollars to result in usable truth or usable results that will help us decide that the money was well spent. So to the extent that there is a nexus between the research dollars and academic freedom of the researcher, which is closely tied to speech codes, it makes good sense for there to be accountability from somewhere. Obviously a law has more staying power than a regulation and a regulation has somewhat the same staying power as an executive order. Executive orders are easier to change if the president wants to. Regulations are hard to change and often involve notice and comment from the public. So there are different ways to resolve the question of permanence, but in all of those cases since none of those are at the level of the Constitution except the First Amendment itself, a different Congress, a different president, different agencies if these are agency regulations, a different head of the Office of Management and Budget which has larger oversight responsibilities over agencies, could change any of those kinds of rules. So there's not staying power even in the Constitution as listeners know and there are threats to the First Amendment at that level as well. So vulnerability is significant. And I think the bureaucracy question should not be left behind which is why in my piece I suggest that the scalpel approach might be the best way rather than having a whole new office that will investigate individual actions or inactions by a campus. I would like to address a few things that were mentioned which would be interesting to talk about. So what would happen if a university says to get out of it, we're just going to take away that promise of academic freedom to the faculty. Well, the first thing that would happen probably is the faculty would rise up and say no, we here at the American Association of University professors chapter at X University really want to have academic freedom and we want you to put that in the policy and keep it there. So there would be a cultural benefit probably on campus for the faculty to rise up and say wait, this is the kind of place we are and want to be. So I agree that if the legislative, executive, or judicial branch gets involved from the outside and tries to tell the university what it can and can't do, that could backfire or be of limited use in changing the culture. A group like Heterodox Academy tries to work from the inside with viewpoint diversity to help faculty members see among themselves what the situation is on their campuses and what they could do. I would like to make a couple of corrections: one is that University of the Virgin Islands is a public university as is Pierce College in the LA Community College District, and even though most of this conversation has been about what to do with private universities, there's still a real question about whether this is a good idea for public universities and why they should have extra restrictions on government grants through the executive branch rather than when someone's rights are violated to go to the court, which they can already do. Another quick correction is on Liberty University. I encourage listeners to read the piece from Larry Provost this week explaining how they have welcomed people such as Bernie Sanders to campus respectfully and they've been wide open to a pretty healthy diversity of ideas. I also would like to read The Evergreen State College mission statement in response to the idea that we don't have progressive commitments. We actually do even at public colleges like Evergreen. Their key sentence says: Evergreen supports and benefits from local and global commitment to social justice, diversity, environmental stewardship, and service in the public interest. So whether you think that is politically tinged or not, they do have a mission that is not simply research and teaching and letting all flowers bloom.

Rosen: [00:51:51] Sigal your final responses to some of the points Adam has made including the fact that although executive orders can be reversed more easily than a statute, holding universities to their own commitments may be more solid legal framework than imposing them unilaterally as well as some of the other points he just raised.

Ben-Porath: [00:52:13] Right I mean I don't want to go into all of the different examples, although I think they are definitely valuable to discuss. I think we've seen a lot of censorship of opinion at Liberty University in the last year, but that's that's not the main point here. Really the main point is to try and go back to the question of what is the executive order trying to resolve, and why is it using a threat to research dollars to try and resolve it? Right? So by my understanding, the concern coming from the administration and from various conservative circles is that we do not see enough of a hospitable environment for conservative and other non progressive perspectives on college campuses, and the way that the administration is hoping to resolve this is by focusing on a threat to research dollars, which are actually immaterial to the issue of viewpoint diversity on college campuses. I think the main concern that is being raised again is related to the experiences that mainly students have through their education and to a more limited extent, the experience that faculty people have, a conservative or other- sometimes a devoutly religious faculty people or others, have on college campuses, and how we can make the campus, especially private campuses but also others, more inclusive to diverse voices; how can we allow for universities and colleges including ones that have a commitment to social justice? I know it's a red flag to some people but I think it's a pretty innocuous statement. Environmental stewardship and social justice I think are pretty broad visions. I don't know that they limit the perspectives that can be heard on campus. But I think we do need to make sure Evergreen and at Liberty and you know all the other places in between to make sure that people have an opportunity to hear different voices, to consider their own opinions and others' opinions, to reflect on them, and to be able to change their minds and so this is the goal of a university education or a college education, and an effort to come and threaten research dollars to try and coerce universities to certify that they are committed to open expression maybe through some technical ways such as a, you know, presenting a list of the conservative speakers that they had on campus I mean, I just don't think that this is going to make the kind of cultural change that I actually, you know, I'm not maybe as concerned as some people in the administration maybe, but I do think there is definitely room on some college campuses, especially more selective college campuses, to be more attuned to the need for a greater space for ideologically diverse voices on their campus. There are various ways of doing this. People are you know, making various attempts or experimenting. Heterodox Academy was mentioned. There are other efforts underway to try and create a more hospitable environment for diverse voices on college campus. I don't know that threats to research dollars are just an effective way of addressing any concerns.

Rosen: [00:56:22] Well, it is time for closing statements in this nuanced, illuminating, and important conversation. Adam, first one is to you. The question is the obvious one. Tell We the People listeners why you believe that an executive order withholding federal research dollars from universities that violate the First Amendment would be a good idea. Thank you very much for reminding us that it would apply to public as well as private universities and in the course of your statement, I'd love to hear how big a deal would this be? If it goes through what it meaningfully change the climate of free speech on college campuses in a salutary way or not?

Kissel: [00:56:59] To sum up my point, which is the same as the Hess and Addison point from the article you mentioned, public funding for research has public benefit and already has a lot of public oversight. We protect the civil rights of beneficiaries. We protect beneficiaries against lead paint. We protect them against human trafficking. Why can we not also protect beneficiaries First Amendment rights? Especially because there's a close nexus between the quality of academic research and being able to do that in a free environment where people can think the unthinkable, mention the unmentionable. And so what will happen I think even in a very limited executive order like I have suggested could exist, some faculty members will say hmm our university has a lot at stake in federal research money, and not that much at stake in getting our speech codes right, and they should really be consistent with the Constitution anyway, or our own promises anyway, so we'll just fix those up and that will be the result. So the culture will not change that much but the enforcement of speech codes will stop pretty dramatically in so far as those will no longer exist.

Rosen: [00:58:23] Sigal the last  word is to you. It's the same question. Why do you believe that executive order withholding federal funds from universities that violate the First Amendment would be a bad idea and if it goes through do you think it would be a big deal and would it change the situation on campus in a good or bad way?

Ben-Porath: [00:58:42] I think it's not a good idea because it really represents the kind of federal government overreach that stifles the opportunity or impedes on the opportunity of universities to fulfill their missions in the way that they see appropriate and according to their professional norms, their individual institutional histories and missions. I think that if it goes through, I mean the best case scenario similar to what I mentioned earlier regarding what happened in Ontario, Canada, is that it doesn't make a significant difference and possibly, and I agree here with Adam, maybe some institutions would find it appropriate to align their policies or their guidelines more appropriately with constitutional requirements including with the elimination of speech codes and other Arcane practices. I actually would like to see bigger changes in campus culture that would reflect the fact that the courts in the last 40 years or so have significantly reduced their commitment to free speech for younger people. So my perspective is that ever since, and I know we're not talking about high schools here, we're talking about the universities, but the people who are arriving to the college campus after they finish their high school education generally speaking in the last few decades have zero experience with an environment where free speech is valued at all. Ever since the Thinker decision 40 years ago or so, the courts have repeatedly and consistently restricted the free speech rights of high school students. As a result, the students that we are seeing today have very limited exposure to the First Amendment, what it means, why it is valuable, why they should respect it. And this is the intersection of civic education and open expression or First Amendment legislation, First Amendment application, that we should really focus on on college campuses. Students are just not familiar with why free speech is important and why we should protect it. This should be an important aspect of the educational mission of colleges and universities and this is what we should strive to do as a sector with the support rather than the pressure from the federal government.

Rosen: [01:01:33] Thank you so much Adam Kissel and Sigal Ben-Porath for an illuminating, thoughtful, civil, and very educational discussion of this extremely important topic. Educating young people about the civic importance of free expression is something that the national Constitution Center and both of you, Adam and Sigal, have championed with much distinction and so thank you both for spreading constitutional light and educating We the People listeners. Adam, Sigal, thank you so much for joining.

Ben-Porath: [01:02:07] Thank you.

Kissel: [01:02:08] Thank you very much.

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Podcast: The Future of Abortion Laws at the Supreme Court

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We the People a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. And today we focus on the future of reproductive rights at the Supreme Court and we'll consider key cases that have come before the court recently and preview other cases likely to reach the court soon. And joining us to dive into the constitutional and legal issues surrounding this most contested of all constitutional questions are two of America's leading voices working on these issues. Catherine Glenn Foster is president and CEO of Americans United for Life. She's litigated many constitutional and maternal health cases and testified on issues before Congress and other bodies. She previously worked as litigation counsel at Alliance Defending Freedom. Catherine, thank you so much for joining.

Catherine Glenn Foster: [00:01:07] Pleasure to be here. Thank you.

Rosen: [00:01:09] And Kelli Garcia is Director of Reproductive Justice Initiatives and Senior Counsel at the National Women's Law Center. Before that, Dr. Garcia was a law fellow at the O'Neill Institute for National and Global Health Law, and she has a Ph.D. in social psychology from UCLA. Kelli, it's wonderful to have you with us.

Kelli Garcia: [00:01:26] Great, thank you so much.

Rosen: [00:01:28] Let us begin with June Medical Services versus Gee, which the Supreme Court decided on February 7th. It was an application for a stay of the Louisiana law. It was denied by the court by a five to four vote with Chief Justice john Roberts joining the liberal justices. Justices Thomas, Alito and Gorsuch and Kavanaugh would have denied the application and Justice Kavanaugh wrote a separate dissent from the grant of the application for stay. Catherine, let's begin with you. What was the Louisiana law at issue? And why did the Supreme Court refuse the application for a stay and what did the dissenters say about it?

Foster: [00:02:12] Right the Louisiana admitting privileges case where we saw the temporary injunction put in place by the Supreme Court required admitting privileges for doctors who would perform abortions within 30 miles of an abortion facility. So this case really turned on how many doctors performing abortions could get privileges. And it was tried three years ago, at least at least two abortionists remain even after this law. This law was came into effect and two different locations. So this would not be an undue burden. Now when it comes to the temporary injunction that the Supreme Court did put in place, it's not clear yet why the Supreme Court said that or why the Chief Justice voted with the liberals to put the stake into place?

It could simply recognize that Hellerstedt controls on an emergency petition and the merits might be a different result at the merits stage. The Chief Justice did dissent in Hellerstedt, which of course was the Supreme Court's most recent pronouncement on abortion on the merits. It could also result in revisiting Hellerstedt's finding that privileges provide little medical benefit. But we do what we do expect to see if this new court will believe that the Texas Hellerstedt case was a bright line rule against requiring that abortionist have basic admitting privileges like virtually every other kind of outpatient medical provider. And we don't believe it will. The Hellerstedt case was as we might see on on Twitter, to coin a phrase, a hot mess, with a balancing test that would allow any of the hundreds of federal judges to strike down an abortion law, if he or she thought it was only marginally beneficial for women's health. And as a post-abortive woman myself and someone who, who did see harm come from that from that choice, I would I would say that that it's very important for me to see that such a law would be in place.

Rosen: [00:04:14] Thank you so much for that, and for introducing some really important cases. You put on the table Whole Woman's Health versus Hellerstedt. As you said, that was a 2016 case where the US Supreme Court, in an opinion by Justice Breyer, struck down a Texas law which had an admitting-privileges requirement requiring physicians performing or inducing an abortion to have admitting privileges at a hospital located not further than 30 miles from the location at which that abortion was performed. And the Supreme Court, citing what you called correctly the undue burden standard of the Casey case, that was the 1992 opinion upholding the core of Roe v. Wade, said that this admitting-privileges requirement would have put an undue burden on abortions because it would have severely reduced access to abortion providers within Texas. And so thanks for setting up those issues. So, well, Kelli tell us how you view the Court's decision in the Louisiana case. Why did Chief Justice join the liberals in suggesting that the Louisiana law like the Texas law violated the Hellerstedt decision and what did Justice Kavanaugh have to say on that question?

Garcia: [00:05:26] Well, thank you for that question. I think it's really important to know that what's at stake here is not just abortion access which is kind a critical and key and important but what's also at stake here is the rule of law. As it's already been discussed, the Supreme Court recently upheld in Hellerstedt that laws almost identical to the one at issue in the Louisiana case were unconstitutional and the district court in originally holding the law was unconstitutional and striking it down was correct in following that precedent. The Fifth Circuit, by not following by not following precedent, was really striking a blow to what I said, to the rule of law, and what we need from the court now and what the Supreme Court needs to do is make a clear statement that that, we are not going to overturn three-year-old recent precedent and to be clear that the Louisiana law was almost identical to the law in Texas. The Louisiana law was modeled, in fact, after the law in Texas and it had, I want to say, a thousand medically unnecessary restrictions that were placed specifically on abortion providers.

And since the law was passed abortion clinics in Louisiana went from 11 to 3. So the impact and the effect on women was real, and serious, and strong, and that when we looked at Hellerstedt, when we looked at the Whole Woman's Health case, the important piece there was that you needed to weigh and look at the harm that was being caused to women in relation to the benefits or any the perceived or theoretical benefits of the laws that were being passe. And there was no reason to make a distinction between the Louisiana law and the law that was at stake in Texas. And what Kavanaugh's dissent would do was say oh, what he wanted to say was that no, we're going to wait and and and continue to see what the harm was to women, that we're not going to take into account and listen to and pay attention to what we know has already happened and what we know the stakes are for women, and instead placed the burden and harm on women and during the time women would not be able to get access to abortion more clinics would be put under pressure and potentially close. And that is we need to, the courts need to continue to pay attention to that harm to women which was what was so clearly laid out in Whole Women's Health.

Rosen: [00:08:09] Catherine, tell us more about Justice Kavanaugh's dissenting opinion in the Louisiana case. He said that the court could have used more facts to see whether or not the admitting-privileges requirement would have imposed an undue burden and the Fifth Circuit in the case said that Louisiana women might in fact be in a different position than the Texas women because of the possibility that doctors could try harder to achieve admitting privileges. So describe this factual dispute, tell us what the Fifth Circuit said, and tell us, if you agree with Justice Kavanaugh that more fact-finding would have been helpful, what do you think it might have revealed?

Foster: [00:08:51] I would say that there's no threat to the rule of law when the Fifth Circuit simply applied a balancing test and held that the facts were different, just as Justice Kavanaugh said in his dissent. It's not a threat to the rule of law when a balancing test is a test is balanced and it comes out differently and that's all Justice Kavanaugh said. The differences here were numerous. They include geography, they include health benefits from the law, demonstrated health benefits from the law, the availability of privileges and many others. And so I think, when we look at his dissent, he was really cogent in his in how he probed that test and and and noted that in fact the facts were different and that in fact, there is no threat to the rule of law just because the balancing test came out differently in two different jurisdictions with two different sets of facts.

Rosen: [00:09:43] Kelli, what do you make of Justice Kavanaugh's dissent? Critics of it said that there were no salient differences between the Texas and Louisiana law. And Justice Kavanaugh's dissent comes on the heels of his important decision in the DC Circuit, where he sought more information about the effects of abortion restrictions on women who were immigrants and were seeking an abortion. So parse out what the connection between those two cases might be.

Garcia: [00:10:13] So in the Louisiana decision Kavanaugh really ignored the first part, the first prong of the Whole Woman's Health decision, and that's that you had to weigh, is there a benefit? There was no evidence of benefit in the laws that were passed. Again the law, the Louisiana law, was modeled after the Texas law, it was nearly nearly identical. It was result had already resulted in of clinics closing, they knew there was harm for women and once when once clinics close, they can't reopen. Once women are denied abortion, they can't get them later. Right? There's there's real harms and that wasn't and Kavanaugh ignored that and in the harms. And in the Jane Doe case that you reference, that was also same, that was the same the same thing was at issue in that Kavanaugh's decision ignored the harm that was being caused to this woman, to this young woman who was being denied access to an abortion. She went through, she jumped through the, she did all the things that she was supposed to, she was asked to do, all the unnecessary things that she was asked to do, and yet she was blocked from being able to access an abortion. And in Kavanaugh's decision, in saying that we need to get more facts and we can wait and maybe there could be maybe she could get a sponsor, that ignored the continued and ongoing harm that happens when someone is forced to remain pregnant when they don't want to be.

Rosen: [00:11:49] Catherine, we're talking about Justice Kavanaugh's decision in Garza against Hogan. He was then on the DC Circuit. If you could tell us more about the facts of that case, the law that blocked immigrants from obtaining an abortion in Texas, and why Justice Kavanaugh disagreed with his colleagues about whether or not there was a permissible interest in favoring fetal life.

Foster: [00:12:13] Yes, this Garza case, it first really bubbled to the front to the surface in October 2017. The ACLU filed suit against the Trump Administration on behalf of Jane Doe who was represented at the time by her guardian named Rochelle Garza. Doe is an unaccompanied pregnant minor from Central America,  undocumented, and she was seeking an abortion. The government said that it had no obligation to facilitate that abortion and stressed that Jane Doe had options that the government was trying to facilitate, returning to her native country or being released to a sponsor. But this really is a different issue. This issue is about whether federal funds, the Garza issue is about whether federal funds and facilities must be used to give access to abortion and the Hyde Amendment says no. It had little to do then with the impact on a patient just as Kavanaugh, then Judge Kavanaugh, was simply seeking to apply the law and searching for a result that would balance the need to avoid paying federal funds or expending federal funds and the needs of the immigrant woman.

Rosen: [00:13:24] Kelli, why do you think that Chief Justice John Roberts joined the liberal justices in the Louisiana case, and what might that say about his ultimate vote in the case if the court eventually hears it, as many expect that it will? Justice Roberts was, Chief Justice Roberts was in dissent in the Hellerstedt case; has he changed his mind or is he joining the liberals for another reason?

Garcia: [00:13:47] You know, we can't really, I can't really speculate on what was in Roberts' mind, but I will I will note again that part of part of what we are seeing in the Hellerstedt case is really, and part of what we're seeing and in the Louisiana case, is the need to follow precedent. And what we have heard from Roberts, and what we have seen from Roberts, is a real respect for the rule of law and a respect for for the courts and respect for, respect for precedent. And I think what this signals is the recognition from Roberts that the Louisiana, the Louisiana law was not distinguishable from the Texas law that was struck down in in Whole Woman's Health and, and that so what ... What the signal is that is that the Louisiana law was not distinguishable from, from the text of the, from the Texas law, and I think that is that ... Gives us hope going forward into how, and how decisions, how we're going with the decisions that we are going to see, and that there should continue to be a respect for precedent. And the reality is time and again, the Supreme Court has upheld the right to abortion and the right to abortion access. And so, we, Roberts Roberts' decision, Roberts joining that decision is hopefully a signal that the Supreme Court will continue to respect and uphold the precedent that's so important.

Rosen: [00:15:25] Catherine, if the Supreme Court hears the Louisiana case next year, how might it rule? Chief justice Roberts does care about precedent, and some have speculated that he might not vote to overturn Roe cleanly, at least not in this first case. If the court were to uphold the Louisiana law, how might a narrow opinion be crafted to do that without formally overturning Hellerstedt?

Foster: [00:15:55] You know, I think that there's no way to know about the Chief Justice, but the Supreme Court has a number of paths forward. The Supreme Court could simply say that Louisiana was different in many ways ways, ways  like the geography, like the demonstrated health benefits of the law, a number of other different aspects of that balancing test that, that really were different. And so that would establish that the law requires an undue burden affecting a large fraction of women. Not just that balancing test that any judge could apply differently.

Rosen: [00:16:35] Kelli, if the court does take in the Louisiana case a narrow approach and does not formally overturn Roe but narrows it so that it upholds the Louisiana law by distinguishing it from Texas on its face, what does that say about the future of laws affecting reproductive choice? There are several of them that are bubbling up in the states as well as in Congress. And I'll just start with the Indiana law, which involves the question of whether a state can require health care facilities to, whether a state can prohibit abortions motivated solely by the race, sex, or disability of the fetus. And that was a case where the Seventh Circuit said that this non-discrimination provision violated well-established Supreme Court precedent that women can terminate pregnancy before fetal viability. That, dear We the People listeners, is the central line that the Casey case drew, saying that abortions before fetal viability were presumably protected but those after could be regulated, as long as they didn't impose an undue burden on the rights of the women. So imagine this kind of narrow, fact-based decision possibly upholding the Louisiana law. What would that say about this Indiana law, and what the Supreme Court might do about that?

Garcia: [00:17:55] I want to take just a step back. We know, as you've said in this question, that you can restrict abortion access without overturning Roe v. Wade. And that, and a decision upholding the Louisiana law could make it so that we have a right in theory, but not necessarily a right in practice, because if you can't exercise your rights because you can't access abortion, and, then it's not a right that it's not, it's not, it's not a full right. When, so when we look at kind of what, what is coming up it is, the courts could continue to do narrow, do decisions that don't fully overturn Roe v. Wade, but that, but that do continue to restrict and allow restrictions on abortion access, which will have real impacts and effects, effects on women and effects on women's ability to access, to access, to access abortion. That being said states are also working hard to ensure that there's, there's protections for abortion and that, and that the people in their states will be able to access abortion. This also is very problematic and troubling, because where you live shouldn't make the difference as to whether or not you are able to, to access abortion, but it is a real, the reality is the balance of the court has changed. And it wouldn't, it's not going to be accurate for me to say that hasn't happened, that we don't have concerns that the right to abortion will continue to be narrowed in a way that makes it impossible for people to actually access abortion without actually overturning Roe v. Wade.

Rosen: [00:19:43] Catherine help us understand how you see the future of these state challenges. Americans United has argued that Roe is wrong and should be overturned. But if the Supreme Court instead narrows Roe without overturning it, what is the future of state laws like the Indiana law which prohibits abortions motivated solely by race, sex, or disability of the fetus. Or, to take another state law, the Mississippi law which bans abortion after 15 weeks and mandates a 24-hour waiting period. Could the court uphold those laws without formally overturning Roe?

Foster: [00:20:16] Sure. Well, first of all, touching back on Roe. Roe was a political inside job by nine men who didn't understand abortion, let alone women's health, and had never seen a baby's beating heart on ultrasound beginning at six weeks, as documented by AUL senior counsel Clark Forsythe in his book Abuse of Discretion. It struck the abortion laws off the books in 49 states and was so extreme that the Supreme Court spent the next 10 years seriously backpedaling on the broad, unlimited right to abortion it had created, ruling that states could limit abortion to licensed doctors, that states could require abortionists to get full informed consent, that states could decline to use taxpayer funds for non-necessary abortions. And so we saw that kind of, of backpedaling there. And in part that was due to the opinion, to the very publicly stated opinion of a number of legal scholars on both the left and the right, including those who support abortion rights, who have said for example that Roe went, went too far too fast, that Roe was, was not tied to constitutional precedent, as former Justice Sandra Day O'Connor said, calling the the Supreme Court the National Abortion Control Board.

Moving forward to the present day, it seems that abortion advocates want some kind of balancing test to allow judges to strike down any law they feel doesn't provide sufficient benefits, but now complain that it is it doesn't strike down every admitting privileges law, every life-affirming law that, that state lawmakers, responding to their constituents and to the increasingly pro-life, life-affirming perspective of the American people, advocate for and are able to pass. And so looking specifically at for example, the the PRENDA case out of Indiana and the current petition to the Supreme Court, which forbids the practice of aborting a child for personal preferences, such as wanting a boy instead of a girl or perceived challenges faced by the baby, when we all have challenges, even eye color. And we see that abortion advocates such as the ACLU, Planned Parenthood, they won't even condemn the practice of sex selection abortion, which has caused serious male-female imbalances in Nations like India and China, and it's coming to the U.S. So, so we see that that there are serious concerns here and and I do believe that the Supreme Court could roll back Roe without without engaging in a wholesale overturn. Even though a number of legal scholars on both the left and the right have advocated for that very thing.

Rosen: [00:22:44] Kelli, we're focusing on the constitutional, not the policy question, and Catherine has argued that she believes Roe was wrong as a constitutional matter. Tell our listeners why you think that Roe was correct as a constitutional matter, as well as the Casey decision. And do you believe that Roe and Casey would require the court to strike down the Indiana and Mississippi laws restricting abortion?

Garcia: [00:23:10] So I yes, I do believe that the, that Roe and Casey and Whole Woman's Health would require that the Supreme Court struck down the, strike down those laws. And a ban on abortion, a ban is a ban.  And so bads like, like the one in Indiana, it's a ban, it sounds, telling women, they can't have abortion. And, and that is clearly unconstitutional under both, both Roe and Casey because those, those, those are bans, and the reason… I will admit that it is striking to be asked that question as to why Roe and Casey were correctly decided, because they are so fundamental to to our rights. And so om asking that question you're kind of asking why should women have rights. And that that can feel shocking and challenging to answer, but the reality is it's because the Roe and Casey recommend, recognize that women do have a fundamental right to privacy, we have a fundamental right to to make decisions about our bodies, and that anti-abortion lawmakers and lobbyists should not be in the position of being able to impose their personal beliefs on decisions that should really be about a woman's, a woman's ability to make decisions for herself and control her agency and control her dignity. And so when we talk about striking down Roe and overturning Roe, overturning Casey, what we are talking about is saying that women don't deserve the fundamental dignity and respect that should be afforded to them in the Constitution.

Rosen: [00:24:52] Catherine, let's turn to federal law. The Pain-Capable Unborn Child Protection Act, or Micah's Law, is pending before the Senate. It would make it a crime to perform an abortion if the fetus is 20 weeks or more and that tracks state laws, including a Missouri law which would prohibit abortions after 20 weeks. And you have testified on behalf of the Missouri version of the federal law in written testimony that I recommend to listeners. Tell us about the federal law, what are its chances of passing, and why do you believe that it is consistent with the Constitution?

Foster: [00:25:32] Well, if we can first perhaps go back to, to Casey and to Roe and to that, that abortion right, there is no right to abortion in the text of the Constitution. Women don't need abortion to succeed. And I think that's one of the lies that's been perpetrated and and spread throughout our culture today. There's this idea that women rely upon abortion in order to to arrange and plan for our education, our careers, our families, our futures, and that's simply untrue. We can succeed on our own merits and I would argue that a society that does not accept us on our terms for who we are and in the fullness of who we are is not the right society, is mis-ordered, and that is what needs to change.

I would also say more women are in the workforce today than ever, even as abortion is dropping, it's been dropping since 1992, and just as we've seen the the shift in public opinion polling and, and, and the Supreme Court. And a right to abortion disregards the fact that two human beings' lives are involved. When you look at it Casey, in fact, the Supreme Court relied on liberty, not on privacy, so privacy is is really off the table. When, when we talk about the federal Pain-Capable Protection Law, that is, that's a really important important piece of legislation for a number of, of different reasons. First of all, when we're talking about the the children, science has shown that around 18 weeks, medical fact, babies can feel pain on being torn limb from limb. This is something that was unknown to the court in Roe. You wouldn't treat your dog that way. You know, thinking back on Michael Vick and, and what we saw there, the very correct response we saw to him and that scandal, really.  Moreover, we've seen the exponentially greater risk to women and women's health after that 20 week mark when women are, I think it's 91 times, more likely. I'm sorry 30, 35 times, yes. More, it's 35 times more dangerous at 20 weeks than during the first trimester, and exponentially after that, every week the the risk of maternal mortality rises. This is a critical issue and it's something that impacts both, both mothers, both women and girls' health, and, and impacts of course the, the pain of the of the child.

Rosen: [00:28:13] Kelli, Catherine said that in Casey the Supreme Court relied on liberty, not privacy, and there was also an equality strain in Casey where the plurality opinion talked about restrictions on abortion as affecting women's ability to define their own life paths. And Justice Ginsburg has emphasized in her opinions in the partial-birth abortion cases that restrictions on abortion violate the Equal Protection Clause. Tell us about that argument, whether you agree with it, and then also your thoughts on Catherine's arguments about how women's health is increasingly threatened after 20 weeks and that might be relevant to the constitutional calculus.

Garcia: [00:28:55] Thanks for that question. So I I was actually struck by something Catherine said, which is that I thought where we have a point of agreement. In her answer, I mean, she said that it's, I think I'm quoting this correctly, a society that does not accept us in the fullness of who we are is not a society we want to have and I think that's right. I absolutely agree with that. And that is why when we talk about, talk about the issue of Liberty that was at that was talked about, that Justice Ginsburg talked about in Casey, as well as the right for women to be able to make their own decisions and control their own life paths, that is what is at stake. The ability of women to be accepted for who they are and plan their lives the way they want to plan their lives, to have…  Their dignity respected, their autonomy respected, their ability to make decisions for themselves about what they're going to do but their bodies and with their futures and with their lives, and that is what was at stake and that is what was being affirmed.

I think it is incorrect to narrow that down to a kind of success argument. It's not about, yes, we talk about abortion making it possible for women to make decisions about when they're going to have go go to school and to stay in school or make decisions about their careers, but that is part of what we are talking about when we're, when we say this is about your ability to control your own destiny. And what that means is your ability to decide whether, when, and if you want to become a parent, and that has that has consequences for our, in our world as to whether or not kind of the kind of success that you have. But regardless of those consequences and what that means for your career success or for your jobs or your education, there's still a fundamental need to be able to control your own destiny to choose whether or not you're going to become a parent. And that is what is at issue and that is what we're talking about and that is, when we talk about being able to make your own and define your own life plans. And so moving on to…

Actually, I want to say more on that. What's also important to hear is that people, people know this. Right? Recent polling that we did showed that 7 in 10 voters want, do not want Roe to be overturned. People, voters, do not… Recognize that when women have made the decision to have an abortion, they should not be shamed. They should not be restricted. This is where people are, so it's not so, people recognize the importance of being able to control your own life path.  

And that, so moving from there on to the, the question, this more specific question about about women's health. And so what what we're seeing in these laws and in these bans, these are, this is the, this is a ban that we're talking about, right? It's banning abortion. It would make it impossible for women to get abortions after, after certain points in time. And really again, this is about anti-abortion lawmakers and lobbyists trying to insert themselves into medical decision-making. And a woman's health is really what should be guiding important medical decision-making throughout her pregnancy. It should not be political interference. And so, these laws are trying to have, have legislators make important medical decisions, get in the way of a woman's decision-making, get in between a woman and her doctor. And I just don't think we really want to do that and really want to go in that direction. And the, this, this questions, the reality is abortion is an incredibly safe procedure. It is it is safer than many procedures, like common procedures that people have even, even as we get later in pregnancy. And so it's disingenuous and to say that the concern is about women's health when we're talking about these bans because the reality is, pregnancy, childbirth are in—can be very dangerous and they can be very dangerous to different groups of women. And what this would do, what these laws would do when we have these bans,  it would get in the way of women being able to make these decisions that are best for for their health and for their lives. And again, it's telling doctors, It's restricting doctors in what, what they can do and making it so they cannot give their patients the best medical care and so it's really it feels very disingenuous to be kind of trying to make health claims around that.

Rosen: [00:33:51] Catherine, any response to those claims about the, who should decide threats to women's health when it comes to the 20-week bans? And then also tell us about the Tennessee law that is pending, that would ban most abortions once a fetal heartbeat is detected about six weeks into pregnancy. Tennessee is among several states with bills like that pending and the goal is to trigger a legal challenge to Roe v. Wade. What's the status of the Tennessee and those other laws, and how are they likely to fare?

Foster: [00:34:25] Again, no one is about shame. And as I said, I'm post-abortive myself. When we look back at Casey, Casey was talking about the right to define for oneself the meaning of human life, but there are two human lives involved here. So do what you want with your own body. The issue is when someone else's body is involved as well. Looking at the autonomy issue, no one's an island and everyone, every choice that we make it, it's very relational. It's in relation to your spouse, your partner, your family, your friends, your community, the, all the different members of your own community that you've built for yourself. And one of the beautiful things that we've seen over the last decades is that there's more support now for women who bear children. That's another one of those presumptions of Roe that's gone by the wayside. We don't see that same shame now in unwed pregnancy. We have numerous resources. We're fighting back against pregnancy discrimination and we have laws against that and that's something that Americans United for Life has litigated for. We strongly support laws against pregnancy discrimination and allowing women to to fully experience life and, and the workforce in America.

I would also ask if health is really the factor, wouldn't, when a patient, when a woman decides or chooses abortion because, because maybe it's a girl, because of an eye color, etcetera. This isn't, this isn't always a health issue. It almost sounds, sounds somewhat eugenic and the presumption is also wrong that this is a decision between a woman and her doctor. Most women, myself being one of them, never see the doctor who's going to perform the abortion until they walk in the room to perform the abortion. Not during the consent process, not during any kind of consultation or anything like that. It's literally when the doctor walks in, you spend perhaps five minutes in the room with the doctor and then he's gone.

When it comes to to Tennessee, and that law in Tennessee, the heartbeat law, we don't think that the Supreme Court is going to take one of these cases at this time. There are so many different cases coming up through the court system. We've already talked about about Indiana, the, the PRENDA cases, the human fetal remains out of Indiana, admitting privileges, things like that, out of Louisiana and other places, other, other types of lawsuits. Ultrasound requirements, which, which I again personally feel is absolutely critical for women as a, as a part of full informed consent. That's something that was denied to me in my own personal experience. I asked to see the ultrasound, I was refused, and that would have made a critical difference in my informed consent and in my choice. So when it comes to heartbeat, we don't know that the Supreme Court is going to take one of these cases at this time, but they do show that there is a large number of states who do want to protect human life at the earliest stages.

Rosen: [00:37:13] Kelli, your thoughts on the Tennessee law, banning abortion once a fetal heartbeat is detected about six weeks into pregnancy? And Catherine mentioned a series of other laws that are coming up through the system. Out of all of those, which do you think is most likely to reach the Supreme Court after Louisiana?

Garcia: [00:37:35] So I just wanna kind of preface, or start this conversation with going back to again another, a great point of agreement on, that we have. So we. the National Women's Law Center, and my in the work that I do personally, really works to support end things like pregnancy discrimination and make it possible for women to make decisions for themselves. And so if you are pregnant and you want to stay in the workforce, we should have supports for that. Of course we support those things, because what we support and what this again kind of fundamentally is about is women's ability to make decisions for themselves and plan, plan their lives accordingly. And so. I've just, I welcome these points of places where we can, can, can agree that we want to support, we want to support women's ability to make these decisions. And part of supporting women's autonomy and ability to make these decisions is to support their ability to plan their pregnancies and the ability to end pregnancies if they don't want to be pregnant. And it's fundamental to your, to your dignity, to be able to decide to make this decision to yourself, and to be able to end a pregnancy, when that is what is the correct decision, the correct decision for you.

And then, thinking about the Tennessee law which would ban abortion at 6 weeks, which is before most women would even know that they're pregnant, it's, it's an abortion ban. I mean it would make it, make abortion inaccessible, which for all the reasons that we talked about, that I've talked about just now, it goes, that strikes at the heart of women's ability to make decisions for themselves in the heart of their dignity if you can't control your own, control your own body. And so we would hope and… that these, these bands would continue to be struck down. The Supreme Court, again, has reaffirmed this time and time again, that you can't just, you can't just ban, have a ban on abortion.

But also the reason Catherine was able to kind of there, there are, there are many, many laws, many abortion restrictions. Since 2011, states have passed 401 abortion restrictions. And these restrictions are really aimed at making it harder for women to be able to access abortion and about really getting in the way of women's decision and getting in the way of women's decision-making. And so, there's, there are many sets of laws that continue to be challenged. I don't think I can speculate on which ones are going to wind up making their way to the Supreme Court, but I do think it's that, these laws, the reason you know, they're being challenged is because they are going, they are going to the heart of women's, women's rights and women's ability to make these decisions for themselves. And they, and they are chipping away at women's access, access to abortion and making it harder for women to make these very fundamental decisions. And what's important, what's important to note and we haven't been able, haven't talked as much about today is the way in which these restrictions in when they go forward fall most on people who are already having a harder time accessing care. So if you are living in a rural state and you are have a hard time getting to a doctor, period, but then when you have an abortion restriction being able to have an, get, and get to abortion and abortion provider is that much harder, which is part of what we saw when we talked about what's happening in Louisiana and what was happening in Texas. When abortion clinics started closing and when people couldn't access, get an access to abortion, the problems of having to drive, the problems of having to take two, two extra, multiple days off, where multiple and medically unnecessary days off of work. And so, it's important to note and to keep in mind the ways in which these abortion restrictions continue to make it harder for women, to women, harder for women to access abortion and to access what is supposed to be a fundamental right.

Rosen: [00:42:05] Catherine, at the end of February the Trump Administration issued the final draft of a rule that would change Title X, which is the federal program that provides birth control and other reproductive health services to low-income Americans. Under the new rule, any organization that refers patients for abortions is ineligible for Title X funding to cover STD preventions, cancer screening, and contraception. It's already illegal to have federal funding for abortion in most cases. Tell us about the rule and whether or not you think it is consistent with the Constitution and the laws.

Foster: [00:42:36] Right, so the, the federal Family Planning rules essentially go back to, to a Reagan era regulation and and ensure that there will be physical and financial separation between, between the facility that's receiving the Title X funds and, and the facility that's performing abortions. Now the facility that is receiving the funding is still able to discuss abortion, is still able to, to talk about it, to counsel on it. But, but simply cannot refer to it because one of the things that we were seeing is that we would see facilities simply bring women in the door and refer them next door to the, to the facility next door there. And so we're really pleased that HHS has taken steps to stop Title X funds from subsidizing abortion, along with the Reagan Administration. We've always said that taxpayer funds shouldn't be used to pay for elective abortions, that both my health policy standpoint as well as a taxpayer right of conscience standpoint, there are much better things that we can do with with taxpayer dollars as was upheld as well in '91 in Rust v. Sullivan, very similar, very similar regulations there.

Rosen: [00:43:55] Kelli, your thoughts on the proposed changes to Title X that would make organizations that provide contraception, cancer screening, or STD prevention ineligible for Title X funding?

Garcia: [00:44:07] So just want to take a bit of step back and talk about Title X, give a little more background on Title X, so, you know Title X was established about 50 years ago, to, it's a family planning program and is really designed to make sure that everyone, that people across the country, were able to access quality family planning and sexual health care, and this includes affordable birth control and essential care. It's really focused on making on making, on equalizing access to care, sp that low-income women and families were able to get the family planning services that they need. This rule, this, the Trump administation's current rule, is really unlawful, coercive, and harmful to public health because it, in the ways in which it's going to restrict and make access to family planning harder. It disregards medical ethics and the federal guidelines on healthcare quality standards. And to give, the rule does many, many things that would, could essentially gut family planning services, and which would be particularly problematic and hard in, in areas, again kind of rural areas, places where people, where the Title X clinics might be the only ones that are available to get family planning services.

But that's what this rule does. It really would give the administration kind of largely unchecked authority to reshape the network of Title X providers, and regardless of what the providers abilities are, the history, the history or the capacity of these providers to actually deliver the kind of quality care that these communities really need. It's going to mandate kind of, very onerous, unnecessary, cost prohibitive physical separation requirements to, at the very minimum intimidate, if not punish or kind of kick out the existing Title X provider networks that have been following Title X law and provide these critical services. And it's, I just want to say the Title 10 clinics that you know, they, people often think, I think when we, there's if you think and you know about Title X and have heard about these people often kind of jump to think of only Planned Parenthood and Planned Parenthood's an important title X provider, but the Title X clinics are go, or go beyond that and are not just Planned Parenthood providers, but are key, critical, including the Parenthood providers, are these key critical providers of healthcare within communities that don't have necessarily have access to health care otherwise. And so when we gut the Title X, when we make it harder for these clinics to participate in Title X or potentially kick them out of the Title X clinics, what we're talking about is making it so that people aren't going to be able to access family, access family planning.

Rosen: [00:47:03] Well, it is time for closing arguments in this rich and illuminating debate and Catherine, the first one is to you. We've talked about a wide range of laws regarding abortion, ranging from physician access rules to fetal heartbeat rules to bans on abortion after 20 weeks. As you look at the next three years, do you believe that most of these state and federal restrictions will ultimately be upheld by the Supreme Court or not? And why should our listeners care about the constitutional battles to come?

Foster: [00:47:39] Thank you. Going back to Roe, Roe took one of the most divisive issues in America out of the hands of the people. In spite of that, the drumbeat against abortion has only grown louder and louder over the last forty-six years. Hundreds of thousands march in the freezing cold in January every year to protest the decision. States have passed hundreds of pro-life laws protecting women and children from abortion and increasingly ever since 2011. And as a new Marist poll this week notes, an increasing number of Americans describe themselves as being pro-life. A majority of Americans want to see major rollbacks on abortion to at least the end of the first trimester. A majority of Americans do not want their hard-earned taxpayer dollars going to pay for elective abortions, whether here in the United States or overseas. And a majority of Americans, as was shown by a number of polls recently, including Americans United for Life poll of more than a thousand American adults, Americans do not want to be associated with the radical pro-abortion agenda being pushed in places like New York and Virginia. We see even two-thirds of even those Americans who self-described themselves as being pro-choice saying that they oppose third trimester abortions, that they oppose abortions the day before a baby is due to be born, that they oppose this practice of debating whether to continue health care for a child who, who is already who's already been born.

So when we look at that, when we look at what happened even, in even this week, when we see that some of the pro-abortion politicians can't even bring themselves to vote against infanticide because it looks too much like abortion and might hinder abortion access, the very same reason why Pennsylvania didn't inspect Kermit Gosnell's abortion clinic, which led to the house of horrors that shook the nation really, but the left can't even vote to condemn the kind of criminal wrong that Kermit Gosnell went to jail for. I would also say that only a small fraction of the family planning providers actually perform abortions or are associated with a facility that performs abortions. Many facilities nationwide already separate their family planning and their abortion elements, for example throughout Texas and Iowa, and it's not as difficult as some make it seem.

We see that abortion providers and facilities simply want the right to refer patients to their abortion centers down the hall or next door. And Justice Alito was right in dissent in Hellerstedt: there's no evidence that abortion facilities were closing because of the privileges law. We've seen many different reasons nationwide why abortion facilities may close. At times it may be a business decision, consolidation, and in fact one owner in Texas complains that Planned Parenthood was driving them out of business economically. We see that in red states as well as blue states and, and the broad swath of American states.

Like Kelli, I welcome our commonality, you know our opposition to to shame, that society should accept us as we are, in opposition to pregnancy discrimination in all of its forms, dealing with the the differing health care experiences of different populations within our nation. And I'm thinking specifically here of of black woman's child birth experiences. And, and we have a long way to go when it comes to protecting our women and our children, but I would ask why abortion advocates oppose full informed consent, including information on social support services and financial support. We see that abortion facilities seem to assume that every woman who comes through their doors has already made her decision, when that's not so. About 80% of those women and girls who see ultrasounds choose life. That's something that was denied to me and I can speak personally. I had not made a concrete decision when I walked through those doors but um, along every step of that process, my choice, my autonomy were stripped away from me and and I wasn't afforded that that privilege and that choice that I thought I had walked in the door with.

So, so that's, that's concerning. I would ask why abortion advocates oppose common sense health and safety regulations that would protect women like me. I would ask why radical abortion proponents are advocating for the ability to remove health care from a child who had been intended for abortion but a child who was already been born, a child who can in all 50 states be placed in a loving home through adoption or even dropped off at a safe haven such as a healthcare facility or a fire station. There are so many options that allow a woman free choice once the child has been born and that's what we advocate for. We want everyone, every American to be welcomed in life and protected in law, and we advocate for women's health and that full spectrum of holistic genuine health care that welcomes both mother and child.

Rosen: [00:52:30] Kelli last word to you. We discussed a range of issues from physician access laws to fetal heartbeat laws. How do you expect these restrictions on reproductive choice to fare before the courts and the Supreme Court, and why should our listeners care about this constitutional debate?

Garcia: [00:52:49] So the Supreme  Court has, time and again upheld the fundamental right to, the fundamental right to abortion access and we continue to expect that the Supreme Court that will uphold and respect the autonomy and dignity of women as they be able to make this decision as to whether and when to be pregnant. The… I do want to kind of say that we, again, have kind of points of points of agreement. We have points of agreement in that we want to make sure that women have access to the full spectrum of, I think as Catherine said, genuine health care. And that's, that is what we, that is what we are advocating for and that's what we support. And the full spectrum of Health Care includes access to, access to abortion. And I will also say we, I was very fortunate of a year, year and a half ago, to have representatives from Whole Woman's Health in Texas to come and talk to us and show us what an abortion experience was like there. If I could get health care that was as caring and as thoughtful and as generous as the healthcare that was being provided by Whole Woman's Health, I would love, I would be so thrilled.

They, the thought and the time that goes in, that they put into making sure the people that come in to their clinic are supported, and that they are making the decision that is the just the right decision for them and that they have the support before and after was amazing and astonishing and is the kind of health care that we all deserve. And so when I when I'm advocating for abortion access, I am advocating for a world in which everyone has the ability to access, to have that kind of health care. And the reality is to have that kind of healthcare for for abortion, but to have the kind of healthcare across the board. What we stand for, the proposition that we stand for at the National Women's Law Center, the proposition that we have been advocating for is that everyone should be able to access the healthcare that they need free from discrimination, free from prejudice, without judgment, when they need it, and where they need it. And that is what this is about. And so that, when we're talking about abortion restrictions, when we are talking about these issues, it comes down to that basic statement. We should all be able to get the health care that we need without judgment and without political interference.

Rosen: [00:55:44] Thank you so much. Kelli Garcia and Catherine Glenn Foster for an illuminating, educational, and civil debate about our most contested constitutional issue. And thank you for educating We the People listeners about the future of reproductive choice at the Supreme Court. Kelli, Catherine, thank you so much for joining.

Garcia: [00:56:04] Thank you

Foster: [00:56:06] Pleasure to be here.

Rosen: [00:56:07] Today's show was engineered by Kevin Kilburn and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Homework of the week: dear We the People listeners, this was a contested topic, but I'm going to give you some tough homework. Read the Roe v. Wade decision. Read the majority opinion and read the dissent.

And if you find that your policy conclusions are diverging from your constitutional conclusions, write to me and tell me why. In other words if you are pro-choice, but you find Roe v. Wade constitutionally unconvincing and would have voted with the dissenters, tell me that, and by contrast if you are pro-life and find Roe v. Wade constitutionally convincing and would have voted with the majority, I'd love to know that too. ...

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Podcast: Is the Presidency Too Powerful?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On today's episode we have a special Presidents Day debate on the central question: Is the presidency too powerful? We'll trace the historical evolution of presidential power and the Constitution from the founding today and explore some of the current debates that are transfixing the nation involving presidential power and joining us to do that are two of America's leading scholars of the presidency and the Constitution, Friends of the Constitution Center and of the We the People podcast and I'm so excited to learn from both of them. Eric Posner is Kirkland and Ellis distinguished service professor of Law and Arthur and Esther Cane research chair at the University of Chicago Law School. He's the author of many books and I want to recommend to you the executive “Unbound After the Madisonian Republic” to cast light on today's topic. He co-wrote it with Adrian Vermeule and he's also written many other works on constitutional international law and financial regulation. Eric thank you so much for joining.

Eric Posner: [00:01:09] My pleasure.

Rosen: [00:01:10] And Julian Zelizer is Malcolm Stevenson Forbes Class of 1941 professor of history and public affairs at Princeton University. He too is the author of many books on American political history including books on the Carter, Reagan, and Johnson presidencies. And he's the author most recently of “Fault Lines: A History of the United States Since 1974,” which he co-wrote with Kevin Kruse. Julian. It's great to have you with us.

Julian Zelizer: [00:01:36] Thanks for having me.

Rosen: [00:01:38] Eric let's start with the founding. What was the founders conception of the presidency under the Constitution? Why did they believe that Congress rather than the president would be the most dangerous branch? And how did they expect the president to behave? 

Posner: [00:01:55] Well, it's you know, it's not entirely clear what they thought. They were different people. They said different things. They thought different things. They changed their minds later on. But I think a simple way of thinking about it was that there were two basic notions of the presidency. On the one hand you could think they some of them thought of the president is kind of like almost a clerk, you know, he was the executive, he would execute the laws and of course, he was very important and he would be Commander in Chief during war but really policymaking would be done by Congress and then the executive would just follow through on whatever policies Congress chose and enacted in law. At the other extreme though, many of them thought of the president as well the president was officially, the executive branch was officially a co-equal branch with Congress and the president would have policymaking authority. His ability to veto laws, for example, could potentially give him policymaking authority. I think people understood he would have a lot of influence over foreign relations, which would give him policymaking authority. Now, you mentioned that Congress- that the founders were worried about Congress and they were worried about Congress because of their experience with the state legislatures in many of the states which had in their view acted irresponsibly. And so part of the idea was to have the president of the executive branch put a constraint on Congress. And of course, there are other constraints put on Congress as well. But you know, the bottom line was there was a lot of ambiguity about what the president- presidency would look like and I think a lot of them just assumed that George Washington would be the first president and they could trust him to kind of set the contours for the future of presidential power.

Rosen: [00:03:56] Thanks so much for that helpful distinction between those framers who believed in the president as a kind of clerk or a chief magistrate as President Taft put it and those who thought that the president had more policymaking power. Julian how was this debate represented in the Constitution? The Take Care Clause in Article II both grants and constrains presidential power, forbidding the president from breaching federal law, but empowering him to refuse to enforce laws that he thinks are unconstitutional, but describe your conception of the debate during the framing era about the presidency and how it was reflected in the Constitution?

Zelizer: [00:04:44] I think the debate itself is the evidence of the debate is the Constitution and this kind of separated divided fragmented power that's cooked into our system. So you do have a president, you do have one source of centralized power which was there at the founding despite the origins of our country and I think that's very relevant. I think the response to state legislatures is a really important part of the story, but you can see there were many checks built in from the start. So in terms of the power of the purse, it was very important that it was not vested in the executive branch. It was placed really in the hands of the House of Representatives, which was the most popular, directly elected institution that we had. The power to declare war was given to the president- [I mean] to Congress, and the same way in which the president did have the ability to circumvent or check legislation, Congress still had the primary role as the policy-making institution and it had the power of impeachment which was a last resort, but powerful resort for the removal of the president. And so I think the ambiguity and kind of tensions over executive power are very much reflected in how the Constitution is constructed, in some of the rules we had from day one that continue today that don't give the president that power that they often crave in moments of crisis or in moments of ordinary legislating.

Rosen: [00:06:22] Well, the question we want to dig into on the podcast is has the Presidency usurped the Congress's Constitutional power over the purse and the power to declare war over the course of the 20th century and it- fast-forwarding to 1912, We the People listeners know about the significance of that election in pitting perhaps our last constitutionalist president, Taft, who said the president could only do what the Constitution explicitly allowed, against two Imperial presidents, Roosevelt and Wilson, who claimed that the president could do anything that the Constitution didn't forbid; that's speaking broadly, but Eric is 1912 an important turning point and would you describe Theodore Roosevelt and Woodrow Wilson as the presidents who most changed presidential power in the 20th century? And in what ways did they change it?

Posner: [00:07:16] Right I mean the word usurp has a certain quality to it, which I might not agree with but basically the story is that the presidency was weak throughout most of the 19th century and then it became very powerful in the 20th century. I'd probably date it 1901 which is when Theodore Roosevelt first entered office after McKinley's assassination, but 1912 is fine if you want. It was not a sudden process. It was a gradual process. There were certainly some very powerful 19th century presidents including well George Washington and Andrew Jackson. Polk was, Lincoln, but those- they were- they were exceptional and what happens in the 20th century is that the powerful president becomes institutionalized and you know, this is a long and complicated story, but I'll just say very briefly what I think happened and I think this is more or less the conventional wisdom. The United States toward the end of the nineteenth and into the 20th century became a global power and it developed a national economy. So this earlier constitutional understanding which gave a lot of power to the states and more power to Congress than to the president had to give way so that a form of government could arise that would be adequate to these new tasks of regulating a national economy and of conducting foreign relations, and so a lot of power moved up from the states to the national government and then the issue that we're concerned with is how that power was then allocated between Congress and the presidency, and I want to return to this word usurp again. I- you know, I think it's not the right word to use because what really happened was that the presidents were given power. You know, they sometimes grabbed it. They sometimes were given it. Congress by statute gave an enormous amount of power to presidents over the course of the 20th century, well really starting in the 19th century, but the major changes were in the 20th century. And in other ways when presidents asserted power based on often a tendentious interpretation of the Constitution, congress and the courts would acquiesce. So it was not a usurpation. It was a gradual process in which as a general, in a general sense the political class and I think the public more generally accepted a shift of power from Congress to the president.

Rosen: [00:00:00] Julian do you agree that the story of presidential power is more of congressional surrender than presidential usurpation? Tell us about the significance of the Theodore Roosevelt presidency, 1901 or his run for office in 1912 under the banner of the president being a steward of the people and what in particular happened during the Roosevelt and Wilson presidencies that allowed both presidents to assert executive power in ways that Congress accepted?

Zelizer: [00:00:35] Yeah, I mean, I'm as a historian, I always end up saying it's a little of everything and that's how we tend to see these issues. So I think there is an element of usurped throughout the 20th century. There's part of- Teddy Roosevelt for example, who is president, really reimagined what the institution was and made it something that was much more visible to the public, an institution that was more visible than it had been for most of the 19th century, in part through his use of the press and media relations as a way to get his agenda out there, as a way to fight against his opponents in Congress, and he took a more assertive role for example in foreign policy. And you see the same with Woodrow Wilson so that early 20th century, there's part of these presidents simply making the institution more muscular and actually expanding the executive branch and it's apparatus. There's part of it that's given. I think Eric's correct on this. It's given in part by Americans who in the early 20th century are living in a more complex world with industrialization and urbanization and more tensions overseas, and there's a desire which will continue for more some kind of centralized source of authority. Congress never works very well and so as our problems became more complex, I think that was appealing. And certainly when Woodrow Wilson brings us into World War I that's a real turning point in that our role overseas will never revert to what it was in the 19th century and that will bring a series of policy problems that gives support to having more presidential power on national security. My final answer is Congress doesn't actually give everything away. Congress remains very influential throughout the 20th century, right, through this day, and really it's a matter of when they want to use their authority. Often Congress doesn't. They're happy to let the president handle problems, but there's other moments we've seen where congressional power flares up and I'll just kind of give one example people don't talk about. It's the end of the 1930s -Franklin Roosevelt is president, he's been re-elected in '36 and he's one of our most powerful presidents not just then but even to this day, but after the 1938 midterms, a coalition forms in Congress of Southern Democrats and Republicans who oppose a lot of where FDR wants to go on issues like race relations and other kinds of policy questions and they become a very powerful check against the president. FDR really has trouble getting a lot of his remaining domestic ambitions onto the table and presidents through Lyndon Johnson will continue to face a very powerful block in Congress that doesn't believe in imperial presidents and makes that clear and you've seen that in other kinds of flexing of congressional power. So I think all three are important to remember as we sort through what happened to the presidency in this era.

Rosen: [00:03:57] Thank you for putting on the table the importance of congressional pushback to executive action. And thanks for putting FDR on the table. Eric let's think about the FDR presidency as measured by the number of executive orders that he issued. So Franklin Roosevelt issued more executive orders than any other president in US history, 3728. That's up from you know, Washington had eight and in the 19th century was sort of in the 10 to 20 range, Lincoln at 48 was the biggest 19th century number, then the number soared under Theodore Roosevelt who issued more than a thousand executive orders and Wilson who issued a thousand eight hundred and then it goes back down and then Roosevelt is 3700. So the question is, how did Roosevelt transform the presidency through his use of executive orders ranging from temporarily removing US currency from the gold standard which the Supreme Court approved to the Japanese internment, and how is that significant in redefining the relation between the president and Congress?

Posner: [00:05:06] You have to be careful about executive orders. You know there are executive orders that are incredibly trivial about, I don't know the manicuring of the White House lawn and there are executive orders that are quite transformative. But I suppose as a very rough approximation that gives you a sense of how presidents were using their power. You should also understand that a lot of the executives, probably most of them, are- executive orders- are orders that implement authority that Congress has given the president to administer the national government. But what was going on at a very rough level- I mean there are two things. One is Roosevelt was in office during an economic emergency and a military emergency and in both cases the president had to act. Congress was too slow-moving, lacked expertise, and Congress gave the president authorities in some cases, and in other cases he acted based on this constitutional authority, but he had to act in order to address these two extraordinary problems. We're talking about Franklin Roosevelt here. So as the president is given more Authority by Congress - or if you want seizes authority - he has to govern and executive orders is one of the ways that the president governs. It's not the only way. Presidents often just issue memoranda or you know, say on the telephone or by tweet I suppose what they want their subordinates to do. But again, you  know, the pattern of executive orders is just an illustration of the rise of presidential power over the 20th century.

Rosen: [00:01:41] J ulian what are your thoughts about the significance of the numbers of executive orders and, giving us a sense of shifting presidential power, to take the numbers further into the 20th century after the high under Roosevelt of 3,700, Truman was 907 and then things settled; Nixon 346, Carter 320, Reagan 381, and things have been- you know - Clinton 364, Bush 291, Obama 276 ,and President Trump only 96. So the numbers have been in the you know the 200-300 range recently. Eric distinguished between trivial and significant executive orders, but have we seen since Franklin Roosevelt an increase in rule by executive order and by efforts by presidents to achieve through executive order what they're unable to achieve from Congress and does that represent a change in presidential power or not?

Zelizer: [00:01:01] Yeah, I think it's significant. Not all executive orders are equal and it is important to remember some of the growth is a function of the president doing more stuff and some of that stuff, it's quicker to do that way and it's not necessarily really to even avoid Congress, but we have seen the president using this tactic on some pretty important measures. You see in the Reagan Administration for example, executive orders become very important in the deregulatory efforts of the administration and using executive orders and other comparable measures to try to weaken regulations that exist or to even try to weaken some of the key agencies is an important strategy for conservatives in the 1980s when they're having trouble getting support in Congress. And, the next time you really see this flare is under George W. Bush during the war on terror where executive orders become significant. It's not all irrelevant decisions- really important decisions in terms of counterintelligence tactics that can be used where executive action is a chief mechanism for the administration to move in areas where Congressional support doesn't exist. We saw it under the Obama Administration certainly with problems like immigration and climate change where frustration with the the Tea Party slash Freedom Caucus led the president in that direction. So I do think it's become an important element of 20th and 21st century presidential power and part of it is who's using it in terms of what you think of it. You know, liberals don't like executive power very much when a conservative or Republican's in office and and vice versa in terms of conservatives with Democrats, but there's a bigger institutional issue that has arisen and it's is this a legitimate form of policymaking when you are dealing with big consequential decisions? The president's still limited. They can only deal with existing programs and existing policies. But we saw with Reagan and Bush it really can move the needle in important ways. And I think it's understandable why people are not always comfortable with that given where we started our history.

Rosen: [00:03:37] Eric you had a piece in the New York Times in 2016: executive Authority is a powerful tool that should be used with caution. You said President Obama has followed in the footsteps of his predecessors in unilateral presidential actions in foreign relations from the decision to launch wars to treaty making but that's been the norm for much of the 20th century and you say the danger is that this can short-circuit deliberation and lead to tyranny and indulges ideological fantasies, and therefore, it should be used cautiously. So would you broadly say that the 20th century post-war presidents George W Bush, Obama, and Trump have been similar in their use of unilateral executive authority? Bush to spend the to create military tribunals and deny habeas corpus to detainees and Obama for the dreamers and so forth. Or are the presidents using the executive power differently? And if you're concerned about this unilateral executive action, what should be done about it?

Posner: [00:04:38] Right.  I'm not I'm not shaking not terribly concerned about it. And I think this is where Julian and I disagree and I do want to return to something he said. I think Julian puts the point exactly correctly, which is this is an institutional matter and we need to abstract from whether we're Republicans who are unhappy with the Democratic president or Republicans who are happy with a Republican president, or democrats, you know, happy or unhappy with whoever is president. You have think in terms of the overall institutional development and whether the trajectory has been a good one or a bad one. Just to answer your question, it's very hard to distinguish presidents, I think, since Franklin Roosevelt, they haven't all face emergencies, so they haven't all had to use executive power to the extent that Roosevelt did, but they all have used executive power. And, you know, part of the paradox here is really have to. I mean Congress tells them to, Congress passes these laws like the Clean Air Act, which says, you know, we're concerned about pollution and then they give a lot of authority to the president to do something about it. So it's true, for example, that Reagan used his executive authority to deregulate but that was after Carter and Nixon and Johnson and others. Well Johnson, with respect to other laws, used their executive power to create the regulations in the first place. So again, we have to kind of abstract away from our political views and ask what's wrong with having the president regulate. So, you know, the usual view ,and I acknowledge these concerns in that op-ed and I have elsewhere, is that the president has too much power. He'll implement crazy policies. He'll benefit his supporters at the expense of other people. I mean, yes, there are all these risks of abuse. But as Julian pointed out earlier, there do remain quite significant constraints on the president including Congress itself and also the courts. So the question is, what's the benefit? Why did this  long-term trend occur? And the real problem with Congress is one of gridlock. Congress knows this - it can't it can't regulate rapidly in response to either emergencies or even you know, slow-moving changes in technology or the economy that require action. Congress has not been able to address climate change. For example, the president President Obama did implement regulations to address climate change, which he was able to because of the Clean Air Act a statute enacted by Congress decades ago. It's true that Trump is cutting back on those regulations, but at least something's being done in progress has been made. Another example would be the financial crisis. Congress simply was unable to deal with the financial crisis. We saw this in the near catastrophic failure to enact the Emergency Economic Stabilization Act in the fall of 2008. The executive branch was the main actor and addressing the financial crisis because it had been given the authority to do so and it was able to move quickly to do so. And then the last sort of general example that I'll give - althought we can talk about more examples -  is conduct of foreign relations. Congress - the senate in particular - have been extremely hostile to a strong foreign role for the United States going back really, you know the entire 20th century. But even after World War II, and most of the institutions that we think, you know with the benefit of hindsight have been good -  International Trade institutions, military alliances like NATO - most of these things are either implemented by the president alone, or they were created at the behest of the president with Congress going along reluctantly, so this is really the issue. The issue is in a modern economy and a dangerous world how much authority should be allocated to Congress versus the presidency?  My view is that the lesson of the 20th century is that while we can do get bad  presidents, like right now,  from time to time - generally speaking - the powerful presidency is necessary. I don't mean though an unlimited presidency. I do think that Congress should play a role in constraining the president and does. But you know that that is really the issue.

Rosen: [00:09:43] Thank you very much for that. That thoughtful answer is consistent with the distinction you make in the Executive uWbound between two systems of government the liberal legalism model - where Congress takes the lead in making policy - and  in the presidential primacy model in which the executive takes the lead.  And you think that the liberal legalism models the official story, but the presidential primacy model more accurately reflects how things work. Julian you wrote a very Illuminating piece in the New York Times with Kevin Kruse in 2019, have we had enough of the imperial presidency? And you note that Congress attempted after Watergate to restrain presidential power in the War Powers Act of 1973 and the National Emergency Act of 1976, which is the subject of the current wall dispute, as well as other reforms, but that what went wrong these attempts to restrain the presidency don't seem to have worked, and then you call on Congress now to put new limits on the presidency. Tell us what those post-watergate reforms were, why broadly they went wrong, and how you think the Congress could reassert itself?

Zelizer: [00:10:59] Yeah, in the 1970s you have real push back against presidential power and there were many proponents of a strong presidency like Arthur Schlessinger, who had been a court historian so to speak. He had worked in the Kennedy administration, had written about FDR, and he hadn't spent much of his career really writing about the virtues of presidential power - it being a more efficient and robust institution, and he famously writes a book in 1973 that I think captured the mood of many Americans in the middle of Richard Nixon's scandal in the end of the Vietnam War. And he wrote a book called the imperial presidency. And he says, he starts the book saying that he himself was wrong that he had - he was guilty of only imagining the best of what the presidency offered and not really seeing the dangers, and when Nixon resigns and 74 the mood of the country is very different and the mood in Congress is one where there's an effort to reclaim some of the power that had been lost. Already in 1973 Congress passed the War Powers Act which tried to reassert more of a role for congress when deploying troops overseas. In 1974 Congress passes budget reform legislation that tries to centralize the budget process and create a more equal setting for congress when dealing with mapping out how money will be spent.  In 1978 Congress passes an ethics reform legislation that includes creating an independent counsel - a prosecutor who would be appointed to investigate executive branch corruption and would be pretty free of any kind of oversight or restraint when those investigations were triggered.  So they were many reforms  - and there were others - that were put into place trying to push back a little on this trend that we've been talking about in the podcast. And some of them, you know, had an effect: the independent prosecutor - very controversial - would be used very often right through the end of Bill Clinton's presidency, the budget reform remains the architecture of how we handle budget matters. But it's clear that presidents are very strong. I think President Trump is exposing just how much muscle they have even if someone's unpopular, even if someone is controversial. And part of the problem is partisanship, meaning what we're seeing at least right now is how partisan incentives and Congress will allow for a president to act in a very aggressive fashion and unconventional fashion, and as we're seeing with the National Emergency, in ways that many people feel are unconstitutional or contradict the intentions of the founders. And so we wrote that piece that some of what was happening in the 70s much of it which has fallen away since that time, it might be time to have some of that conversation. It doesn't mean creating a president that doesn't have power, but putting into place more restraints in the Constitution provides as is, to avoid an excessive use of the authority given to the person in the Oval Office.

Rosen: [00:14:39] Thanks for that. Eric let us hone in on the National Emergency Act of 1976. Presidents have declared national emergencies nearly five dozen times since the Act was passed in 1976. Never before has one been used after Congress rejected funding for a particular policy, and President Trump's Declaration of a national emergency is the first since 9/11 to authorize military action - most of the others have had to do with tariff policy and foreign policy. And the question I want to ask is not the wonky question of whether President Trump's Declaration of a National Emergency to build the wall technically violates the act of 76 because the arguments on that question are complicated as our previous podcast revealed, but if we step back that axe allowed Congress to disapprove the president's actions by concurrent resolution. The Supreme Court subsequently struck that down by saying that legislative vetoes are unconstitutional - you have to pass laws with bicameralism and presentment signed by the president. So that means that to disapprove of the president's action now you need a veto-proof majority in Congress. Does this broadly - not technically - represent a kind of delegation of congress's appropriation power to the president in ways that threaten constitutional values if not technically violate the constitution or not?

Posner: [00:16:10] You know, it's a tough question and you know, there's a lot going on there like the Supreme Court's decision on the legislative these at veto which makes it a complicated question to answer. You know, I think it's a little too early to tell. It's quite possible that the courts are going to block this. If the courts block it, then we would just say that the president tried something and it was it was blocked and all presidents do that. All presidents do things that they think are lawful or claim are lawful - then they're  stopped by the courts.  And so far at least, presidents acquiesce when courts block their actions, so, you know, I think it's a little early to tell.  I think we should not overreact to what Trump is doing. I think actually I disagree with with Julian here about Trump. I think Trump is a weak president. I do think the presidency is powerful, but I don't think Trump has exploited the powers of the presidency very effectively. What he was able to accomplish in the last two years was the result of having Republican majority in both houses of Congress, and Trump, you know, largely followed a kind of a conventional Republican set of policies. It's in this area of immigration where you really differs from his own party as well as  most of the public opinion and he's been thrashing around - he's been not very effective. He's been far less effective than Obama was in the area of immigration. Obama did some meaningful things to help some classes of undocumented aliens. Some of what Obama did was stopped by the courts as well, but not all of it. I don't think we can draw lessons from Trump's National Emergency declaration about the power of the presidency yet. All I can say I think in answer to your question is that the reason the Congress has given the president so much emergency authority over many decades, is that it realized that it - Congress -  could not itself respond to emergencies . And the real problem here - is almost by definition it's hard to define - It's hard to say what an emergency is. They're always different. It's hard to know what authorities are appropriate if the emergency takes place. And so Congress has been almost forced to give very broad authority to the presidency so that the president could address emergencies - emergencies that in the 19th century would just not have been addressed at least not at the national level. That's I think the system we've had, I think it's a system we have to have. Now there are ways that Congress can assert itself and try to prevent the president from abusing this authority. This kind of procedural check that it had - that you mentioned - was one way; although that's been struck down by the court. It can still conduct oversight- you know, in the extreme it can still impeach the president. It can, in many ways, withdraw cooperation from presidents who abused their power by refusing to give the president something that it wants, so Congress does retain some  authority, but I do think that these broad emergency powers are going to continue to be a part of our system.

Rosen: [00:20:02] Thanks for that. Julian, a version of the same question to you to tease that agreement or disagreement. Do you believe that Congress's delegation to the president of this emergency power combined with the Supreme Court's invalidation of the legislative veto represents in spirit, If not technically, an unconstitutional delegation of congressional authority to the president in ways that threatens the separation of powers? Or do you agree with Eric that it has to be this way, that Congress doesn't have the flexibility to respond to emergencies and because of the polarization -you note -  it's unlikely to do so anyway, and therefore this is just a new balance that we're going to have to live with?

Zelizer: [00:20:43] Look, I come- I'm more of a congressperson and so first I just for me when I look back at the history of presidents, even with emergency powers, the record is often not so great. Whether you're talking about emergencies or you're talking about broader national security strategy - that is just presidents who have made massive mistakes.  Speed often has a cost or excessive power has a cost. So you think of Lyndon Johnson and the escalation in 64 and 65 of Vietnam which was just really done for the wrong reasons. It was done with the wrong logic and the consequences were enormous. The weapons of mass destruction fiasco - and I think you can call it that - that was at root with with the war in Iraq, and the way in which that information was manipulated, and again the cost of a very long war. On those two examples, those are what what's on my mind. And, you know, part of why Congress keeps reasserting itself isn't simply an institutional back and forth- it's the realization at key moments of what goes wrong with presidents that there's a virtue of the kind of deliberate or bargaining dynamic that's required in Congress. And I think we're seeing a little bit of that debate play out today. I think in the last two years were in a situation where the Republican Congress until now has handed the president, or I think Eric's right that he has the - that Congress has given the president lots of leeway to do what the president wants to do. And for me, I guess I see it in not dire terms, but I do think the president not very competent and probably not getting the most out of the kinds of actions he is doing is still moving in some pretty aggressive ways. If you take his bully pulpit power, I don't think it's insignificant the kind of language, he's just unleashed on individuals and institutions without any kind of recourse. I do think you know without getting support for almost anything on Capitol Hill even when Republicans were in control he used his executive authority pretty effectively on deregulatory matters including with climate change. And I do think there's something different in terms of this invocation of National Security  a () and that the crisis it's not there is no crisis and there's just not support for the idea. There's any kind of Border crisis. So whereas other examples such as Bush after 9/11 or even Carter after the Iran hostage crisis. There's something real there reacting to and you could dispute if emergency power was the best way to go. This is a political campaign message. That's all of a sudden turned into the basis of this use of power and. Added to that it's using the power to spend money after Congress Republican Congress didn't support it. Now a divided Congress doesn't support the use of money that he wants and he's using the power to spend money that way for me. That's a. Kind of National Emergency action by the president then we've seen and I think it could really set up a dangerous precedent. And I think that's partly why some Republicans are just as unsettled by this as Democrats are.

Rosen: [00:24:35] Eric, a response to those two points: first that the historic uses of emergency power in Wartime in particular in Vietnam and Iraq haven't turned out so well because of the madisonian virtues of slow decision in the dangers of speed and second that regardless of the technicalities here. The president really is invoking this power domestically to spend funds that Congress has refused to give them and that's dangerous, too.

Posner: [00:25:01] Right now I don't want to be in the position of defending Trump okay, just to be just to be clear about that. I don't like him. I don't support him in any way. I don't support this emergency declaration. But but let me let me try to respond more broadly. So first on the international side and we have to look at both sides of the Ledger and and we have to we have to you know, we don't want to just cherry pick. Particular interests Foreign Relations disasters, which Vietnam was want any Rock was another although I want to say parenthetically that Congress did authorize the war in Iraq now possibly possibly the administration was not honest with Congress, but it's not entirely clear what the world would look like. That was what that would be different. This is not a case that the president going to war. Without Congressional Authority Vietnam. There's also it also somewhat ambiguous, but there was basic Congressional support for the for the war. But but you know, the what really concerns me is not that it's World War II and it's the Cold War right? It's the the basic isolationist sentiment of Congress the Congress Congress. We have to remember that half of Congress is the Senate. And a good portion of the power in the Senate is possessed by rural States and these are states that are often isolationist. But in any event don't reflect, you know as a general matter Congress because of the way the Senate is structured does not reflect General American public opinion. It's a biased institution in that respect. The president as much better job the presidency of reflecting overall American public opinion, even though it is true that Trump and other presidents have won elections without the popular vote. Okay. So the my view is that an international relations the presidency has as a general matter acted more responsibly than Congress has going back to World War II. We're isolationist sentiment delayed American entry into the war and hampered Franklin Roosevelt's efforts to help the United Kingdom and so on and so forth. Okay, so that seems to me the debate and and and and I also think that in the general conduct of the Cold War.  as a general matter. The president's did a reasonably good job and were frequently hampered by Congress reasonably good job in the in the sense of building International institutions that were helpful and beneficial in building a military alliances. There are a whole range of in treaties and so forth that the Senate refused to. Give its consent to the president said to work around largely sensible types of trees so that on the on the formulation side and the domestic side.  well.  You know it as I said, I'm not going to defend Trump but we have to we have to sort of think about what the alternative is. And I guess I'm just not clear, you know, what's on the table here. For example, you could take the position that the president that the Congress should simply withdraw all the emergency authorities that it has given to the presidency. And that's a possible position to take. I don't think it's right. I don't know whether Julian takes that position. I think another position would be well. It's okay for Congress to pass statutes to give the president emergency powers.  But there should be more constraints. There should be more procedural constraints. There should be more rules. There should be limits on how the President should use the authority that he's given to that. He's given. But that is actually the system we have, you know, we could go, you know one by one through all of these statutes and have a debate about whether they're too broad or too narrow and I suspect you know, the Julian and I would agree in some cases and disagree on other cases, but but I think we have to at least for the time being resist the notion that there's just there's just too much emergency. You know a lot of these statutes do things like say just going back to 2008, you know, if there's a liquidity crisis the FDIC the FDIC, you know can extend Deposit Insurance beyond the 250 thousand dollar limit. I mean, that's an emergency Authority that's in the executive branch. I think it's very sensible. So because I don't think that if there's a liquidity crisis we can expect Congress to do that on its own. Quickly enough to to address the problem. Okay, then final point is you know, once you have these statutes in place, there's always the danger that the president will just violate them. So let's suppose there's supposed Trump announces. There's a liquidity crisis or bullies the FDIC and to claiming there's a liquidity crisis when in fact there isn't. And as a result of which I don't know he can raise deposit limits or get the FDIC to raise deposit limits which pleases his cronies in some way. Well, you know, that's just a legal and we have to trust the courts or Congress or the public to push back if the president violates these rules, but you know, he can violate whatever rules he wants. We don't have to, you know, when Truman ordered the military to see steel mills during the Korean War. You know, he was just breaking the rules and the courts blocked him the Supreme Court blocked him and and I would expect that that will happen in this case. If it doesn't happen, then then I'm be happy to have this debate about whether one or many of these emergency statute should be should be should be eliminated.

Rosen: [00:31:26]Well, it is time for closing arguments in this important debate. And the first one Julian is to you has the presidency become too powerful under the Constitution. And if so, what in particular can Congress do about it, especially in light of the polarization in Congress?

Zelizer: [00:00:20] Yeah, I I do come down on this side that Congress has that the presidency has become too powerful and that there is a need for a renewed look as we had in the 1970s on how to impose some restraints or some stronger checks on the presidency part of this can involved looking at the laws that give the president a certain amount of power so with with. National emergencies act for example, it's possible to think about is it good that the president now has the ability to veto a resolution that comes from the House and Senate revoking that revoking that emergency power which was meant originally to be a check from Congress when they thought it was being misused. I do think there's ways in which we could think about legislation that. Would protect investigations from the justice department as we're seeing today. So part of the conversation does have to include how do we put some brakes on what presidents have been able to do the power they have asserted in the last few decades? I also think part of the solution will come from fixing Congress. And so I think those conversations can't be separate. So when we talk about another world the Congressional reform world that talks about what do we have to do to try to? Create better gerrymandering or better districting systems or how do we reform campaign Finance to push back against some of the sources of polarization. Those are integral because if Congress is acting in a better fashion if there are more paths to negotiation and legislative compromise. That's the best push back for the arguments against increasing presidential power because some of the reasons it's legitimated would fall away and you know the Great Moments in history in terms of domestic policy come from when Congress is actually taking action whether you're talking about the New Deal or the Great Society as examples. Those are really momentous moments because in Congress you see the institution working and through negotiation and compromise and fighting coming up with real solutions to problems that have lasted for decades and so I think those are two. Kind of ways in which we need to think about some of what I believe President Trump has exposed simply in terms of the government. We've built it's not all because of him at all. I think he just exploit saw some of the opportunities that we've given presidents and it's time to do a little push back.

Rosen: [00:03:22] E ric last word is to you: has the presidency become too powerful under the Constitution and, if not, should Americans live with the current state of affairs or are any constitutional or legislative reforms advisable?

Posner: [00:00:19] I do agree with Julian about a number of reforms that would make a lot of sense. I would love to bring back the independent counsel who was an official who had kind of independence of independent authority to investigate the president and other people in the executive branch. I do think that there are procedural reforms that Congress could make that would provide stronger oversight over the presidency. I do very much agree with him that one of the problems is that Congress is in many ways broken and you know, if you can fix Congress you wouldn't need as powerful president. I'm fairly skeptical though about fixing Congress, which is one of the reasons why I do think we need a powerful presidency but I think level we fundamentally disagree and I guess the way I'll put this is to go back to the New Deal which Julian celebrated as a time where Congress, you know, really played a significant role in addressing an economic emergency, and you see the thing is is that the significant role that Congress play was one of setting up administrative government under the authority of the president. That was the great thing that it did during the New Deal. We did of course have administrative government before but this this was really the inflection point in our history when we started moving away from what one would call you know broadly a parliamentary or Congressional system - one where you have a large body of people deliberating and creating policy - to one in which you have bureaucrats who do that under the loose authority of the president.  And I do think that this type of bureaucratic centralized administrative government is is necessary. I think it's necessary both for regulation if we care about the environment and financial stability and you know other elements of domestic life and it's and it's important if we care about security.  The challenge of course is that an administrative government is it may be less responsive to public opinion then parliamentary or Congressional government. I'm not actually sure that that's true. It's really hard to know. You obviously need significant Democratic checks on it - and we do - it may be that we need stronger Democratic checks, then we have but I don't think the solution is to return to a system where Congress plays the primary role in setting policy. I think the world that we live in is one in which the kind of deliberative body represented by Congress plays the general oversight rule, can step in when the president abuses his power, but will always be to some extent subordinate to the administrative system.

Rosen: [00:03:40] Thank you so much Eric Posner  and Julian Zelizer for an illuminating deep and important discussion about the proper balance of the Constitutional Powers of the presidency and Congress. You have taught us that there are legitimate debates about what that balance should be, that the balance has been changing over a long period of time and that our listeners have a duty to educate themselves about both the history and the details of the Constitutional arguments in the cases that are on the horizon in order to decide for themselves what they think the Constitution requires. Eric, Julian thank you so much for joining.

Zelizer: [00:04:19] Thank you. Thanks for having us.

Posner: [00:04:21] Yes. Thank you very much Jeff. 

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Podcast: Can the Equal Rights Amendment be Revived?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. In this episode we explore the Equal Rights Amendment. The proposed amendment to the constitution technically expired in 1982, which was the ratification deadline set by Congress. But A Renewed push to resurrect and ratify the amendment gained momentum in 2017 leading to ratification by Illinois and Nevada. Now supporters of the amendment are looking to secure ratification in a 38th state which would round out the necessary two-thirds majority of the states required to pass the amendment raising fascinating and important constitutional questions about whether or not related ratification would be valid and if valid what the effects of an ERA would be? Joining us to discuss this crucially important series of constitutional questions are two of America's leading commentators in this important debate. Linda. Coberly is managing partner in the Chicago office of Winston and stron. She is chair of the national ERA coalition's legal task force and has briefed and argued many appeals in the Supreme Court federal courts and state appellate courts. She clerked for justice Stephen Breyer. Linda thank you so much for joining.

Linda Coberly: [00:01:29] Nice to be with you.

Rosen: [00:01:30] And Inez Stepman is senior policy Analyst at the Independent Women's forum and Senior contributor to the federalist where she writes about politics and women's issues including the ERA. She previously served as director of the education and Workforce Development task force that the American legislative exchange Council and she testified as an expert in state legislatures across the country. Inez It's wonderful to have you with us.

Inez Stepman: [00:01:52] Thanks for having me.

Rosen: [00:01:53] Linda if you could begin by telling us aboutt the state of play of the ERA. There was a move to ratify in Virginia, which seems to have stalled. Tell us how many states are necessary to ratify. What are potential possible states that could ratify and how did we get to where we are now?

Coberly: [00:02:12] Sure. Well, I'll start with that last question how we got to where we are now. The Equal Rights Amendment was originally written by Alice Paul in the 1920s and introduced in Congress for the first time in the early 1920s, but it wasn't until the 70s when Congress officially passed the ERA and recommended it to the states for ratification. So 38 states are needed and at the end of you know, 1982 when congress's own internal deadline passed there were only 35 ratifications. It was a couple of years ago actually on the 45th anniversary of when Congress sent the ratification to the states, the state of Nevada passed the Equal Rights Amendment and voted to ratify. And it really was- I can't say that was what ignited the push to ratify the ERA now. It's actually been introduced in many legislatures every year for years, but it was really the Nevada effort that started to grab people's attention. The Illinois General Assembly ratified ultimately on May 30th 2018. And now as you mentioned we're looking for the 38th state. There have been efforts in Virginia. Those efforts are not dead, although there are some opportunities have passed so activists there are continuing to push forward though It's not clear whether there will really be a vote this term or whether that's something that would be reserved for a following term. And then there are also ratification efforts today in both Arizona and North Carolina as well as recently Georgia. So there are a number of states that remain to ratify and efforts to ratify in many of those States.

Rosen: [00:04:13] Inez what can you add to the question of how we got to where we are now and then take us up to the political state of play? As Linda said Arizona, North Carolina and Georgia are considering, senators Lisa Murkowski of Alaska and Ben Cardin of Maryland recently expressed support for the ERA and said there're also efforts in Alabama, Arkansas, Florida, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina and Utah, you know, tell us how plausible it is that we might actually have of 38th state that could ratify.

Stepman: [00:04:49] Sure. So first, I want to go back a little bit just as Linda started with 1923 and talk a little bit maybe about what happened in between 1923 and those 1970s efforts where the ERA really peaked and became- and most of those those states that we're talking, about not the ones in the modern era but the ones prior, the 35 ratified. So it's got a long and interesting history this this proposed amendment and it's interesting what- or to me at least It's interesting, what eras it sort of advanced and and was part of the conversation and what eras it was not. So after its initial introduction it kind of languished for a few several- first few decades which interestingly was largely due to the result of folks like Eleanor Roosevelt in the labor movement. So if you're thinking about New Deal America, one of the first fronts in which economic regulation was both being legally upheld and also sort of socially becoming more- politically becoming palatable was to protect women in various labor environments. So regulations on the number of hours that women might be able to work or regulations on the type of heavy lifting young women might be able to do- so these were sort of some of the initial fronts in the labor movement. And so for a long time those two movements were kind of at odds. The women's rights  movement that pushed the ERA and the labor movement that wanted to put in place some of these protections for women in the labor market. I note this only because I think some of the same Dynamics at least the push-pull between sort of the idea that some laws that single out women actually do so to protect women and the idea that women should be in every single aspect legally equal to men, those two kind of camps continue to be a push-pull today when we talk about it. So in terms of the 1970s that was where the larger push was and for a long time the ERA became- it seemed sort of inevitable  that the ERA would pass right? Because the I mean if you look at just the party platforms of the two parties that there were- support for the ERA was in both of those party platforms, the Democratic and the Republican. It had the support of presidents from Eisenhower to Nixon and also Johnson and Carter it really, that consensus started to come apart only in the mid 1970s when you had Phyllis Schlafly burst onto the scene and actually for the first time articulate strong arguments against  it mostly as I said couched in the idea that women, the status of women was actually sort of more protected legally without the ERA. So that's kind of the the historical battle. It had been considered basically killed by Phyllis Schlafly's hand in the 1970s. And that's that's what all the history books wrote about the amendment until just a couple years ago where we've seen the onset, and I'm sure Linda can speak extensively to this, the onset of the three-state strategy meaning we're gonna count all of these ratifications from the 1970s, these 35 ratifications over 40 years ago alongside modern ratifications and if we do that, we've only got three states to go and now that Nevada and Illinois have ratified, only 1 state to go and 13 states to get that state from.

Rosen: [00:08:28] Thank you so much for that and for the fascinating history and for signaling this clash between those who claim that the ERA would end special protections for women and those who claim that it was necessary to ensure equality. I think maybe this is the time to really talk about the substance of the debate because that'll give us a better sense of whether or not the amendment is likely to pass and will help our listeners decide whether they support or oppose its passage and then we can conclude with the question of whether a belated ratification would be permissible. So Linda tell us what the arguments for the ERA are that have led a super majority of Americans in some polls to support it and then respond to the major arguments against it. Right now, why are people opposing the ERA?

Coberly: [00:09:23] Sure absolutely so that let's start with the text of the ERA which is “equality of rights under the law shall not be denied or Abridged by the United States or by any state on account of sex.” It's pretty simple and pretty straightforward. The function of the ERA would be to put into the constitution for the first time the idea of banning sex discrimination and a lot of people actually think the Constitution already guarantees equal treatment of the sexes and it doesn't. Justice Scalia famously said, certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Now anyone who's seen the recent films about Ruth Bader Ginsburg knows that her career as a practicing lawyer was dedicated to the idea of using the 14th Amendment to also protect against sex discrimination. The Fourteenth Amendment says that the government may not deny to any person within its jurisdiction the equal protection of the laws. So the 14th Amendment does provide some protection against sex discrimination but not in the same way that it provides protection against discrimination based on race or national origin. And of course Justice Scalia and other justices who follow a similar view of the Constitution think that even that protection under the fourteenth amendment should be rolled back because the Fourteenth Amendment doesn't talk about sex and the framers of the Fourteenth Amendment didn't have gender or sex in mind when they adopted that Amendment. So ratifying the ERA would resolve that issue. It would make equal rights for women and men a core value in the Constitution and it would have pretty broad ramifications both legally and culturally since the Constitution does reflect our you know, our core values as a culture. So how would it differ from the from the protections already provided under the law? Well, there are lots of local state and federal laws that prohibit discrimination. For example title 7 is a federal statute that prohibits employers from discriminating based on sex race color national origin Etc. It also applies to government. There are local laws that prohibit discrimination in municipalities and housing in wages in in medical care and a variety of things. But all of those are laws, they're statutes that can be changed and having a guarantee in the Constitution is different. Another way the ERA would differ from those protections is it would apply specifically to the government. On its face the ERA applies to the United States or any state. So really what the ERA is saying is that the law will not distinguish based on sex. There may be differences among people. There may be lots of differences among people and there are different ways that the laws can take those differences into account, but it can't create a distinction solely based on sex unless it passes a test that the courts referred to as strict scrutiny so you can distinguish, just like you can have affirmative action based on race under some circumstances, but that kind of Distinction has to pass a very specific legal test called strict scrutiny and strict scrutiny means that the the law has to be narrowly tailored to achieve a compelling government interest and it has to be the least restrictive means of doing so. Now some people think strict scrutiny means all distinctions go away. That's actually not the case. There are distinctions based on race or sex that are upheld under strict scrutiny. So- but the point is that a distinction has to survive that kind of analysis in court in order to be upheld. So those are some of the legal reasons why the ERA is important. And one other thing I want to mention is the Equal Rights Amendment actually has multiple Clauses. The first one is the one I read a moment ago, the second one just gives a like a two-year waiting period before the protections go into place to give governments the time to evaluate whether there are sex distinctions that they need to change in their laws, and the third Clause gives Congress the power to enact legislation that would protect the rights and Advance the rights that the first Clause represents. So for example, the violence against women act some of which was held unconstitutional, that's a type of legislation that could be adopted by Congress using the power that the third Clause of the ERA would provide whereas currently Congress passes a lot of its legislation including employment discrimination so forth by relying on its Commerce Clause power. This would give Congress another source of power that would enable it to enact legislation that would protect the rights of women under state and federal law.

Rosen: [00:15:08] Thank you very much for that comprehensive introduction to some of the effects of the ERA. You mentioned Justice Ruth Bader Ginsburg's support for the amendment. She's written: every constitution written since the end of World War II includes a provision that men and women are equal citizens of equal stature, ours does not. We the People listeners all of us at the Constitution Center were thrilled just on Monday night when Justice Ginsburg attended the first concert performance of The Notorious RBG in Song which the Constitution Center hosted in DC and we'll run that as a podcast soon. And as you described, Justice Ginsburg believes that the ERA would require what you called strict scrutiny for all laws and you describe the test; the law has to be necessary to achieve a compelling governmental purpose. At the moment gender-based classifications have to satisfy what's called intermediate scrutiny, which means they have to be substantially related to an important governmental purpose although Justice Ginsburg in the VMI case ratcheted things up a bit to what's called strict scrutiny with bite and it has to be- has to have an exceedingly persuasive justification. So Inez help us disaggregate and understand the practical effects of ratcheting up the standard from intermediate or super intermediate scrutiny to the strict scrutiny. You have written a really helpful piece called- in the federalist on January 5th describing some of the effects of the ERA and you say would likely affect the wise changes the Trump  Administration has made to Title Nine enforcement. The ERA would probably chip in to states already very narrow ability to regulate abortion and it is likely to throw a large wrench into various sex-based presumptions in divorce custody alimony and child support law. Tell us about those changes and others that you think the ERA's adoption  would result in.

Coberly: [00:16:59] Sure, so I think maybe we should start just like Linda did by going back to the language of the ERA which sounds very basic, sounds like us talking about basic legal equality and indeed that kind of basic legal equality enjoys broad support in America as Linda pointed to in polls. I mean, I think most- the vast majority of American men and women believe in basic legal equality. I would point out though that that language exactly because perhaps it is written in an inspiring sort of basic way also is very broad and so it will be up to the courts to determine what equality actually means and to unpack that idea and how to apply the idea of equality to specific instances. I also just want to make one little point. I think that when we are talking about for example the equal protection clause or talking about intermediate scrutiny vs. Strict scrutiny we are talking about laws that discriminate on the basis of sex in some way and I don't mean the word discriminate in the loaded sort of typical sense that we talked about it, but in the sense that they just might treat men and women differently in some way for some reason, but I mean the zoomed out larger picture is in fact that of course women's rights are protected by all the rest of the Constitution. Nobody for example says that the First Amendment doesn't apply equally to men and women, that women don't have their free speech rights or their religious liberty rights or the right to a jury trial. So we're talking about a very specific group. Now, it's important to talk about these kinds of laws that distinguish on the basis of sex, but I do want to object slightly to the idea that it's the only category of laws that we should be talking about. This is on the backdrop of already a large number of protections that are assured to men and women equally under the Constitution but nevertheless that's the discussion that we're having about the ERA applying to these kinds of laws that discriminate between men and women for some purpose, right? And I think the underlying principle and perhaps disagreement between people who oppose the ERA  and who support it is not on that sort of basic equality but on the idea that men and women are in fact different, right? So when we talk about raising the standard to strict scrutiny what has been traditionally looked at under strict scrutiny are you know race and ethnic and differences based on national origin an so I think that the differences between men and women and I think many Americans think the differences between men and women are more substantial and real than the differences that we've all rightfully rejected, right? In the past people thought that there were some real and substantive differences between the races. Obviously American society has overwhelmingly rejected that and the courts have rejected that and through the 14th Amendment and through equal protection cases, they have looked at any kind of Distinction based on race as something to look at very very carefully, right? Because the presumption is there can be no legitimate reason to discriminate based on race. With men and women it's a little more complicated right? There are real biological differences between men and women. There are physical differences. There are neurological differences between men and women. Men and women's Brains are quite different. None of this means that we're not equal in the broad sense, but it does mean that if we have a very strict or harsh interpretation of what exactly equal means, it could have some unintended consequences, right? So some of those unintended consequences might be the first thing that Phyllis Schlafly brought up in the 70s, the fact that currently only men register for the selective service for the draft, right? We just extended combat positions to women. So now that distinction is sort of gone. So it may be constitutionally infirm anyway. But there are still half of Americans- it's about 50/50 would be opposed to the idea of drafting women saying, you know women are maybe intellectually equal, they may be equal in, sort of under the eyes of God and in every other way legally, but combat may be a place that may be exactly one of those places where the biological differences between men and women become relevant- become very relevant and there are a whole series of other laws that recognize the biological differences between men and women. So for example, the WIC program, a federal welfare program under federal law, right? So that stands for women infants and children. On the face of it It actually does distinguish by sex. Would it be under the ERA constitutionally infirm to offer benefits specifically to Young mothers or for that matter for any Department of the federal government to give a grant to an organization that for example has a system as it's explicit goal to help girls in stem subjects, for example, that could be considered a Distinction on the basis of sex. Now these things are not necessarily going to happen under the ERA. It depends on how that those words and those sort of nice sounding broad words are interpreted. But that's that's the Crux of the matter. We place that interpretation into the hands of the Judiciary and an I think that there are a lot of Americans who would like to keep. In the normal political process these kinds of issues. Should we extend special benefits to Young mothers? Should we, you know should women be in the draft or not? These are issues that should be hashed out through the normal political process and what I worry about with the ERA and I think many others do is that it will take those issues put them beyond the political process and then put them back into the hands of the Judiciary as they interpret the ERA as part of the Constitution.

Rosen: [00:23:04] Linda, Inez just mentioned some laws that might be vulnerable from an all-male draft registration to laws that favor women for welfare programs. She mentioned Phyllis Schlafly's 1970s opposition to the ERA on the grounds of that it would mean the end of gender segregated restrooms and in fact recently some lower courts have struck down gender segregated restrooms often under title VII although sometimes under the Constitution. I want to focus on the question of abortion, which is obviously one of the hottest issues in America right now and Inez mentioned in her really helpful Federalist piece that the ERA might force states to copy the model just passed in New York, which allows abortion on demand for all nine months of pregnancy. Isn't that a plausible fear? Justice Ginsburg has argued that restrictions on abortion violate women's equality by denying them the opportunity to make their own life choices and if restrictions on abortion were subject to strict scrutiny, isn't it plausible that courts might invoke it to require more extensive protections for reproductive choice than they do now?

Coberly: [00:24:15] Well, I think to begin with I agree with inez's view that it will be up to the courts to decide a lot of these questions, which is always the case with Constitutional Amendments. And if you read the Constitution, it does speak in broader terms than statutes do and and that's appropriate and we do we enact kind of constitutional principles and then courts do resolve exactly how those apply. On the abortion issue in particular, this was a very common talking point against the ERA in the 70s and it is still today. But of course abortion rights are already protected under the Constitution through something completely apart from the equal protection clause or the ERA and so there's a separate line of cases that provide protections and provide a framework to evaluate restrictions on abortion. I don't know if- you know many states have ERAs in their state constitutions, Illinois has had one for decades and ERAs have not led to a broader recognition of a right to abortion on demand than, you know, than the types of Provisions that are in the federal Constitution currently, so I simply don't think that- that's that's not the point of the ERA. It's certainly not the point and I don't think it would be the effect. Could people use the ERA in support of arguments about abortion? I'm sure they could. Lawyers use arguments all the time and make all kinds of arguments. But I think it's important to note that the state ERAs have not led to that result. Now the state ERAs have been used in a couple of states to reflect on and require federal sorry- government funding of medically necessary abortions when the state concludes that you know, it will pay for other kinds of medically necessary procedures, but it will not pay for this particular medically necessary procedure you know the type of Regulation that relates exclusively to women with that become a more widespread phenomenon. I'm not sure it depends on the courts and what they say about it, but I don't think that's necessarily the case and it certainly doesn't. There's no evidence that it will lead to what you described as abortion on demand for all nine months. That is a matter that's within the state's power to legislate right now, and there are states that provide more leniency and there are states that provide less leniency, but I haven't seen any arguments or certainly not accepted by any Court anywhere based on the state ERAs that suggest that the mere presence of the ERA would lead to abortion on demand for all nine months. I don't see why that would be the case. Abortion is a very complex question and I think Court's decisions appropriately wrestle with that complexity rather than adopting a broad-based, you know, all-or-nothing kind of rule. Now with respect to one other issue that Inez mentioned which is the kinds of legislation that Phyllis Schlafly was talking about in the 1970s that protects women in particular, most of the kinds of legislation that Phyllis Schlafly was talking about is gone now. Many states if not Most states have already removed the special protections that women used to receive in domestic relations spousal support child support in the- in Illinois for example the statutes already take into account and look principally at the best interests of the child rather than incorporating a presumption that the mother is should be the custodian. Similarly the state laws about spousal support require the spouse who makes more money to support the other spouse and you know, I personally look forward to the day when it is very very common for women to be the ones who are providing spousal support. I think that would be a positive thing and I don't think there's any need for those kinds of protections and states have recognized. Similarly the Social Security Administration used to draw distinctions based specifically on sex and those are now based on different considerations. For example, instead of saying young mothers, it provides they provide certain kinds of benefits to the primary caretakers of small children because the reality is that Young Fathers, if they're taking care of the children require these similar benefits, and when you see this in the cases that Justice Ginsburg brought in her early days of practice where some of the cases she brought under the 14th Amendment were on behalf of men seeking the similar protections to the ones that the laws already provided for women, and I think our laws already reflected. As for the draft you know, it is true that the ERA would prevent a men only draft but in October 2017 the Pentagon already recommended that women should be required to register for the Selective Service and women do today serve with distinction in the military including in combat. I'm personally more worried about a woman suffering from discrimination in her advancement and her ability to serve to the best of her ability in the- in the government after she volunteers for service in the military that I am about a draft that in today's age would obviously have to be gender-neutral.

Rosen: [00:30:35] Inez, Linda argues that although it's theoretically possible that an ERA could be invoked to support broad abortion rights, including Public Funding for abortion, it's unlikely that courts and in particular this Supreme Court would construe it that way given the fact that a majority of justices have not embraced Justice ginsburg's vision of equality and Reproductive Rights. Why don't you tell our listeners why you fear lower courts and the Supreme Court could use the ERA to invoke, you talked about the Title Nine enforcement under the Obama era which an ERA could be invoked to resurrect threatening due process and also tell us about unconscious bias. Justice Ginsburg has said that that remains the large area that the constitution does not currently take account of and the Supreme Court has interpreted the equal protection Clause to require intentional discrimination. Would an ERA allow people to claim that actions that had the effect not the intended discriminating on the basis of sex violated the Constitution and what would the results of those arguments be?

Stepman: [00:31:48] Sure. So to start off we're necessarily speculating here, right? The ERA has not been the law of the land and and so we have to necessarily speculate what sorts of laws that distinguished on the basis of sex would be considered to run afoul of an ERA and and in reality would probably these issues as long as I said would be hashed out through the courts and there would be very different interpretations by different district courts, and then ultimately, you know, depending on the composition of the Supreme Court we would see how these issues would go rise to the top and actually be laid down and press it in so we don't know a lot of this and we are speculating. I just want to be clear about that. That being said about abortion specifically there were- there were multiple attempts both in the 1970s and in the modern ERA to attach abortion neutral language to the ERA, right, to say nothing in the ERA will be construed to apply to abortion in any way whatever the regime is with regard to abortion from the other provisions of the Constitution, this amendment will not be applied to any of those debates about abortion. Those amendments were roundly rejected by ERA proponents back in the 1970s. I can understand why they would reject them today because they're trying to- and I'm sure we'll get to the question of ratification and ratification over time. They have to use the same language as was used in the 1970s so I can understand why they would reject additional riders like that today, but that doesn't explain why they would reject them in the beginning if this was not going to have any kind of impact on our laws surrounding abortion and the Supreme Court precedent surrounding abortion. And as Linda mentioned there have been some state cases that show that it will impact abortion, that that was a discrimination under the law with regards to sex and struck down and forced the Medicaid Program there to cover abortion. There's a very similar case in Connecticut in 1986. So while we have to sort of speculate, we can look at you know, it's in some states, the ERA has had very very little effect on the abortion regime, in some states it's had more effects. It's not clear which direction the federal Judiciary would go in terms of interpreting it but that's something we would just find out and that leads me I think to repeat a point that this is just not what voters, a lot of voters when they read the broad language of the ERA, they're not thinking about for example, whether or not it would apply to abortion. They think that it's enshrining a very basic legal principle and I think that's just and that's good. It's good the fact that our society broadly accepts the basic equality between men and women, but there is a bit of a, you know, sort of speculation or lack of understanding about how, if we decide to apply this law, especially if we decide to apply this amendment in you know in very sort of harsh interpretation, it could create very large changes not just with regard to abortion, but with regard to a whole bunch of issues, the draft being one, but I mean the- I'm not sure that I agree fully with the way that Linda characterized the fact that we can just rewrite- rewrite these laws as gender neutral, right? So she brought up spousal support, it's now spousal support, it's not husband must support his wife. It's the spouse who makes more money much must support the spouse who does not- who decides to to you know be a homemaker or a stay-at-home dad, the spouse that chooses to forego that economic sort of career success in order to take care of the home. She thinks that that potentially because the overwhelming number of people who take spousal benefits under the Social Security Law, Ruth Bader Ginsburg has suggested that in fact this amounts to a government endorsement of, an encouragement of women to drop out of the workforce. And she thought that it would violate a kind of basic equality principle. So just changing these things to say okay well now since you know, we live in 2019, this is not always the woman doing this thing, sometimes it's the man, sometimes it's the father, we're going to- we're going to change the language to cover that small percentage of cases. That's not necessarily going to save those kinds of laws under some forms of analysis in the courts. Linda is absolutely right by the way to point out that men often bring suit under State ERAs and Texas, for example, that does have a state-level ERA, the majority of suits on various different topics were brought by men so that kind of underscores the reality that some of these laws do in fact reflects particular vulnerabilities that women may have vis-à-vis men and when we enforce a very aggressive form of legal equality, say a strict scrutiny regime on legal equality, that in fact a lot of the laws that are primarily, regardless of what neutral language is sort of edited in, are still primarily intended to protect women might be more constitutionally infirm under an ERA than without one. So intentional versus unintentional discrimination, right? We have a model for this through equal protection litigation for race, right, distinctions based on race. So obviously the equal protection clause has been interpreted to forbid it in all cases except for the case line dealing with affirmative action, explicit government distinctions between races, right, we're going to give benefits or detriments to folks of one race and not of another. Those- those laws are sort of obviously constitutionally infirm. But the equal protection doctrine is much broader than that, right? In fact a large branch of equal protection cases and doctrine has been dealing with, how do you get to the intent of a law and a law that may even- and then perhaps not even intent- the law that may not intend but then does have the effect of discriminating on the basis of race, even if it's not intended to or if that intent is hidden, right? And one of the ways that courts have been trying to get at those kinds of laws has been through disparate impact and the fact is that men and women- men and women have made very very different choices. So I think it's hard to argue that in 2019 women don't have the freedom to make a lot of different choices about their lives and part of the sort of consternation perhaps to some is that when women are given free choice, for example of how to balance family and career or on a whole host of other issues, they often choose differently on aggregate than men. So there's the potential then to set up the ERA as actually oppositional to the free choices of many women. If for example courts start to look at just raw numbers, for example, the pay Gap, right the average man makes more than the average woman. To try to find invidious discrimination in laws that are facially neutral with regard to men and women by looking at the different choices of men and women on aggregate, I could see it becoming very quickly oppositional to ironically the freedom of women to be able to choose to live their lives on aggregate differently than men do, and so I think that that's- that's part of as I said in the beginning we're speculating in general because we haven't passed the ERA yet. But I think that's part of the worry of many- many Americans who would oppose the ERA and opposed ratification would be that those kinds of free choices would somehow be used as evidence of discrimination when in fact it's evidence of the fact that women are simply free to be different and often when they're free, they do choose to be different and to make different decisions than men.

Rosen: [00:41:36] This is so important; let's have one more round on the substance and then maybe end by giving us cases that you think the ERA should be adopted to affect. In a piece in the American Bar Association in which you were quoted, the author noted that women's rights Advocates are looking to the ERA after claims of unequal treatment have failed in the courts. For example in class actions to chain store employees with sex discrimination claims - that's the Walmart case, or in the failure to hold police departments accountable for the systemic failure to enforce domestic violence protection - that's the Castle Rock case. Give other examples of cases that you think should come out differently if the ERA were adopted.

Coberly: [00:42:43] Sure. So first of all with respect to the ostensibly neutral laws that might be challenged could the- again, could those challenges be brought? I'm sure. You know people have brought those kinds of challenges under the Fourteenth Amendment based on facially neutral laws that they argue have a disparate impact on race, and you know for better or worse, and we can maybe have a disagreement about that, the courts have rejected those kinds of claims and have looked for proof of intent. So, you know, if obviously, again and I think we're all in agreement that we're speculating here, about how courts resolve these issues and I do think that, you know, there may be some who would want to argue to use the ERA to take another run at this issue about you know, is disparate impact by itself a sufficient basis to show constitutional infirmity? But if you know, we have to inform our speculation by what's actually happened in history and that has not succeeded under the Fourteenth Amendment. So there is a requirement under the cases that there be some sort of either explicit or implicit racial motivation with respect to those neutral laws. And I- there's every reason to think that the same- that courts would ultimately reach the same conclusion with respect to the Equal Rights Amendment. You know one example of the kind of gender neutral law that that we're- that we're talking about again is child custody. It may be societally the case that- that you know, it is more often the case that a young mother would be the parent who would be best situated to care for the best interests of the child. That may be the case. It may not be the case, but I certainly can imagine evidence that would show that even today in 2019 that is still- parenting is still largely a gendered occupation, but it's hard for me to imagine anyone challenging a law that requires looking for the best interests of the child as not being appropriate under the Equal Rights Amendment. It seems obvious that that kind of law would survive strict scrutiny. So again, this takes us back to a point we discussed earlier; I think it's really important; the Equal Rights Amendment would not- would not lead to the abolishment of any and all sex distinctions, whether explicit or that are created as a consequence of a gender-neutral law, what they would do at most is to subject those laws to strict scrutiny. And if someone wanted to challenge that law, the government could still have the law upheld by showing that it serves a compelling interest and that it is the least restrictive way to serve that interest and I think a facially neutral law like a child custody, best interest of the child analysis for example would clearly survive strict scrutiny. So I don't think those kinds of concerns are are well-founded so, you know in the end, it's certainly true that a lot of the laws that we have today provide lots of options for women. They provide lots of choices. Women obviously can avail themselves of the other rights in the- in the Constitution for example, but we have to remember that under the Constitution, that was not always the case. For many years women had fewer property, fewer individual rights, fewer rights of self-determination and could not vote until the beginning of the 20th century. So it may be the case today that we generally regard the Constitution as providing, you know, many people generally regard the Constitution as providing equal rights, but it doesn't say that. And it wasn't written to say that and I think history would show that it was intentionally written not to say that because of how people viewed gender equality when the Constitution was written. So in a way passing the Equal Rights Amendment is in a sense something that an originalist should get behind. I mean after all it was, as I said earlier, Justice Scalia who pointed out that the Constitution does not prohibit sex discrimination on its face and many courts agree with that. So the ERA would change that and it's in my view about time. I did- you mentioned also the Walmart case and the case about unequal prosecution of domestic violence offenses. I think those are actually two very different examples. There's a lot of confusion about this but it's important to go back to the text to see that the Equal Rights Amendment does not apply to private companies, it does not apply to private actors. It doesn't apply to churches. It doesn't apply to private schools. It on its face says that equal rights under the law shall not be denied or Abridged by the United States or by any state. So many people think that adopting the Equal Rights Amendment could lead to increases in pay equity for example as private employers make an effort to match the pay Equity that would be compelled by the equal- by the Equal Rights Amendment by government employers, but the impact is not direct, so I actually don't think that there would be a direct impact on, for example, the Walmart case or in cases that involve private causes of action against private- private actors. There would not be a direct impact. There's- there may well be an impact on cases of unequal law enforcement of you know increasing the power of congress to enact laws that would ensure equal law enforcement or that would better provide some sort of federal remedy if state remedies were found to be unequal or inadequate. So there are lots of ways in which the Equal Rights Amendment would impact the lives of women, and particularly disadvantaged women, and women of color etc, but but they would not- it would not directly impact private civil litigation against corporations.

Rosen: [00:49:23] Thank you for those very helpful distinctions between the ERA's potential effect on private companies and on government and also for your arguments on behalf of the ERA. Inez, the last word on the substance is to you and then we will turn to the ratification question. So Linda says that an originalist should support the ERA because the Constitution as currently construed does not forbid sex discrimination and it should explicitly do so. What's your response to that and you know sum up your main concerns that leads you to oppose the ratification of the ERA?

Stepman: [00:49:59] Sure, so just because one agrees with real originalist interpretation, for example, the interpretation she pointed to from Scalia of the 14th Amendment, of the equal protection Clause not applying to sex doesn't necessarily mean that we think that it should be- I mean- look, I applaud ERA proponents for doing this quote the right way, right? I think originalists would applaud that effort from that perspective. It doesn't mean we have to agree with it on the matter of substance. But I think this is the right way to go about changing the Constitution, not to read ever broader interpretation into the language that's already there, just separate it from any kind of original understanding, but in fact to go through this complicated process with the details of which we'll get to in a minute of amending the US Constitution. So in that regard, she's absolutely right. I think originalists should cheer the fact that we're talking about this as an amendment and not as an interpretation of the equal protection clause. That being said, because the closest thing that we have to sort of speculate on what the consequences of this kind of amendment would be is the equal protection Clause, I think it's worth making the point that women do not in any way qualify- if you go back to the entire, the genesis of these kinds of levels of scrutiny, right, there's a famous footnote in the case called Carolene products that kind of birthed this entire scheme of rational basis intermediate scrutiny and heightened and strict scrutiny for  classifications  based on race, and the justification originally for this entire type of analysis was the idea that discrete and insular minorities in other words, for example, racial minorities would not have open to them the normal remedies of the political process because by definition they were minorities, right? They did not make up the majority. We still are a republic. We still have a democratic system. So it would make political remedy through the normal political process of any of these kinds of injustices very difficult, right? That was sort of the underlying thought behind creating this kind of equal protection analysis. Women don't qualify for that. So not only are women the majority of citizens in the United States eligible to vote. They are in fact in real life the majority of Voters in almost every election for a long time. Now I think the average is around 53 percent of the electorate is actually female, in the last I don't know what it is, eight, ten elections, so- and and in fact women have made their political voice known through the normal political process here. We have lots of advancements whether, you know, we can debate whether those are a good thing or a bad thing. Some people, depending on each one, and I suspect we shouldn't go into each one of those, but for example sex discrimination is included in the 1964 Civil Rights Act, right. We have an equal pay federal law that says that in fact similarly situated men and women doing the same job cannot be paid differently on the basis of sex, right and we have similar laws on the state level. That is all evidence that in fact women can address what they see as any kind of injustice through the normal political process and therefore taking those issues, many of the issues, you know, we kind of bounce back and forth on between Linda and I for example, you know, whether or not abortion should be paid for with taxpayer dollars or you know, whether women should be included in the draft, whether Public Schools should be able to segregate restrooms and locker rooms based on sex, right? These are all issues that regardless of how you feel and which side you come down on the debate, I think the the normal political process can and should take care of. When we constitutionalize these issues, right, the United States has one of the shortest constitutions in the world. Not the shortest, I believe that's Monaco, but we have one of the shorter constitutions in the world exactly because the founders intended to leave so much especially in the states, so much to the Natural political process and actually- so Scalia wrote a dissent in the u.s. Versus Virginia, the VMI case that I believe both of you have mentioned earlier, in which he included the phrase “the smug assurances of each age.” Right, all of these speculations on a how this amendment would apply practically and impact the, you know, hundreds and hundreds of laws that recognize distinctions between men and women in some way or another, those we object to, taking our understanding at this, you know precise moment in 2019 of those laws and then constitutionalizing it and making it extremely difficult for voters, the majority of whom are women, to be able to play out this give-and-take, okay, you know, is it more worth it to draft women or is it on the- on the principle of equality, is that much more fair or is it- are there reasonable reasons for exempting women from the draft right? That's- that's a reasonable debate that we can have as part of the normal political process. And the reason that I and many other many others object to constitutionalizing that is that it places that debate in the hands of Judges who, Linda is right currently, probably our Supreme Court would be more likely to interpret this in a reasonable and narrow way, but that may not always be the case. And so I think constitutionally- constitutionalizing that process and those debates and taking it away from voters is- is you know, not the wisest course of action. I think it's better to leave these kinds of give and take questions in the hands of voters, as I said the majority of whom are in fact women who are perfectly capable of looking at these laws and determining whether they're fair or not.

Rosen: [00:56:22] Thank you for both for so thoroughly mooting the questions about the potential effects of the ERA. We now turn to the crucial question of ratification and belated ratification, and in 1972, when the Congress proposed the ERA, it specified a seven-year time period for ratification that expired in 1979, then right before the original deadline passed, Congress passed a resolution by majority extending the deadline until June 30th 1982. And that was by majority vote, not by 2/3. A federal court subsequently ruled that that extension was not lawful. That was a 1981 decision that said that Congress couldn't lawfully extend the ratification deadline, but the status of that extension is unsettled in the courts and then to complicate things further, after the ERA was proposed, four states that ratified it subsequently passed resolutions of rescission claiming to void their ratification and one state had a sunset clause revoking its original ratification if the amendment didn't gain approval by 1978. On the other side proponents of extended ratification cite the remarkable belated ratification of the 27th Amendment which, as we all know, I hope We the People listeners know, was ratified in 1992 years after it was originally proposed as the original First Amendment in 1789. Dear We the People listeners, we have at the Constitution Center one of the 12 original copies of the Bill of Rights. The original first amendment was not the free speech amendment, but the Congressional pay Amendment and that was belatedly ratified as the 27th Amendment in 1992 based on a student's note, a paper by a brilliant undergraduate who argued, at the University of Richmond, citing a term paper by a University of Texas undergraduate called Gregory Watson, that citizens could push the pay Amendment and that it could be ratified nearly 200 years after it was originally proposed. So this is a complicated debate. We could have a whole separate podcast on it. But we just have a few minutes to put the main arguments on the table. Linda tell us what proponents of the ERA are invoking to support their claim that belated ratification, if a 38th state does indeed ratify, would be permissible and enough to ratify the amendment given the passage of the original deadline and the extension?

Coberly: [00:59:05] So well there are a number of different ways to approach this issue and I'll focus on the way that has been in the news most as of late, which is to have Congress remove the deadline, you know, there is a difference obviously between the 27th Amendment which took 203 to ratify and is now part of our Constitution and the ERA and that difference is that Congress imposed this deadline, that's a practice that was new at the beginning of the 20th century. Before, you know, kind of- I think was 1917, there had been no deadlines imposed by Congress. Congress started to impose the deadlines with the prohibition Amendment and did so with every other amendment that it proposed to the states in the 20th century with the one exception interestingly of suffrage, women's suffrage. The interesting thing about the deadline for the ERA is that it does not appear in the text of the amendment itself. So when a state was voting on the Equal Rights Amendment, the seven years is not in the thing it was voting on. The two-year delay in the effectiveness of the ERA was in the thing Iit was- the legislatures were voting on. But the 7-year limit was not. The 7-year limit was contained in a joint resolution by Congress that was introducing the amendment and expressed congress's intention at that time, and there's no reason to think that Congress can't change that. It's just a joint resolution. We have a well-established presumption in our democracy that one Congress cannot bind future congresses. So if the current Congress concluded that the seven-year deadline and then later the nine-year deadline should just be removed and that the Equal Rights Amendment should be effective whenever the 38th state ratifies, it can do that, and there is reason to believe the Supreme Court would actually uphold that, and Coleman versus Miller, the Supreme Court expressed significant deference to congress's judgment when it comes to matters of ratification and specifically the timing of ratification. So that's something that the Supreme Court has said Falls within the power of congress as it exercises its ability to propose amendments to the states. And if Congress changes its mind that is up to Congress to decide. There are currently bills pending in both the House and the Senate to remove the deadline. The house bill was introduced by representative Speier, the Senate's bill was introduced by Senator Cardin and Senator Murkowski. Both of them have bipartisan sponsors. And you know our view is that if those statutes are passed, that would make the 38th states' ratification effective whenever it happens. As for the rescissions, you mentioned the four states that attempted to rescind back in the 70s or that limited their ratifications. Historically those kinds of rescissions have not been found effective. They've just not been recognized. In fact the promulgation of the Fourteenth Amendment itself depended on States that had ratified and then attempted to rescind but everyone agrees, all three branches of the federal government actually agreed, that that amendment was fully ratified and it's been treated as such for more than a century. So the only question under Article V which governs the process of ratification is whether a state's legislature voted to ratify at some point in time. Did that occur or did it not? And as of this moment that process has occurred for 37 States. We're just waiting for one more.

Rosen: [01:03:14] Inez, the last word is to you on this fascinating question about whether, if Congress were to pass a resolution extending the deadline or lifting it, that would be a valid ratification or even if it did not, given the fact that as Linda suggests, the Fourteenth Amendment was ratified at the point of a bayonet, the original Constitution was illegal according to the ratification procedures specified under the Articles of Confederation. So if States choose to ratify, is there an argument that Congress can't condition validity and might it be possible that courts would accept ratification under those circumstances?

Stepman: [01:03:56] Well, I think it's going to be fascinating to see how this actually plays out. If the ERA proponents actually do manage to get 38 states and then managed to get the deadline revoked in Congress, it will be really interesting to watch these cases from a sort of detached, instead of being an opponent, from a detached Observer perspective, I just think that they're going to be really interesting. They're going to open some really interesting constitutional questions. So first of all this seems- so if we take what Linda said and sort of generalize it to all amendments, it does awfully seem to kind of create the proposition that although it's not, maybe not a good thing to leave ratification over an indeterminate amount of time, there really actually isn't any way to reject for the American people to reject a amendment to the Constitution. Right? So if rescission is not valid and ratification can take place over such a long period of time that perhaps the body politic is in fact completely replaced, as in let's say an amendment was ratified well over a hundred years ago by a certain number of states and then today by the other half of the required 38, you could- you could  see that in fact there might not even be anybody left alive who was part of that original ratification, and that does seem in some way to contradict the spirit of Article V and the Article V process, right? This is supposed to show overwhelming popular support for an idea that then enshrines it into the Constitution. So there does seem to be some kind of contradiction to the spirit of Article V, but that being said, there are some Supreme Court precedents that have put this as a political question as Linda mentioned. Coleman basically set- I mean so previously the Supreme Court had said that ratification should be quote reasonably contemporaneous and quote part of a single process which seems sort of reasonable, but then they said that exactly what that phrase means, whether it's seven years or 20 years or a hundred years, is going to be a political question for Congress to decide and that Congress is going to have plenary power over that. So I think it's worth then looking at the intent of Congress that Congress has that plenary power- the intent of Congress and why they put in deadlines. And in the ERA, and as Linda mentioned, it was sort of- it was the fashion of the time; all the sort of early Progressive amendments- Progressive era amendments had- did not have these kinds of- did have these kinds of deadlines, right, either for seven-year deadlines, other than the 19th Amendment, and then afterwards. They actually in- we have legislative history that shows they said that looks really cluttered right, if we're going to put more amendments. This is not just a legal document. It's also a you know, foundational document of the United States. We don't want a document that has a bunch of sort of statute like language cluttering it up. So they said it's too much clutter. We're going to put those deadlines in the resolution surrounding the actual text of the amendments and then it's worth pointing out that in fact after this became the issue that it has been with the ERA, Congress went back to inserting- it said, okay, well this isn't worth- not having clutter isn't worth this problem. So they went back to inserting that kind of deadline language in the actual text. So for example, there's an amendment floating around that would give the District of Columbia full representation as a state in the Union that has deadlines language in the text of the actual Amendment. So there's some evidence that Congress didn't really intend to do this and that this distinction isn't really rooted in what Congress intended to do. But of course as Linda said, a past Congress can't really bind a future Congress. So I think finally I'd just point out that the 27th Amendment is the strongest sort of precedent that folks who say that the ERA can be ratified this way have, as Linda said. It was ratified over two hundred and three years. But it's also maybe not the best example for this specific case. For one there were never any time limits imposed in the text of the amendment or in the surrounding resolution language. So that's an element that's there with ERA that is not with, or was not with, the 27th Amendment and furthermore some legal scholars have sort of looked at the 27th Amendment and said actually maybe because of the weird way that it was ratified, and it's hard to say if this is really the reason, but it's been interpreted as kind of a pariah both by courts and Congress. Congress has passed laws, the 27th Amendment relating to when Congress can give itself a raise. Congress has flouted or at least gone to the edge of flouting that Amendment multiple times and courts really haven't stopped them and perhaps that's part of how courts interpreted as sort of not a real Amendment because it didn't go through the quote normal ratification process where those ratifications were separated by such a long period of time. So I think these are actually really fascinating questions, you know, I hope to to advocate to stop the ERA before it gets to the 38th and Congress repeals the deadline language, but I guess the consolation prize if I lose on the merits will be to see these really fascinating questions played out in the Supreme Court.

Rosen: [01:09:39] Thank you so much Inez Stepman and Linda Coberly for a completely fascinating discussion both on the substance and ratification of the ERA. If the ERA does gain a 3rd state we will absolutely ask you both back to debate whether its ratification is constitutional and I need to thank you both for airing the arguments for and against the ratification of the ERA so well and so rigorously and also for showing us the complexity of the arguments for and against ratification. So for enlightening We the People listeners, Inez, Linda, thank you so much for joining.

Stepman: [01:10:18] Thank you very much for having me.

Coberly: [01:10:20] Thank you. It's been good to be with you.

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Podcast: The Tennessee Wine Case and the 21st Amendment

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution among the American people and on this episode we explore the pending Supreme Court case, Tennessee Wine and Spirits Retailers Association against Blair, and in the course of that we will unpack the fascinating and often forgotten texts in the history of the twenty-first amendment. Joining us to dive into the technical, but completely fascinating, constitutional issues surrounding not only the 21st amendment for a special Valentine's Day episode, but also the dormant Commerce Clause to end any Valentine's like celebrations and the Privileges and Immunities Clause which is always an occasion for celebration and champagne toasts, are two of America's leading Supreme Court Advocates have been especially involved in the case and we're honored to have them. Michael Bendis is a senior attorney with the Institute for Justice. He litigates in courts nationwide, in court cases involving freedom of speech, economic liberty and educational choice and he directs the Institute for Justice's National Food Freedom Initiative. Michael was the counsel of record in this case for the respondents ,the Ketchum family. Michael, thank you so much for joining.

Michael Bindas: [00:01:31] Thank you for having me, Jeff.

Rosen: [00:01:33] And John Nieman is a member of the Maynard Cooper General litigation group and chair of the firm's appellate practice group. He focuses on constitutional and regulatory litigation and he was the former solicitor general of the state of Alabama. John filed an amicus brief in support of petitioners in this case, on behalf of the center for alcohol policy. John, it's great to have you with us.

John Neiman: [00:01:55] Thank you very much, jeff. Glad to be here.

Rosen: [00:01:57] Michael you argued this case. Tell us about the facts. Who are Doug and Mary Ketchum? What is their claim in the state of Tennessee? And what is the texts in history say about whether or not they should have to live in the state of Tennessee for two years before they can operate a liquor store?

Bindas: [00:02:17] Well, Doug and Mary Ketchum will go back a couple of years here back into to just that 2016 were living in Salt Lake City, Utah. They have a daughter in her 30s who is severely disabled. She is a quadriplegic. She has severe cerebral palsy and she suffered a lung collapse from the temperature inversion in the Salt Lake Valley. Doug and Mary were advised by their doctor at that point that they needed to leave the Salt Lake Valley. The air quality was not good for their daughter. She wasn't expected to live much longer. And so they started looking for an opportunity outside of Salt Lake somewhere that would be a better environment for their daughter Stacy but also an economic opportunity. The opportunity that would allow them to care for her and also enable them to support their family. And so they found this opportunity in Memphis, Tennessee. It was a retail liquor shop that was coming up for sale. And they thought this would be an excellent opportunity would give them the flexibility. They needed to care for Stacy, while also enabling them to support themselves. And so with the intention of purchasing the store, using most of their retirement funds, they applied for a liquor license in Tennessee. And that's when things started to get interesting. Tennessee has a law on the books pertaining to the licensing of retail liquor establishments retail liquor stores. These are what you would typically consider package stores. In order to get a license to own and operate one of these stores you have to have been a resident of the state for two years. You can then get a license- that license expires after one year. And then to renew it, you have to have been a resident of the state for 10 years. So you do the math here- it doesn't quite add up. And that's the very purpose of this- its to prevent outsiders, like Doug and Mary, from coming into the state and opening a store that would compete with existing retail stores in the state. Doug and Mary knew about this law before they moved out there, but they weren't concerned because the Tennessee attorney general had twice opined in 2012 and 2014 that this law was unconstitutional in violation of the Commerce Clause of the United States Constitution, and because of that the state had not been enforcing it for several years. Doug and Mary were assured it would not be a problem and so they applied for the license and they were about to get it around the same time Total Wine, the national retailer, was also applying for a license in Tennessee. And they likewise  were owned by out-of-state persons, but they were assured as well that this residency requirement would not be a problem for them because the state was not enforcing it. That was all fine. The licenses were being processed when lo and behold the Tennessee Wine and Spirit Retailers Association threatened to sue the state if it issued licenses to the Ketchum's and to Total Wine and at that point the State, not sure what it should do, went to court and filed an action in State Court basically asking a judge to tell the State whether or not these residency requirements were constitutional and the the real underlying question there was whether or not these Provisions violate the Commerce Clause of the United States Constitution, which prohibits States from discriminating against out-of-state entities, industries or instead whether these laws were justified by the 21st Amendment of the Constitution which gives States certain power over the regulation of alcohol in in their borders. And the case was removed to Federal Court. The District Court held that these laws were unconstitutional and violate the Commerce Clause. That decision was affirmed by the Sixth Circuit Court of Appeals and at that point the Retailers Association asked the US Supreme Court to take up the case, which it did and the case was argued this past January, January 16th.

Rosen: [00:01:34] Thank you for setting us up. So well and 14 up the conflict between the Commerce Clause and the twenty-first amendment. John, can you describe the arguments about but why the Tennessee law allegedly violates the Commerce Clause or what's known as the dormant Commerce Clause which prohibits States from discriminating against out-of-staters. Tell us what the dormant Commerce Clause is and then tell us about the claim that the 21st amendment gives states such broad authority to regulate alcohol that it may represent a kind of exception to the dormant Commerce Clause prohibition on out-of-state discrimination and then tell us how you think that conflict between the two Clauses should be.

Neiman: [00:02:18] Sure. Well, I would say a couple of things about the facts of the case and the issues that are in front of the court. One really important component of all this is that the 10-year requirement for renewals for licenses is almost certainly not in front of the Court at this point in time. The petitioners in this case, the Tennessee Wine Retailers, did not seek to defend that component of the law. They did not see the Supreme Court's review of the Sixth Circuit's decision on the 10-year requirement and instead limited the question presented to whether the the two-year durational residency requirement for persons or entities that want to sell basically hard liquor in Tennessee violates the dormant Commerce Clause. That I think that reality will be very important in terms of the way that the Court decides the case and there are certainly issues about whether the Court will address the 10-year component at all, and I'm happy to talk about that in more detail a little bit later. The other component of the facts that I think is really important to understand at the outset is I don't think that it's accurate to say that the purpose of this Tennessee law was simply to prevent outsiders from competing with in-state retailers. There was a remarkable moment in the oral argument of this case in January when Justice Breyer, who is hardly thought of as sort of the history Hawk on the Court, stopped Total Wines Council Carter Philip and said effectively we have a ton of history here militating in favor of the state's ability to do precisely what it is done here with respect to a two year requirement. Justice Breyer is is not thought of as a Justice who focuses much on history. He tends to ask questions about the practical aspects of the law and pragmatic issues. So, it was quite a remarkable moment when Justice Breyer almost played the role of a Justice Scalia or Justice Thomas and said we need to focus on the history here and I think a full understanding of the facts requires us, if Justice Breyer is sort of like Doc Brown in Back to the Future, to get into the Constitutional DeLorean with Justice Breyer and go back to two really, really important dates that tell us something about the meaning of the twenty-first amendment and also its interaction with the dormant Commerce Clause. Those two dates are 1919 on the one hand and 1933 in the other. So why is 1919 important? Well, in the years leading up to that the United States had been struggling with the question of what to do about alcohol. It's kind of difficult from our vantage point in 2019 to conceive of how significant a problem alcohol was. Part of the reason why it was such a problem before 1919 is that many of the economic actors, many of the retailers who were controlling alcohol distribution in the country, at that time didn't have ties to local communities. They were focused solely on profit motives and boosting consumption by individuals and not focused on the problems that excessive drinking can uniquely have on local neighborhoods and local communities. Many states at that time responded to those economic actors by experimenting with all out prohibition, but something stood in the way and that was a little thing that you've already alluded to, Jeff, called the dormant Commerce Clause. Everybody in 1919 understood that states had virtually complete control over the way that alcohol would be distributed within their states. But under the Supreme Court's understanding of the dormant Commerce Clause at that time, it was believed that states had no control over alcohol that was shift into a state from another state. In other words, the understanding of the dormant Commerce Clause was States could not regulate alcohol in a way that affected interstate commerce. That would be a matter solely for Congress. So you had Court decisions particular from the Supreme Court holding as much, preventing States from keeping other states from shipping alcohol into their borders. So it created this unworkable system in which states on the one hand were trying to effectuate Prohibition within States or at least heavily regulate alcohol and, on the other hand, they couldn't do anything about alcohol that was coming into their states from out of state. So Congress enacted a couple of laws, federal statutes, that made clear that states could in fact turn off the TAPS in this regard and could regulate the flow of alcohol into their border, so long as they treated out-of-state alcohol the same as in-state alcohol. So that gives us the 1919 the first really important year for the purposes of the facts. In this case, I think in that year the American people said even the system that Congress had effectuated where States had some control over the interstate flow of alcohol wasn't enough. Americans said we need a national prohibition on the use of alcohol and that led to the 18th Amendment, which was ratified 100 years to the date before the parties ended up arguing at the US Supreme Court the case at hand. So what happened next over the 14 years that followed, it became apparent that the 18th Amendment had been a mistake. It wasn't that people all of a sudden decided that alcohol didn't cause a grave social problems, far from it, but it became apparent that prohibition itself wasn't feasible. People were circumventing the law through speakeasies, through organized crime and the like, so a national consensus developed around two ideas. The first is prohibitions are not going to work, but the second is that if we are going to allow alcohol, we need to regulate the heck out of it. We need to have sort of a heavy duty type of regulation that we don't see it from any other legal commodity. So that brings us to the second really important date for historical background purposes here. That's 1933. In that year the people of the United States take what is an extraordinary step of amending the Constitution, something that seems very difficult to do today. That amendment was the 21st amendment and that Amendment did two things. It effectuated the two ideas that I just discussed. At first it repealed the 18th Amendment, but it also restored the state's powers to exercise virtually complete control over the liquor markets within their particular localities. So in the wake of that Amendment, which effectively immunized State alcohol regulation from scrutiny under the dormant Commerce Clause, the States at that time tried to regulate alcohol in one of two ways. One is that they develop government-owned monopolies that would sell the alcohol themselves. We still see remnants of those monopolies in ABC Stores, which I believe control the alcohol sale. For example the sale of hard liquor at least in Pennsylvania, the state you're in, Jeff. They also control the sale of alcohol in the state I'm talking to you from, Alabama. They also control the sale of hard liquor in the state the Ketchum's lived in before they moved to, Tennessee, Utah. So that was one option States employed. Another option was to license private companies to sell alcohol for the state, but states were very careful in light of all the problems that surrounded alcohol distribution before prohibition to limit the number of licenses that would be available and also to make sure that they were very careful about whom they granted licenses to. So, nearly all of the states that adopted a licensing system at the time decided that among the qualifications for a retailer would be a residency requirement, not unlike the two-year durational residency that Tennessee imposed when it decided to go wet in 1939. So all those laws were in place for many, many years before we got to 2016 and the  specific facts that gave rise to this case developed and the floor the Ketchum's company, along with Total Wine, this company that basically wants to become the Walmart of alcohol throughout the United States, challenge these provisions as violating the dormant Commerce Clause, even though they had been around for decades .

Rosen: [00:00:00] Thank you very much for taking us into the Constitutional DeLorean, as you put it, with Justice Breyer and for that great history lesson. As you know, Justice Breyer said in the oral argument today 34 states, according to my count, have rules just like this except maybe not the same number of years. So, Michael, what to make of that history and what has the court said about those 34 laws with residency requirements in the past? And what is the argument now before the court about how the text and history of the twenty-first amendment don't create an economic protectionism exception to the dormant Commerce Clause, as has one of the justices called it, but instead allow the regulation? And just in the interest of putting the text on the table because we love to do that on We the People, I will read the text of Section 2 of the 21st Amendment: The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited.

Bindas: [00:01:03] And the text is certainly the first place to start in understanding  the amendment ,Jeff. As Justice Alito and Justice Kavanaugh return to the text several times during the argument and focused on what it actually prohibits and that is the transportation or  importation into a state of alcohol in violation of its laws. And that is what the amendment was designed primarily to do. If a state wanted to remain dry after the repeal of prohibition, it needed to ensure its ability to number one prohibit the production and sale of alcohol within the state, but also prevent out-of-state alcohol from coming in and that's what the amendment was primarily designed to do. That's a much different thing than enacting restrictive discriminatory restrictions on who can do business within the state. Now recall the ketchum's are now residents of the state of Tennessee. They have resided there since 2016. Yet, they are still being told that they cannot own and operate a liquor store in the state because they haven't lived there sufficiently long enough in the eyes of the Tennessee Wine and Spirit Retailers Association and presumably the State. Now, let's let's look at that restriction in comparison to some of those other 34 examples that that you spoke of before. Tennessee is on the extreme end of this type of restriction. One thing I didn't mention when I when I set this up at the outset, is that when it comes to a corporate applicant someone like Total Wine or a FloorInvestments, the Ketchum's company, those two and ten-year residency requirements apply, not just to the individual applicant, they apply in the case of a corporate applicant to every officer, director, and stockholder of the corporation. There are to be sure residency requirements in other states, but when you have the combination of the two and ten year requirements, that extreme durational period, as well as this 100 percent stockholder officer director component, Tennessee really is an outlier here. Now, what does the fact that these provisions exist in other states mean? It doesn't mean anything and so far as whether or not they're constitutional obviously, the existence of laws, including laws that that exist in a number of states throughout the country, is no guarantee that those laws are constitutional. Moreover, even if there was some legitimate justification for those types of laws in the 1930s, right as prohibition was repealed, any such justification no longer exists. Presumably these were enacted because back in the 1930s you didn't have such things as computerized background checks, where by the licensing Authority can very quickly assess the background of an applicant and ensure that they don't have any kind of criminal history or anything like that. We have that now, obviously, that was not available in the 1930s. And so even if you assume that the existence of these types of laws speaks to their constitutionality, the fact that they existed in the 30s speaks to their constitutionality, things have changed, circumstances have changed and the Supreme Court has repeatedly made clear that due to changed circumstances, a law that was constitutional at one point in the past can become unconstitutional. And so again, the existence of these laws, the fact that they were around in the early 30s, really doesn't have much to say about whether they are constitutional today. What does speak to their constitutionality today is the Supreme Court's most recent dive into this area that came back in a case called Granholm vs. Healed, back in 2005 in which the Supreme Court held that the twenty-first amendment does not somehow save or immunize a law that discriminates against out-of-state economic interests. In that case, you had a law that allowed or two laws, one in New York  and one in Michigan, that allowed in-state wineries to skip directly to Consumers, but that prohibited out-of-state wineries from doing the same. Essentially, wineries in-state were allowed to act as their own retailers and send directly to consumers, but those from outside the state could not do the same. The Supreme Court held that that violated the dormant Commerce Clause because it blatantly discriminated against out-of-state economic interests. And the court went through this extensive history, the same history that John just recounted, and concluded that the 21st amendment was not meant to somehow act as a blank check enabling the states to discriminate against out-of-state actors. And in that light, it tried to reconcile the 21st amendment and the Commerce Clause and it held squarely that the non-discrimination principle of the Commerce Clause is not somehow upended by the 21st amendment, and likewise, that the twenty-first amendment cannot save a law that discriminates against interstate commerce. And so we're confident that the Court is going to apply Granholm very straightforwardly here and invalidate Tennessee's requirements, which do exactly the same thing. They discriminate against out-of-state applicants as well as newly arrived in state applicants, like Doug and Mary Ketchum, and the fact that there are some other states that have these laws on the books is neither here nor there, that doesn't mean they're constitutional. They're not and we're sure that the Supreme Court is going to hold as much.

Rosen: [00:00:02] Thank you so much for that. The Grandholm case, which you mentioned was a five to four decision with a really unusual line-up. It was Kennedy joined by Scalia, Souter, Ginsburg, and Breyer and the dissent was Stevens, O'Connor, Thomas, and Rehnquist suggesting the cross- partisan nature of this case. John, what is the response to Michael's suggestion that there the 21st amendment doesn't create an economic protectionism exception to the dormant Commerce Clause? Justice Kagan, during the argument, said wouldn't it be a better idea if we said the dormant Commerce Clause does apply and then let the state come back and say we can meet that test: we have real health and safety concerns and here are laws well-tailored to address those concerns. In other words, what are the actual interests aside from economic protectionism that the state is trying to achieve here and could it assert those interests under the dormant Commerce Clause?

Neiman: [00:00:57] Yeah, Jeff, I think it's really important to emphasize that the state here is not claiming, or the states that support the petitioner as well as the petitioner itself, they are not claiming that there is an economic protectionism exception to the dormant commerce clause or they're certainly not conceding that the law at issue here is protectionist. These laws had a long pedigree precisely because they were designed as of 1933 in the repeal of prohibition to make sure that the crisis of 1919 did not recur again. So in addition to the states that used licenses to use a licensing system to regulate the retail sale of hard liquor, at that point in time, almost every state adopted something called  the three-tier system. This is a system in which the three tiers of alcohol distribution and production, wholesaling / distribution, and retailing are separate. If you are a manufacturer of alcohol, generally, you cannot be a distributor of alcohol. Likewise, if you are a distributor of alcohol or if you're an owner or a wholesaler who has a fleet of trucks that ships alcohol from a producer to a particular retailer, you can't own either part of the producer or any of the retailer as well. Each one of those tiers, well, particularly the wholesale and the retail tier, almost inherently have to be physically present in a state for the system to work and the Court has repeatedly recognized that a physical presence requirement for wholesalers and retailers is unquestionably legitimate in the Grandholm decision that you and Michael just mentioned. Justice Kennedy in writing the majority opinion went out of his way to say that the three-tier system is unquestionably legitimate. Justice Kennedy quoted a Justice Scalia concurrence from an earlier case called Healy, in which Justice Scalia said, of course, it would be constitutional for a state to require all alcohol to be funneled through in- state wholesalers. So there's no doubt that the Constitution in the twenty-first Amendment accountance a system in which states require alcohol to be funneled through in-state entities entities that are physically present in the state. The problem that the respondents counsel, Total Wines, counsel at oral argument faced was a barrage of questions from justices who said look and light up a history in light of all these decisions where we've said this little presence is unquestionably legitimate and and unquestionably constitutional. How can your view of what Granholm held, in other words that there can be no laws that make any distinctions between out-of-state and in-state business be a plausible one, and Total Wine had no response at all. The reason is that Granholm did not hold that all laws that make distinctions between out-of-state and in-state businesses that relate to alcohol violate the dormant Commerce Clause and are not shielded from the 21st amendment. What Granholm said, consistent, with the historical understanding of the both the dormant Commerce Clause and State's powers, was that laws that make distinctions between in-state and out-of-state products, in other words in-state and out-of-state alcohol are not shielded by the 21st Amendment. In other words, i f you have a law that says that California wine cannot be shipped to consumers within your state, but that Wisconsin wine can be- that's a problem because both the history and the jurisprudence never  countenanced discrimination between products from one state and products from another. But the history and the jurisprudence from the Supreme Court had always envisioned it states would have complete control over the distribution system within the states borders and necessarily would have the power to make distinctions between in-state and out-of-state business. So, the petitioners position in this case is wholly consistent with both Grandholm and Grandholm's recognition that a three-tier system requiring presence within the state is unquestionably legitimate.

Rosen: [00:00:12] Michael, your thoughts on John's claim that Granholm and other cases give the State broad authority over distribution. And then if you can put on the table in this round the Privileges or Immunities Clause on the Institute for Justice website, you have a wonderful explainer, and you argue that laws that discriminate against newly arrived residents of any state have a tainted history, going back to the infamous Black Codes passed by Southern States after the Civil War, you and I, J,  have long argued that the Privileges or Immunities Clause guarantees the right to travel freely between the states for purposes of earning a living or engaging in the ordinary occupation of life. And you say that's the right that Doug and Mary seek to exercise with their move to Tennessee. I have my scan of the transcript of the argument suggested that the words Privileges or Immunities didn't come up in the oral argument. Why was that? Were you disappointed? And why do you think that this law violates the Privileges or immunities clause here?

Bindas: [00:01:07] Well, we'll start with the the points that John was making with regard to the dormant Commerce Clause. Number one, he did try to disassociate the states' position, I'm using states plural. There were a number of states who filed supported briefs on the side of the petitioners in this case. He's trying to disassociate their position with economic protectionism, saying that they're not trying to justify this durational residency requirement on the grounds of economic protectionism, yet during the argument the attorney representing the Wine and Spirit Retailers Association as well as the solicitor general of Illinois, who is has an amicus on the same side, said unequivocally that economic protectionism is perfectly permissible and does not violate the dormant Commerce Clause when it comes to alcohol regulation, that the 21st amendment essentially removed or immunized any alcohol related law from constitutional review under the Commerce Clause, even if it was motivated solely by economic protectionism, which prompted Justice Kagan during the argument to say then “Isn't the sky the limit? Why stop at two or ten years? Can't you know the sky's the limit at that point?” And they unabashedly repeated that economic protectionism is not grounds for invalidating a law when it comes to alcohol regulation. I don't think the court countenance that extreme position. Moreover, with respect to physical presence, you know John makes the point that physical presence is almost inherently required. For example, when it comes to a wholesaler or a brick and mortar shop in a state,well Total Wine and Doug and Mary Ketchum are operating brick-and-mortar shops that are physically present in the state of Tennessee. That is not the issue here. They are both operating brick-and-mortar shops with physical presence in the state of Tennessee. The question is can the state prohibit the ownership of that physical shop based on where someone lives, or in the Ketchum case, where they used to live. And again, we don't think that the Court is going to hold that the State may do so and that's where we get to the Privileges or Immunities Clause, as what we've offered up as an alternative grounds on which the Court can affirm the Judgment of the Sixth Circuit in validating the durational residency requirements. The Privileges or Immunities Clause was enacted as part of the 14th Amendment and it was designed in large part to ensure that Southern states could not pass laws like the Black Codes, what are commonly now referred to as the Black Codes, laws that in the wake of the abolition of slavery the Southern states use to erect barriers to the ability of the freedmen as well as their Northern supporters to move to and around the South in pursuit of a living. There are a number of types of statutes that were very common in the Southern States before ratification of the Fourteenth Amendment that were designed precisely to impede the mobility of the freedmen and ensure that they would be quote “kept in their place”, both literally and figuratively figuratively. The idea was you now had a free and mobile black labor force in the United States. The former southern plantation owner saw that as a threat an economic threat to them and so they convinced their buddies in the State Legislatures in the South to pass these types of laws that would restrict the mobility of the freedmen and prevent them from earning an honest living on equal terms with other residents of the South and the history is replete with examples of these types of laws and the debates over the Fourteenth Amendment as well as some of the Congressional statutes that preceded it, made clear that one of the overriding purposes of the Privileges or Immunities Clause was to ensure that Southern States could no longer do this. And so we have argued that the Privileges or Immunities Clause protects the right of folks like Doug and Mary to move about the nation freely and that they have a right as citizens of this nation to move to any state and to earn an honest living in that state regardless of their state of origin. And most recently, in 1999 the US Supreme Court ruled in a case called Saenz vs. Roe that a one-year durational residency requirement for for full welfare benefits in California was unconstitutional because it violated the Privileges or Immunities Clause. And as the Court made clear in that case, it has always been common ground that the Clause protects the right of the newly-arrived citizen in a state to be treated on equal terms with other residents of that state and we've argued that if the Clause protects the right to be treated equally in connection with welfare benefits, then surely it protects the right to be treated equally in connection with the ability to earn an honest living now. As you know, Jeff, that the Clause did not come up during the argument. We're not surprised by that. Number one, one of the champions of the Clause is Justice Thomas and Justice Thomas is, as your listeners probably know, not the most active questioner on the bench. And so to the extent that there is interest on this issue, I think you know it would certainly be of interest to him and as is usually the case in oral arguments, he did not ask any questions regarding this or any other issue in the case. Nevertheless, we know that he's interested in it. He has long sought to reinvigorate the Clause as the primary bulwark for the economic liberty and freedom of America. And we're hopeful that that he, and possibly some of the other justices, will take this as an occasion to expand on the history of the Privileges or Immunities Clause and its purpose in preventing these types of barriers that impede the ability of American citizens to migrate to a new state and earn an honest living when they arrive there. So, you know, we'll have to wait and see whether there's discussion of it in any of the opinions from the justices, but in any event, it is an alternative ground on which the court can and should uphold or affirm the judgment of the Sixth Circuit in validating the residency requirements.

Rosen: [00:02:31] John, what would be the consequences of striking down Tennessee's residency requirement under the Privileges or Immunities Clause or under the dormant Commerce Clause? You vividly talked about the desire to become the Walmart of liquor. Justice Gorsuch, in the oral argument, of course, as you know, said “Isn't the next business model to try to operate as the Amazon of liquor?” Do you believe that invalidation of this requirement, especially under the Privileges or Immunities Clause as a kind of economic  protectionism, would strike down much of the regulatory apparatus of liquor in the United States and allow for Amazon's or Walmarts of liquor to flourish?

Neiman: [00:00:12] Total Wines lawyer certainly offered the Justices no course of action that would have struck down the Tennessee durational residency requirement and not open the doors to striking down all sorts of other State laws that the Court has said are unquestionably legitimate, including requirements that a store be physically present within a state. Now, I think it's important to separate out the Privileges or Immunities issue from the dormant Commerce Clause issue in the case. I'm always hesitant to make predictions with any degree of confidence about what the Court is going to do, but I feel 100 percent confident that the majority of the Court will not rely on the Privileges or Immunities Clause in this case. It's a fascinating clause. I admire the work that the Institute for Justice, Michael's shop, has done in sort of teasing out the implications of the Privileges or Immunities Clause, which has been long buried in constitutional jurisprudence. I admire the work they've done in teasing them out. I should say with respect to other areas of the law, not necessarily alcohol regulation, a procedural problem in this case is that the implications were not teased out in this litigation until far too late a stage in the case. So the Privileges or Immunities Clause was not only not discussed by the lower courts, it was not raised by the parties below and it seems inconceivable to me that the Court will breathe life into the privileges and immunities clause at this stage of the case without any lower courts having done any briefing. At ward discussion of the issue and in fact, if you look at the petitioners briefs in this case, they largely just ignored the Privileges or Immunities question altogether, so we don't have a lot of briefing or argument on the issue. All that said, while again, I admire a lot of the work that the Institute for Justice has done in exploring the contours of the Privileges or Immunities Clause, the claim in this case strikes me as an especially weak claim. Let's be clear about what Tennessee told the Ketchum's that they could and could not do. On the one hand, Utah told the Ketchum's is that they could not open up a store selling hard liquor. But that in Utah, that is a Government monopoly, and the Ketchum's had no ability to sell hard liquor in that state likewise. Tennessee did not tell the Ketchum's, “If you move to Tennessee, the economic doors of the state will be closed to you.” They didn't even say you can't open up a beer shop. You can't open up a wine shop. They didn't even say you can't open up a bar. The only kind of business that Tennessee informed the Ketchum's that they would not be able to do or at least the Tennessee statutes, I suppose, told the Ketchum's they would not be able to engage in, was a store that sold hard liquor. That was the one area of the law in which Tennessee statutes had carried over the project of 1933 in terms of being very careful about granting licenses granting relatively few licenses and making sure that the people who possess the licenses, or the companies that possess the licenses, have been in the state long enough to understand the norms that govern in the state and have been in the state long enough to give Tennessee the ability to assess their ability to sell hard liquor in a consistent way with  the manner in which Tennessee has approached the issue. So, whereas in a case like Saenz v. Roe, California's durational residency requirement regarding welfare benefits made it practically impossible for someone who is dependent on welfare benefits to move to California. Tennessee's law, creating a very narrow durational residency requirement with respect to a very narrow sliver of the alcohol industry, did not create any sort of barrier in preventing anyone from moving to the state and making a living in some way. It seems unlikely to me that, even if this issue eventually gets raised in a procedurally appropriate way, that it will stand as a barrier to durational residency requirements, like the one that Tennessee is defending here. And with respect to the dormant Commerce Clause, seems to me, I can understand why some of the parties in the case attempted to inject the Privileges or immunities clause issue into the case because the dormant Commerce Clause argument simply was inconsistent with everything the Court has said about the unquestioned legitimacy of physical presence. In the past, if the respondents were able  to offer a persuasive argument to the Court that the dormant Commerce Clause could forbid durational residency requirements without forbidding physical presence requirements, they would have done so, but to this day we've seen nothing in the briefs or nothing at the oral argument, in which the respondents to the case of explained how durational residency requirements can be unconstitutional under the dormant Commerce Clause because they discriminate. Yet, physical presence requirements are not unconstitutional because even though they discriminate as well.

Rosen: [00:00:31] Michael, what's your response to why you believe that physical presence requirements might be constitutional but not durational requirements? And then handicapping this case is unusually hard we know from Granholm that Justice Scalia and Justice Thomas were on opposite sides. So, it's an unusually non-ideological case, but if the Court were to strike down the requirements, who do you think would be in the majority on what grounds?

Bindas: [00:01:01] Well, with respect to physical presence versus durational residency requirement, you know, obviously the physical presence issue is not involved in this case. It's well beyond a physical presence. But you know I can imagine reasons why a State might be able to credibly claim that physical presence for certain aspects of alcohol distribution is necessary. Now recall that the test for whether or not a law violates the dormant Commerce Clause is whether the State has a legitimate local interest that could not be served through a reasonable non-discriminatory mechanism. You know, perhaps the State would have a sufficiently convincing argument, for example, that a physical warehouse is needed for wholesalers so that the State can inspect the product, tax the product, etc. And that it could justify that and  argue that you know absent having that physical presence, we couldn't adequately achieve those things that we need to achieve, but that is a much different thing than what we have going on here, which is where the State is again. We're talking about brick and mortar retail shops. Total Wine and the Ketchum's are operating brick-and-mortar shops with physical presence, but the State is attempting to regulate it based on where people have lived in the past. That is a much different thing and I don't think the state has any justification, much less a sufficiently important one, for requiring two or ten years presence in the state in order to operate a shop. I just see the physical presence scenario as something wholly different and as for a line-up with the with the Court, I'm not about to try to predict where this is going to go. You know Granholm ,as you mentioned Jeff, was ideologically an interesting lineup, perhaps strange bedfellows on either side of that of that case, which as you noted, was a 5-4 decision. You know, I personally don't think this will be a close case in the sense of a 5-4 type decision. I think our side will prevail and I think it'll be a much bigger margin and at the end of the day the fact that there was an unusual ideological line up in Granholm, and I anticipate we may see that here as well, it shouldn't be surprising because whether or not a State can discriminate against newly arrived residents, based on the fact that they move there from some other state, should not be an ideologically liberal or conservative issue. I think all Justices recognized that that type of discrimination against newly arrived residents or out-of-staters, for that matter, is obnoxious, too. The Commerce Clause to the Privileges or Immunities clause and I think a majority of the court is going to say that the twenty-first amendment can't the can's save a violation of either of those clauses.

Rosen: [00:00:58] John, your thoughts on what the line-up might be and use it to educate our listeners about the different methodological approaches of the justices. What might an originalist hold? How about someone who cares about history and precedent, or the courts legitimacy given all those considerations? How do you think the court might rule?

Neiman: [00:01:19] I think Michael and I agree wholeheartedly that we're very uncomfortable making predictions about line-ups. So I think I'm going to dodge the question respectfully in the same way that he did. I will make some predictions about what factors might motivate the Justices to decide the case in particular ways, I think the first really important factor here is the one I adverted to in at the beginning of this podcast regarding history. At some point in the respondent's argument, Justice Breyer who generally doesn't focus all that much on history, took us for a ride in that constitutional DeLorean talking about the history of these particular kinds of requirements and also the history associated with State regulation of alcohol. I think it's very difficult for the respondents in this case, and then for any justice who would be sympathetic to their side, to reconcile the position that these sorts of durational residency requirements violate the dormant Commerce Clause with the history that unfolded around not only the ratification of 21st amendment in 1933, but the steps that States took in the immediate wake of ratification to effectuate the goals of temperance that everybody wanted to achieve. States in 1933 thought that durational residency requirements were something the twenty-first Amendment authorized them to do. Then it seems implausible that whatever what I should say, that's a very compelling reason to think that in fact the 21st amendment did authorize the states to do so, especially since those kinds of requirements have gone on question now for decades. The other issue I think that seems to be driving and number of the Justices towards the end of respondent's arguments, and I'm thinking about Justice Gorsuch, Justice Kavanaugh, Justice Kagan, was this question of how the respondents could possibly reconcile the principle they wanted the Court to adopt with the Courts clear statements that in-state presence requirements are permissible and unquestioningly legitimate under the 21st amendment. I think it's very telling that when asked to distinguish physical presence requirements from durational residency requirements, Michael during this podcast did not say “Well, physical presence requirements are shielded from dormant Commerce Clause under the 21st amendment.” His suggestion was “perhaps the dormant Commerce Clause inquiry would come out differently for physical presence requirements.” That is not what the Court has said either in Granholm or in the cases before it. In those cases, the Court has said that those requirements are unquestionably legitimate. In other words, there really doesn't need to be a dormant Commerce Clause inquiry into whether there is a less restrictive means of effectuating the state's goals. A temperance physical presence requirements are unquestionably legitimate because they're authorized by the twenty-first Amendment to this day. Total Wine and the other respondents have not offered a principle under which the twenty-first Amendment would Shield physical presence requirements as it does and somehow not shield durational residency requirements from the same sort of dormant Commerce Clause inquiry. So I think the Justices were focused both on the history and also the need to reconcile the Court's repeated statements about the unquestioned legitimacy of the three-tier system, and physical presence requirements will lean heavily in favor of reversing the Sixth Circuit, telling the Sixth Circuit that the broad anti-discrimination principle that it adopted in this case does not accurately reflect either Granholm or the 24th and First Amendment jurisprudence generally and require the Sixth Circuit to reconsider in light of the more narrow scope of the Granholm holding, focus solely on discrimination against out-of-state products rather than out-of-state entities.

Rosen: [00:02:07] Many thanks for that. Well, it is time for closing arguments in this excellent discussion. This is the time in just a few sentences to make your case and try to persuade our listeners of your constitutional argument. So, Michael, the first closing argument is to you. Why do you believe that the Tennessee residency requirement violates the Constitution and why should the Court strike it down?

Bindas: [00:02:32] Simply put, because Americans have a right as citizens of this nation to move to any state and to earn an honest living in it, regardless of their state of origin. No State can punish a citizen for having moved. No  State can discriminate against its own residents simply because they moved from some other state, like the Ketchum's did. The Privileges or Immunities clause, as well as the Commerce Clause, prohibits that kind of discrimination and the 21st Amendment is not a blank check for the states to engage in that kind of discriminatory legislation.

Rosen: [00:00:15] Thank you so much for that and, John, last word to you. Why do you believe the Tennessee residency requirement does not violate the Constitution and why should the court uphold it?

Neiman: [00:00:24] I said at the outset that it's a little difficult from our vantage point here in 2019 to truly understand the crisis that the country faced in 1919 and again in 1933 when the people of the country took the unusual step of enacting two Constitutional Amendments. Dealing with a specific commodity, this being alcohol, I largely agree with almost everything michael says about the ability of citizens to earn an honest living and for the importance of States following a non-discrimination principle, but what the lesson of 1919 and 1933 was that alcohol was a unique product, unlike any other product. It wasn't to be treated like men. It wasn't to be treated like books. It required drastic solutions that involved States, having as the Court has said over and over again, virtually complete control over the distribution systems within their borders. That means that in this very limited industry with respect to this very limited commodity, States have a certain leeway to ensure that the public health dangers that are posed by alcohol do not present themselves, to ensure that the crisis of 1919 and the crisis of 1933 does not arise again and to ensure that this product, which can pose dangers if not regulated carefully, would be controlled and that the goals of temperance of 1933 would be fulfilled. So, in this very narrow area of the economy, in this very narrow sector, the state's decision to impose a reasonable durational residency requirement before allowing people to engage in this very limited activity is justified and constitutional.

Rosen: [00:00:05] Thank you so much Michael Bendas and John Neiman for opening the spigot of reason on the 21st amendment, the dormant Commerce Clause, and the Privileges or Immunities Clause. This has been an effervescent conversation about the intersection of those three amendments and you've given our listeners much to learn more about. Michael, thank you so much for joining.

Bindas: [00:00:29] Thank you for having us.

Neiman: [00:00:31] Thank you.

Rosen: [00:00:32] Today's show was engineered by Kevin Kilburn and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Dear We the People listeners, for homework this week, here's a wonderful read and it's Daniel Okrent's “Last call: The Rise and Fall of Prohibition.” It was such a fascinating story about how the 18th Amendment, which had such intense national support in 1919, was re-pealed by the 21st Amendment, which had equally intense National support by 1933 and okrent tells the story in a great narrative that I know you'll enjoy. If you feel moved to learn more, please rate, review and subscribe to We the People on Apple podcast and recommend the show to friends or colleagues or write to me to tell me what you think of it and how we can improve. Your emails are greatly appreciated and thanks so much to those of you who writing over the past couple weeks and remember always when you waken, when you sleep, the National Constitution Center is a private nonprofit. We receive little government support and we rely on the passion, engagement, reasoned wonkery and love of lifelong learning of all of you who are listening to this podcast and educating yourself about the Constitution. So to allow us to continue to do our work, join as a member and the way to do that is to visit Constitutioncenter.org/donate to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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