The Outsider Perspective Issue 196 | The Beltway Outsiders

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Good Friday Morning, except to the Washington Post, whose writers decided that a random private Halloween party with an unknown person in blackface was worth two journalists and 3,000 words. Yes. Blackface is awful. No, random parties aren’t newsworthy. And from what is available, it seems like the Post ran that story, less to criticize bad acts by a single person than an effort to get the higher-ups at the Post fired. Tend to agree with PoliMath, who observes:

Liz Bruenig is right about how cancel culture is all atonement and no forgiveness

But also worth noting that the range of appropriate behavior narrows with time and they forgive the powerful

A cancel culture that elects Ralph Northram is simply about sanctioned hatred

I’d add: Harvey Weinstein tried to pull this card, he said he’d improve and fund NRA efforts. That failed because of the level of his depravity. That card doesn’t always fail though. We’re beyond the clutches of the #MeToo movement. And those on the right side of cancel culture can get away with anything.

Back to the Washington Post, the American press is at war with itself. Between the Post and the ousting of an NYT editor because of an op-ed by Senator Tom Cotton has triggered an uproar from the younger millennial/gen-z journalists over their boomer/gen-x bosses. Conservatives joke that its Maoist struggle sessions, and there’s some truth to that. But it’s also a sign that the campus culture that conservatives blasted for decades has entered newsrooms. We’re entering the completion of Allan Bloom’s polemic vision in “Closing of the American Mind,” written in the 80s. Bloom was a liberal.

As conservatives have long warned, “Ideas Have Consequences.” This week I’m talking about the two Supreme Court cases, on Title VII and DACA. I explain what happened in both and where things may head after the opinions. Links to follow.

Where you can find me this week

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Podcast #40: Romney! CHAZ! and Coronavirus! (Oh my!)

Memorializing versus celebrating history – The Conservative Institute.

The ahistorical radicals of ‘woke’ purity – The Conservative Institute.

The Supreme Court and DACA

Anyone interested in the role that the Federal Judiciary now plays in our constitutional system should consider what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.

Justice Samuel Alito, Department of Homeland Security v. Regents of University of California (2020)

That quote is from the DACA case that came out Thursday. I thought it neatly summed up (too) long procedural history involved with DACA. Alito is right that this is not how the law is supposed to work; there’s a bit of “Trump law” occurring right now. There existed a comparable dynamic in the Obama era. As more power flows toward the Executive branch, these kinds of battles will increase.

Ross Douthat at the New York Times joked, “There are only two branches of the U.S. government, a continuing series.” Congress is more of a spectator every day. Congress could fix this situation by passing immigration reform. As multiple justices noted, Congress has failed to do so at numerous junctures for two decades.

As a quick primer, DACA was part of the Obama administration’s program that “allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.”

To be very clear: DACA was not a law passed by Congress. It was a memorandum, written by political officials in the Obama administration, that set how the Obama administration was going to enforce immigration law. It got invented whole-cloth. Reasonable minds can differ over whether the executive branch has that level of discretionary power. But, it is NOT debatable whether or not one administration has the authority to prevent the next administration from changing policy. They don’t. Presidents run the agencies, Congress oversees.

The top question I received after the case was: did the Roberts court save DACA? The answer to that is simple: No.

Justice Kavanaugh probably had the best summary of the case:

…[A]ll nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. … The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint — namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.

Without diving into all the details of Roberts’s opinion, the majority ruled Trump has the authority to cancel an Obama-era policy, but it didn’t follow the proper administrative procedures. Justices Thomas, Alito, and Gorsuch said that declaring DACA was unconstitutional was enough to fill these requirements. Roberts and the majority reported a few more steps had to get followed. Kavanaugh wrote separately, saying all the evidence was on the record to accomplish recission, which was slightly different from the Thomas argument.

As far as DACA goes, presumptively, as long as the Trump administration follows the right administrative procedures, they can cancel DACA. As Kavanaugh notes, the only real consequence of this decision is (more) delay:

Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion.

Look for the Trump administration to move towards dotting all the “I’s” and crossing all the “T’s” on ending DACA. The Supreme Court painted all the directions for stopping it in the opinion. The ball is back in Trump’s court because we all know Congress won’t do anything right now.

Something sneaky to watch: the Gorsuch opinion claims that the court has judicial review over Executive Branch actions, including if it’s how to enforce the laws — as DACA was considered. If that holds true, the DACA case could lead to the Supreme Court seizing more power over the executive. It’s worth watching how much the court hits the executive branch on its enforcement discretion.

The Supreme Court, Title VII, and the Bostock case

Bostock is a little different. In this case, everyone argued about an employer’s ability to fire someone based on sexual orientation or identification. It ended up being a 6-3 decision with Gorsuch writing the opinion with Roberts and the liberal block joining in the majority.

Bostock was also a relatively narrow case. The entire case effectively revolved around one question: how do you define “sex” in the confines of Title VII. Gorsuch sets up the different sides in his opening paragraphs:

[I]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

No one in the case, on any side, disputes that Congress DID NOT have homosexuality or transgender ideas in their head when they banned discrimination based on sex. That much was evident in from oral arguments forward. If you count votes on that one proposition alone, you get a 9-0 decision.

So what happened? What the concept of sex includes. Everyone argued on wholly textualist grounds, about what sex does and does not cover. As Gorsuch lays out:

The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’”

To shorten that up, Title VII bans “discrimination because of sex.” Specifically, you can’t use sex as a categorical reason to discriminate. It’s probably easier to jump into an analogy here, provided by Sean Trende:

Imagine a workplace with three employees: Amy, Bill and Chuck. Amy declares her love for Chuck. The next day, Bill declares his love for Chuck. The argument was that the employer can fire both Amy and Bill for violating a prohibition against workplace romances.

What the employer cannot do is fire Bill because of a workplace prohibition on same-sex romances. The reason has nothing to do with Bill’s sexual orientation, at least as such. Instead, it has to do with Bill’s sex. Firing Bill but not Amy says that a woman may declare her love for a man in the office, but a male may not. The employer is inherently creating a categorization based on sex, which the Civil Rights Act flatly prohibits (in fact, the CRA does spell out some instances where employers can discriminate on the basis of sex, the so-called bona fide occupational qualification exception, but the fact that Congress made some exceptions but did not also spell out an exception based on sexual orientation works against conservatives here).

This is, again, an exceedingly clever argument. If you are having trouble seeing it, make Bill a black man and Chuck and Amy white, and try to come up with a reason why the employer can fire Bill for declaring his love for Amy, but not Chuck. It is very difficult, if not impossible, to do so.

That’s the argument of Gorsuch. It’s not that they’re redefining the meaning of the word “sex,” it’s about what the ordinary meaning of the words mean and what that encompasses. And that’s why, while I wholly agree with the Alito dissent, I think the real disagreement is between Kavanaugh and Gorsuch.

Kavanaugh’s dissent points out that Gorsuch is parsing the phrase, “discrimination / because of / sex,” instead of reading it as a whole. If you don’t parse the phrase, “discrimination because of sex,” you come to a different textualist conclusion. Kavanaugh explains with examples:

Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. Examples abound. An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.

And Kavanaugh’s point is simple. When you read the phrase within Title VII as a whole, “discrimination on the basis of sex,” it has a far more narrow meaning. You only have sex meaning biological sex. You have to actively parse something to take it outside of the phrase to get to the conclusion Gorsuch comes to in the end. Put another way, the only reason Congress passed the law the way that it did was that they enacted a phrase — not a set of words to get parsed.

Despite all that, it’s important to note that this is a narrow case that only touches on the narrow confines of Title VII. And as Trende says, and I agree, the court skips over any clash on the religious rights front:

Perhaps more importantly, the court sidestepped the question of whether the Religious Freedom Restoration Act of 1993, which keeps laws from being interpreted in a way that burdens religious belief, creates an exception here. That will be a battle fought in subsequent years, and it will be nuclear.

Conservatives also object to this with a parade of horribles – what about bathrooms, maternity/paternity leave, etc.? I don’t know if there is some way to distinguish those cases but if not, the answer is regularly urged by conservatives: If Congress doesn’t like the law, it can fix it. This is regularly offered up even in the context of constitutional amendments, which are virtually impossible to pass these days; it is a lower bar for legislation. Of course, the issue is that Congress won’t pass such fixes, but that is ultimately on the voters, not on the court.

It’s because of all these parades of horribles I’d had sided with Kavanaugh and Alito. Congress should be the branch responsible for fixing what Title VII means, and then weighing that against other rights and interests that are burdened. I also agree with Trende that won’t happen. That’s because Congress is full of cowards who refuse to pass any legislation. Conservatives don’t want to confront the discrimination angle, and progressives don’t want to debate how this burdens religious rights. So everyone is letting the court system figure it out.

Bostock is not an end. It’s a beginning. It’s a new area of litigation that will fill up the courts for the next decade, at least, potentially longer. And when you combine it with the Masterpiece Cakeshop cases (it’s pretty easy to see how these cases intertwine), it’s going to get very frothy in employment law in the next few years.

Parting Thought…

My last point here is that I’ve seen many people overreacting and saying this end-of-session is proof of the failure of the conservative legal movement. Two cases do not disprove an entire legal movement. Everyone is more touchy because of the timing — an election year. I link to a Josh Blackman piece below of various people on the legal right reacting, especially to the Bostock decision. Most of them are low over it. I see both these cases are narrow. If the Bostock decision causes religious conservatives issues, Congress can move in and fix things. The big case this term is still June Medical Services LLC v. Russo, a case out of Louisiana that deals with abortion regulations that are very similar to those of a 2016 case. That’s the case to judge the overall social conservative movement of the court. If the Supreme Court doesn’t reign in the Hellerstedt decision, at a minimum, then we can talk about the success/failure of the social conservative legal movement.

Links of the week

The COVID Tracking Project

Coronavirus Disease (COVID-19) – the data

IHME Models the White House uses.

We Need to Stop Measuring Black Lives by Their Whiteness – Thomas Chatterton Williams, The New York Times

We Must Stop the Great Unraveling – The Editors, Commentary Magazine

VIDEO: Racism in America – HolyPost

The American Soviet Mentality: Collective demonization invades our culture – Izabella Tabarocsky, Tablet Magazine

Thoughts on the Supreme Court’s Sound, but Very Narrow Ruling on DACA: The decision is only a temporary reprieve for DACA recipients, and still permits Trump or a future president to repeal the program if he is willing to pay the political price of doing so. – Ilya Somin, The Volokh Conspiracy

Anonymous Reactions to Bostock: Right-of-center lawyers send me their to thoughts on Bostock, Blue Monday, and the Conservative Legal Movement – Josh Blackman, The Volokh Conspiracy

Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination – Ryan T. Anderson, SCOTUSBlog

Many Republicans quietly breathed a sigh of relief after Bostock was decided: Hawley is right: Congress is “terrified about being held accountable for anything on any subject” – Josh Blackman, The Volokh Conspiracy