Progressive Fatalism: Leftists Who Did Not Vote For Clinton Must OWN Their Decision and the Terrible Consequences

Since the election, a slew of post-mortems have appeared in mainstream and social media. One theme that has emerged, particularly among progressives who did not like Hillary Clinton, blames Trump's victory on the Democratic nominee and the DNC who "chose" her. This argument suffers from one obvious problem. Democratic primary and caucus voters--not the DNC--chose Clinton; in fact, she defeated Bernie Sanders by nearly 4 million votes. The argument also suffers from deeper problems that reveal disturbing perspectives among many self-identified progressives.

Candidates and their campaigns undoubtedly impact voters, but voters have agency, and they are free to respond to the competing messages they hear. Clinton offered multiple messages, including immense competence, antidiscrimination, economic support and stimulation for families, and national security. Some of Clinton's messages--antidiscrimination and economic support--reflect core progressive principles--even if the specific policies involve some compromise and tailoring for the shared political space that we occupy. Despite dramatic claims by some progressives who say Clinton failed to offer an economic agenda, she promised to fight for a higher minimum wage, free 2-year college education, free 4-year public college education for students from families with incomes up to $125,000, infrastructure investment, increased spending for cities, protect and strengthen Medicare, Medicaid, and Social Security, and allowing states to develop a public option as a part of Obamacare exchanges.

Clinton also recognized that class and identity are intertwined. Thus, antidiscrimination measures formed part of her agenda, but these proposals had economic dimensions. Clinton promised to fight for gender wage equality, to expand access to educational opportunities for persons with disabilities, increase federal support for historically black colleges, protect immigrant families from the economic hardship caused by deportation, and to expand funding and staffing in the Civil Rights Division of the United States Department of Justice.

Collectively, if one judges her as a whole using progressive values, Clinton was on the right side of history. Reaching this conclusion does not mean that Clinton has not taken nonprogressive positions in the past, including supporting the Iraq War, the 1994 Crime Bill (like Sanders), and welfare reform. But a comprehensive analysis of Clinton in the context of this election--when there were just two possible winners--shows that Clinton was, undeniably, the progressive choice. Donald Trump was not a defensible progressive choice. His campaign appealed to white nationalism, xenophobia, misogyny, distrust of science and logic, antisemitism, sexism, Islamophobia, and other harmful ideologies. Clinton, not Trump, was on the right side of history--from a progressive perspective.

But Clinton's leftist critics cannot bring themselves to acknowledge this important point. Doing so would undermine their boiling hatred of her. But this would also allow us to analyze more pressing questions for Democrats moving forward. For example, why did so many Americans vote for a candidate who openly represents bigotry, ignorance, and incompetence? Which Americans supported this candidate? Were those Americans on the right side of history from a progressive perspective? If not, how do Democrats move them to this position?

Social scientists have compiled decades of research that addresses these questions. Bigotry is pervasive in the United States--either as implicit bias or open hatred of the Other. Also, whites gave Trump the election. Had only persons of color voted, Clinton would have have won every state--a complete shoutout. This is consistent with every presidential election since 1964--the last time a Democratic candidate won a majority of white voters nationally. Race is a longstanding part of US election politics and voter behavior.

Some leftists, however, dismiss the operation of racism in Trump's victory, citing Obama's wins in 2008 and 2012 and his support from some white Trump voters. But this argument fails to appreciate the complexity of racism and Obama's performance of race. Unlike Clinton, Obama did not run a very openly antidiscrimination campaign. He appealed to race subtly and symbolically. Also, his two opponents did not make such blatant appeals to bigotry as Trump. The 2016 presidential election primed bigoted ideology almost continually. Moderate whites who backed Obama could easily have been seduced by this rhetoric. Implicit bias research demonstrates that priming of racism causes many whites to engage in discriminatory behavior--including whites who view themselves as egalitarians. Furthermore, many progressive whites have written about their own ongoing struggles to disown white privilege and unlearn racism. If people who are knowledgeable of the subtlety of racism must struggle against it, then folks who lack information about these issues certainly need to--but are less likely to do so.

Although Trump's voters were on the wrong side of history, many progressive critics of Clinton and the Democrats have expressed sympathy for them, mistakenly believing that they are largely poor and economically subordinate whites. Trump, however, won wealthy and middle-class whites. He won college-educated and noncollege whites. Clinton won the poorest Americans and persons of color. She won young whites and white liberals. A significant amount of white progressives, however, voted for Jill Stein (or stayed home). Although it is still unclear what affect their decisions had on the election, Stein captured enough votes in states that Clinton lost to shift the victory to Trump. So, like Trump's white supporters, white progressives who voted for Stein (her voters were overwhelmingly white) or who stayed home (or picked Johnson) were on the wrong side of history--from a progressive perspective. When presented with the opportunity to stop Trump and his reactionary agenda from winning, they chose another route. They must own this decision. Instead of doing so, they want to relitigate the Democratic primaries. On November 8, only two viable candidates were on the ballot--Clinton and Trump. Only one of those candidates offered a message and concrete policies consistent with progressive values. If you did not vote for her, you betrayed the millions of vulnerable people who rely upon decent decision making by progressive voters. It takes a village to elect a president. In other words, election outcomes depend upon choices that candidates and voters make. You must own your choice and the results.

The Recent Critics of Identity Politics Are Clueless About Identity Politics

Many political scientists and other experts contend that reliable demographic information regarding the 2016 election does not yet exist. The scarcity of definitive data, however, has not deterred commentators from delivering election post-mortems.

Although various strands of analysis have emerged to explain the election result, a troubling account of Hillary Clinton’s loss has gained traction. According to this narrative, Clinton lost because she did not promote an economic agenda to attract working-class voters. Instead, identity politics occupied center stage in her campaign.

The lesson from Clinton’s loss is clear to the post-identity commentators. Identity politics cannot win elections; therefore, Democrats must discard this message and emphasize economic and other concerns. This argument, however, grossly distorts the content of Clinton’s campaign message and the substance of identity politics.

Clinton touted her economic agenda on many occasions. Her numerous economic proposals include increasing the minimum wage, infrastructure investment, tuition-free college for 85% of US households, paid family medical leave, permitting states to pursue a public option under the Affordable Care Act, pay equity for women, increasing funding for Head Start and early preschool, and expanding the Earned-Income Tax Credit. Also, while Clinton extensively detailed her proposals, Donald Trump provided little information about his economic program—which undermines arguments that working-class voters flocked to him due to economic anxiety.

Whites overwhelmingly voted for Trump, and no Democratic presidential candidate has won a majority of white voters since 1964. On the other hand, vast majorities of blacks and Latinos—two of the poorest populations in the US—cast votes for Hillary Clinton. When critics observe that Clinton failed to attract working-class voters, they actually mean whites. Failure to interrogate the differing responses of working-class whites and persons of color to Clinton and Trump obfuscates the relevance and ubiquity of racialized voting in the US.

Columbia University Professor Mark Lilla has published one of the harshest assessments of Clinton’s campaign and identity politics. Lilla accuses Democrats of embracing “identity liberalism”—or a “rhetoric of diversity” that encourages people to “celebrate” their “differences.” Lilla argues that diversity politics fragments society, detracts from more important issues—like economics and war—and has caused poor rural whites to view themselves as a disparaged minority group. Lilla suggests that modern diversity movements are analogous to the Ku Klux Klan, which he describes as “the first identity movement in American politics.”

Like Lilla, other post-identity critics describe identity politics as an empty aspiration for diversity. Bernie Sanders, for example, offers the following flawed analysis:

“It is not good enough for somebody to say, ‘Hey, I’m a Latina, vote for me,’ That is not good enough. I have to know whether that Latina is going to stand up with the working class of this country, and is going to take on big money interests,” he said. “This is where there is going to be division within the Democratic Party. It is not good enough for someone to say, ‘I’m a woman! Vote for me!’ No, that’s not good enough. What we need is a woman who has the guts to stand up to Wall Street, to the insurance companies, to the drug companies, to the fossil fuel industry.”

If Sanders’ reasoning accurately described progressive identity politics, the Congressional Black Caucus would have endorsed Ben Carson rather than Clinton. Identity politics actually refers to liberation movements that seek to eradicate systemic inequalities caused by historical and contemporary discrimination against blacks, LGBT individuals, women, and other disparaged groups. Sanders’ statements evince a disturbing ignorance regarding the complexity of identity politics.

Clinton’s identity politics emphasized diversity, inclusion, antidiscrimination and economic uplift. Clinton promised to combat women’s pay inequity, racism in the criminal justice system, mistreatment of Muslims and other religious minorities, and to strengthen federal funding of education for persons with disabilities. These issues are very compelling for a nation in which racism, sexism, ableism, heterosexism, and transphobia continue to impose economic hardship upon substantial portions of the population. These concerns are not the empty diversity that Sanders and other post-identity critics describe.

The post-identity critics fail to appreciate the complexity of Clinton’s deployment of identity politics because they do not comprehend the interrelatedness of identity and class concerns. Numerous studies demonstrate the negative economic impact of discrimination upon people of color, women, persons with disabilities, and LGBT individuals. The post-identity critics, however, depict identity politics as an elitist obsession with irrelevant socially constructed traits. These constructs, however, have material consequences. Dissecting identity and economics, a common theme among many progressive economic thinkers, obscures the concrete harms of discrimination and inherited inequality.

Critics, such as Lilla, also contend that diversity is fragmenting and thus harmful to democracy. According to some academic research, multiculturalism erodes social capital and causes individuals to go inward and disconnect from other individuals or out-groups. The weight of academic literature, however, qualifies or rebuts these findings.

Many social scientists have found that racial and class inequality, rather than multiculturalism and diversity, reduces political and civic engagement. Harvard political scientist Robert Putnam, whose pioneering research is widely cited for the proposition that multiculturalism erodes social capital, concludes that the societal benefits of diversity—which include creativity and economic growth—outweigh the possible harms from cultural fragmentation. Social psychology research also finds that diversity and equality lead to innovation and robustness within institutions and societies.

Academic research, however, lends credibility to one of claims made by recent critics of identity politics: whites often believe multiculturalism excludes them. Clinton’s campaign theme, however, was “Stronger Together,” and she included whites under her large umbrella (notably, she and her running-mate are both white). 

Studies also show that antiracism and feminism, not simply racial and gender diversity, threaten whites and men, who think of antidiscrimination as a zero-sum game. Clinton did not cause this irrational thinking. On the contrary, group panic in response to a perceived loss of societal privilege has fueled organized backlash to freedom movements throughout US history. Southern whites believed that emancipation of slaves and Reconstruction oppressed them, so they used the law and extralegal violence to maintain white supremacy. White southerners engaged in similar tactics in response to efforts to dismantle Jim Crow. They also complained that the Civil Rights Movement oppressed whites. Today, policies designed to ameliorate racial and sexual inequality, such as affirmative action, voting rights, and social welfare measures, receive similar criticism.

Eventually, political scientists will conduct empirical research and make more informed conclusions regarding the factors that led to Trump’s victory. These factors might include third-party candidates siphoning support from Clinton, James Comey’s shocking late-October letter, Trump’s open appeal to white nationalism, or Clinton’s condemnation of bigotry. The researchers’ ultimate findings certainly will not validate simplistic portrayals of identity politics as external to class concerns or the position that antidiscrimination discourse harms society. An abundance of research already refutes these contentions.

The Democratic Party has made antidiscrimination a central theme in its platform, along with economic betterment of subordinate classes. By contrast, the Republican Party has become a party largely of white voters because it opposes the themes of inclusion, antidiscrimination, and economic justice championed by Democrats. During the campaign, Clinton argued that the election would test the nation’s true commitment to the values it claims to cherish. If Clinton was correct, the US has failed, once again, to live up to its most exalted values. If the Democratic Party discards strong support for antidiscrimination, tolerance, and inclusion in order to appease white voters, it too will fail.

Darren Lenard Hutchinson

Professor of Law and Stephen C. O'Connell Chair

University of Florida Levin College of Law

The views expressed in this essay are my own, and they do not represent the position of the University of Florida or the State of Florida.

The Voices: Why Do White Male Progressives Hear Things That No One Else Can?

Eight years ago, the Democratic presidential primaries had already begun. Hillary Clinton, the presumptive frontrunner, suffered an upset defeat in the Iowa caucuses. Clinton lost the caucuses because Obama had a very well organized operation. Clinton did not devote much attention to on-the-ground strategy.

Obama also prevailed in Iowa because he was able to electrify self-identified progressive voters. For months ahead of the Iowa caucuses, progressive media described Obama in the most glowing terms possible. Whatever Obama said during a stump speech, press conference, stadium-filled forums, or casual moments on-camera, progressives inevitably heard a commitment to radically transformative policies. By contrast, even if Clinton made the same or similar statements as Obama, progressives heard something completely different. To progressives Clinton always expressed conservative and backwards politics.

Although progressives invariably deemed Obama a leftist and Clinton a conservative, most other Democrats did not share these views (or if so, this was irrelevant to them). Take blacks—for example, the voting demographic that most faithfully supports progressive economic agendas. Blacks overwhelmingly voted for Obama during the primaries, but before he won the Iowa caucuses, a majority of black Democrats supported Clinton. Blacks rapidly shifted to Obama in order to support a viable black Democratic candidate—not because they viewed him as more progressive than Clinton.

Opinion polls of the 2016 primaries show a similar pattern and provide greater support for my analysis of black votes. Progressives (at this point, it should be clear that progressives means white progressives) have anointed Bernie Sanders as the leftist; Clinton is still a conservative. Although white progressives appear solidly behind Sanders, opinion polls show that Clinton has overwhelming support among Blacks and Latinos. Although white progressives tout Sanders as the best candidate for economic issues, the voting blocs that have the most at stake with respect to economic issues—people of color, the elderly, women, and poor people—support Clinton more than Sanders. By contrast, Sanders polls well with white college students, white college-graduates and graduate-degree holders, white professionals, and white men. In other words, Sanders supporters tend to have more social and economic privilege than Clinton supporters, despite white progressive depiction of Clinton as a conservative. Sanders’s revolutionaries, on average, are not socially subordinate.

Despite pegging Obama as a leftist, white progressives’ admiration for him plunged after he became president. This trend was especially true among young persons. Young white voters cast more votes for Romney in 2012 than they did for Obama, a dramatic turnaround from the 2008 election. For years, they had accused him of betraying his campaign promises. Few progressives, however, were willing to admit publicly that they heard something in Obama that never existed: a narrative of leftist heroism.  Obama campaigned as a moderate, and people who actually analyzed the substance of his proposals—such as Paul Krugman—wrote about this frequently. Progressives, however, argued that Krugman, the liberal Nobel Prize winning Princeton economist who writes a column for the New York Times, was a corrupt corporate media spokesperson. These same patterns have taken hold in the 2016 primaries. Persons who find little differences between Clinton and Sanders—or who find that Clinton has better policies—receive blistering criticism from white progressives, even though their misjudgment of Obama is very recent history.

On the other hand, Sanders perpetually makes illuminating and radical statements, or at least that is what the voices tell progressives. Progressives hear leftist radicalism in Sanders even when he says things that are arguably sexist and homophobic. Recently, for example, the Human Rights Campaign, NARAL, and Planned Parenthood endorsed Hillary Clinton. Rather than acting gracefully and diplomatic, Sanders dismissed the endorsements as coming from organizations that are “part of the establishment” that he is “fighting against.” While HRC, NARAL, and PP are among the most established and influential social movement organizations, no progressive movement has ever identified them as institutions to defeat. Sanders has, however. Rather than condemning or even questioning him for these comments, many of his progressive supporters have defended him. Some have even offered conspiracy theories to explain the endorsements. They contend that a very conservative, but powerful, Clinton coerced all three organization into endorsing her. The voices are screaming.

Darren Lenard Hutchinson

QUESTIONS

If white progressives were so blatantly wrong about Obama’s progressivism, why should we accept their analysis of Sanders?

Can a progressive revolution take place if it is led predominately by young white men—with women, people of color, and poor people looking elsewhere for solutions? Is such a movement actually progressive?

If a woman candidate says similar things as male candidates, but her comments are condemned, while the males’ comments are praised—largely by other men—when do we get to call this disparity sexism?

DISSENTING JUSTICE IS ON FACEBOOK AND TWITTER!

Hello. Due to the ease of posting, I update this blog primarily on Facebook (most things) and Twitter. It moves at a rapid pace. 

Please join. I have covered a lot of police misconduct and criminal justice reform and many other pressing issues. 

Cop Swindles Elderly Dementia Victim of $2 Million; Department Does Nothing to Stop It

In a rather disturbing case of police misconduct, Aaron Goodwin, a Portsmouth, New Hampshire police officer, took advantage of a 91-year-old woman with dementia. She had called 911 for some reason, and after he responded to the call, he began to insert himself into her life. Goodwin called the victim hundreds of times, took her out for entertainment, and gradually turned her against her children. Finally, he hired a lawyer to write a new will that left him just about everything. He ended up with $2 million.

The woman's children, however, contested the will. After two years of litigation, a judge has voided the new will, ruling that it was written under undue influence and is fraudulent. The judge also blasts the police department for not helping the family members who complained about the situation. The department's "investigation" involved asking the detective whether he was doing anything unprofessional. He said no.

Based on these limited facts, the lawyer who wrote the new will should face disciplinary hearings. If a nonfamily member hires a lawyer to rewrite a will giving him all of the money owned by an elderly person with dementia, this should raise a number of red flags. A reasonable attorney would have investigated or hired a guardian to represent the woman.

OUTCOME: The judge ruled Goodwin cannot keep the 2 million dollars. The new will was voided. Goodwin has been fired from the Portsmouth Police Department.

What the Reaction to Bill Cosby Reveals About Society's Construction of Men Who Rape

I have not said much on Cosby and the numerous rape allegations against him. I think the last time I mentioned him was after Beverly Johnson made her accusation. I found it powerful and, given her position with respect to black art and film, highly credible. She is not someone who would go against an understandably protective and suspicious black community without good cause.

Currently, I am struck by the different ways in which people are trying to "sanitize" the country by de-Cosbying it. No more Cosby show episodes, memorials, or even awards. Some group has petitioned the White House to retract a presidential medal that Cosby once received.

I suppose one could say that these actions seek to punish his sexual crimes. I believe that something deeper is occurring. And what is taking place reveals a lot about how our society views rapists.

Throughout his long career, Cosby's work has entertained and impressed millions of people. He was once viewed as a heroic figure. He was a great actor and comedian. He contributed generously to colleges and universities. He advocated educational achievement. He helped black actors and artists attain greater visibility on television. He helped shatter racist stereotypes about black families. These are all very wonderful things.

But these images strongly conflict with the standard depiction of rapists. Rapists are evil strangers who lurk on isolated street corners or parking lots waiting to attack vulnerable women. Statistics, however, tell us that this pervasive view of rapists is false. Men who rape likely know the victims. The victims trust these men. They are ministers, partners, uncles, fathers, brothers, cops, firefighters, school teachers, mom's boyfriend, or the nice guy who lives across the street.

Women do not want to see these men as potential rapists because doing so makes them perpetually vulnerable. Men insist upon separating the "monster" rapist from "normal" guys because no man wants to be accused of rape. If rapists are monsters, but Bill is a good guy, then Bill is not a rapist. When "good guys" face rape accusations, clearly the woman is lying.

Bill Cosby was the good guy. He made people feel safe and proud. Whites considered him a "credit to his race" (unlike "other" blacks who devalue hard work and education). Blacks were proud of and inspired by his accomplishments. But, now, he is tainted by rape. Because he raped, he is not good. If he is not good, he must be bad. Because he is bad, he is incapable of good. If he is incapable of good, then we must secret and destroy all of the memories of his prior goodness. Cosby's goodness died when he raped. If we do not banish these memories, then we will live in chaos -- good among evil in the same body. So, Cosby the rapist must supplant Cosby the artist and humanitarian. Recognition human complexity would make things messy.

I suspect that some people who were (or who still are) struggling to accept the fact that Cosby is a rapist did so because they could not embrace the many dimensions of his humanity -- of our humanity. He is either good or evil. Some people want to hold on to the goodness, which means barricading it from rape. Some want to accept that he is a rapist, which means casting out anything positive that he has ever accomplished. Another path could accept all sides of humanity. There are good people who do terrible things. There are many bad people who show deep humanity. But we want dichotomies. Without dichotomies, we might imprison someone who has a lot of potential for greatness. Or, we might marry someone who later abuses and exploits us.

Finally, although I believe that the tug of war between the dichotomous constructs of Cosby represent the unwillingness of Americans to accept the ordinariness of rape, I also believe that some of the indignation is theatrical. Although networks are canceling the reruns, retracting medals, awards, etc., I have not heard of any calls for entities that have profited from Cosby's work and charity to return those contributions. TV Land has canceled the reruns of the Cosby Show, but is holding on to the ad revenue. Temple is ridding the school of any reference to Cosby, but will keep his donations. So are other universities that have received money from him.

It took so long for me to respond to the allegations against Cosby because I was not surprised that he might be a rapist. I had already learned that the creepy monster rapist construct just that -- a construct. I am more surprised that his crimes have become public. Men of wealth can usually hide their misdeeds. He failed. Simply saying I cannot believe he was discovered, however, does not exhibit a proper amount of shame, shock, and dismay. So, I wrote about the shame, shock, and dismay instead.

PS: Why do you think I use a younger picture of Cosby?

FACTS: President Obama's Immigration Policies Are Absolutely LEGAL.

Mainstream and rightwing media have done an atrocious job discussing the legal issues implicated by President Obama's immigration policy. While rightwingers clearly believe the president's policies constitute treason, at a minimum, the mainstream media has not thoroughly educated the public regarding the lawfulness of the orders. Thankfully, law professors blog! I wrote a very lengthy post on Facebook that documents President Obama's authority to shape immigration policy in the manner he announced yesterday. I am reposting this information for those of you who follow my blog on Blogger. Enjoy.

Immigration Reform

ATTENTION: Before you can argue that the government has violated a law, you must actually READ the law.

FACT: Congress has the exclusive power to pass laws regarding immigration (U.S. Const. Article I, Section 8, Cl. 4).

FACT: Executive Power of the US is vested in the President, which means the President, not Congress, executes the immigration laws (U.S. Const. Article II, Sect. 1, Cl. 1).

FACT: Congress can give a certain amount of discretion to the Executive regarding the enforcement and implementation of federal law – so long as the statute provides an “intelligible principle” to guide the Executive. If this occurs, then Executive decisions regarding enforcement of the law do not constitute impermissible legislative action. Instead, it is merely execution. This rule is called the “nondelegation doctrine.” Congress does not unlawfully delegate its legislative powers to the Executive if the legislation contains coherent rules for the Executive to follow. See Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 465 (2001). 

FACT: The Immigration and Nationality Act (INA) is a federal statute that establishes legal rules and requirements regarding immigration and naturalization (8 U.S.C. Sect. 1103-1778).

FACT: Consistent with the Constitution, the INA gives the Executive Branch (President, Homeland Security, Attorney General, and Secretary of State) the power to enforce immigration laws (8 U.S.C. Sect. 1103-1104).

FACT: The Executive Can "Cancel" the Removal of Certain Deportable Individuals. 
The INA allows the Attorney General to cancel removal (deportation) or adjust the status of certain categories of undocumented individuals. The statute explicitly spells out the criteria for doing so. Thus, the statute provides an “intelligible criteria” for the Attorney General to follow. (8 U.S.C. Section 1229b(a)-(b)).

Conditions for Cancellation of Removal: More specifically, the INA allows the Attorney General to cancel the removal of a deportable individual who (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense [defined in several sections of the statute]; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. This straightforward provision indisputably states an intelligible principle. (8 U.S.C. Section 1229b(b))

FACT: The Executive Can Give Temporary Protected Status to Certain Deportable Individuals.
The INA also allows the Attorney General to grant “Temporary Protected Status” (TPS) to deportable individuals from certain countries that the Attorney General has placed on a TPS list. As required by Supreme Court doctrine, the INA gives SPECIFIC guidelines – or an intelligible principle – for the Attorney General to follow when determining whether to give TPS designation to a country. The statutory factors include serious conditions in the individual’s home country, like armed conflict; natural disasters; a request for temporary protected status by the country; or “extraordinary and temporary conditions” that preclude the safe return of the individual, so long as TPS does not conflict with the interests of the US.  (8 U.S.C. Sections 1254a-i)

FACT: The Executive Must Provide Employment Authorization for TPS Individuals. 
The INA also provides that the Attorney General SHALL “authorize the alien [who has received TPS designation] to engage in employment in the United States and provide the alien with an ‘employment authorized’ endorsement or other appropriate work permit.” The current TPA list includes several nations in Africa and Central America.

SUMMARY: Federal law allows the Executive to cancel the removal of deportable individuals, give TPS designation to countries and individuals from those nations. Federal law also REQUIRES the Executive to give work permits to individuals who receive TPS designation.

FACT: President Obama's description of his proposals indicate that his policies lie squarely within the statutory powers given by Congress to him, Homeland Security, and the Attorney General. President Obama’s orders would allow individuals “who have lived in the United States for at least five years” to apply for relief from deportation and for certain individuals who have not committed crimes to apply for work permits. These are all powers that lie within the discretion of the Executive under the Article II of the Constitution and within the INA.

These are just some of the potential powers that President Obama could invoke as authority for his immigration policies. Because the President’s orders are consistent with the powers granted to the Executive by Congress, he is not making law. Instead, his orders would only enforce law, using the clear guidelines Congress provided in the INA.

OPINION: If you have NOT read the INA but you have concluded that President Obama’s proposed immigration orders violate federal law or the Constitution, then you are contributing to one of the worst problems in our society: pontificating about important legal and policy issues without a basic understanding of the underlying rules that govern the issues. You need to grow up, read, and grow an open mind. You are a victim of your own stubborn refusal to accept any fact that conflict with your world view. In other words, you are an uninformed, anti-intellectual, partisan hack. But, perhaps, you already knew that.

OTHER CONSTITUTIONAL LAW PROFESSORS HAVE CHIMED IN: 

Marty Lederman
Walter Dellinger

Also, the Office of Legal Counsel (Department of Justice) has released its own memorandum that provides legal authority for President Obama's actions.

Obamacare v. Affordable Care Act

Washington Post columnist E.J. Dionne writes about Arkansas Democratic Senator Mark Pryor's political advertisement that touts his vote for the "Affordable Care Act." As Dionne reports, polls show that when people hear details about the Affordable Care Act, they actually like the provisions, even if they hate "Obamacare" (yes - stupid). But, you have to call it the Affordable Care Act in order for them to "hear" anything.

Obamacare is a pejorative and malleable term. People come to it with emotional opinions. These opinions are often fixed and unmovable -- even (especially?) when they derive from a gross misunderstanding (or no understanding) of the legislation.

It is probably not a coincidence that, while Obama is highly unpopular in Arkansas, the state had the greatest reduction in uninsured residents after the implementation of the Affordable Care Act. In a rational world, that fact would probably help Obamacare supporters like Pryor. Unfortunately, we do not occupy a world where rational thought determines policy preferences.

Election Day Tomorrow - Florida Democratic Governor's Primary

Tomorrow, Florida Democrats will choose a candidate to challenge incumbent Governor Rick Scott. Although Scott's first term was plagued with corruption, constitutional violations, and widespread unpopularity, he has recent managed to regain voter confidence. Polls that show him in the lead or close indicate that Independent male voters and white women are helping Scott.

The Democratic primary season was nonexistent. Candidate Charlie Crist (also former governor and Republican) refused to debate his challenger Nan Rich. Although Rich is a long-time Democrat, many Florida voters believe Crist is the only viable candidate for the Democrats. That is probably a wise assessment. Florida is heavily divided in state-wide elections. Crist attracts voters all over the political spectrum. Rich does not. Many hardcore Democrats really want Rich on the ticket. Others, however, want a victory in November.

Is Florida Governor Rick Scott Controlling the Search for a New President at FAU?

The Board of Directors of Florida Atlantic University has released the names of 10 finalists for the school's next president. The list contains some interesting demographics. 

First, only two candidates, David Brennan and Mary Holz-Clause, who are not white men, appear on the list. Interestingly, their names are at the bottom of the list released by the Miami Herald. The list, however, is not alphabetized. It is unclear whether the search committee sorted the names this way and, if it did, why. 

Perhaps the placement of the candidates on the list demonstrates, as one independent blog contends, that the candidates are simply tokens. Staff from the Broward/Palm Beach New Times attended the meeting during which the committee narrowed the field of candidates from 61 to 10 in just under an hour (a remarkable speed). According to the New Times, the committee chose Holz-Clause at the very last minute in order to replace another candidate. The committee mistakenly believed that Dr. Gayle L. Ormiston of Marshall University, whom was chosen explicitly for "diversity," is a woman; Ormiston is, however, a man. The New Times reports that the committee added Holz-Clause in order to have one woman on the list of candidates. Committee members also allegedly joked about their tokenism:  

"We're going to hold it against him that 'she's' a 'he'?" one panelist joked. To which another remarked, "Let's not go there." Don't pack your bags, Dr. Holz-Clause.

The racial and sexual demographics of the pool strongly suggest that the committee only inserted a white woman and a black man on the list of finalists as tokens. The position is reserved for a white male candidate.  If so, this would clearly violate federal and state law.

Another interesting aspect of the finalists is that most of them have backgrounds in business. Governor Rick Scott has expressed his disdain for social sciences and humanities on many occasions. He wants to turn state-run educational institutions into corporations, even though they serve the public-- not private shareholders. The lack of academic diversity compounds the homogeneity of identity and cultural backgrounds among the candidates. 

Finally, Jeff Atwater and George LeMieux, two Republican politicians and close supporters of Florida Governor Rick Scott, appear at the very top of the list. Florida news media only recently reported that they had decided to apply for the position. Days later, they have become finalists, possibly the "top" finalists. This is probably the most disturbing aspect of the search. 

While some schools have hired politicians as presidents, the fact that allies of a sitting governor have made the list -- one Democratic politician who applied did not -- raises flags. Also, Governor Scott gave LeMieux a ringing endorsement for the job. According to the Miami Herald, Scott praised LeMieux the day before he even announced his candidacy. These facts suggests meddling, if not complete control, of the search by the state and a lack of faculty governance. That neither of these two politicians possesses a doctorate, a pretty standard achievement for a university president, is even more telling.

Beyond Paula Deen, Don Imus, Phil Robertson, and Other Racists Du Jour: Reforming Civil Rights Advocacy

I woke up this morning and wrote the following text that appears in quoted format beneath this paragraph. I posted it as a quote, because I did not publish it as a blog entry.  Nevertheless, I believe the text contains an important message, which readers should understand after they finish reading this blog post in its entirety.

BREAKING NEWS: A coalition students, academics, famous actors, bloggers, and civil rights organizations are staging a massive protest in front of the Florida capitol building. The protesters demand an end to institutional racism in Florida public schools. They claim that historic inequality in public schools has only worsened over time; today, 2/3 of black and Latino students attend schools where they are the only racial group and where over 80 percent of the students qualify for free or reduced lunch subsidies. An abundance of educational research documents the harm caused by poverty schools.  

A study by the US DOJ has also demonstrated that students color color and disabled students in Florida are routinely disciplined for behavior that does not lead to sanctions when white and more able-bodied students engage in the same behavior. Multiple studies show that harsh disciplinary sanctions, such as long suspensions, expulsions, transfers to "alternative education" injure the educational process, lead to criminality, and ultimately place these students in the prison pipeline. 

The protesters want the Governor to fire the State Secretary of Education and to develop programming that will give access to quality education, which in turn would empower them economically and politically. The protests have caused a major whirl on Facebook and other social media, as progressives, liberals, moderates, and even many conservatives have promoted the cause online. Furthermore, a petition at Change.Org has received over 3 million signatures. Stay tuned for more details.

I did not post this essay because it describes a fictional event. It satirizes a dangerous contemporary trend among civil rights activists and organizations. These justice advocates reserve their loudest protests to combat individual bigots of the day. Paula Deen, Don Imus, and Phil Robertson immediately come to mind as examples of "racists du jour." A racist du jour is a lone individual who makes a racially offensive statement, which attracts intense media and public scrutiny. Civil rights activists also condemn the speech. Typically, opponents of the individual's comments, including civil rights activists, demand that the individual lose his or her job. Seemingly, there is no middle ground. Termination is the only option.

I believe that this stark type of activism betrays liberal and equitable principles of flexibility. It applies a one-size-fits-all formula; it also goes for the harshest sanction available. Conservatives engage in the same practices, sometimes regardless of the merits of the argument (think: Shirley Sherrod and Lani Guinier).

Even worse, the repeated advocacy against racists du jour gives the impression that individual bigotry is the most important barrier to disadvantaged groups. This view, however, does not comport with reality. Institutionalized inequality exists, and it does not represent the sum total of individual bigotry. Institutional inequality also has sweeping effects. Its harms are generational; it also causes immediate and long-term material consequences. While Robertson's speech might hurt many people, I am not persuaded that it can top the harms of multiple centuries of repression. Accordingly, the disparate responses to institutional and individualized bigotry among the public, media, and (especially) civil rights activists likely represents misplaced priorities.

Many people describe Dr. Martin Luther King, Jr. as one of the most passionate voices for equality in world history. The recently deceased Nelson Mandela occupies the same list. These men, however, did not limit their work or even focus primarily upon isolated incidents of racism by du jour racists. Instead, they challenged racism and economic inequality that are fashioned in legislation, courts, executives, national culture, churches, corporations, police forces, and other broad societal institutions. These structural demands have given way largely to social movement strategies that focus upon shaming individuals, rather than advocating institutional reform.

I am not claiming that no social justice advocates pursue institutional reform. Nor am I claiming that individual bigotry is unimportant. Instead, given the terribly injurious impact of structural inequality, one would logically expect this issue to occupy center stage within social justice movements. Unfortunately, that is not the case.

People who claim to live according to the philosophy these two champions of equality need to examine their history.  Many of today's social justice advocates will find wide disparities in their activism and the activism of Mandela, King and other successful civil rights leaders of the past. These differences are not simply stylistic. The passage of time and new situations also do not justify these differences. Institutional inequality remains a substantial source of disempowerment.  Ignoring institutionalized inequality or giving it less attention than individual bigotry is a problematic and very limited civil rights strategy.

See also: Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

The latest national crisis involves comments that Duck Dynasty star Phil Robertson made in a GQ interview. Robertson's comments regarding gay men are downright offensive:

"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus," Robertson says in the January issue of GQ. "That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical." 

Robertson also is asked what he finds sinful. His answer: "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."

Although Robertson's comments regarding gays and lesbians has received the most attention in the press, Robertson also makes highly problematic statements regarding race. He says that:

“I never, with my eyes, saw the mistreatment of any black person," Robertson is quoted in GQ. "Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field.... They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”

Robertson's comments mirror a false American cultural narrative that describes blacks as content with Jim Crow.  This narrative is indisputably false. Many blacks did not complain about racism because of the violent repercussions they faced for doing so.  Still many whites, especially older southern whites, accept a myth of black contentment with segregation. Jim Crow was violently imposed upon blacks; it was not a negotiated relationship.

Despite the harshness of Robertson's words, I am uncomfortable with liberal activists who demand that A&E remove him from the show. My discomfort stems from various factors. I have debated this issue with several colleagues today; so I will collect the central themes of these arguments below, rather than exploring each one in enormous detail.

First, Robertson's words were not made during the show. Instead, he made them in a magazine article. Thus, no direct connection between his words and the network exists.

And while the network probably has the right to fire Robertson, most people who are fired for out-of-work speech are not wealthy television stars. And they do not receive huge severance packages and immediate reemployment. Instead, they are average workers, who need to work in order to live.

Often, workplace speech codes are disproportionately enforced against socially vulnerable groups, including people of color and LGBT individuals. If a black person suffers a job loss after contesting racism (inside or outside of the workplace), Supreme Court interpretation of employment discrimination statutes and the First Amendment (which applies to government employers) has made it much easier for private and public employers to avoid liability.  

Second, a rush to fire someone for controversial speech suggests that only one approach -- the least forgiving -- exists to address the situation. A dialogue over the issues and how the speech might harm certain communities seems off the table. Instead, opponents seek blood.

In my own teaching and scholarship, I have criticized US culture for lacking basic compassion for people who transgress certain norms. This unsympathetic culture explains why the US has the highest number of incarcerated individuals in the world and the harshest sentences for nonviolent crimes. The US can be very unforgiving.

Seeing liberals embrace this approach is disturbing.  There are many other things that the network could do under these circumstances (suspension, diversity training, warning, etc.). Instead, Robertson's opponents seek the death penalty.

Third, and most importantly, the anti-Robertson advocacy (once again) elevates isolated incidents of bigotry over structural inequality. Robertson is one private individual. He made his comments during an interview on his own time. A&E did not broadcast the comments during the show. Nevertheless, liberal activists believe the network should fire Robertson for his racism and homophobia. Most contemporary liberal groups follow a similar type of advocacy: Person X says something outrageously offensive. Liberal groups demand that Person X lose his or her job. Person X loses his or her job. Liberal groups rejoice. Person X gets another job. Racism, sexism, and homophobia remain intact.

Individual acts of bigotry excite and inflame the nation much more than structural inequality. As a corporate entity concerned about its profits, A&E would never make the statements that Robertson uttered. But, a cursory look at A&E's lineup reveals that it does not have much in terms of programming for LGBT youth. They are invisible on the network. Furthermore, most of the black and Latino persons on the network are criminals and crime victims (see the numerous weekly episodes of The First 48). The invisibility of LGBT youth and the stereotypical depiction of blacks and Latinos by large cultural institutions can cause much more harm than isolated acts of bigotry. In fact, a large body of psychological literature demonstrates that that cultural and systemic inequality causes more individual distress to minority group members than actual incidents of discrimination. The perception of second-class citizenship and fear of discrimination make them emotionally vulnerable and mentally distressed.

Also, institutionalized oppression limits economic opportunities and political power of marginalized groups. Despite the deep and dispersed harms it causes, institutional oppression does not generate anything close to the animated and loud liberal responses as discrete and isolated bigotry.  For example, if the major newspapers provide an accurate insight into the mindset of antiracist organizations, then Paula Dean, George Zimmerman, and Phil Robertson are the most troubling things to impact persons of color this year. High unemployment, political inequality, resegregation of public schools, and other structural problems seem minor, by comparison.

When I raise this criticism, liberals typically say: "but we can respond to both types of inequality." This is true, but the responses are quite disparate. You "can" respond to institutional inequality, but, typically, you do not.

I am convinced that people who dismiss the importance of responding to institutional oppression doubt its existence, or they believe that simply responding to individual bigotry will mitigate institutional oppression. Institutional inequality, however, is not the sum of individual bigotry. It exists within and outside of individual behavior. The injuries it causes are generational and widespread.

If any form of inequality warrants more attention, it is the structural kind. Yet, liberal activism focuses on individualized prejudice. Firing Robertson will only perpetuate this troubling social movement behavior.

Federal Judge Rules Against the NSA in Snooping Case. What's Next?

A federal judge has preliminarily enjoined the controversial NSA spying program. Edward Snowden, a former NSA employee, leaked information regarding the classified program earlier this year.

The judge held that the policy likely violates the Fourth Amendment because plaintiffs have a reasonable expectation of privacy with respect to information that telecoms store regarding their use of computers, phone calls, etc.

The judge distinguished difficult and possibly contrary Supreme Court precedent in part because he believed that the dated case law should not apply in today's world where the implications of technological snooping are quite extreme:

[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike  anything that could have been conceived in 1979. In Smith the Supreme Court was actually considering whether local police could collect one person 's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. . . . . The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.  By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future" [quoting Justice Sotomayor opinion in a recent Fourth Amendment decision regarding GPS monitoring] . . . . And these technologies are "cheap in comparison to conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby "evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police . . . resources and community hostility" [id.].

The ruling has sparked debate among law professors, even though the judge has stayed the injunction pending appellate review. Orrin Kerr of the Volokh Conspiracy, for example, describes the ruling as "remarkable" (not in a positive way). Kerr finds the opinion "unpersuasive. . .quite plainly so." I tend to disagree for the reasons the judge stated. The breadth of the NSA program and the conditions of modern technology seem to beg for a different analysis to protect individual privacy. Ultimately, however, the Supreme Court will have to decide this issue.

Misplaced Focus: Procedure and Remedies Probably More Important Than Constitutional Law

Like most lawyers, Kerr and others following the case have focused on the court's discussion of the constitutional issues. This analysis, however, is probably premature or even unnecessary. The judge's ruling only held that the plaintiffs met the standard to receive a preliminary injunction. A preliminary injunction is not a final ruling on the merits. Instead, it simply keeps the defendant from enforcing the policy until a final ruling on the merits, possibly after a full trial.

While these procedural concerns might not mean much for laypersons, they are central to the case at this moment. In fact, an appeals court could overturn the ruling without even discussing the Fourth Amendment. How?

In order to get a preliminary injunction, the plaintiff must meet four factors: a likelihood of success on the merits (likely that the law favors the plaintiff); irreparable injury in the absence of the injunction (harm that monetary compensation cannot remedy adequately); public policy favors issuance of the injunction; and the balance of the equities favor the plaintiff (in the absence of an injunction, plaintiff would lose a lot more than the defendant would gain from having the liberty to enforce the policy). A plaintiff much demonstrate each factor in order to qualify for the injunction.

There are at least two ways to reverse the injunction without turning to constitutional issues (related to the Fourth Amendment).  First, the Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated the letter of the law. National security could provide a basis to reverse the injunction.

In Winter v. National Resources Defense Council, the Supreme Court reversed a preliminary injunction granted to halt certain naval training operations offshore in California. The plaintiffs argued that the operations could harm protected species of aquatic animals. More importantly, a federal statute literally required the military to submit an environmental impact statement before conducting the activities, but the government did not submit such a statement. Accordingly, the military violated an unambiguous statutory provision.

Despite the fact that the government violated the statute, the Court held that the preliminary injunction was improper. The Court reasoned that it could not second-guess the military on national security concerns (and that it was not clear that the activities would irreparably harm, if at all, any aquatic species). So, national security weighed against issuance of the injunction despite plaintiffs proving actual success on the merits.

The circuit court and the Supreme Court would likely apply similar logic in this case. Rather than delving into the constitutional questions -- which courts wish to avoid if possible -- the appeals court could reverse on the grounds that the opinion does not give enough weight to national security concerns.

Furthermore, the opinion does not even contain a section that "balances the equities" by weighing the harm to the plaintiffs in the absence of the injunction against the harm to the defendant if the injunction is affirmed. This, however, is a mandatory part of the test.

The procedural dimensions of this case provide ample room for reversal -- without examination of the constitutional questions. Law professors (and I am guilty of this as well) routinely rush to analyze substantive legal questions without considering procedural and remedies questions. Procedure and remedies law, however, are probably more central to this case at the moment than the constitutional questions. Accordingly, if the DC Circuit is up to speed on remedies law, I expect a reversal without much discussion of the Fourth Amendment. We shall soon see.

Of course, the appeals court might agree with the district judge -- which would require a substantial analysis of the Fourth Amendment. But, despite my belief that the policy is unconstitutional, I could easily see the appeals court allowing the Supreme Court to cover new ground on this issue; it would take a substantial effort to clarify the doctrine.

Town Hall Author Jack Kerwick Is Still Wrong [UPDATED]

Jack Kerwick, a columnist for Town Hall, has argued that reducing income inequality would necessarily enlarge the federal government and lead to the demise of liberty. I countered his argument by noting that states deal with these matters on their own and through partnerships with the federal government. Thus, social welfare policies, economic rights or positive rights do not inherently transfer all power from the states to the federal government, thus obliterating our constitutional system.

Kerwick has responded to my critique. But, rather than addressing my arguments Kerwick instead devotes attention primarily to issues that are immaterial to my post. Accordingly, his second essay is just as unconvincing as the first.

The only point of substance that Kerwick attempts to address in his second essay is the fact that states and the federal government partner to ameliorate the conditions of inequality. Kerwick says that this is untrue -- not by challenging the claim factually, but by rephrasing the argument using loaded terms. He says that the federal government "bribes and coerces the states to do its bidding." Well, this is preposterous. Perhaps because Kerwick is not a lawyer (I find it amusing that Kerwick tries to malign my argument by stating that it comes from "a professor, mine you, of Constitutional law") he believes that tossing around such legally coded terms as bribery and coercion in an argument regarding law and politics is acceptable. It is not.

Even conservatives on the Supreme Court have not embraced the argument that the Congress's use of the Spending Power is inherently and inevitably coercive upon states. And, clearly, federal spending programs do not constitute bribery -- in the same way that taxing cigarettes does not coerce people to stop the habit and giving mortgage interest deductions does not bribe people into purchasing homes. These programs incentivize certain behaviors and policies, but states do not have to pursue them (just as people do not have to purchase homes or stop smoking as a result of tax policy). The Court has held that Congress cannot conscript state legislatures, but funding a national program -- often demanded by the states themselves -- and allowing state participation and collaboration is neither bribery nor coercion. Just ask Justice Scalia.

Kerwick does not even type one word regarding my discussion of states taking the initiative to reduce income inequality. Historically, states have done so through a number of programs, like funding (even mandating) public education, public higher education, social welfare subsidies, unemployment insurance, old age insurance, police and fire protection, and a numerous other services that only the wealthiest individuals could afford on their own. It is obvious why Kerwick omits this discussion -- because it negates his own uninformed (and ahistorical) position.

The rest of Kerwick's essay focuses on nonsubstantive issues. He quibbles with terminology that is, frankly, irrelevant to my discussion (federal v. nation, inequity v. inequality). If our positions departed on grounds of terminology, then this issue would be pertinent. But since we disagree on larger issues, he wastes time by addressing these concerns. He also wastes time avoiding the substance of my article and instead writing a dissertation against a parade of evils, like the left, redistribution, socialism, "you didn't build that," Obama, and even Elizabeth Warren! Surprisingly, Kerwick doesn't include Pelosi, Marx, Lenin, Stalin, and other conventional rightwing conversation-stoppers on his list. Because Kerwick fails to reconcile his argument with a robust history of state involvement in the reduction of economic inequality, he remains wrong.

UPDATE: This article sarcastically expresses my surprise that Kerwick does not include "Pelosi, Marx, Lenin [and] Stalin" on his list of horribles. Perhaps he did not want to preempt Bob Rucho, the North Carolina Republican State Senator who headlines many blogs 12/16/2013. Rucho recently tweeted that "Justice Robert's pen & Obamacare has [sic] done more damage to the USA then [sic] the swords of the Nazis, Soviets & terrorists combined."

Town Hall Author Jack Kerwick Is WRONG: States Also Help to Combat Income Inequality

Jack Kerwick, a commentator for the conservative blog Town Hall, argues that combating "income inequalities" is antithetical to a "free society." Kerwick's column responds to a recent speech that President Obama delivered regarding economic issues.

Kerwick laces his essay with standard rightwing arguments dismiss the significance of income inequality:

Think about this: of all of the problems in our world, the President of the United States and his ideological ilk view the fact that some people earn more than others as the problem, the one next to which all others pale in comparison, “the defining challenge of our time.” 

No disciple of liberty can so much as begin to relate to the thought that income inequality is a “problem,” let alone the greatest of problems.

Kerwick's comments are susceptible of numerous criticisms. The magnitude of economic inequity raises serious questions about the ability of the United States to compete globally in terms of education and economic productivity. Economic inequity is also linked to crime and ill-health, which greatly impact the nation.

But attacking Kerwick's ignorance of the severe consequences of income inequality is not the purpose of my response. Instead, I write to demonstrate how Kerwick's entire argument implodes in one single passage.

Kerwick believes that addressing income inequity will crush "liberty," by destroying private property, concentrating power into the national government, and, thus, obliterating federalism, checks and balances, and any limitations on the national government. Addressing income inequality would lead to a tyrannical national government.

Kerwick reaches his melodramatic conclusion only by dismissing the role of states and state-national partnerships in the reduction of income inequality. Kerwick contends that "'income inequalities' can be addressed only by a national government, a government in which authority and power are centralized." This utterly false contention destroys Kerwick's entire argument. Numerous examples disprove his contention.

First, the national government often partners with states and local governments to ameliorate the conditions of income inequality and to subsidize poor households. For example, the national government and states partner to administer Medicaid and TANF (what most people describe as "welfare"). The government also provides block grants and other targeted funds to states to fund their own antipoverty programs such as housing assistance and other direct programs for poor people.

Furthermore, the government contributes money to public schools, which states run almost exclusively. Public education is probably the largest shift of income to poor and middle-class people in the country. It has existed since the early-1800s, and it is primarily run by states. Nonetheless, the federal government, recognizing the importance of an educated society, helps to finance public education.  Clearly, if making income inequality a concern of public policy erodes freedom, then this process started in the 1800s, not in 2008.

Second, as the provision of free public education indicates, states have led the charge on many issues related to income inequality. States provided "welfare" subsidies to poor people before the national government. Also, every state guarantees a free public education to its residents, but the US Constitution does not (as interpreted by the Supreme Court). Some states even guarantee protection for certain crime victims (e.g., victims of domestic violence), rather than requiring them to pay for it themselves. States also fund and operate institutions of higher education (which also receive national assistance). These measures, which are often secured to individuals by state constitutions, go much farther than federal programs.

Emily Zackin's recent book, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (Princeton University Press) provides numerous examples of state contributions to economic rights. These types of rights have a long place in the nation's history. Kerwick's argument that a concern for income inequality would only enlarge the federal government and kill liberty (or that it would erodes the constitutional structure of government) is simply wrong.

Political Power, Economic Development, and Green Policies: Gainesville, FL

Recently, I left Washington, DC, and returned to my hometown to teach at the University of Florida Levin College of Law, located in Gainesville, Florida. Gainesville is a mid-sized city. Over the last 30 years, it has grown tremendously. But the city manages to maintain an abundance of green spaces. It is a very environmentally conscious city. This is one thing that makes it appealing.

The City Commission has enacted policies that some residents believe marginalize the interests of the city's poor citizens -- segregated primarily in eastern Gainesville -- while favoring middle- and upper-class residents. Although a full analysis of these policies lie beyond the scope of this article, one such policy has provoked controversy. The city has decided to reduce a major east-west artery from four lanes to two lanes as it moves through a particular neighborhood. The city has previously approved similar policies with respect to other major thoroughfares.

Proponents argue that these decisions can help create new green space and that they will not impact current traffic patterns. Opponents argue that these decisions will in fact aggravate traffic patterns today and in the future as the city continues to grow. Some opponents also believe that the city's traffic policies tend to favor the interests of wealthier citizens who demand the expensive programs, to the detriment of poorer citizens. How do these policies harm poor people? Arguably, they harm poor communities in two immediate ways. First, they allocate scarce financial resources to projects of questionable need that benefit upper-class citizens, while continuing to neglect blighted areas in the city. Also, because economic development is necessary to create jobs that can employ poor residents, any policy that reduces the capacity of the city's major roadways is antithetical to the interests of poor people.

A long debate over these issues has taken place on the Dissenting Justice Facebook page, the Gainesville Sun, and on the Facebook page of a liberal city council member who supported the new project. Instead of rehashing the debate here, I invite you to read the debate on Facebook and in the Gainesville Sun.

Link to Dissenting Justice on Facebook (Please LIKE the page!)

Link to Gainesville Sun coverage (Use discretion reading the comments section!)

Link to commentary on city council member (Susan Bottcher) Facebook page (Although I disagree with the policy, I admire Bottcher for responding publicly. Kudos!)

Finally -- link to my analysis of some of the political issues that the city must address, particularly liberals

Race, Justice, and Trayvon Martin

MSNBC has published my op-ed on the Trayvon Martin tragedy. The essay explores the volatile discussion of race as it pertains to Martin's death and Zimmerman's acquittal. Here is a snippet:

Criminal law research has shown that in tough cases, implicit biases regarding race, gender, class and other factors, often, but not always, allow jurors to fill in evidentiary gaps. This research makes room for a discussion of race in the decision by a nearly all-white jury to acquit Zimmerman.

There was enough circumstantial and direct evidence presented in the trial for a reasonable juror to find that Zimmerman initiated physically aggressive contact with Martin. This finding would virtually negate Zimmerman’s claim of self-defense. Zimmerman admitted that he followed a much younger Martin in his car at night in the rain. Martin was walking home while having a telephone conversation with a friend. As he pursued Martin, Zimmerman muttered angry statements about criminals “always getting away” with their crimes.

Zimmerman, however, killed the most reliable eyewitness for the prosecution. Accordingly, the prosecution lacked direct evidence about what actually occurred when Martin and Zimmerman first met. As a result, a rational juror has room to make inferences based on all of the evidence. A juror could rationally conclude that after getting out of his car and following Martin, Zimmerman either attacked or frightened the teen. This finding would have legitimated Martin’s use of force against Zimmerman. On the other hand, a rational juror could decide not to reach such a conclusion, due to the lack of direct evidence. Circumstantial evidence is indisputably evidence, but it is not always enough for jurors.

Outside of the requirement of reasonable doubt, no rules dictate which choice jurors must make. So long as the verdict is reasonable in light of the evidence, the jury has satisfactorily executed its duty. Moreover, the prosecution cannot appeal an acquittal or demand that the jury explain its decision.

Psychological data regarding non-conscious bias suggests that people often rely unknowingly on cultural biases to make a decision in close cases. Because black men are pervasively depicted as violent and threatening, unconscious stereotyping could lead a fair-minded juror, in a tough case, to dismiss the victim status of a black male decedent and to treat him, instead, as the aggressor. This same research could explain why Zimmerman believed that Martin was “up to no good.”

To view the remainder, please visit MSNBC at this link. Make sure to share and comment as well.  

Bad Week for Civil Liberties: Obama Administration Collecting Verizon Users' Call Data

Civil libertarian and Guardian journalist Glenn Greenwald published a bombshell this morning. Since April 2013, the US government has been collecting information from Verizon regarding all of its customers calls that were made within, from or to the United States.

The FISA Court approved the government's request and ordered Verizon to turn over the data. Although FISA Court orders are confidential, an anonymous person gave a copy of the Verizon order to Greenwald. 

While the government does not have access to the content of the calls, the court order allows it to demand the phone numbers involved in the calls, the time and duration of the calls, the locations of the callers, and other technical information. Furthermore, the order applies to any calls placed in the US, even if they are strictly local and to international calls made to or from the US. The order also governs any calls, regardless of whether the government has a reasonable basis for believing that either of the callers has committed or is conspiring to commit a crime. For reasons stated below, this order violates the Constitution.

This news follows a Supreme Court ruling, made earlier this week, that also curtails civil liberties. On Monday, the Supreme Court held that the collection of DNA from a person arrested for committing a serious crime does not violate the Constitution. The Court "reasoned" that the collection of DNA is not physically intrusive, because it only involves swabbing the inside of an arrestee's cheek. The Court held that the need to "identify" persons in police custody provides a sufficient justification to collect DNA upon arrest.

The opinion sharply divided the Court. Justice Scalia wrote a powerful dissent. Justice Kennedy, predictably, wrote the majority opinion, which the sometimes-liberal Justice Breyer joined. Some "liberal" constitutionalists, such as Akhil Amar and Neil Katyal, have attempted to justify the Court's decision as a reasonable interpretation of the Fourth Amendment. Others, such as Barry Friedman, contend that the opinion is misguided. I agree with Friedman.

The news regarding the surveillance of Verizon calls helps to explain why the DNA ruling is utterly bankrupt. The Court defended its ruling on the grounds that collecting DNA is not physically intrusive; it only involves a quick swab of the cheek.

But collecting telephone records -- or even listening to calls -- does not intrude upon the object's physical space. In fact, these practices are even less intrusive. Undoubtedly, most Verizon describers did not realize that the government had been collecting details about their calls until today (assuming they even read about current events).

By contrast, the arrestee clearly knows that the government has intruded his or her physical space, albeit minimally, during DNA collection. So, using the Court's logic, the minimal physical intrusion of telephone surveillance could go towards justifying these searches in the absence of a warrant or a reason to believe the callers are actual or potential criminals.

The Court's focus on the physicality of DNA collection diminishes the scope of the Fourth Amendment. The Fourth Amendment does more than guard against bodily intrusion. It also secures the privacy of our "houses, papers, and effects."

I cannot imagine a legal justification for a blanket search of every Verizon call made in, from, or to the United States. Similarly, it is difficult to think of a valid reason to collect a DNA sample from every person arrested (not convicted) for a serious crime. It certainly cannot justify the subsequent use of this DNA in cases unrelated to the arrest. Yet, the Court validated this practice earlier this week.

DNA, like phone calls, contains an abundance of private information about us. The government cannot intrude upon this zone of privacy without reasonable justification. No legitimate reason exists to justify the generalized collection of DNA from arrestees. This same logic applies to the generalized collection of telephone data from every Verizon customer (excluding only calls made between two foreign locations). These practices make a mockery of the Fourth Amendment. For this reason, they are both unconstitutional.

Note: The Obama Administration has rushed to defend its collection of Verizon call data. The White House, sounding eerily similar to President Bush, says that monitoring the telephone data is "a critical tool in protecting the nation from terrorist threats." Apparently, we are all potentially terrorists. Al Gore, by contrast, described the practice as "obscenely outrageous."

Republicans Use Race-Based Affirmative Action to Attract Latino Candidates

Race-based affirmative action is a four-letter word for most conservatives. In fact, most conservatives would probably consider modifying the phrase "affirmative action" with the qualifier "race-based" redundant. Typically, conservatives only target race-conscious affirmative action plans, even though this practice often involves many categories, including sex/gender, poverty, and (increasingly) sexual orientation.

Even though affirmative action is an anathema to contemporary conservative ideology, the GOP has openly embraced this instrument in order to diversify its ranks. Returns from the 2012 election showed that the vast majority of persons of color voted for Democratic candidates. Also, projected demographic patterns predict a substantial increase in the voting power of persons of color. This is especially true in some important Republican states, such as North Carolina, Virginia, Texas, Arizona, and Florida. The growth in Latino voters in those states could make it impossible for Republicans to win national office unless significant numbers of these voters are attracted to GOP candidates.

In response to this reality, Republican leadership has decided to target Latino voters -- apparently deciding that they have no chance of capturing significant numbers of black voters and that the number of Asian-American voters is too small to concern them. Since the election, Republican leaders have made repeated calls for the party to "reach out" to Latinos. Now, they have put money behind this effort.

Today, the GOP announced a national plan to recruit Latino political candidates to the GOP. The Future Majority Project announced that it would spend $6 million to attract Latinos. The Republican State Leadership Committee, which works to increase the number of Republicans holding state political office, operates The Future Majority Project. The project has used similar efforts in the past to recruit women (and even Latino) candidates).

It is difficult to distinguish this initiative from affirmative action. Like affirmative action, this initiative will give Latinos special resources to increase their numbers in state political office. Similarly, schools offer scholarships or special admissions consideration to qualified applicants of color in order to achieve academic diversity. Employers offer jobs or special consideration to qualified persons of color in order to ensure workplace diversity.

The Supreme Court has held that affirmative action is legal to achieve diversity in higher education. Conservatives, however, loathe any consideration of race by state and private parties. This initiative is certainly protected as political speech. Liberal commentators have similarly argued that affirmative action at universities should be analyzed under the Right of Association, which is shielded by the First Amendment (just like political speech). Nonetheless, conservatives remain generally opposed to affirmative action -- unless it is necessary to achieve political victories for the Republican Party.

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