Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique

For roughly a decade, federal legislation has devolved to the states some of Congress\u27s authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection congruence principle is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article

Reconceiving the Role of Section 8(B)(1)(A) -– 1947-1997: An Essay on Collective Empowerment and the Public Good

The Taft-Hartley section 8(b)(1)(A)s union discipline cases are linked to the impending collapse of collective bargaining in two ways. At one level, they have helped cause it by denying union majorities an important tool to enforce solidarity during economic disputes with employers and thereby have contributed to the loss of worker empowerment. At another level, the union discipline cases reflect certain shifts in national sentiments with respect to the role of unions and collective bargaining in general and the accommodation of collective bargaining to the competing claims of individuals and employers in particular. This paper is about both linkages

The “Liberty of Silence” Challenging State Legislation that Strips Municipalities of Authority to Remove Confederate Monuments

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a Confederate monument that local residents view as racist. Cities that would remove their local Confederate monument, but are precluded from doing so by state legislation banning such removal, have failed in their efforts to develop a successful litigation strategy to challenge the constitutionality of state monument removal bans. Such litigation efforts fail because lower courts interpret United States Supreme Court precedent to hold that a city does not possess any constitutional rights that it can enforce against its own state government. Unable to assert any constitutional right of its own, cities have been unable to gain standing to challenge the constitutionality of state legislation that bans the removal of a city’s Confederate monument. See, e.g., State of Alabama v. City of Birmingham, 299 So.3d. 220 (Ala, S. Ct. 2019). This article develops a constitutional theory that overcomes the main hurdle that has prevented local jurisdictions from successfully challenging state monument removal bans. The argument in this article is structured on the Constitution’s coerced speech doctrine. The hurdles to effectively challenging state monument removal bans can be surmounted when cities combine with residents to jointly assert in litigation the residents’ First Amendment right not to be coerced by state government into an unwanted association with a Confederate monument’s objectionable pro-Confederate racist messaging. Through such litigation, a city’s residents, with the assistance of their local government, are able to assert their “Liberty of Silence.

Enforcing Federal Civil Rights Against Public Entities After Garrett

In this article, I focus on the Section 5 branch of the federalism revival, the branch that was at issue in Board of Trustees of the University of Alabama v. Garrett, and the one that is most likely to arise when litigating on behalf of or against an arm of state government. In order to position Garrett doctrinally, I first describe the conceptual framework that determines the validity of Congress\u27 effort to abrogate state judicial sovereignty. This is an abridged version since more complete histories have been reported widely, both recently in these pages, and in many other journals. I then turn to Garrett\u27s holding and the Court\u27s reasoning to demonstrate that Garrett raised the bar, making it more problematic than ever that Congress will be able to deploy Section 5 to abrogate state judicial immunity. I shall argue that the outcome in Garrett was dictated neither by precedent nor by the rational basis standard of judicial review accorded disability-based discrimination. After evaluating the Court\u27s decision, I evaluate some options for enforcing federal rights that have survived Garrett. I finish with a discussion of some likely repercussions we might expect from Garrett

Constitutional Values and the Adjudication of Taft-Hartley Act Dues Objector Cases

The thesis of this Article is that, now conscripted into the fray, the NLRB must consider free speech and association values embodied in the Constitution and laws when deciding Taft-Hartley dues objector issues. Only then can the NLRB fulfill its congressional mandate, recently discovered and described in Beck, to develop a coherent body of law that accommodates potentially explosive confrontations between dues objectors\u27 right of free expressive association and the union majority\u27s statutory right to organize and bargain collectively on behalf of all represented employees, including dues objectors. To develop this thesis, the threshold task is to demonstrate that although most of the pre-Beck dues objector litigation nominally focused on statutory interpretation, constitutional values largely determined the cases\u27 outcomes. The Article also demonstrates that these constitutional values provide some measure of internal cohesion to decisions that at times seem incoherent

Cross Burning – Hate Speech as Free Speech: A Comment on Virginia v. Black

This Article concerns the criminalization of cross burning. This act of symbolic expression sometimes communicates hate, inspires fear of impending bodily harm, expresses an ideology and solidarity with others, or encompasses combinations of these. In 1991, Edward Cleary defended a White juvenile, known in court documents as R.A.V., who had burned a cross on the lawn of a Black family. In that litigation, Cleary began his oral argument to the Supreme Court by posing this question: To what degree does abhorrence of cross burning justify banning it? That question still baffles us. Establishing appropriate boundaries for the protection of speech that can both intimidate and express an ideology constitutes a profound challenge for a progressive society committed to the twin goals of free expression and civil order

The New Federalism and the ADA: State Sovereign Immunity from Private Damage Suits after Boerne

State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment\u27s Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational assumptions based on myths, fears and stereotypes. Unlike most other civil rights statutes, the Americans With Disabilities Act (hereinafter ADA or Act ) prohibits both prejudice and thoughtlessness and aptly has been characterized as a second-generation civil rights statute. Unfortunately, the ADA\u27s claim to innovation might yet prove to be its constitutional Achilles heel. Across the United States, state governments are challenging Congress\u27s constitutional power under Section 5 of the Fourteenth Amendment to prohibit any state-sponsored disability-based discrimination other than prejudice-based differential treatment. The spear point of this constitutional attack is the ADA\u27s requirement that the states as employers sometimes must provide a reasonable accommodation. This article explores the issues raised by this constitutional assault on the ADA