Spending Clause Litigation in the Roberts Court

Throughout the Rehnquist Court\u27s so-called federalism revolution, as the Court cut back on federal power tinder Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress\u27s power tinder the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress\u27s exercise of the spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court\u27s cases. Rather, the Court is likely to act indirectly-through doctrines that skew the the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court\u27s restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy

Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton—just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism—the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project

Implicit Bias\u27s Failure

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said

Disability Rights and the Discourse of Justice.

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that the legislative coalition came together to pass the law before society as a whole was ready for it, leading to a backlash. There is something to be said for both stories. But the most important point is what connects them. The ADA was a bipartisan achievement largely because the efforts to pass the statute—in a brilliant tactical move—skirted difficult arguments about justice. Instead, they relied explicitly on a discourse of costs and benefits—and they relied implicitly on a discourse of charity and pity. But as soon as the ADA was adopted and the burdens imposed by it became apparent, the cost-benefit and charity/pity discourses reached their limit in providing support for the statute. To secure support for disability rights in the future, advocates will need to rely on a discourse of justice. And that will require renewed efforts at social, and not just legal, change

Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the law may permit medical providers to use disability as a basis for a rationing decision where an individual’s underlying disability will kill the individual in the immediate term regardless of the treatment. However, as this Essay demonstrates, those circumstances will be narrow. Further, the law requires that such imminent-death determinations will be made based on the best available objective evidence, free from both bias against people with disabilities and devaluation of their lives

Legitimacy and Agency Implementation of Title IX

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have drawn the most controversy in this regard: gender equity in intercollegiate athletics; transgender students’ rights; and sex-based harassment and assault on college campuses. In this essay, I argue that the critique is misplaced. One may agree or disagree with OCR’s applications of Title IX in these three key areas. But these applications are not illegitimate. To the contrary, they are implementation decisions made consistent with the longstanding “core” conception of discrimination—intentional disparate treatment. These decisions are inherently contestable, because even the “core” conception can be instantiated in many ways. But there are strong reasons to believe that OCR is best positioned to choose which instantiations to adopt. In Part I, I demonstrate that the controversial positions of OCR do not involve avant garde interpretations of the anti-discrimination principle. Rather, they involve the resolution of questions of implementation: From what facts is it reasonable to draw an inference of disparate treatment? In what activities do we predict male and female college students would want to participate if they did not face discrimination? Should we look at discrimination on the level of the individual student or the institution as a whole? And what is the most effective way to reduce individuals’ acts of discrimination within an educational program? In Part II, I argue that OCR is well positioned to decide these questions. These questions of implementation are precisely the sorts of questions that Congress cannot generally be expected to resolve. And they are the sorts of questions on which an agency like OCR plausibly has both an informational and a democratic advantage over the courts. My argument does not rely on any transcendent preference for administrative resolution of policy questions—though it may offer a data point in support of such a preference. Rather, it relies on two key factors: first, the inherently contestable nature of these questions of implementation; and second, the proven democratic accountability of OCR. In a companion piece, I argue that OCR has generally been accountable to the public in its interpretations of Title IX. Here, I focus on the contestable nature of the implementation decisions that are necessary to give life to the statute, and I compare the democratic responsiveness of OCR with that of Congress and the courts

Disability and Reproductive Justice

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written uphelding government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion. This Article argues that any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion. Disabled people are frequently denied their own rights to conceive, bear, and parent children. Indeed, the practices that continue to prevent people with disabilities from having and raising children are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried. Consideration of insights drawn from the disability rights movement and the reproductive justice movement suggests that both Justice Thomas and then-Judge Kavanaugh gave the wrong answers on the questions before them

Federalism by Waiver After the Health Care Case

The Supreme Court\u27s Spending Clause holding in National Federation of Independent Businesses v. Sebelius (NFIB) is likely to be consequential for many reasons. It will have a direct effect on the implementation of the Affordable Care Act (ACA), which relied on the expansion of Medicaid-now made voluntary by the Court-to obtain health care coverage for more than fifteen million previously uninsured people. At this writing, it remains unclear how many states will participate in the expansion. The Congressional Budget Office recently estimated that, as a result of the Court\u27s decision, three million fewer people will obtain new Medicaid coverage under the law than it had originally predicted. But the Court\u27s Spending Clause ruling will have potentially an even more far-reaching effect on the constitutionality of other federal statutes enacted pursuant to Congress\u27s spending power, as states will be prompted to challenge other conditional spending laws in the education, social welfare, environmental, and civil rights areas as unconstitutionally coercive. The ultimate legal effect of NFIB\u27s Spending Clause holding on these laws is unlikely to be determined without years of litigation. In this chapter, I focus on another likely effect of NFIB\u27s Spending Clause holding- the case\u27s effect on the day-to-day bargaining between states and the federal agencies that administer cooperative spending programs. I argue that NFIB gives states important new leverage in these negotiations. This new leverage is likely to accelerate the trend toward federalism by waiver;\u27 in which important questions about the federal-state relationship are resolved by the federal executive branch granting tailored, conditional exemptions from the broad, general spending conditions adopted by Congress. And I will argue that this is not necessarily a bad thing

Who Is Responsible for the Stealth Assault on Civil Rights?

Staszak’s book does a great service in demonstrating the extent of the stealth assault on civil-rights litigation. As Staszak shows, procedural and remedial decisions fly under the public’s radar, but they have exceptionally important consequences. Indeed, one can draw a clear line between judicial decisions on such obscure topics as standing and qualified immunity and the persistent acts of police misconduct that have aroused great public concern in recent months. Any effort to ensure that civil-rights protections make a concrete difference in people’s lives must attend to the procedural and remedial issues Staszak discusses

Formalism and Employer Liability Under Title VII

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique — that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique — that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case. Last Term’s decision in Vance v. Ball State University demonstrates that the Supreme Court\u27s complex doctrine on employer liability under Title VII amply deserves each of these critiques. The Court’s formalistic reasoning conceals a series of unacknowledged, undefended, and dubious policy choices. Those choices stand behind the Court’s resolution of the question that triggered substantial debate within the Court — how to define a “supervisor,” whose harassing acts trigger employer liability. They also stand behind the perhaps more important holding, hiding in plain sight, that an employer is liable for harassment by nonsupervisory coworkers only when the employer is itself negligent. To the extent that the Court offered any justification for its decision, that justification was one of crispness and determinacy of application. But, as is often the case with formalist reasoning, the Court’s promises of crispness and determinacy were almost transparently false. In her dissenting opinion in Vance, Justice Ginsburg urged Congress to overturn the Court’s narrow interpretation of who is a “supervisor.” Such an action would solve some of the problems with the Court’s opinion, but it would not go far enough. Rather, Congress should reconsider the entire employer liability structure the Court constructed in the landmark 1998 Faragher and Ellerth cases