Harvard Law & Policy Review

Archives for April 2020

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The Attorney General Should Be Separate

By Daniel Cotter*

The Office of the Attorney General was established in 1789 as part of The Judiciary Act of 1789. The Act, among other things, established the makeup of the Supreme Court and its exclusive jurisdiction and also the lower court structure. One of the powers the Act gave to the Supreme Court, writs of mandamus, was the subject of the famous Supreme Court case, Marbury v. Madison. The Judiciary Act of 1789 also established the Office of the Attorney General.

Given recent actions of the current Attorney General, William Barr, as well as the inherent conflicts we have seen in past administrations, we must revisit the independence of the Office of the Attorney General and its location within the executive branch. The states’ model for an independent Attorney General is a good one to replicate, and would return the position to what the Founding Fathers intended. An Attorney General beholden to the President in any Administration is a recipe for partisanship and protecting the President instead of acting as an independent law enforcement official ensuring the laws are faithfully executed.

The Judiciary Act of 1789

As noted, the Act established the Office of the Attorney General. Specifically, Section 35 of the Act provides:

And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office, whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments . . . .

However, the original drafts of the Act contemplated that the Supreme Court would appoint the Attorney General, as noted by Charles Warren in his Harvard Law Review article, New Light on the History of the Federal Judiciary Act of 1789.

The language that eventually emerged in Section 35 was not definitive on the President appointing the Attorney General; rather, it was silent. As history writer David Tollen wrote on the site, Pints of History:

The Framers of the Constitution did not consciously grant the President authority to hire and fire the Attorney General. . . . [T]he first drafts of the Judiciary Act of 1789, written by several of the Framers, said the Supreme Court would appoint the Attorney General. The act’s final draft, on the other hand, said nothing about who would hire or fire these lawyers.

The early Presidents just stepped into the void and made government attorneys part of their administrations.

There is no reason that the office needs to remain as part of the United States executive branch.

States as Potential Models

As Tollen noted, “Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors.” Forty-three states elect their attorney generals.

A typical format is found in Illinois. The position is created pursuant to the state constitution, currently at Article V, Section 1 of the 1970 Illinois Constitution. The original Illinois Constitution, adopted in 1818, “authorized the General Assembly to appoint an Attorney General and to regulate his duties by law.” The Illinois Attorney General role was “[a]dapted constitutionally and legislatively over the years to meet the needs of a growing State.” But whether appointed or elected, the Illinois Attorney General has always been independent from, and not beholden to, the Illinois Governor.

Attorney General William Barr and Lack of Independence

Attorney General William Barr is the latest example of why independence of the position is crucial. On March 23, 2020, at President Trump’s daily press conference, he was joined by Barr. This was the only appearance by Barr to date at the COVID-19 press conferences. Barr remarked in part:

We have started to see some evidence of potential hoarding and price gouging. And so, earlier today, the President signed a second executive order, providing the authority to address, if it becomes necessary, hoarding that threatens the supply of those necessary health and medical resources.

. . . It is a crime to engage in prohibited activity.

Barr correctly addressed this issue. What was not addressed at all, though, is the additional powers that Barr and the Department of Justice have requested. According to Betsy Woodruff Swan, in Politico, the “Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies.”

Others have expressed deep and grave concerns about the “independence and accountability” of the FBI and Department of Justice (DOJ). Jack Goldsmith, “the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution,” after expressing that the DOJ and FBI are to a large extent independent, wrote in 2018:

Some presidents manage this independence better than others . . . . Donald Trump is not skillful at persuading, bargaining with, or leading his administration. . . . He acts like he doesn’t care about law and has no respect for DOJ, FBI, and their pursuits. When Trump acts this way, he makes it harder for the DOJ and FBI to engage in appropriate accommodations to him at the margins.

He is not the only one. More and more calls for Barr to step down, for there to be independence, are emerging. A good example is the unprecedented, recent call of more than 2,000 Department of Justice alumni for Barr to resign. The statement was issued after Barr personally intervened in the sentencing of Roger Stone, after President Trump made noise about the sentence Stone was facing. The statement declared in part:

Each of us strongly condemns . . . Attorney General Barr’s interference in the fair administration of justice.

. . .

The Justice Manual . . . states that ‘the rule of law depends on the evenhanded administration of justice’; that the legal decisions ‘must be impartial and insulated from political influence’; and that the prosecutorial powers . . . must be ‘exercised free from partisan consideration.’

. . .

And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle . . . . [I]t is unheard of for the Department’s top leaders to overrule line prosecutors . . . in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation . . . .

Such behavior is a grave threat to the fair administration of justice. . . . Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.

. . . But Mr. Barr’s actions in doing the President’s bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign.

Powerful words from a bipartisan group that numbers more than 2,000. Other examples exist. Barr has also been criticized for giving overtly partisan speeches. In a recent interview, Justice Department expert Jed Shugerman stated, “One has to ask why he would get up in front of the Federalist Society or at Notre Dame and give fire-and-brimstone, aggressively partisan speeches. . . . There is almost no precedent for an attorney general to give such partisan speeches.”

This is not to say that President Trump and Attorney General Barr are the first to act politically. As some have reminded those who have raised the lack of independence of Barr, in perhaps the most recent instance of “whataboutism,” Attorney General Eric Holder once famously stated, “I’m still the president’s wingman, so I’m there with my boy. So we’ll see.”

The nation’s top law enforcement officer, and the nation’s law enforcement team, must be independent. As the statement of the DOJ alumni notes, there must be “evenhanded administration of justice.” The DOJ mission statement, posted on its website, ends with this strong mantra: “to ensure fair and impartial administration of justice for all Americans.”

Proposal and Conclusion

As discussed, the First Congress, with knowledge of the government structure and closer to the time of the enabling legislation, proposed the Attorney General be appointed by the Supreme Court. The final Judiciary Act of 1789 did not ascribe the role to any department. Today, we have witnessed an Attorney General who time and time again has shown his allegiance to the President of the United States. Barr has been described as “the most political attorney general we’ve ever had.”

We should help to ensure that the Office of the Attorney General and the Department of Justice that he or she oversees are independent but accountable. We should determine the original intent and meaning of the Founding Fathers. While some such as Tollen have suggested the only way to do this would be by Constitutional amendment, we should follow the guidance of states such as Illinois and follow the wisdom that our greatest Chief Justice, John Marshall, gave us in Marbury: “It is emphatically the duty of the Judicial Department to say what the law is.” The Attorney General should be part of the judicial branch.

As noted above, the “history of the office suggests that the framers considered it a quasi-judicial post, independent from the president. Congress originally established the office with the Judiciary Act of 1789 . . . not the acts establishing executive departments.” The presidential appointment and Senate confirmation that appeared in the final bill were made “undoubtedly so that the AG would be appointed in the same way as federal judges — not as a statement of the office’s constitutional status.” But the Attorney General position was not explicitly part of the executive branch until 1870, as Cornell Clayton wrote, “In 1870, Congress codified this approach in the Department of Justice Act, making the AG the head of an executive department.”

As Clayton concludes, “history reveals that Congress has the constitutional latitude to shape how the Justice Department operates.” A future Congress must tackle this task as soon as possible, to ensure that the DOJ and the Office of the Attorney General do not completely trample the independence required to uphold the rule of law.

 

* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and as the author of the recently published book, The Chief Justices (Twelve Tables Press).

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Reproductive Rights in the Time of COVID-19: State Directives Exploiting a Public Health Crisis

By Swapna Reddy, Shetal Vohra-Gupta, April Shaw, Nina Patel, Liana Petruzzi*

As U.S. states elevate restrictions to contain the spread of coronavirus, many have enacted measures to restrict “nonessential” surgeries and procedures during the COVID-19 pandemic. Following Texas and Ohio’s leads, several states (Alabama, Iowa, Oklahoma, and Mississippi) have used these directives to stop surgical and even medical abortions under the pretense that abortion constitutes a nonessential procedure. Since then, federal judges in Ohio and Alabama denied their respective states’ requests and the legality of the Texas directive is actively being determined through rulings at the federal district court and the Fifth Circuit Court of Appeals.  These directives, issued during an unprecedented global health crisis, add new fuel to the flames in the national conversation on reproductive rights.

The Directives

The state directives are in response to federal guidelines attempting to ration valuable medical resources for health care professionals treating COVID-19. Language in the Texas order states that “procedures that are not immediately medically necessary to correct a serious medical condition” or to “preserve the life of a patient” do not qualify as “essential” health procedures and the Texas Attorney General pledged that violations of the Order “will be met with the full force of the law”:  $1000 fine or 180 days of jail time. State proponents of classifying abortions as “nonessential” claim that doing so is vital to protecting public health and preserving necessary supplies like masks, gloves, hospital beds, and ventilators by postponing elective procedures like dermatologic, ophthalmological, dental, and orthopedic surgeries.

The move to ban abortion as a “nonessential” procedure has been met with strong opposition by reproductive rights advocates, abortion providers and health professional groups such as the American College of Obstetricians and Gynecologists (ACOG). One clinic reports that the new directive has already resulted in 150 cancelled appointments. Opponents argue that abortion should not be included in the list of medical procedures that can be postponed, due to its time-sensitive nature, and that these directives are misguided and thwart comprehensive women’s health care.

The interpretation and enforcement of the orders by the Texas and Ohio Attorney Generals possess potentially dangerous implications for women’s access to safe and legal abortions. Proponents are utilizing a legitimate public health crisis to unnecessarily advance a political agenda. These COVID-19 based measures are particularly concerning as they infringe on women’s constitutional rights and their ability to seek otherwise legal health services. Such measures also exacerbate health disparities as they disproportionately impact low-income, rural, and minority women.

A Constitutionally Protected & Time-Sensitive Essential Health Procedure 

Although neither order explicitly prohibits abortion, the directives in Texas and Ohio both opened the door for broad interpretations of what might constitute non-essential procedures by generally defining “essential” procedures as those that are necessary to save an individual’s life or to address serious or severe symptoms. Many abortion procedures do not fall within these exceptions. It is clear, however, that abortion is a time-sensitive medical procedure. Additionally, any delay imposed on a woman’s ability to obtain an abortion must also factor in the numerous delays that are already imposed under state law in Texas and Ohio, including waiting periods, mandatory physical exams, ultrasounds, and counseling requirements. 

What Texas and Ohio have ignored is that the right to an abortion is a constitutionally protected right. As such, it is fundamentally different than other medical procedures states have limited as non-essential. As recently reaffirmed in Whole Woman’s Health v. Hellerstedt, a state may not impose an undue burden on a woman seeking an abortion. Although we have seen restrictions on certain constitutional rights during the COVID-19 epidemic (like the right to assemble), the right to an abortion is unique. The viability standard means that any delay can easily mean that a woman’s ability to exercise her right to an abortion will be absolutely lost.

For now, the Fifth Circuit is the only appellate court that has permitted a state (Texas) to keep its directive in place. It does this by applying Jacobson v. Commonwealth of Massachusetts, which it reads as holding that a state can reasonably restrict all constitutional rights during a public health crisis, and the right to abortion is no exception. The court also downplays the time-sensitive nature of abortion by refusing to characterize the directive as an outright pre-viability ban. Instead, the court holds that it is merely a “delay” of non-essential abortion procedures. And, under the court’s reasoning, there is nothing to indicate that Texas cannot continue to extend the ban for weeks or even months to address the current COVID-19 crisis.

Making Vulnerable Women More Vulnerable

A growing body of research indicates that limiting access to abortions contributes to poor health and limited economic and educational outcomes, disparately impacting low-income women of color. Low-income women compromise half of all U.S. women having abortions, with 76% of these occurring for women who have the lowest incomes. Due to overrepresentation among low socio-economic groups, Black women followed by Hispanic women are disproportionately affected when restrictions to abortions, contraception, and other family planning services are implemented. For example, recent changes to Title X means that poor and low-income women in Ohio will likely have even less access to preventative services, like contraception. Differences in abortion rates by race and ethnicity are likely due to gaps in access to affordable healthcare and contraception, as well as other factors tied to this country’s history of racism and discrimination.

Rural women in Texas and Ohio already face many obstacles in their ability to exercise their right to an abortion. A well-known obstacle is significant driving distances. In 2017, 43% of women in Texas, and 55% of women in Ohio lived in counties with no abortion provider. A 2019 study in Texas found that by delaying care due to distance pushes women later into their pregnancy, when care is even less accessible, costs increase and higher health risks remain for mother and child. In Texas, dramatic budget cuts in 2011 led to more than 80 publicly funded family planning clinics in the state to close and later, more than half the abortion clinics closed following sweeping anti-abortion legislation 2013, all of which had the most impact on access for rural and low-income women who were left with minimal to no options. COVID-19 has greatly reduced travel options which further exacerbates access limitations for low-income and rural women seeking abortions during consequential windows of time.

Shortage of Personal Protective Equipment Used as Justification for Executive Orders 

National shortages and inconsistent availability of Personal Protective Equipment (PPE) for health care professionals during the COVID-19 crisis is a serious concern and will exacerbate an already stressed health care system’s ability to respond. Nevertheless, using preservation of PPE as justification for the recent Texas and Ohio directives is misguided and not based in evidence. The current Center for Medicare and Medicaid Services (CMS) recommendations advise evaluating clinical situations by analyzing the risk and benefit of any planned procedure while considering resource conservation. While the orders specifically limit nonessential surgeries and procedures in order to preserve PPE, they fail to recognize that 96% of abortion services are provided in outpatient clinic settings, meaning that the vast majority of abortions are not impacting PPE availability in hospitals. Further, approximately 30% of abortions are medication-induced, and therefore do not require surgical procedures or medical equipment at all. While it is undeniable that surgical abortions do require some medical equipment such as gowns and masks, they make up a small percentage of hospital surgeries and are often more time-sensitive than other elective procedures. For example, Texas law bans abortions after 20-weeks post-fertilization; halting abortions for even a 3 week period, which the Texas order does, can be detrimental.

These states can preserve PPE by making medical abortion more accessible through the use of telemedicine, an invaluable tool in the current epidemic. For instance, Texas can waive its physical exam requirement to allow women to use telemedicine to obtain medical abortions. And Ohio, instead of moving to ban the use of telemedicine for medical abortions, could expand telemedicine for that purpose.

Conclusion

The net effect of these directives represent yet another example of aggressive state efforts in recent years to limit reproductive health options by over-regulating health care providers through Targeted Regulation of Abortion Providers (or “TRAP”) laws. Other examples of state restrictions include legislation and policy changes in Louisiana, which resulted in the June Medical Services, LLC v. Russo case currently being determined at the U.S. Supreme Court, and similar laws in Arkansas, Kentucky, and Alabama. These policies not only restrict the constitutional rights of women and reduce access, they also create an inconsistent patchwork set of policies that vary greatly by state. As such, women have vastly different rights and options simply based on geography.

During this national and global pandemic, it is vital that we do not exploit a public health crisis that requires our collective resources and support to advance political and anti-choice agendas that are based in neither evidence nor fact. Texas and Ohio are constitutionally mandated to provide abortion access to their constituents and the current policy directives are thinly veiled attempts to further restrict women’s access to health care. Reproductive health care is not a political pawn, but a part of comprehensive women’s health care, as well as a protected constitutional right.

 

*Authors:

Swapna Reddy (J.D., M.P.H.) is a Clinical Assistant Professor at Arizona State University’s College of Health Solutions. https://chs.asu.edu/swapna-reddy

Shetal Vohra-Gupta (Ph.D., MSW) is an Assistant Professor at University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/vohra-gupta_shetal/

April Shaw (J.D., Ph.D.) is a Staff Attorney at The Network for Public Health Law and a Research Scholar for Public Health Law & Policy at the Sandra Day O’Connor College of Law. https://www.networkforphl.org/attorneys-and-staff/april-shaw/

Nina Patel is a Millennium Fellow and an undergraduate student at Arizona State University. https://www.millenniumfellows.org/asu/nina-patel

Liana Petruzzi (MSSW) is a doctoral student at the University of Texas Steve Hicks School of Social Work. https://socialwork.utexas.edu/directory/liana-petruzzi/

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Online Symposium: The Future of Progressive Constitutionalism

 

Today, the Harvard Law & Policy Review and the Harvard Law School chapter of the American Constitution Society have the pleasure of releasing three fantastic pieces setting out progressive visions for the U.S. Constitution.

Citizenship, Personhood, and the Constitution in 2020
Rachel F. Moran

Reproductive Rights and the Rule of Law in Peril: The Fruits of a Decades-Long Effort to Reshape the Judiciary
Dawn Johnsen

Historicizing the Executive
Bernadette Meyler

Eleven years ago, a set of scholars led by Professors Jack Balkin and Reva Siegel released The Constitution in 2020. This collection of essays detailed progressive agendas for constitutional law at the beginning of a hopeful area, covering subjects including reproductive rights, economic justice, voting rights, and the freedom of speech.

Now that 2020 is upon us, the state of the federal judiciary, constitutional doctrine, and even American democracy itself are on shakier ground than many could have imagined. Yet, many of the principles in The Constitution in 2020 remain as powerful as ever, ready for a new generation of progressive scholars, practitioners, and policymakers to carry them forward.

Our organizations invited back Professors Rachel Moran and Dawn Johnsen to reflect on their contributions to The Constitution in 2020, the influence of the broader project, and contemporary prospects for positive constitutional change. We are also thrilled to have Professor Bernadette Meyler add a thoughtful new voice to these issues.

Professor Moran finds many of the worries she described in her 2009 chapter, Terms of Belonging, were vindicated: The citizenship agenda many progressive scholars were advancing a decade ago could just as easily be a sword for reactionaries to wield against immigrant communities and communities of color and a tool to push back on globalism in favor of nationalist impulses. She builds upon her earlier call to root a vision of an inclusive society in personhood, rather than citizenship—an idea that recent years show is all too dearly needed. You can read her full article here.

Professor Johnsen remarks upon the shocking attacks on abortion access, the right to contraception, and even the rule of law in the decade following her 2009 chapter, A Progressive Reproductive Rights Agenda for 2020. These developments stand as grim testaments to the success of conservatives’ decades-long campaign to shift constitutional meaning radically to the right. In response, Johnsen redoubles her calls for progressives to avoid a myopic focus on the judiciary and to advance a comprehensive reproductive rights agenda for all. You can read her full article here.

Finally, Professor Meyler provides a timely contribution to the literature on the original understanding of executive power in America. Her piece reflects on the near-total exclusion of executive power from the topics explored in The Constitution in 2020, and illustrates that self-avowed conservative originalists have embraced the theory of a unitary executive despite contrary historical evidence. Furthermore, she calls for an overdue expansion of historically grounded scholarship setting out a theory of executive power more resistant to forces of populism and tyrannical abuses of power. You can read her full article here.