In a series of decisions starting in the 1970s, the Supreme Court set the stage for subjecting race-based affirmative action to the most exacting constitutional scrutiny
How do you know when SCOTUS will be handing down opinions in argued cases? I usually check the calendar on the SCOTUS website, but I just looked 5 min ago and there were no opinion days scheduled. Thanks for a great newsletter!
Hi Drew: May 11 is listed as a "non-argument day" on the Court's calendar: https://www.supremecourt.gov/. That's usually the sign these days, plus that's what the press corps has been told.
Thanks for the clear explanation of the two theories. I wasn't aware of them & appreciate the opportunity to think more clearly about the matter of racial preferences.
Sent it to my lawyer wife, and my lawyer son & his lawyer wife, but also to a non-lawyer son because I know he would be interested and the explanation is layman-friendly.
This isn't relevant to this article, but top of mind and I'm curious what you think. I've been thinking about the legal issues potentially raised by Pres. Biden's possible actions to avoid default. The two most prominently discussed are invoking the 14th Amendment to say that the debt of the United States shall not be questioned and therefore the Government will continue to pay its bills (and sell additional securities to pay those bills); or minting a trillion dollar platinum coin. Paul Krugman (and others) has also discussed the idea of selling premium bonds to replace maturing bonds. These would have a higher interest rate and thus would sell for more money than their face value. I don't fully understand how this would work, but it sounds like it might be a way out.
One concern about any of these is how, shall we say, bonkers the Federal courts (especially SCOTUS) have become. I don't think anyone would want to predict with any confidence what, say, Justice Alito would do (except he would do it angrily). But it seems to me that based on long-standing precedent, there would be nothing for the courts to decide.
First, standing. If Biden invokes any of these options, who would have standing to sue? Who would be injured by the United States NOT defaulting on its debt? Vladimir Putin? Donald Trump? They seem to have strong incentives to see the United States burn to the ground, but their political fortunes not being advanced does not seem like a cognizable injury.
Second, one might imagine Kevin McCarthy bringing suit on behalf of the House. But what's his argument? That the President has usurped Congress's authority to drive the country off a cliff? That Biden is being mean to him? Wouldn't this be a political question? I remember learning in my first year in law school that the courts keep their hands off of cases like this - and for good reason. If Congress doesn't like something the President does it can pass legislation. Of course, I assume they would not be able to pass legislation declaring what Biden has done unlawful, and even if they did, I assume he would veto it and it seems highly unlikely that 2/3 of both houses would want to override his veto in order to force a default. Or, Congress could use its power to impeach - but I doubt that even the crazy House Republicans would vote unanimously (which is about what it would take) to impeach Biden over this and obviously he would be acquitted in the Democratic Senate.
So, doesn't it seem that Biden could take any of these actions without any real legal risks? Obviously politics is a different matter, but it would be a great public service if Joe Biden managed to kill the stupid debt ceiling once and for all.
By the way, I haven't read the statutes, but it seems like the platinum coin option and the premium bond option are based on pretty solid statutory grounds. And again, who would have standing to object to either of those options?
Section 4 says "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." I take it you are arguing that appropriations bills don't authorize debt. And maybe you're right. But I still don't know who would have standing to raise that argument if the President directs the Treasury to sell more bonds in order to cover already appropriated expenditures.
My comment is merely about whether the Constitution authorizes the Executive to incur debt not authorized by Congress. Clearly if we thought simply appropriating spending also authorized debt, there would never be a need to pass separate debt limit legislation. So, that's not a plausible argument.
Also, if the 14th was meant to transfer or split Article 1 powers from Congress to the President, it should have said so explicitly. No emanations, no penumbras.
As for standing, that's a whole different kettle of fish that is f*cked up. Case and controversy language shouldn't require some personal harm if the issue is whether a government official is exceeding the powers granted by the Constitution. The violation is sufficient harm in my view.
Well, my original comment was about standing. And the most plausible plaintiff, given the way the Court has traditionally viewed standing, would be the House. But I would argue that if McCarthy filed suit it should be dismissed as a political question. After all, Congress has the power to legislate if they don't like what the President has done or if they think it is unconstitutional they can impeach him. Neither remedy is likely to be effective, as a practical matter, but they have these powers and the fact that they probably wouldn't succeed in exercising them, if they tried, does not take the possible case out of political question territory. At least that's my opinion. Your mileage may vary.
And I have to say I think that standing makes sense. Otherwise you could have people filing a whole bunch of speculative causes of action that would require the courts to issue what would amount to advisory opinions. This would waste the courts' time and get them more involved in things they have no business ruling on. Of course, this SCOTUS seems to have a very flexible attitude about things like standing, and precedent. Neither one matters when they want to rule on something. This goes back at least to the stay in Bush v. Gore where the "irreparable harm" was that Bush would not be viewed as a legitimate president if Florida counted all the votes.
Hi Steve, you're a graduate of Yale Law School. How would you feel if even after graduating Summa cum laude from Amherst and probably scoring 175+ on LSAT, you wouldn't have been able to be admitted Yale? I'm sure you know that having that law school on your resume would have opened certain doors which wouldn't have opened if you had graduated from a school not in T14.
In the end that's what this is about, the caste system of the universities and also how the society discriminate against non Ivy students and when you add race in the mix it becomes a tinderbox.
Since on 5-4 you said that we should analyse the law based on the societal contexts, I would like to hear your thoughts on affirmative action considering the above context.
How do you know when SCOTUS will be handing down opinions in argued cases? I usually check the calendar on the SCOTUS website, but I just looked 5 min ago and there were no opinion days scheduled. Thanks for a great newsletter!
Hi Drew: May 11 is listed as a "non-argument day" on the Court's calendar: https://www.supremecourt.gov/. That's usually the sign these days, plus that's what the press corps has been told.
Thank you! Now if only I could get access to press corps communications...
Thanks for the clear explanation of the two theories. I wasn't aware of them & appreciate the opportunity to think more clearly about the matter of racial preferences.
Sent it to my lawyer wife, and my lawyer son & his lawyer wife, but also to a non-lawyer son because I know he would be interested and the explanation is layman-friendly.
This isn't relevant to this article, but top of mind and I'm curious what you think. I've been thinking about the legal issues potentially raised by Pres. Biden's possible actions to avoid default. The two most prominently discussed are invoking the 14th Amendment to say that the debt of the United States shall not be questioned and therefore the Government will continue to pay its bills (and sell additional securities to pay those bills); or minting a trillion dollar platinum coin. Paul Krugman (and others) has also discussed the idea of selling premium bonds to replace maturing bonds. These would have a higher interest rate and thus would sell for more money than their face value. I don't fully understand how this would work, but it sounds like it might be a way out.
One concern about any of these is how, shall we say, bonkers the Federal courts (especially SCOTUS) have become. I don't think anyone would want to predict with any confidence what, say, Justice Alito would do (except he would do it angrily). But it seems to me that based on long-standing precedent, there would be nothing for the courts to decide.
First, standing. If Biden invokes any of these options, who would have standing to sue? Who would be injured by the United States NOT defaulting on its debt? Vladimir Putin? Donald Trump? They seem to have strong incentives to see the United States burn to the ground, but their political fortunes not being advanced does not seem like a cognizable injury.
Second, one might imagine Kevin McCarthy bringing suit on behalf of the House. But what's his argument? That the President has usurped Congress's authority to drive the country off a cliff? That Biden is being mean to him? Wouldn't this be a political question? I remember learning in my first year in law school that the courts keep their hands off of cases like this - and for good reason. If Congress doesn't like something the President does it can pass legislation. Of course, I assume they would not be able to pass legislation declaring what Biden has done unlawful, and even if they did, I assume he would veto it and it seems highly unlikely that 2/3 of both houses would want to override his veto in order to force a default. Or, Congress could use its power to impeach - but I doubt that even the crazy House Republicans would vote unanimously (which is about what it would take) to impeach Biden over this and obviously he would be acquitted in the Democratic Senate.
So, doesn't it seem that Biden could take any of these actions without any real legal risks? Obviously politics is a different matter, but it would be a great public service if Joe Biden managed to kill the stupid debt ceiling once and for all.
By the way, I haven't read the statutes, but it seems like the platinum coin option and the premium bond option are based on pretty solid statutory grounds. And again, who would have standing to object to either of those options?
Where in the 14th does it says that new debt is authorized?
Section 4 says "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." I take it you are arguing that appropriations bills don't authorize debt. And maybe you're right. But I still don't know who would have standing to raise that argument if the President directs the Treasury to sell more bonds in order to cover already appropriated expenditures.
My comment is merely about whether the Constitution authorizes the Executive to incur debt not authorized by Congress. Clearly if we thought simply appropriating spending also authorized debt, there would never be a need to pass separate debt limit legislation. So, that's not a plausible argument.
Also, if the 14th was meant to transfer or split Article 1 powers from Congress to the President, it should have said so explicitly. No emanations, no penumbras.
As for standing, that's a whole different kettle of fish that is f*cked up. Case and controversy language shouldn't require some personal harm if the issue is whether a government official is exceeding the powers granted by the Constitution. The violation is sufficient harm in my view.
Well, my original comment was about standing. And the most plausible plaintiff, given the way the Court has traditionally viewed standing, would be the House. But I would argue that if McCarthy filed suit it should be dismissed as a political question. After all, Congress has the power to legislate if they don't like what the President has done or if they think it is unconstitutional they can impeach him. Neither remedy is likely to be effective, as a practical matter, but they have these powers and the fact that they probably wouldn't succeed in exercising them, if they tried, does not take the possible case out of political question territory. At least that's my opinion. Your mileage may vary.
And I have to say I think that standing makes sense. Otherwise you could have people filing a whole bunch of speculative causes of action that would require the courts to issue what would amount to advisory opinions. This would waste the courts' time and get them more involved in things they have no business ruling on. Of course, this SCOTUS seems to have a very flexible attitude about things like standing, and precedent. Neither one matters when they want to rule on something. This goes back at least to the stay in Bush v. Gore where the "irreparable harm" was that Bush would not be viewed as a legitimate president if Florida counted all the votes.
Hi Steve, you're a graduate of Yale Law School. How would you feel if even after graduating Summa cum laude from Amherst and probably scoring 175+ on LSAT, you wouldn't have been able to be admitted Yale? I'm sure you know that having that law school on your resume would have opened certain doors which wouldn't have opened if you had graduated from a school not in T14.
In the end that's what this is about, the caste system of the universities and also how the society discriminate against non Ivy students and when you add race in the mix it becomes a tinderbox.
Since on 5-4 you said that we should analyse the law based on the societal contexts, I would like to hear your thoughts on affirmative action considering the above context.