Today’s Edition: “To turn the tide . . . .”

September 10, 2021

          If President Biden fails to contain the resurgent Delta variant, it won’t be for lack of effort or imagination. On Thursday, Biden announced sweeping measures that leverage the heft, scale, and reach of the federal government to require vaccinations of federal employees, federal contractors, and private employers with more than 100 employees. The orders will reach health care workers, teachers, emergency personnel, government employees, and all manner of third parties who contract with the federal government. No one should doubt Biden’s resolve in seeking to vanquish the coronavirus. Given the enormity of the threat posed by the coronavirus to the ongoing health of the American people and the economy, Biden’s “no-holds-barred” approach is warranted and welcome.

          Biden’s speech was remarkable on several levels. In an effort to preempt the inevitable attacks from Fox News, Biden noted that Fox News mandates vaccinations or weekly testing for its employees. Biden also urged unruly passengers on airlines who resist mask mandates to “show some respect.” And Biden said what most Americans are thinking about those who refuse to get vaccinated because of partisan opposition or baseless conspiracy theories:

          We've been patient but our patience is wearing thin, and your refusal has cost all of us. This is not about freedom or personal choice. It's about protecting yourself and those around you.

          Biden directly addressed recalcitrant GOP governors, saying,

          If these governors won’t help us beat the pandemic, I’ll use my power as president to get them out of the way.

          Ouch! Presidents rarely issue such direct challenges to state governors. The last time that happened may have been when Dwight Eisenhower put the Arkansas National Guard under federal control to stop rioting in Little Rock designed to impede desegregation under Brown v. Board of Education.

          Biden isn’t shrinking from the inevitable backlash. Indeed, as one commentator noted, the right-wing press is already comparing Biden’s efforts to Germany’s leader during WWII, so why not resort to vaccine mandates? See Slate, “Joe Biden goes nuclear, will mandate COVID vaccines (or testing) for most private employees.” There will, of course, be legal challenges. But the Supreme Court has shown that it is capable of ruling on significant litigation in a matter of hours. Let’s hope that the Court acts with the same alacrity in enforcing public vaccination requirements as it did in upholding the Texas anti-abortion statute.

          The reaction from anti-vaxxers has been swift and predictable. The president of the federal law enforcement officer association says that the vaccine mandates will “villainize employees for having concerns or hesitancies.” While Biden might quibble with the word “villainize,” he probably agrees with the sentiment expressed by the union president—which is Biden’s point! He is assigning blame to employees who have prolonged their “concerns or hesitancies” long past the point of prudence. America is paying for their hand-ringing with thousands of deaths per day.

          Joe Biden isn’t fooling around. As he said in his speech, his intent is to “turn the tide” of the pandemic. That is a tough challenge, and his executive orders may be the most aggressive action a president has ever taken on any issue. Who knew that when we elected Biden, he would be such a fighter? His orders will not be the complete solution, but they give American businesses the legal and moral cover they need to do the right thing. Good for Biden.

The Department of Justice files suit against Texas.

          As Merrick Garland promised, the Department of Justice filed suit against Texas to enjoin the implementation of its anti-abortion statute. Yesterday, I wrote that the basis for the impending suit seemed fuzzy. I was wrong. I was surprised by the clarity and logical force of the complaint, which seems to have been written to be accessible to the public. The complaint is about forty pages long; if you have time, I suggest that you read the original complaint, which is here: US v Texas. But in case you don’t have time, I have excerpted allegations from the complaint below that lay out the legal theory for an injunction. What follows is the actual language of the complaint, not my summary (though I have omitted internal citations to caselaw and statutes).

Preliminary statement.

• It is settled constitutional law that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

• Texas enacted S.B. 8 in open defiance of the Constitution. The statute prohibits most pre-viability abortions, even in cases of rape, sexual abuse, or incest.

• Because S.B. 8 clearly violates the Constitution, Texas adopted an unprecedented scheme “to insulate the State from responsibility, by making the statute 2 harder to challenge in court.”

• It takes little imagination to discern Texas’s goal—to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review.

• S.B. 8 conflicts with federal law by purporting to prohibit federal agencies from carrying out their responsibilities under federal law related to abortion services.

• The United States therefore seeks a declaratory judgment that S.B. 8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunities.

The constitutional right to an abortion.

• The Supreme Court held that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.”

• Where, as here, a State seeks to strip individuals of their ability to challenge state action that indisputably violates their federal constitutional rights, the United States has a profound sovereign interest in ensuring that those constitutional rights remain redeemable in federal court

• The prerogative of the United States to seek injunctive and declaratory relief “to restrain violations of constitutional rights . . . has long been recognized.”

• The United States therefore may sue a State to vindicate the rights of individuals when a state infringes on rights protected by the Constitution.

The Supremacy Clause.

• The Supremacy Clause of the U.S. Constitution mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Intergovernmental immunity.

• The doctrine of intergovernmental immunity arises from the Supremacy Clause of the U.S. Constitution and reflects the principle that “[s]tates have no power . . . to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted . . . by Congress to carry into effect the powers vested in the national government.

• States also may not seek to directly regulate the performance of the federal government by regulating its contractor.

S.B. 8 Deputizes Private Parties to Act as State Actors in a Public Enforcement Scheme.

• In a transparent effort to evade constitutional scrutiny, Texas has outsourced the authority to enforce S.B. 8 to ordinary citizens.

• Under the state-action doctrine, private actors may be found to function as agents or arms of the state itself and thus are bound by the Constitution.

• The Supreme Court has deemed individuals to be state actors where they exercise “powers traditionally exclusively reserved to the State.”

I think the above allegations (and others in the complaint) make a clear case for injunctive relief requested by the Department of Justice. If the reactionary majority on the Supreme Court denies the relief requested by the DOJ, the Court will overthrow the notion of federal supremacy—and will purchase a one-way ticket to immediate expansion of the Court. Kudos to Merrick Garland and the DOJ for framing the argument in such clear and compelling terms.

          Many readers sent a link to an op-ed by Lawrence Tribe in the Boston Globe that lays out the legal theory the underpins the DOJ’s complaint. Tribe’s op-ed preceded the filing of the complaint, so perhaps Tribe influenced the legal theory in the complaint. The article by Tribe lays out the legal reasoning in detail, whereas the complaint alleges the legal conclusions. Check out the details at Boston Globe, “How a Massachusetts case could end the Texas abortion law.”

Democrats should talk in terms of "values”--not policy or process.

          A reader sent a link to an article in The Daily Kos that has an important message for Democrats who hope to unseat Republicans in red or purple states. See The Daily Kos, “Matthew Dowd: This is how Democrats beat a sagging Texas Governor Greg Abbott & failed Republican Agenda.” Matthew Dowd is a political strategist who is currently helping to elect Democrats in Texas. Dowd’s message is important and so I quote his comments at length. Here is what Dowd said:

          The problem is Democrats often cede the messaging ground to Republicans. Democrats have a tendency to talk policy points and process [while] Republicans talk values. And in a debate like that, voters ultimately vote based on values. . . . Democrats have to start talking about all issues—choice, COVID—all of these issues in a broad value context.

          [Democrats] should not cede the ground of pro-life. Republicans are not pro-life. They won't do anything about gun deaths. They won't do anything about COVID. They won't do anything about healthcare. They won't even expand Medicaid here where 90 of the costs would be borne by the federal government. . . .

          Democrats have to get much better on this having a values-based argument [to show that] what Republicans are doing is disconnected from American values and disconnected from the values a majority of us in Texas believe in.

          Dowd’s advice is spot on. In a news environment in which we have fleeting chances to communicate our message, the first thing we say should be about values, not about process or policy. Say what matters to Americans in terms of values, say it first, and say it in words of one syllable. Republicans have learned this lesson. We should do the same. Think about that approach next time you are trying to persuade someone about a Democratic policy: What values underlie the policy, and why are those values important to the person I am trying to persuade? That approach will make you a more effective advocate for democracy and the rule of law.

Concluding Thoughts.

This weekend will mark the twentieth anniversary of the 9/11 terrorist attacks. It is a somber reminder of the thousands of lives lost in one of the worst tragedies suffered by our nation. We should never forget those who lost their lives or those who lost loved ones in the attacks. To readers who are still suffering from losses on that day, my wife and I hope that you have found a measure of solace and peace with the passage of time. You are in our hearts and minds during this difficult anniversary.

          We hope that everyone can find respite and renewal this weekend. Talk to you on Monday.