Happy Thanksgiving!

 Here is the text of George Washington's Thanksgiving Proclamation of 1789:

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for his kind care and protection of the People of this Country previous to their becoming a Nation--for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war--for the great degree of tranquility, union, and plenty, which we have since enjoyed--for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted--for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually--to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed--to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.

Go: Washington

Washington issued a proclamation on October 3, 1789, designating Thursday, November 26 as a national day of thanks. In his proclamation, Washington declared that the necessity for such a day sprung from the Almighty’s care of Americans prior to the Revolution, assistance to them in achieving independence, and help in establishing the constitutional government.

 

Link

Question & Answer Session: Wednesday November 29 at 1:30 (Room 113)

 Today you voted overwhelmingly to postpone our Q & A session.

Thus, instead of class on Wednesday November 15, we will meet in room 113 on Wednesday November 29 at 1:30 to 2:30 PM for said Q & A class.

Standards of Constitutional Review

The Equal Protection Clause provides: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." 

    STANDARDS OF REVIEW


    I.  MINIMAL SCRUTINY (DEFERENCE)

Rational Basis Test - The government restriction need only be rationally or conceivably related [Means] to any legitimate state interest [Ends]. 


    II.  INTERMEDIATE SCRUTINY (SKEPTICISM)

Intermediate Scrutiny Test - The government restriction must serve important governmental objectives [Ends] and must be substantially related to the achievement of those objectives [Means].  [“Intermediate scrutiny always asks is there some less restrictive alternative available?”  Epstein, Takings at 138.]


    III.  STRICT SCRUTINY (CYNICISM)

    The governmental restriction must be necessary [the Least Restrictive Means] to achieve a compelling state interest [Ends]. 


                                   CHART


        MEANS                                          ENDS

I.  Rationally Related                        Any Legitimate State Interest


II. Substantially Related                  Important Governmental Objective


III. Necessary                                         Compelling State Interest


[The Ends are the purposes sought to be advanced (e.g. health and safety).  Means are the methods chosen to accomplish those ends.]

 Notice this insight of Chief Justice Rehnquist: "The Equal Protection Clause is itself a classic paradox, and makes sense only in the context of a recently fought Civil War. It creates a requirement of equal treatment to be applied to the process of legislation, legislation whose very purpose is to draw lines in such a way that different people are treated differently. The problem presented is one of sorting the legislative distinctions which are acceptable from those which involve invidiously unequal treatment." Trimble v. Gordon, 430 U.S. at 780 (1977).

In other words, the job of the Court is to sort through mounds of perfectly legitimate legislative classifications in order to isolate and invalidate the few bad apples in the orchard. The 3 standards of review enable the Court to strike down invidious classifications while upholding the legitimate classifications.

                

Assignments for November 13 & 14

 Monday November 13: The U.S. Court of Appeals for the Fifth Circuit’s decision in Missouri v. Biden. Please follow the link to the 5th Circuit's opinion. When you get to it, focus your attention on the extreme nature of the facts and on the "state action" section of the opinion. Don't worry about the standing discussions. They are good, but we have moved on from standing. The Supreme Court has granted review, so we will soon get a definitive ruling. And here is an article by Amy Howe of SCOTUSblog on this case.

Tuesday November 14: A preview of Con Law II: An Executive Summary of Equal Protection-- No reading other than Blog Posts on Equal Protection

Wednesday November 15: I will ask you next week whether you prefer a Q & A session on November 15 or whether you wish to postpone it to a time closer to the exam. Your choice.

A Weekend Thought: What Theology Teaches About Constitutional Interpretation

 Greetings from Saturday Morning! I was reading one of my favorite theologians--the late, great James Montgomery Boice--and he said something about theology and interpreting Scripture that I think also applies to interpreting the Constitution. He said that "often heresy results from emphasizing one part of biblical truth at the expense of other parts, as a result of which even that one part is distorted."

Does this not apply to the central issue of Con Law I, the relationship between the enumerated powers of the national government and the reserved powers of the states. When the Court applies "as you wish" deference to national power (e.g., to the Commerce power and the Necessary and Proper Clause), does it not distort both the enumerated powers of the national government and the right of the people to be governed closer to home under the reserved powers and the 10th Amendment? To avoid constitutional heresy, the Court should keep constitutional doctrines straight and in balance. As-you-wish deference overemphasizes national power at the expense of Tenth Amendment federalism and liberty.

Just a thought I had on a Saturday morning when studying the Gospel of John and Boice's wonderful expositional commentary.

The Highlight of the Course for Me: As You Wish Deference (Trademarked)

 As we approach our last week of Con Law I, I have a few thoughts. This is my last time teaching Con Law I--I want to spend more time playing with grandkids and reading the Bible--and I have very much enjoyed this semester. I enjoy regular "office hours in the lobby" and chatting with students, some days for a full 90 minutes after class has ended. I've enjoyed talking (and learning) about new topics such as the Major Questions Doctrine, and state action and censorship of speech on social media platforms.

And the highlight of the course for me was coining the phrase "as you wish deference" to describe the Court as a love-sick farm boy when deferring to power grabs by Congress. My thanks to Westley (Farm Boy), Princess Buttercup, and The Princess Bride movie for serving as my muse for this descriptive phrase.

I hope to see many of you next year in either (or both) of First Amendment or Con Law Seminar.

Let's finish strong!

PS: What would Inigo Montoyo say when the Court held that "necessary" means convenient?

Narrator: "You keep using that word. I do not think it means what you think it means."

Missouri v. Biden: Application of the "Close Nexus" test (See Brentwood Academy)

The Background Doctrine

The   government   cannot   abridge   free speech. U.S. Const. amend. I.  A private party, on the other hand, bears no such burden—it is “not  ordinarily constrained  by  the  First  Amendment.” That changes, though, when   a   private   party   is coerced  or  significantly  encouraged by the government to such a degree that its “choice—which  if  made  by  the government would be unconstitutional,—“must  in  law   be  deemed  to  be  that  of  the  State.” This is known as the close nexus test....But, on one hand there is persuasion, and on the other there is coercion and significant encouragement—two distinct means of satisfying the close nexus test. --p. 28-29

Encouragement

We     start     with     encouragement. To constitute “significant encouragement,” there must be such a “close nexus” between the parties that the government is practically “responsible” for the challenged decision....[S]ignificant  encouragement  requires“[s]omething more” than uninvolved oversight from the government. After all, there must be a “close nexus” that renders the government practically “responsible” for the decision. Taking that in  context,  we  find  that  the  clear  throughline  for  encouragement  in  our caselaw is that there must be some exercise of active (not passive), meaningful (impactful  enough  to  render  them  responsible)  control  on  the  part of the government over the private party’s challenged decision. Whether that is (1) entanglement in a party’s independent   decision-making   or   (2)   direct involvement  in  carrying  out the  decision  itself,  the  government  must encourage  the  decision  to  such  a  degree  that  we  can  fairly  say  it  was  the state’s  choice,  not  the  private  actor’s. [citing a case that held that "significant encouragement is met when 'the state has has some affirmative role, albeit one of encouragement short of compulsion,' in the decision.]

....

[In summary]:For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party’s decision in order to constitute  a state action. That reveals itself in (1) entanglement in a party’s independent decision-making or  (2) direct involvement in carrying out  the  decision  itself.

Coercion

p. 33: "Next, we take coercion—a separate and distinct means of satisfying the close nexus test.  Generally  speaking,  if the government  compels the private party’s decision, the result will be considered a state action. So,  what  is  coercion?  We  know  that  simply  “being regulated by the State does not make one a state actor.” Coercion, too, must be something more. But, distinguishing coercion from   persuasion   is   a   more   nuanced   task   than   doing   the   same   for encouragement.  Encouragement  is  evidenced  by  an  exercise  of  active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it  may  be  more  noticeable  and,  consequently, more  distinguishable  from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions....

The  Second  Circuit  starts  with  the  premise  that  a  government message  is  coercive—as  opposed  to  persuasive—if  it  “can  reasonably  be interpreted as  intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”

....

Again,  honing  in  on  whether  the government  “intimat[ed]  that  some  form  of  punishment”  will  follow  a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences.

 So, what do y'all think about Missouri v. Biden? Was the involvement of the White House significant enough to constitute state action by a close nexus amounting to encouragement? Coercion? 

 See page 61-62:

But,  the  Supreme  Court  has  rarely  been  faced  with  a  coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a  fundamental  aspect  of  American  life.  Therefore,  the  district  court  was correct in its assessment—“unrelenting pressure” from certain government officials likely “had the intended result of suppressing millions of protected free  speech  postings  by  American  citizens.”

 

And notice also that when government censors speakers it also censors everyone who was denied access to the censored information. Everyone in this room who is on social media was denied the right to receive the information that was censored by this partnership between government and social media platforms. 

The Supreme Court is going to decide this issue soon. We need clear guidance about when persuasion becomes coercion or encouragement.

Missouri v. Biden and State Action: Just the Facts

 The White House and the Surgeon General's Office

"Considering their close cooperation and the ministerial ecosystem, we take the White House and the Surgeon General’s office together. Officials from  both  offices  began  communicating  with  social  media  companies—including Facebook, Twitter (now known as “X”), YouTube, and Google— in early 2021. From the outset, that came with requests to take down flagged content. In one email, a White House official told a platform to take a post down “ASAP,” and instructed it to “keep an eye out for tweets that fall in this same [] genre” so that they could be removed, too. In another, an official told a  platform to “remove [an] account immediately”—he could not “stress the degree to which this needs to be resolved immediately.” Often, those requests for removal were met.

....

 For  example,  in  an  effort  to  get  ahead  of  a negative news story, Facebook preemptively reached out to the White House officials to tell them  that the story “doesn’t accurately represent the problem or the solutions we have put in place.” The  officials  were  often  unsatisfied.  They  continued  to  press  the platforms on the topic of misinformation throughout 2021, especially when they seemingly veered from the officials’ preferred course. When Facebook did not take a prominent pundit’s “popular post[]” down, a White House official asked “what good is” the reporting system, and signed off with “last time we did this dance, it ended in an insurrection.” [LOL]

To  ensure  that  problematic  content  was  being  taken  down,  the officials—via  meetings  and   emails—pressed  the  platforms  to  change  their moderation policies. For example, one official emailed Facebook a document recommending changes to the platform’s internal policies, including to its deplatforming   and   downgrading   systems,  with the note that “this is  circulating around the building and informing thinking.” In another instance, the Surgeon General  asked the platforms to take part in an “all-of-society” approach to  COVID by implementing stronger misinformation “monitoring” programs, redesigning their algorithms to  “avoid amplifying misinformation,”       targeting “repeat       offenders,”  “[a]mplify[ing] communications from trusted . . . experts,” and    “[e]valuat[ing]    the effectiveness of internal policies.” The  platforms  apparently  yielded.  They  not  only  continued  to  take down content the officials flagged, and provided requested data to the White House, but they also changed  their moderation policies expressly in accordance with the officials’ wishes.

Still, White House officials felt the platforms were not doing enough. One told a platform that it “remain[ed] concerned” that the platform was encouraging vaccine  hesitancy, which was a “concern that is shared at the highest (and I mean highest) levels of the [White House].” So, the official asked for the platform’s “road map to improvement” and said it  would be “good to have from you all . . . a deeper dive on [misinformation] reduction.”...The Surgeon General contemporaneously issued a public advisory “calling out social media platforms” and saying they “have a role to play to improve []  health outcomes.” The next day, President Biden said that the platforms were “killing people” by  not acting on misinformation. Then, a few days later, a White House official said they were  “reviewing” the legal liability  of  platforms—noting  “the  president  speak[s]  very   aggressively about” that—because “they should be held accountable.”The  platforms  responded  with  total  compliance.  Their  answer  was four-fold. First, they capitulated to the officials’ allegations. The day after the President spoke, Facebook asked what it could do to “get back to a good place” with the White House."

The FBI

Next,  we  consider  the  conduct  of  the  FBI  officials.  The  agency’s officials regularly met with the platforms at least since the 2020 election. In these meetings, the  FBI shared “strategic information with [] social-media companies” to alert them to misinformation trends in the lead-up to federal elections....Apparently, the FBI’s flagging operations across-the-board led to posts being taken down 50% of the time.

Not as egregious as the White House, but how would you react if the FBI regularly met with you to express concerns about your posts on social media? The entire operation to marginalize, remove, suspend, and deplatform speech (often true speech) that contradicts the Government's official narrative reminds one of Big Brother's [or the Big Guy's] Ministry of Truth and the Thought Police in Orwell's 1984.

Were you shocked at the level of governmental interference with private expression on social media platforms? I was. I had no idea the level of Thought Policing was so extensive.

If the Constitution Doesn't Govern Private Actors, Who (or What) Does?

 Several students asked about private discrimination in housing, employment and public accommodations. They basically said "if the Constitution doesn't forbid private discrimination, what does?"

Of course, the answer is civil rights statutes and ordinances enacted by Congress, states legislatures, or local government. 

Most constitutional law cases arise because some law enacted by Congress or the states restricts some constitutional right. Nebraska passes a law forbidding certain kinds of speech. The law is clearly state action (the speech restriction is written into the statute), this triggers the Free Speech issue, and the law may or may not violate the Free Speech Clause. Congress passes the Health Care law with an individual mandate.  Clearly this is state action and the law may or may not violate the Constitution (the Court upheld it as a tax, as you may remember).

If a private landlord discriminates on the basis of race, there is no state action so no constitutional claim. But the discrimination certainly violates any number of fair housing laws passed by Congress, the states, and many cities.

I hope this helps clarify any confusion.

Reitman v. Mulkey (p. 1168)

 The California Constitution was amended by the voters to provide private landowners the right to discriminate in their "absolute discretion."

Here is what the amendment provided: "“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.” (casebook p. 1168-1169)

Does this amendment, which authorizes private owners of residential real property to discriminate on the basis of race or any other basis, violate the equal protection clause of the 14th Amendment?

Although the state is not required to enact laws prohibiting racial discrimination in housing, is a constitutional amendment that was intended to authorize private racial discrimination unconstitutional?

The Supreme Court says yes, the amendment is unconstitutional because, by making the "right to discriminate one of the basic policies of the State," it "will significantly encourage and involve the state in private discrimination." Casebook p. 1171.

Jackson v. Metropolitan Edison Co. (p. 1165)

 From Oyez:

Facts of the case

Catherine Jackson had received electricity from Metropolitan Edison at her home. Her service was terminated in September 1970 due to a lack of payment. Jackson opened another account under the name of another resident, James Dodson. Metropolitan Edison investigated her residence on October 6, 1971 and service was again terminated without notice on October 11. Jackson sued in federal district court under 42 U.S.C. Section 1983. She sought damages for the termination and an injunction to continue her service. The court dismissed her suit. The United States Court of Appeals for the Third Circuit affirmed the dismissal.

Question

Did Metropolitan Edison's termination of Jackson's electrical service qualify as "state action" under the Fourteenth Amendment?

 Conclusion

 No. In a 6-3 opinion delivered by Justice William H. Rehnquist, the court affirmed the Third Circuit and held that Metropolitan Edison's termination of Jackson's service did not qualify as state action. Rehnquist reiterated that private actions are "immune from the restrictions of the Fourteenth Amendment." The Court acknowledged that Metropolitan Edison was heavily regulated by the Pennsylvania Public Utility Commission, but this regulation did not make Metropolitan Edison part of the state.

Is "there a close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself?" Casebook p. 1165.

Is this case more like Burton or more like Moose Lodge?

Casebook p. 1167:

We  also  find  absent  in  the  instant  case  the  symbiotic  relationship  presented  in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). . . . Metropolitan is a privately owned corporation, and it does not lease its facilities from the State  of Pennsylvania. It alone is responsible for the provision of power to its customers. In common  with all corporations of the State it pays taxes to the State, and it is subject to a form of  extensive regulation by the  State in a way that most other business enterprises are not. But this  was likewise true of the appellant club in MooseLodge No. 107 v. Irvis...

 We  conclude  that  the  State  of  Pennsylvania  is  not  sufficiently  connected  with respondent’s  action  in  terminating  petitioner’s  service  so  as  to  make  respondent’s  conduct in so doing attributable to the State for purposes of the Fourteenth Amendment. We  therefore have no occasion to decide whether petitioner’s claim to continued service was “property”  for purposes of that Amendment, or whether “due process of law” would require a State taking  similar action to accord petitioner the procedural rights for whichshe contends.

I think the Court is reluctant to be too quick to find that private action is state action, because as we have said a number of times, the Constitution "is not the law that governs us [private actors]. [It] is the law that governs those who govern us." Barnett quotation.

NRA v. Vullo (cert granted)

 

The Tweet I quoted in class gave the wrong name of the case. Here  is the correct info.

 

 See Scotusblog:

"Issue: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy." Here is a NYT article on the case.

Moose Lodge v Irvis (p. 1161)

 From Oyez:

Facts of the case

K. Leroy Irvis, a black man who was a guest of a white member of the Moose Lodge No. 107, was refused service at the club's dining room because of his race. The bylaws of the Lodge limited membership to white male Caucasians. Irvis challenged the club's refusal to serve him, arguing that the action of the Pennsylvania liquor board issuing the Lodge a license made the club's discrimination "state action."

Question

Did the discriminatory practices violate the Equal Protection Clause of the Fourteenth Amendment? [See casebook p. 1162: "While   the   principle   is   easily   stated,   the   question   of   whether   particular discriminatory conduct is private, on the one hand, or amounts to “state action,” on the other hand, frequently admits of no easy answer. . . ."]

Conclusion

  

 

No. In a 6-to-3 decision, the Court held that the Moose Lodge's refusal to serve food and beverages to Irvis because he was black did not violate the Fourteenth Amendment. The Court noted that the state action doctrine did not necessarily apply to all private entities that received benefits or services from the government; otherwise, the Court reasoned, all private associations that received electricity, water, and fire protection would be subject to state regulation. The Court found that the Moose Lodge is "a private social club in a private building," and thus not subject to the Equal Protection Clause.

 How is this case different from Burton? See p. 1163: "In short, while Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building."

Justice Douglas points to the "scarcity" of liquor licenses as a factor pointing toward state action. Thoughts? What about a private club that limits membership to persons holding certain ideological beliefs, say a club that limits membership to socialists or libertarians? If granted a liquor license, must they refrain from discriminating on the basis of ideological viewpoints under the theory of the dissent?

Burton v. Wilmington Parking Authority (p. 1156)

 From Oyez:

Facts of the case

In August 1958 William H. Burton, an African American, entered the Eagle Coffee Shoppe, a restaurant leasing space within a parking garage operated by the Wilmington Parking Authority, and was denied service solely because of his race. The Parking Authority is a tax-exempt, private corporation created by legislative action of the City of Wilmington for the purpose of operating the city's parking facilities, and its construction projects are partially funded by contributions from the city. The Parking Authority provided the restaurant heating and gas services and maintained the premises at its own expense. Burton filed suit seeking an injunction preventing the restaurant from operating in a racially discriminatory manner on the ground that doing so violated the Equal Protection Clause of the Fourteenth Amendment. A state court granted the injunction but was reversed on appeal to the Delaware Supreme Court.

Question

Did the Eagle Coffee Shoppe's refusal to serve Burton constitute a violation of the Equal Protection Clause of the Fourteenth Amendment?

Conclusion

In a 6-3 decision authored by Justice Tom C. Clark, the Court concluded that the restaurant, as a recipient of assistance by the parking authority, benefited from the city's aid and constituted a financially integral and indispensable part of the state. As such, the Court found that the restaurant and the parking authority were so physically and financially intertwined that the private entity's conduct could be imputed to the government. Thus, it’s discrimination could be considered state action in violation of the Fourteenth Amendment.

Justice Potter Stewart concurred in the judgment. 

Justice Harlan, joined by Justice Whittaker, dissented. Justice Frankfurter wrote a separate dissenting opinion.

 

I think this case was strongly impacted by the fact that racial discrimination was occurring in a place of public accommodation located on real property owned by the State of Delaware and leased to the private restaurant.

If this case involved a restaurant who refused to serve a customer wearing a racist tee shirt, I doubt the Court would have found sufficient state action to trigger the Free Speech Clause in a suit brought by the customer rejected because of the message expressed by his tee shirt. The Court expressly noted that the State could have insisted on a clause in the lease requiring the lessee to serve all customers without regard to race. As Justice Clark said (p.1157): "By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has  elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized  as a joint participant in the challenged activity, which, on that account, cannot be considered to  have been so “purely  private” as to fall without the scope of the Fourteenth Amendment."

Chemerinsky on Burton: "The Supreme Court found that the government was so entangled with the restaurant that there was a "symbiotic relationship" sufficient to create state action. For example, the government had responsibility for upkeep and maintenance of the building and this was done with public funds. The parking facility was used by the restaurant's customers. At the same time, the government benefited from revenues from the restaurant and its customers."

Of course, all these factors are simply part of the landlord-tenant relationship. The landlord maintains the building and the tenant pays rent. The parking garage was open to all the public. So, it seems that if there was state action in this case, it was because the government leased space in a government building to a restaurant. 

Again, I ask if the restaurant refused service to a customer wearing a racist tee shirt, would there be state action sufficient to trigger the Free Speech Clause?