Seth Davis & Leah Litman on civil rights under a Trump administration

UCI Law Talks logoUCI Law Profs. Seth Davis and Leah Litman unpack the serious civil rights issues presented after the election of Donald Trump, including effects on reproductive rights, voting rights, policing, immigration and transgender rights.

 

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Expert

Seth Davis Seth Davis, Assistant Professor of Law
Expertise: Administrative law, property, federal Indian law, federal courts, and torts

Expert

Leah Litman Leah Litman, Assistant Professor of Law
Expertise: Constitutional law, federalism, federal post-conviction review, habeas corpus, federal courts

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks

[Seth Davis] Hello and welcome to UCI Law Talks. I'm UCI Law Professor Seth Davis and I'm joined today by Professor Leah Litman to talk about the serious civil rights issues that are presented after the election of Donald Trump as president. There's of course a lot of ground we could cover when it comes to federal civil rights law but we're going to focus on one topic. We're going to focus on the ways in which the Trump Administration could change federal civil rights laws even without legislative changes by Congress or a significant number of appointments of new federal judges. Let's start off with reproductive rights. Leah, I'm particularly concerned about the president-elect's statements in his 60 Minutes interview that Roe v. Wade is back up for debate. And even without a Supreme Court decision overturning Roe, there are certainly ways that the administration could cut back on a woman's right to choose. What are your thoughts?

[Leah Litman] I think that that is totally right, Seth. So the president in the 60 Minutes interview mentioned how he would like to appoint justices that would overturn Roe v. Wade and how he would like to see Roe v. Wade overturned. But, the reality is that even if the president does not yet have a Supreme Court appointment or any federal judicial appointments yet, his ability to use the presidential bully pulpit to signal his openness to cutting back reproductive rights has encouraged states to already begin doing so. So for example, in Indiana some legislators proposed a total abortion ban; other legislators proposed a ban on abortions after 20 weeks. In Pennsylvania, they were similarly introduced: a ban on abortions after 20 weeks. They also introduced a ban on a specific procedure and just recently in Texas, there were some recent regulations passed again after the election to require all abortions to be accompanied by a cremation or burial and these things all happened after the election. And in fact, some of the states that have proposed these restrictions specifically invoked the idea that they now have a quote “friend” in the administration to do so. This is already a stark change from what we saw just a few months ago. At the end of the last Supreme Court term in Whole Woman's Health v. Hellerstedt, the Supreme Court invalidated a pair of Texas restrictions on abortion. And in light of the opinion, some states started conceding that their previously enacted restrictions were unconstitutional but now in the wake of the election without any change in judicial personnel, the states are now in acting new additional restrictions instead of conceding that their old ones are invalid. So the area – one area that I am most concerned with is reproductive rights, and we've seen this change even though there was a recent Supreme Court case that at least suggested the court would be protective of reproductive rights. Now I know one of the areas you are most concerned with also relates to a recent Supreme Court case, a voting rights case although that case was maybe not so productive of the underlined civil rights.

[SD] Right. So we've seen a similar dynamic in the voting rights area and by that I mean there are decisions that federal institutions, the federal branches, that make that can signal to states the space in which they can or can't do certain things when it comes to civil rights. And so, voting rights is a great example because not that long ago the US Supreme Court decided Shelby County v. Holder and that was a case about the validity of the formula that Congress had enacted to determine which states had to pre-clear any changes to their election laws with the federal government. This was Section Five of the Voting Rights Act which was a very powerful tool in response to decisions made by state and local governments to cut back on access to voting. And, after Shelby County hamstrung the Section Five pre-clearance process –  basically – shut it down, states that previously had to get approval for their changes to their election laws then made decisions to enact very restrictive voting laws. Laws that may very well have had an impact on turnout in the 2016 presidential election. With preclearance gone, other parts of the Voting Rights Act became much more important for the protection of voting rights and for anyone concerned about racial discrimination in access to voting. Among those provisions the Section Two of the Voting Rights Act. The Department of Justice, the Civil Rights Division plays a very important role in enforcing the Voting Rights Act and that role is even more important after Shelby County v. Holder. It's even more important in a world in which states feel emboldened to enact ever more restrictive provisions concerning voting. The Obama administration has used what remains of the Voting Rights Act to try to respond to some of the most egregious examples of state created restrictions on the right to vote but of course, it's in the discretion of the Department of Justice whether it takes those cases, whether it brings enforcement actions.

And one of the things I'm concerned about is that the Trump Administration will simply change which sort of cases they bring under the Voting Rights Act, that they will stop enforcing the Voting Rights Act against those very restrictive provisions enacted by states. And in fact, states will feel emboldened if the Department of Justice stops enforcing selected portions of the Voting Rights Act. So we'll see even more restrictive provisions I suspect and they'll be kind of a feedback loop between the states decisions to enact restrictive voting measures and the DOJ’s decisions under the Trump administration not to try to enforce the Voting Rights Act against those measures. So there is a lot that the Department of Justice under, for example, Senator Sessions could do to in-effect cut back on access to voting simply by not enforcing Federal Voting Rights Law. You would not even need a change a legislative change to the Voting Rights Act. You would not even need the Supreme Court to reinterpret or strike down part of the Voting Rights Act for there to be important changes in the state of voting rights in this country. And of course, they'll be incentives to do that to the extent that Republican politicians can entrench their positions by restricting access to voting. There will be a real incentive to reduce certain kinds of enforcement to the Voting Rights Act. On the other hand, Leah, I know that you're also thinking about new ways in which the administration could enforce the Voting Rights Act perhaps against folks there advocating for voting rights.

[LL] Yes, that's right Seth. So if I understand, your concern that you just spelled out, you were imagining a world in which the Department of Justice basically allows Section Two to go unenforced…

[SD] That's right.

[LL] … and so states feel emboldened to enact new restrictions.

[SD] Right.

[LL] I'm imagining a world in which not just Section Two but other voting rights laws are used as a sword to against – a sword against groups that are trying to expand access to the franchise. So the person you identified who will be leading our new Department of Justice…

[SD] Maybe.

[LL] Senator Sessions actually got his career started by prosecuting organizations that were trying to register black voters and he was prosecuting them for voter fraud.

[SD] This was when he was a US attorney?

[LL] This was when he was a US attorney and I think the concern is that the Department of Justice could use existing laws not just to fail to remedy aggressive state restrictions on voting but in fact to prevent groups from expanding access to the franchise as well. And hereto in the voting rights example, similar to the dynamic I identified in the reproductive rights area, some states are already emboldened perhaps by what you are thinking could be Section Two no longer being enforced. But, perhaps also by the statements that the president himself has made where he has made allegations that there were millions quote Millions of illegal votes cast in the most recent election that he won and last…

[SD] What do you think is behind those statements by the president?

[LL] I do not pretend to know what is behind them. If it is a calculated attempt to provide a basis for state restrictions on voting rights or federal prosecutions of organizations that are trying to get out the vote or if it is instead something more unintentional. Him perhaps lashing out at the states that did not vote for him. Those were the states he had identified where there was a purported problem with illegal votes.

[SD] I mean it's interesting because some commentators have been seeing in the president-elect's comments part of a blueprint forward for the kind of concerns that we're raising here so changing priorities in enforcement of the voting rights laws. And, of course, the concern here, right, is that one of the main justifications for these more restrictive state laws that restrict access to voting is that voter fraud is a real problem. Right? And the empirical data… So our colleague, Professor Rick Hasen, for example has written about how the empirical data don't really bear that out. But, that seems to be the story that the president-elect is starting to shape if we think – if we should understand his tweets and these pre-inauguration comments as laying out some of the decisions that he might make with respect to voting rights.

[LL] Yes, I think that that could be right and I also don't think that we here at UCI Law are the only ones picking up on that signal because just this past week the state of Michigan in an emergency legislative session, there's a proposal to require a photo ID. And the requirement of a photo ID is justified because of the purported risk of illegal votes being cast and voter fraud. And so, states are sensing that there is you know a sense from the incoming administration that they are willing to defend the idea that voter fraud is a real problem. And, if the administration is willing to stand by that claim that has so little evidence behind it, then states are willing to stand behind it too. And we see some evidence of that and some of the you know advisers to the trumpet ministration I think what I have in mind Kris Kobach was one of the architects of the Kansas rule where the hope was to require proof of citizenship…

[SD] Yes.

[LL] …in order to vote. And if we think it's difficult to obtain a photo ID, imagine how difficult it will be for everyone to carry with them their passport or birth certificate in order to vote. And, you know, again perhaps the president's claims of illegal voting and voter fraud could be used by states when they are proposing these restrictions.

[SD] Another interesting area where the president-elect may already be signaling some priorities in his tweets and statements about the protests that have occurred following Election Day. Some of which have questioned the protesters motives and so on. And that relates of course to the protests and social movements such as Black Lives Matter that we've seen coalesce around the issue of abusive police practices, law enforcement practices, and patterns that disproportionately affect for example communities of color. And the story we want to think about here is that it's very hard for private citizens to use our federal court system to challenge abusive police practices. Why is that? Well the Ringquiest and Roberts courts over my lifetime steadily cut back on the ability of private citizens to challenge among other things abusive law enforcement patterns and practices. How did they do that? For example, they issued decisions in the area of standing law. Standing laws says who can get into court when, right? Who is the right plaintiff to bring a claim? And they've cut back on the ability of private citizens to have standing to challenge abusive police practices.  They've also cut back on the use of the class action mechanism as a vehicle for private enforcement of civil rights laws against abusive police practices. And all of that has put a lot of pressure on government, on the federal government, to bring actions to enforce federal civil rights laws against abusive police practices.

And, in fact, that's why we have a statute on the books 42USC14141B, which says that the attorney general of the United States has the right of action to come into court to challenge abusive police practices. The Obama administration has used that kind of tool effectively against some abusive police practices in some local jurisdictions. But the Obama administration was under no real legal obligation enforceable in court to bring those cases. We say that federal attorneys, federal prosecutors, and so on have a great deal of discretion as to which cases they bring. So, at Trump Administration could simply choose to decline to exercise the authority it has under statutes like 14141B and stop bringing these enforcement actions to deter and to change abusive police practices. And the result would be to undercut some of the force behind these movements to change police culture and change police practices and there's been a lot of collateral benefits from these suits brought by the Obama administration. And I know, Leah, you you're thinking about some of those collateral – we've been talking about some of those collateral benefits that might be lost as well.

[LL] Yes. So, one of the ways I think that the department's failure to bring these proceedings under 14141B could hurt the social movements that have built up in the last several years is that when the department brings these lawsuits, they can collect so much information about the extent of any civil rights abuses that are happening in these police departments. So for example, part of what we learned about the Baltimore Police Department's failure to adequately respond to allegations of sexual assault and part of what we learned about the Baltimore City Police Department's disparate treatment of crimes involving different races, we learned from Department of Justice report and the investigation that was conducted under the statute that we're talking about. And so to, the department's Fergusson report which uncovered a lot of information that the social movements were able to mobilize around and a lot of information that the social movements were able to publicize and make use of. We learned because the department was willing to use its authority under 14141B. And we don't know if to the extent private individuals would have the same ability to uncover that information given that they can't – they don't have the same ability to bring these kinds of lawsuits. How able are they going to be to uncover the sort of widespread systemic information that the department has access to and said that too could be a real loss for private individuals and social movements ability to rely on information that the federal government was able to offer them.

[SD] Right. So I think one of the lessons here is: we have vested our executive branch with a great deal of power to enforce the law but also a great deal of discretion not to enforce it in any particular case or any particular class of cases. And we think that's a really good thing; we think that courts are not in a good position to tell the executive branch when it should bring a certain type of case and when it shouldn’t. But as it turns out, even bringing these kinds of cases in the investigations that it can result in, essentially the kind of discovery that it can result in has important consequences not only for what the executive branch can do to enforce the law, but also for what private citizens in their capacity as citizens can do to advocate for legal changes.

Another area in which the executive branch has a great deal of discretion whether to enforce the law or not is immigration and this is an area I know, Leah, that we're both thinking about when it comes to Federal Civil Rights. The president-elect has said that he intends very quickly after his inauguration to order the deportation of 2-3 million undocumented individuals. And for that to happen, it seems to me we're going to have to have a very aggressive dragnet style enforcement of our immigration laws. And that dragnet style of enforcement could itself be a form of abuse of police practice. To hearken back to what we're already – we've already been talking about and so I'm curious what you're most concerned about when it comes to the executive’s discretion to enforce immigration laws very robustly and aggressively.

[LL] Yes, certainly. So I think it would be difficult to talk about the potential civil rights concerns with the incoming administrations and immigration policy without acknowledging two things up front about immigration law in particular. The first is perhaps even more so than with respect to the president's other policy – president-elect's other policy priorities. There is a large amount of uncertainty about what exactly the administration intends to do and intends to propose. So a lot of our discussion here will be tied to our understanding…

[SD] Right.

[LL] …of what they might be proposing at specific times. The second is just to underscore what you were saying about the president's vast amount of discretion to enforce the law in general; but in particular, what that has meant for immigration law. The law on the books regarding immigration has not changed in the last eight years over the Obama Administration but the president has launched a variety of initiatives without having to pass any federal laws.

And so…

[SD] Which is one of the main criticisms of course of the president from many on the right.

[LL] Yes. No, that has been a criticism and was part of the basis for the lawsuit that Texas and other states filed against the president's deferred action program, which was one of the immigration policies the president launched without going through Congress.

[SD] But this was based on the president's discretion that we talked about to decide whether or not to enforce the law in any particular case or class of cases?

[LL] Yes, exactly. So the president announced this policy by basically making public: here are my enforcement priorities, I'm going to tell you all what they are and give you the guidance that I am giving the officers who are also part of the federal executive as far as what they should and shouldn't be doing. And so, the president's enforcement discretion was the basis for the Obama Administration's changes to immigration law and will very likely be part of the basis for the Trump Administration's changes to immigration laws as well. Now we started this discussion about immigration law by referencing this concern with the dragnet style enforcement that could result from the president's purported policy initiative of deporting 2-3 million undocumented persons. And I think part of my concern with this policy which I should say is potentially the narrowest immigration policy that the president has – the president-elect has announced with respect to the number of persons he plans to deport is that even that policy with the dragnet style enforcement that would result from it would cause serious problems for persons who are not themselves undocumented…

[SD] Right.

[LL] …but have family who are. If there is a serious concern with dragnet style enforcement at any public institution or outside of an individual's home then persons with undocumented family may be concerned about going to work, that they have a constitutional right to work…

[SD] Right.

[LL] …in the United States. And the specter of the dragnet style enforcement of immigration law against undocumented persons could cause people who are United States citizens and people who have constitutional or…

[SD] Public schooling is another area right?

[LL] Schooling is another great example where there is a real risk that children or siblings or you know parents will be scared of going to school, public schools perhaps in particular if they feel they are putting themselves or their loved ones at risk of being identified by any of the dragnet style searches that may accompany the federal executive’s immigration enforcement priorities. And that itself is a serious burden and civil liberties and civil rights. That would just be a byproduct of the administration's enforcement priorities.

[SD] One of the things I'm trying to think about is: the president of course can order any number of things but the president cannot himself or herself engage dragnet round ups of 2-3 million people. So is there any reason to think that the vast federal bureaucracy which has a lot of civil servants, some of whom may share the president-elect's views and some of them may not be able itself to be a check on any of these areas that we're concerned about?

[LL] I think there is some hope but it is hard to know. So to my mind, the things that I am concerned about even in a world in which many Immigration and Customs Enforcement officials do not share the president's enforcement priorities or the civil servants who work at the office of immigration litigation, do not for example. The president has other avenues that he can use to pursue these enforcement priorities one of those avenues is that he can ask or he can deputize state law enforcement to essentially turn over persons that they suspect of being undocumented. So even if he encounters some resistance from the federal bureaucracy he could ask for the support of some sympathetic state administrations and state law enforcement officials. Even aside from that, he can ask for the cooperation of private citizens. Ask them to call in, ask employers to call in. Some federal law, you know, governs who employers can employ. And so, he can – he has several tools at his disposal even if he encounters some resistance from the federal bureaucracy. And, perhaps any one of these tools could operate as something of a check but it's unclear how much if any one of these options remains at his disposal.

[SD] Right, so I mean one of the things that I think we're thinking about is all the tools available to the modern presidency to affect policy. We have for good or for ill invested the modern president not only with a whole host of legal tools but also with a kind of political status to really signal what the priorities of the nation are or aren't. And that brings me to another area that I know we're thinking about which is for example, trans-rights. And what the election of the Trump-Pence ticket may signal to states and local governments about the federal government's priorities with respect to trans-rights and then also positions that the new administration may take with respect to those rights.

[LL] Yes. So, as with the areas of reproductive rights or voting rights there is a fear that just the election of a new administration could signal that the new administration will no longer enforce civil rights protections to ensure the rights of trans-individuals. Just one quick concrete example of that is that under the Obama Administration, agencies issued a letter to schools indicating to them that they could not force transgender individuals to use the bathroom that corresponded with the sex organs they were assigned at birth. So, if the Trump administration rescinds that on top of just withdrawing that particular protection that could in bold in the states to take back or make anti-trans legislation at the state level. And so, that is another area where we could see this dynamic of the president being able to change the law without passing any laws through Congress and also getting other entities to act on his behalf.

[SD] Right. And so to wrap up, we want to be thinking at both about the law that's on the books when it comes to civil rights and changes that may occur through legislation or new appointments to the federal judiciary and change judicial precedent. But we also want to be really attentive to every tool that the president has to change federal civil rights law through actions that he will be able to take on his own authority. Thanks everyone for listening. This has been UCI Law Talks.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.