Today marks the 201st birthday of John Bingham. Although forgotten by most Americans, Bingham is one of the most important figures in American constitutional history. Indeed, Justice Hugo Black called him the “Madison . . . of the Fourteenth Amendment.” And so he was.
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If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case.
There are limits to executive power, of course. As the Supreme Court has recognized, the executive branch cannot simply “abdicate” its responsibility to enforce the law. And as a society, we should remain ever watchful to make sure no presidential actions disrupt the balance of powers. But so far, President Obama’s executive actions don’t come anywhere close to doing so.
The Supreme Court will likely hand down its decision in Whole Woman’s Health on one of the last days of June 2016, a matter of weeks after the 150th anniversary of the passage of the Fourteenth Amendment in Congress. If Justice Kennedy and Justice Ginsburg once again join forces in reaffirming the amendment’s protection of equal liberty, dignity, and autonomy, there will be quite a lot to celebrate.
As Roberts rings in 2016, he’ll likely be thinking about the very important case the court will be hearing early in the New Year. Let’s hope that he’s also thinking about the resolutions he made when he joined the court and what the consequences would be — for the country, for the court, and for his own legacy — if he doesn’t keep them.
As this morning’s argument showed, this case has now become a vehicle for the Court’s conservatives justices to second-guess the university’s well-founded judgment that the sensitive use of race helps to ensure a diverse student body, provide pathways to leadership, and break down stereotypes that stand in the way of equality for all.
If Sue Evenwel hopes to set off a reapportionment revolution, she needs five votes to scrap our Constitution’s fundamental rule of equal representation for equal numbers of people. By the end of 60 minutes of oral argument, it is far from clear whether a majority of the Court is ready to take away representation in state legislatures from millions of individuals and throw our nation’s political system into turmoil.
Blum’s campaign seeks to turn the Fourteenth Amendment into an obstacle to efforts to ensure real equality, denying the government the power to redress our nation’s long history of racial discrimination.
Evenwel’s arguments—which fly in the face of our Constitution’s promise of equal representation for all—would undermine minority representation both in Texas, the state Evenwel is suing, and throughout the nation. Recent events in Yakima, Washington, provide a good example.
This blow-out record has emboldened business advocates to shoot for the moon, throwing precedent and caution aside. In recent years, and specifically in the cases the Court is now mulling, the Chamber and its allies have worked toward carving out what amounts to a law-free zone, effectively immunizing corporations from private lawsuits when they violate virtually any law, state or federal, enacted to protect consumers, employees, minorities, women, retirees, small investors, or small business suppliers.