Donald Trump and Sexual McCarthyism

By Professor Stephen J. Clark

A single word in the lede of a new CNN story signals a potential turn toward sexual McCarthyism in the furor over sexually graphic remarks by Donald Trump. The word? “Threesomes.”

Reviewing Trump’s sexual banter over his 17 years of appearances on Howard Stern’s radio show, the story emphasized Trump’s odd fixation on the sexual attractiveness of his own daughter, Ivanka, whom he eagerly described as “voluptuous.” He is also heard giving Stern permission to refer to her as “a piece of ass.” Yeah, gross.

Like the initial furor over Trump’s boasts about groping women, drawing critical attention to comments with an incestuous connotation seems fair game. Incest is a crime, of course, and although there is some limited debate about that, there is no cogent contention that the suppression of incest is unjust. Drooling over your daughter isn’t a civil right.

But slipped into the lede alongside those incestuous remarks and some sexist ones too was a casual reference to threesomes. “Among the topics Trump discussed: his daughter Ivanka’s physique, having sex with women on their menstrual cycles, threesomes, and checking out of a relationship with women after they turn 35.” Whoa! Has no one at CNN ever played Which of These Is Not Like the Others?

Sure enough, later in the story, CNN reporters breathlessly recounted a trite exchange with Stern’s co-host, an exchange in which Trump is said to have “willingly” admitted to having once had group sex with three women. My goodness, admitting to, well, technically a four-way without having it dragged out by waterboarding! What kind of modern-day Sodom has this country become?

What had made Trump’s previously reported remarks so outrageous was his sense of privileged entitlement to sexually assault any woman he finds attractive. Yes, that initial story was obviously sensational because of his colorful language; “grab ’em by the pussy” was indeed a click-baiter’s dream. But what most responsible commentators highlighted as most problematic was Trump’s cavalier disregard for consent. Here was a man who so casually presumed consent from every woman he met that he imagined he could just proceed with sexual touching at will without even considering the possibility of an objection.

But the “threesome” exchange was very different. It did have its own colorful motif about the cumulative weight of the three participants: “I would say could be about 375 [pounds]…. I figure 125 apiece.” Still, the number of participants joining in a sexual encounter tells us exactly nothing about the presence or absence of consent. No, it is not sufficient to declare that anyone wanting to participate has “false consciousness” and may be infantilized as incapable of consent. Approving the sexual choices of other people is not a precondition for keeping your nose out of them.

Sexual freedom matters most when disapproval is greatest. People may look askance at a pansexual dominatrix, but there is no threat to the freedom of a husband and wife to have unshackled intercourse in the missionary position with the lights out and the curtains drawn. As Justice Blackmun has correctly observed, “a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.” Let them.

As the media continue in the days ahead to unearth more sexually graphic commentary by Trump, it should be imperative in each instance to understand clearly why, if at all, any particular remark may be disqualifying for public office. Bragging about groping women without their consent is disqualifying; talking about past participation in a threesome should not be.

Commentators and voters who would never say that having a premarital hookup, a gay spouse, or an elective abortion disqualifies a candidate from office should extend the same deference to sexual freedom generally. Undifferentiated condemnation of Trump for remarks that include mere candor about consensual sex sets a precedent that is primed to boomerang. It also happens to be unjust.

Don’t like threesomes? Don’t have one.

Prof. Hutter Authors Amicus Brief in New York Court of Appeals Case

Prof. Michael J. Hutter has authored an amicus curiae brief to the New York State Court of Appeals in Ambac Assurance Corp. v. Countrywide Home Loans, Inc. He was asked to author such a brief by the New York State Academy of Trial Lawyers. The appeal will be argued on April 28. Click here for a copy of the brief.

Ambac presents an important attorney-client privilege issue. While the issue is one of first impression for the Court, courts outside New York, both federal and state, have reached conflicting results. Specifically, the issue is whether the common interest exception rule, which permits clients and their attorneys to share privileged communications with other clients and their attorneys without causing a waiver of the privilege when they share a matter of common interest in the litigation context, should be extended to the sharing of information in a non-litigation context, e.g., transactional matters. The issue as raised in Ambac arises out of a merger transaction where the two merging parties shared confidential communications in order to finalize the merger.

Prof. Hutter argues that that the common interest exception should not be so extended as there is no basis in law or policy to do so. His argument as developed traces historical rise of the common interest exception and shows how such exception as presently limited is consistent with the policy underlying the attorney-client privilege itself; and that the sought-after exception is inconsistent with that policy.

Law School, Group Projects, and Creativity

By Prof. Ray Brescia

How can a law school teach students to work in teams? To work collaboratively? To nurture their creativity and give them a chance to work on a cause larger than themselves? In a recent article, forthcoming in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba. In the piece, I explore these questions and more.

Adoption Decision Highlights Continuing Vulnerability of Same-Sex Spouses

By Prof. J. Stephen Clark

The fight over same-sex marriage is over, right? The Supreme Court certainly left that impression last year after Obergefell v. Hodges, when it vindicated the constitutional right of gay couples to get married. A recent decision out of Mississippi, however, highlights a possible vulnerability for lawfully married same-sex spouses. What, if anything, obliges a state to give them the same benefits that generally flow from marriage?

The problem with the Mississippi decision was not the result, but the reasoning. A federal judge there struck down a state law that prohibited joint adoptions by married couples of the same sex. Despite noting that the state made only a “tepid” effort at defending the ban, the court gave only a feeble rationale for enjoining it. Equal protection was somehow involved.

The judge got the general framework right. If a law does not target a protected class or infringe a fundamental right, it should be upheld as long as it survives mere rational basis review. But from there, incoherence followed. The judge did not hold that the law targeted a protected class or that it infringed a fundamental right, but he struck it down anyway and did so without applying any standard of review. His rationale? Doubt that the Court would uphold the ban. Fair enough, but a more certain basis would be nice.

The judge’s difficulty in articulating one was understandable. The adoption ban inspired four possible theories of invalidity, but none of them quite encompassed it. The ban lay in a constitutional gap, which the Court itself is responsible for maintaining.

First, by singling out same-sex couples, the ban on joint adoptions might have targeted a protected class and thus triggered heightened scrutiny on that basis. The Court, however, has repeatedly avoided holding that classifications based on sexual orientation trigger heightened scrutiny. Nor has it been willing to treat discrimination against same-sex couples as a gender-based classification, which also would trigger heightened scrutiny. Even while repeatedly invalidating anti-gay laws, the Court has preferred to remain coy as to the standard of review—for two decades now. Given the absence of evidence that same-sex couples make bad parents, the adoption ban would almost certainly have failed heightened scrutiny.

Second, by denying some couples the opportunity for a joint adoption, the law might have infringed a fundamental right to adopt. As important as adoption may be to infertile couples and others, however, the Court has never held that adoption is a fundamental right. It is a statutory creation of relatively recent vintage and thus lacks a long history and tradition, a weighty factor in identifying a fundamental right. Adoption also implicates the private interests of additional parties—namely, the children placed for adoption and their biological parents. Perhaps understandably, courts have generally declined to require states to defend adoption regulations under heightened scrutiny.

Third, by denying same-sex spouses a marital benefit that heterosexual spouses receive, the law might have infringed the fundamental right to marry. That right has been defined, however, as protecting individuals from material interference with their decision to get married, not as a constitutional entitlement to receive any particular set of benefits once they do. In fact, unremarkable socioeconomic regulations sometimes extend marital benefits to only some spouses, such as those who actually live together, those over a certain age, or those in specified economic circumstances. Several states even offer married couples the option of a “covenant” marriage, which significantly alters the availability of divorce. The Court has never suggested that varying the marital benefits available to different married couples, standing alone, triggers any heightened scrutiny. Although the judge in the Mississippi case tried to derive a countervailing principle from the Obergefell decision, which did rest on the constitutional right to marry, the issue of denying a marital benefit to a subset of lawfully married couples was not before the Court. The right to get married was.

Fourth, the adoption ban might have just failed rational basis review without any heightened scrutiny. Because that standard of review is so toothless, however, a claim that the ban serves the best interests of children should survive that minimal scrutiny. Although studies consistently find little to no difference in outcomes between children raised by same-sex and heterosexual couples, the experience is recent and the studies are somewhat limited. As the New York Court of Appeals has held, a rational legislator could doubt the studies’ conclusiveness. Applying an adoption ban to all same-sex couples would be blunt and imprecise. No one seriously claims that the best same-sex parents are still worse than the worst heterosexual parents, but rational basis review does not require such neat categorical difference. It allows gross overinclusion and gross underinclusion, as long as there is some conceivable basis for the line that is drawn. It should be enough that a rational legislator could imagine a hypothetical statistical difference that might correlate with the classification. Yes, rational basis review is that toothless.

On occasion, the Court has applied it with more “bite” than usual. At least twice, in fact, it has done so in striking down laws that discriminate against gays and lesbians or same-sex couples. The best example is the case of Edie Windsor, in which the Court invalidated the provision of the federal Defense of Marriage Act (DOMA) that required the exclusion of lawful same-sex spouses from all marital benefits under federal law. There, however, the Court stressed the breathtaking sweep of the discrimination and identified clear examples of anti-gay animus in the legislative history. Although one might well find anti-gay animus infecting the enactment of the Mississippi ban, a law withholding one specific benefit of marriage in an area with colorable social science uncertainty is quite different from the totalizing sweep of DOMA. In other instances, even the evidence of legislative animus may be much harder to come by than in the case of DOMA (or Mississippi). This possibility of situationally intensified rational basis review is a shaky security for the full and equal availability of marital benefits.

None of these problems, moreover, is limited to the denial of adoption rights. A law that withholds any kind of marital benefit from same-sex spouses would implicate the Court’s unwillingness to formally elevate the standard of review for classifications based on sexual orientation. In contrast to adoption, moreover, few other marital benefits—think survivor benefits, tenancy in the entirety, or testimonial privileges—could even plausibly qualify as fundamental rights. In addition, the focus of the constitutional right to marry on getting married, as opposed to receiving benefits, would also arise as a problem regardless which marital benefit were withheld. Lastly, the toothless nature of rational basis review would be a problem in many instances, as surviving it merely requires a clever lawyer for the government to postulate some plausible and conceivably relevant demographic difference between same-sex and heterosexual couples, such as potential differences in rates of actual dependency between spouses.

If one believes that result of the Mississippi decision was correct and that states should have only limited discretion to withhold particular marital benefits from lawfully married same-sex couples, the best solution for filling the constitutional gap and bringing coherence to the question lies with the first of the four legal theories. The probability is sufficiently great that a law targeting gays and lesbians or same-sex couples is motivated at least in part by prejudice to justify the Court in presuming unconstitutionality in all such instances and thus requiring a state to disprove it by surmounting a higher standard of review than the toothless rational basis test. Elevating the standard of review for such classifications addresses the essence of the problem without generally requiring the recasting of all marital benefits as fundamental rights or establishing heightened scrutiny for every socioeconomic regulation that varies the benefits offered to different married couples.

The Court should stop being coy about its basis for striking down anti-gay laws. It should finally acknowledge that laws classifying on the basis of sexual orientation come before the courts with the same presumption of invalidity as laws classifying on the basis of other suspicious traits. There are so few remaining instances of classifications based on sexual orientation in the law that the risk of unanticipated consequences is negligible. But the benefit to doctrinal clarity would be significant.

Ted Cruz Is Eligible to Be President

By Prof. J. Stephen Clark

Questions have arisen lately about the eligibility of Texas Senator Ted Cruz to be president because he was born in Canada. While plenty of people may doubt that he is fit to be president, they ought to make their case to voters on the merits. They should not use a wart on the Constitution to disqualify him from the ballot.

The wart in question appears in Article II, Section 1, Clause 5 of the Constitution, which prescribes the qualifications to be president. Among them is the stipulation that the president must be a “natural born” citizen, a term that is not defined. Opponents of Cruz, led by noted “birther” Donald Trump, have questioned whether Cruz qualifies as a “natural born” citizen under this provision. His birth connection to the United States is that he was born in Canada to an American mother while she was living there. Some say that is not enough for him to qualify as “natural born.”

Examining the same historical evidence bearing on the meaning of the constitutional term, commentators have divided on the question. Those who say that Cruz should be deemed “natural born” and thus eligible to be president rely on 18th-century English statutes as the source for interpreting the constitutional term. Under those statutes a child born abroad to a British subject was deemed “natural born.” These commentators also cite a federal naturalization statute enacted by the First Congress in 1790. Like the British statutes, it deemed a foreign-born child of an American citizen “natural born.”

The opposing view derives from a 2005 law review article, which has been elaborated by other commentators. It relies on English common law, which generally did not deem a child “natural born” if born to a British subject living abroad. These commentators also cite the same 1790 American statute but note that it literally provided that children born abroad should only be “considered as” “natural born.” This distancing language, they say, indicates an understanding that the children were not actually “natural born” but were to be treated as such for statutory purposes as a kind of useful legal fiction.

Both sets of commentators have been too hasty. They have dived straight into the historical evidence and forced it to yield a definitive “yes” or “no.” They have failed to pause at the threshold and establish a rule of construction to guide the inquiry. How strictly or leniently should the constitutional requirement of “natural born” citizenship be construed? Answering that threshold question organizes the assessment of the historical evidence.

A rule of construction is a useful device for dealing with the reality of ambiguity in constitutional interpretation, and there is ample ambiguity here. Whether to give weight to the English statutes or the unmodified common law is perhaps the crucial point, yet neither choice seems obviously incorrect. The language of the 1790 American statute also has plausible alternative readings, depending on how much weight one places on the phrase “considered as.” A rule of construction controls ambiguity in the constitutional inquiry by prescribing, at the outset, how much evidentiary certainty will be necessary to justify adopting one or another interpretation.

Setting a rule of construction in this case is easy. For multiple reasons, a court should construe the disqualification narrowly, applying it only to cases about which there is no serious historical dispute. That means courts should approach this interpretive question by presuming that a citizen is eligible to be president unless the historical evidence establishes otherwise beyond any reasonable dispute. If two interpretations of the constitutional term “natural born” are fairly supportable, a court should adopt the one that renders an American citizen eligible to be president.

What are the multiple reasons for construing the disqualification narrowly? First, the policy rationale underlying the “natural born” requirement has always been dubious, with overtones of conspiracy theory. The requirement reflected anxiety that a wily foreign royal, with true loyalty to a European monarch or the Pope, might immigrate and somehow intrigue himself into the presidency, from which untold mischief would follow. Never having much sound basis in reality, this fear has even less credibility today. As a result, there is no serious policy rationale for the disqualification at all, which means there is also no sound policy rationale for giving it a broader scope than absolutely required by the historical sources.

Second, the disqualification of citizens because they are not “natural born” is itself offensive to contemporary values. Few defend disqualifying even loyal immigrants who clearly are disqualified under the provision, such as Arnold Schwarzenegger and Jennifer Granholm, the former governors of California and Michigan. The very presence of the disqualification is an embarrassment to the country’s identity as a nation of immigrants. Both sides in the Cruz debate generally agree that the disqualification is repellent and should be cut out of the Constitution. Although that cannot be accomplished without a constitutional amendment, the disqualification certainly need not be given a broader scope than the historical evidence manifestly requires.

Third, the disqualification is an affront to core constitutional values that have been entrenched in the Constitution subsequent to the adoption of this provision. Today, we regard a purposeless restriction on legal entitlements as fundamentally unfair and, as such, a denial of due process. Likewise, an arbitrary discrimination against people, particularly one touching on national origin or condition of birth, contradicts our commitment to the equal protection of the laws. The irrebuttable use of birth as a proxy for loyalty is offensive to these values. The Due Process Clause or its equal protection component may not necessarily have modified the “natural born” requirement, although that is a possibility. But there is at least no need to exacerbate its tension with these core constitutional values by giving the disqualification a broader scope than is incontestably required by the historical sources.

Fourth, the disqualification seriously intrudes on the prerogative of the American people to govern themselves. It is true that constitutional constraints inevitably have the countermajoritarian effect of constraining majority rule. Here, however, the specific theory rests on a distrust of voters to make competent choices in selecting their own political leaders. That paternalistic assumption has been severely undermined by the 19th-century delegation to voters of the choice of presidential electors, by the 17th Amendment’s adoption of direct election of Senators, and by repeated amendments to expand voting rights. As the Court observed in Bush v. Gore, “[h]istory has now favored the voter” in presidential elections. The disqualification should not be interpreted to intrude on voter choice more broadly than the historical sources incontestably require.

Nor is this proposition seriously undermined by the 22d Amendment. Although it interferes with voter choice by restricting presidents to two terms, it does not rest exclusively or even primarily on the assumption that voters lack the competence to make wise choices. Rather, it is animated by real concerns about the ability of an incumbent president to use the very powers of his office to entrench himself in power, even against voter preferences. That concern is very different from presupposing that voters are incapable of assessing the loyalty of candidates and thus need a prophylactic disqualification that is maddeningly blunt and grossly overbroad.

Set against these arguments for construing the disqualification as narrowly as the historical evidence will permit is what? What competing values are served by condemning a broad swath of the American citizenry as too disloyal to be entrusted with the presidency? The country once adopted a similar presumption of disloyalty in the case of Japanese Americans in World War II. Resting disloyalty assumptions on national origin and condition of birth, as the disqualification does, is uncomfortably similar to that experience of using race to ascribe presumptive disloyalty to an entire class. Again, even commentators who argue for the broader interpretation of the disqualification in the case of Senator Cruz do not pretend that it is defensible as a matter of policy. The only value really supporting their approach is adherence to legal formalism in interpretation–that is, pressing the evidence to a definitive answer while “neutrally” ignoring its consequences. That is just not enough.

The term “natural born” is undefined and ambiguous. There are very good reasons for establishing a rule of construction that gives this disqualification of citizens a scope that is no broader than necessary to comport with incontestable inferences from the historical evidence. Given the readily contestable choice between English statutes and English common law and between competing interpretations of the 1790 American statute, those arguing for the disqualification of Cruz cannot meet this appropriately high burden of evidentiary certainty. There is sufficient evidence to support a credible reading of “natural born” that would include children born to Americans abroad. That conception results in a narrower disqualification and, for that reason, is the better interpretation.

Ted Cruz may be unfit to be president, but he should not be disqualified by birth on the shaky basis of historical evidence that is truly contestable. Our values require greater certainty than that.

Professor Rogerson Publishes Op-Ed: “What is a Border to a Child?”

Professor Sarah Rogerson, Director of both the Immigration Law Clinic and the Clinic and Justice Center at Albany Law, has published a compelling op-ed on the rights of immigrant children at the border:

Throwback Thursday! Albany Law Alum Justice Robert H. Jackson’s Dissent in Korematsu v. US (1944)

One of Albany Law School’s notable former students, Robert H. Jackson, served as the Chief Prosecutor of the Nuremberg Trials, as the United States Solicitor General, as the United States Attorney General and eventually as an Associate Justice of the U.S. Supreme Court (the only person in history to hold all three offices!!).  The following is an excerpt of particular contemporary relevance from Justice Jackson’s compelling dissent in the Korematsu v. United States (1944) Supreme Court decision (which infamously upheld the interment of American citizens of Japanese descent during WW II):

  • [Fred] Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. A citizen’s presence in this locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four – the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason, but on parole – only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it. Id. at 242-45. #tbt


The Refugee Crisis and the Fear of “Otherness”

By:  Christian Sundquist

In my recently published op-ed, entitled Despite Dark History of Exclusion, Laws Demand U.S. Accepts Refugees,” I argue that reactionary calls by the majority of US state governors and other politicians to refuse admission to Syrian refugees violates both domestic (statutory and constitutional) and international law.  For more details concerning my argument, please see:

Professor Cords Blogs on Unintentionally Undermining Voluntary Compliance: Balancing Accountability and Budget

Professor Danshera Cords, currently visiting at the University of Pittsburgh School of Law, has penned an interesting post on the adequacy of IRS funding on the Procedurally Taxing blog (a well known tax law blog).  Her post can be found here:

GLC Obtains $500,000 Grant for Regional Innovation Lab

Albany Law’s Government Law Center, in collaboration with the Capital Region Community Loan Fund, has obtained a $500,000 from Bank of America to develop a Regional Innovation Lab:–Secure-$500%2c000-Grant-to-Form-Regional-Innovation-Lab.aspx.