University of Arkansas at Little Rock
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Taking Care with Text: The Laws of the Take Care Clause Do Not Include the Constitution, and There Is No Autonomous Presidential Power of Constitutional Interpretation
Get PDF“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute the Office of President” and “to the best of [the President’s] Ability, preserve, protect and defend the Constitution” is frequently enlisted in support of the argument and sometimes offered as a separate basis for the President’s power of autonomous constitutional interpretation.
This Article offers a textual analysis of not only the Take Care Clause and the Supremacy Clause, but also the presidential oath and other clauses relevant to the textual argument for an autonomous presidential power of constitutional interpretation. The textual analysis has the following results. First, “the Laws” in the Take Care Clause do not include the Constitution, contrary to widely held assumption. Second, the presidential oath alone cannot support a textual argument for an autonomous presidential power of constitutional interpretation. Those two results collapse the textual argument for departmentalism. Third, the constitutional text as a whole and most prominently the Constitution’s use of nearly identical language to define “the supreme Law of the Land” (Article VI) and to express the extent of judicial power (Article III) strongly indicates judicial interpretations are supreme over conflicting executive interpretations.
As often seems the case when the text of the Constitution is analyzed carefully, there are rewarding secondary insights gained along the way. In this instance, working through the intratextual links among various clauses sheds light on the rarely discussed congressional power “[t]o provide for calling forth the Militia to execute the Laws of the Union.” There is textual evidence that “the Laws” of the Take Care Clause and “the Laws of the Union” mean the same thing: federal statutes and treaties, but not the Constitution
Cause for Concern or Cause for Celebration?: Did Bostock v. Clayton County Establish a New Mixed Motive Theory for Title VII Cases and Make It Easier for Plaintiffs to Prove Discrimination Claims?
Get PDFTitle VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held that proving that an employer acted “because of” an impermissible reason requires proving “but for” causation, which means proving that the employer acted “solely because of” an impermissible reason. A United States Senator who participated in the debates surrounding the enactment of Title VII said, “If anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”
On June 15, 2020, the Supreme Court decided Bostock v. Clayton County and held that an employer that terminates an employee because the employee is gay or transgender violates Title VII’s prohibition against sex discrimination. But that is not all Bostock did. At several points in the opinion, the Court held a Title VII plaintiff proves her employer acted “because of” an impermissible reason and proves “but for” causation even in cases where the employer acted with a mixed motive, so long as an impermissible reason was one of those motives, and the impermissible reason was decisive. Bostock thus departed from Gross and Nassar in its framing of what “but for” causation means in Title VII cases.
This Article posits that Bostock articulated a new mixed motive theory that allows a Title VII plaintiff to prove “but for” causation in cases where the employer acted partly for an impermissible reason and partly for a permissible reason so long as the impermissible reason was decisive. Under this view of Bostock, it is now easier for a plaintiff whose employer acted with a mixed motive to prove “but for” causation and receive the full panoply of Title VII remedies
Municipal Law—A Wedge in Climate Initiatives: How State Legislatures’ Preemption of Local Government’s Role in Climate Change Policy and Arkansas’ Act 308 Of 2021 Are Misplaced.
Get PDFEnergy Law—The Green Squeeze: Net Metering’s Negative Externalities and Societal Consequences for the Poor
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Top Ten Issues In De-SPAC Securities Litigation
Get PDFI am delighted to contribute to this symposium on special purpose acquisition companies (SPACs). The securities litigation associated with the de-SPAC transaction is at an early stage, but courts are already wrestling with a number of unsettled issues that cast a mirror on SPACs and the securities laws more broadly. As these issues are resolved, they will affect the future of de-SPAC transactions as well as the regulatory environment in which they operate. In this essay, I identify ten such issues, drawing from the pleadings, briefings, and hearings in pending de-SPAC securities cases, with the goal of highlighting the key issues that are currently percolating in federal district courts across the country, from the Middle District of Tennessee to the Southern District of New York. I also include several issues that are not yet ripe, but which I foresee arising as the litigation progresses. The first five issues relate to claims under Section 10(b) and Rule 10b-5; the next four issues relate to claims under Section 14(a) and Rule 14a-9; and the final issue relates to both causes of action
