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University of California, Hastings School of Law
Leib, Ethan J.

The Civil Rights Act
·         Brown v. Board (1954)—established a limited desegregation principle, focus on public institutions
·         Role of the President—JFK introduced a desegregation bill
o       Initiation: can propose legislation to either the House or Senate, did both here
o       Implementation: appoints agency heads, part of exec branch
o       Interpretation: President issues signing statements
·         The House
o       Speaker of the Houseà judiciary committeeà subcommittee #5àfull committee
o       22 standing committees, 250 committees and subcommittees
o       public came to testify before the subcommittee, part of the legislative process
o       Southern Conservatives threaten to keep bill in committee—3 ways to avoid this
§         1. Discharge Petition
§         2. Calendar Wednesday
§         3. House Rule XI, Amendment Process (Procedural and Substantive)
·         The Senate
o       Filibuster—talking endlessly to avoid bringing issue to a vote
o       Need 67 votes to get something discussed, supermajority is needed to get legislation passed
o       Stall Bills in Committees
o       Finally, the Civil Rights Act of 1964 passes
Veto-Gate Model: statutes are hard to enact and repeal, demand compromises along the way, which prohibits extremism
·         Starts at committee Y or N
·         Then House Committee
·         Then House Rules Committee
·         Then Senate committee—no Rules committee, anyone can torpedo something, unanimity is an important value
·         Goes to Senate Floor
·         Conference Committee
·         Then its usually changed and then goes back to the House
·         Then the President signs
·         2/3 of each house can override the Presidential veto
·         9/10 Bills die in Committee
·         Committee Process: self-selection mechanism of membership on committees, specializing, we entrust to committees people who specialize
o       some senators are just voting the party-line however, since they haven’t though about certain issues they are considering
o       special interests can buy votes by targeting people that control their policy
o       This is a cumbersome system, it’s difficult to pass a law
·         Anti-democratic, from a normative perspective, judicial activism as law-making; democracy is about outcomes, not as procedure
o       Judges are just as good as legislators, strategizing by assigning to favorable subcommittees
o       Can judges too easily circumvent the majority? Is this a viable view? Activist judges and veto-gate complicating the democratic process
Implementing the Civil Rights Act
Griggs (1970)—Title VII Employment Discrimination; tests must be job-related; contrary to legislative history/Tower Amendment
·         §701—definitional provision, definition of employer, not federal government, no definitions of discrimination
·         §703(a)-(d)—major prohibition in employment discrimination
·         creates Administrative Agency—EEOC, which reviews complaints before lawsuits are filed
o       (h)—testing provision, must be “job-related”
·         §705—membership on the EEOC: President appoints, 2/5 must not be of his party, with the advice and consent of Senate, EEOC first tries to resolve by getting employer to stop unlawful practice
·         QP: is the high-school diploma requirement a bona fide discrimination system?
·         Embraces “disparate impact” theory
Weber (1979)—Title VII does not require private employers to use affirmative action programs, they are voluntary; color-blind society, or promote the advancement of blacks?
·         White guy who says that affirmative action discriminates against him, more qualified than blacks that are hired
·         Brennan says Weber’s argument has force, but refers to the statute’s “overall purpose” or the “spirit of the law”àoriginal intent of the act was to remedy the “plight of blacks”
·         Inclusio unius argument—not requiring affirmative action programs does not prohibit them
·         “Dog that Didn’t Bark”—statute okays preferential treatment of American Indians near reservations, and veterans
o       these provisions (703(i) & 712) work against Brennan’s theoryàwhen Congress wants to prohibit preferential treatment is puts those situations in explicitly
·         Brennan focuses on normative question of voluntary v. mandatory affirmative action, funnels this through the question of Textualism v. Legislative Intent
·         Purpose and effect of the program is to correct racial imbalances, not unnecessarily trammel the rights of whites
o       Testing here didn’t trammel because it was temporary, no one was fired, and 50% of the program was white
·         Blackmun’s Concurrence: discusses the meaning of the act and “arguable violation” theory
o       Says that this falls in line with the intended purpose
o       Allows for changing public

not specifically prohibited might be permitted
§         Argues that agencies are making laws outside of the bicameralist context; fear of legislative sub-parts
o       Severability Issue—idea that the statute can still be upheld, despite the provision being stricken
·         Clinton (1998)— Justice Stevens; Holds the Line Item Veto Act unconstitutional based on a jurisdictional issueà uses absurdity doctrine he construes “person” and “individual” to be same, says congress did not intend to favor individuals v. corporations/groups
o       Line Item Veto was not substantive—merely a budgetary tool given to the president by congress which allowed him to eliminate fluff in budgets and control excessive spending
o       Power to “cancel in whole 1. Discretionary spending 2. Direct spending 3. Tax benefits
o       Issue here involved tax benefit (special tax interests) section
o       Scalia Dissents—“individual” is different from “person,” looks to the code and the statute, says that congress intended there to be a difference; court should honor it
·         Deliberative Democracy in America—Ethan Leib
o       We should participate in democracy directly
·         Holy Trinity Church—Brewer Decision; the Court will sometimes ignore statutory language to best effectuate statute’s purpose; uses 3 types of Intentionalism
o       1. Specific Intent—what did the enacting legislature think about this particular issue? Sort of “archeology”This comes from the senate report; the statute was later changed, however, to prohibit ministers, but was not retroactive so Brewer got to stay
o       2. General Intent—(Purposivism) what was the evil/mischief the statute was to remedy? What was the legislature trying to accomplish more generally? Allows for consideration of current-day circumstances in order to achieve intent; most dynamic; purpose was to be enacted through the ages
3. Imaginative Reconstruction—middle ground b/t 1 and 2;