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Recommended by Ricochet Members Created with Sketch. The Red Hen Incident Is a Perfect Place to Discuss Drawing the Important Lines

formerlawprof
By formerlawprof
formerlawprof Coolidge
|
47 COMMENTS
 

The Red Hen Incident, in which a peaceful Sarah Sanders was peacefully ejected from a privately owned restaurant that is open to the public, generated at least one thread each on the Main and Member Feeds. Soon, someone suggested that the Red Hen should be sued into oblivion, and excellent exchanges quickly ensued about the reach of anti-discrimination laws.

A strong but not universal consensus was soon reached (among those participating in that sub-thread) that the discriminatory action was disgusting and morally degraded, but almost certainly not unlawful or “actionable,” as lawyers say. The restaurant was no doubt a public accommodation, but the category of “working for Trump” or “being a Republican or a Democrat” is not a protected class.

So the remedy must be a private one rather than a legal one. Picket, write an op-ed, boycott (formally or informally), and see what shakes out in the market of ideas and in the market of dollars.

But what an opportunity to discuss what should be deemed to be a public accommodation, and what should be a protected class. You need Richard Epstein to do full justice to this (as he has many times), but here are several of my cents. (Spoiler alert: to avoid totalitarianism, there must be some or many areas of life where citizens have the liberty to engage in discriminatory conduct, free from coercive governmental action.)

First, it is best to distinguish among three categories of settings, not just two. We need the divide between public accommodations and purely private clubs and activities in order to protect the above liberty to discriminate in areas that are not (or must not) be the concern of the state. (I should be able to announce publicly that I will not date a black woman or rent out a single room in my full-time residence to a Catholic or a Jew, without the government coming down on my head. All of my friends or former friends are free to hate me and mock me, but not the state.)

When I am operating a common carrier, though, such as a bus company, an airline, a telephone company, or certain other natural monopolies, it is appropriate to correspondingly curtail my liberty even more. A common carrier cannot discriminate against any class of peaceable people who pay the tab and abide by generally applicable rules. This is a necessary trade-off because the answer “if you weigh over 250 pounds, go start your own airline,” or “if you stutter, go start your own phone company” is just not available.

But the toughie is which classes of persons should be protected in the middle zone of public accommodations, even given that the locus of the line between public and private is not self-evident. (An example I have used before: “should” my private law firm be permitted to announce that it will represent only women or only whites, on the ground that the client-lawyer relationship is sufficiently intimate to qualify as not a public accommodation?)

The line between protected and unprotected classes of people can in a very small number of cases be drawn on the basis of so-called “immutable characteristics,” such as race, gender (although some people dispute that), and ethnicity or country of origin (but not commonly associated religiosity).

For everything else, we are making a deliberate choice between the liberty to discriminate (which is part of autonomy) and the right not to be discriminated against. Should seriously fat people be able to enlist the awesome power of the state to force entry into a theatre or a restaurant or a swimming pool? Or should the person’s friends use public shaming of the discriminating establishment to blast open the doors?

Same with political outcasts (of one stripe or another). Should Sarah Sanders be allowed to sue, or is everyone’s liberty enhanced by requiring her to use some form of self-help (if she wants to)? She can go to other restaurants just as good, she can resort to public shaming through Twitter — using only her private account — or she can see if other people will begin their own campaign of moral suasion.

Me; I’m for as much liberty from state intervention as we can get, so I want to define public accommodation as narrowly as is reasonable, and limit the classes of protected persons as much as possible (even if it puts me into fewer protected categories). I’ve been fat and I’ve been thin(er), but I don’t want no stinking government going to bat for me if someone is rude and hurts my feelings.

Promoted from the Ricochet Member Feed by Editors Created with Sketch. SCOTUS Gives POTUS Temporary Bragging Rights

formerlawprof
By formerlawprof
formerlawprof Coolidge
|
61 COMMENTS
 

But the real test will come in October, when the Court will learn whether the President took his victory laps, yes, but recognized that he is not going to win on the merits, and therefore backed off and and announced that the “temporary” travel ban was successful, and that no further extension is needed.

Unfortunately, the bet has to be that Trump will overplay his hand, double or triple down, and get smacked badly by the Supreme Court.

To me, the Court’s implicit message is the opposite of that posited by Justice Thomas, who wrote that the lifting of much of the injunction demonstrates that the President is likely to win on the merits. But if that was true, then the entire injunction would have been stayed. Thus, both the actual holding of the case and the implicit message are the same: the individual plaintiffs were able to show both irreparable harm (to themselves) and a likelihood of success. They won in the Supreme Court, and the Administration lost.

If the President doesn’t wise up and moot the case by announcing victory and then backing off on any follow-on Executive Orders, it’s still my view that the Supreme Court will:

a) ignore the Fourth Circuit’s Establishment Clause approach (because that is just too tricky, and also unnecessary);

b) issue a ringing endorsement of the role of the courts in resolving disputes, especially when it is the other two branches that are the disputants; and

c) because of b), adopt the Ninth Circuit’s approach (the surprisingly well behaved lower court here).

The key statutory argument is this. Congress gave the President a tremendous range of discretionary action–let’s call it X. But that means that the Congress also prohibited the President from taking action outside of X–because that would both an abuse of discretion and also an encroachment on powers belonging exclusively to Congress.

The courts are not overstepping their bounds by insisting that the President hew to boundaries set by Congress. It is in fact what Article III courts do. The key example to show abuse of discretion? The EO says that “lots of foreigners have come here to engage in terrorists acts,” but essentially none of those have come from the six named countries. So, Mr. President, under your logic and your facts, why did not the ban extend to Saudi Arabia, Pakistan, Norway or Canada, which had either many more miscreants, or just as few?

The answer: the ban was just for show, and the six countries were picked essentially at random, because they would resonate nicely with the public. That’s an abuse of discretion that harmed US citizens and entities, and it cannot stand while the Article III courts are still open. Anything else, and we become a nation of men (or one man), not laws.

formerlawprof

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