America's Greatest 20th Century Presidents (38 page)

[4]
78 Stat. 252, as amended, 42 U.S.C. § 2000d
et seq
. This Act gives the Executive Branch power to end federal funding of private programs that use race as a means of disadvantaging racial minorities in any manner that would be forbidden by the Constitution were the
government
to conduct it.

[5]
42 U.S.C. §§ 1973
et seq
.

[6]
Pub.L. 89-236; 79 Stat. 911.

[7]
Pub.L. 90-284, 82 Stat. 73. C. Lamb & E. Wilk,
Civil Rights, Federalism, and the Administrative Process: Favorable Outcomes by Federal, State, and Local Agencies in Housing Discrimination Complaints
, Public Administration Review 418 (May/June 2010) ("the federal government’s enforcement of national policy does not necessarily lead to the most favorable administrative outcomes for complainants — even in civil rights, where state and local governments have had poor records in the past.").

[8]
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

[9]
South Dakota v. Dole
, 483 U.S. 203 (1987) (articulating that even though Congress's spending power authority is broad, it faces four limitations: (i) "the exercise of the spending power must be in pursuit of 'the general welfare'"; (ii)   "if Congress desires to condition the States' receipt of federal funds, it 'must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation'"; (iii)  "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs'"; and (iv) "other constitutional provisions may provide an independent bar to the conditional grant of federal funds.").

[10]
110 Cong. Rec. 1519 (1964) (statement of Congressman E. Celler, Chairman of the House Judiciary Committee) ("The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association.");
id
., at 2467 (“In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money and other kinds of financial aid. It seems rather shocking, moreover, that, while we have on the one hand the 14th Amendment, which is supposed to do away with discrimination, since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination.”).

[11]
Katzenbach v. Morgan
, 384 U.S. 641 (1966);
South Carolina v. Katzenbach
, 383 U.S. 301 (1966);
Heart of Atlanta Motel, Inc. v. United States
,
379 U.S. 241 (1964);
Katzenbach v. McClung
, 379 U.S. 294 (1964).

[12]
See
, e.g., United States v. Lopez,
514 U.S. 549 (1995).

[13]
S. Coate & C. Lowry, "Will Affirmative-Action Policies Eliminate Negative Stereotypes?," 83 A
MER.
E
CON.
R
EV.
1220, 1239 (1993) (stating that there is no clear indication that affirmative action actually works because "job preferences may induce employers to patronize the  favored  workers, which in turn may undercut their incentives to acquire necessary skills."); W. Bowen and D. Bok, T
HE
S
HAPE OF THE
R
IVER:
L
ONG-
T
ERM
C
ONSEQUENCES OF
C
ONSIDERING
R
ACE IN
C
OLLEGE AND
U
NIVERSITY
A
DMISSIONS
(Princeton Univ. Press, 1998) (arguing that an African American middle class has been positively affected and enhanced due to affirmative action in university admissions and silently leaving out any discussion of what has been happening to working class African Americans).

[14]
14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507. Some
Members of Congress were displeased that the bill was "solely and entirely for the freedmen, and to the exclusion of all other persons. . . ." Cong. Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also
id
. at 634-635 (remarks of Rep. Ritter); id. at App. 78, 80-81 (remarks of Rep. Chandler). Some Members opposed the bill on the ground that it "undertakes to make the negro in some respects . . . superior . . . , and gives them favors that the poor white boy in the North cannot get."
Id
. at 401 (remarks of Sen. McDougall). See also
id
. at 319 (remarks of Sen. Hendricks);
id
. at 362 (remarks of Sen. Saulsbury);
id
. at 397 (remarks of Sen. Willey);
id
. at 544 (remarks of Rep. Taylor).

[15]
Id
., at 75 (remarks of Rep. Phelps). Had the Amendment (far more difficult to pass and ratify) than an Act of Congress been somehow
narrower in textual scope
than the 1866 Act, then there might have been a credible argument that Congress may have led by necessity to pass a narrower Amendment than statute in order to win greater support. Such an argument does not, of course, work here.

[16]
Regents of the University of California v. Bakke
, 438 U.S. 265 (1978).

[17]
Adarand Constructors, Inc. v. Peña
, 515 U. S. 200, 227 (1995);
Richmond v. J. A. Croson Co
., 488 U. S. 469 (1989).

[18]
Grutter v. Bollinger
, 539 U.S. 306 (2003) (
University of Michigan undergraduate and law school admissions).

[19]
631 F.3d 213 (5th Cir. 2011); id., at 266 (Garza, J., specially concurring) (“
Yesterday's racial discrimination was based on racial preference; today's racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: [whether] the Constitution prohibits all forms of government-sponsored racial discrimination.
”); see also
A. Keyssar, T
HE
R
IGHT TO
V
OTE
105–111 (2000); N. Persily,
The Promise and Pitfalls of the New Voting Rights Act
, 117 Y
ALE
L. J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would . . . disrupt settled expectations”);
The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary
, 109th Cong., 2d Sess., 10 (2006) (statement of Richard H. Pildes) (stating that “the non-covered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.”).

[20]
Letter from Thomas Jefferson to James Madison, 25 May, 1810, in Thomas Jefferson,
The Works of Thomas Jefferson
, ed. Paul Leicester Ford (G.P. Putnam’s Sons, 1905), 11:141.

[21]
A. Nguyen, "Bill Clinton's Death Penalty Waffle,"
The American Prospect
, December 19, 2001, available at (“in 1988, Clinton . . . "told The Arkansas Democrat-Gazette, 'I can't say it's an inappropriate punishment for people who are multiple murderers and who are deliberately doing it and who are adjudged to be sane and know what they're doing when they're doing it.'”).

[22]
Frontline: Interview with George Stephanopoulos, PBS (2000),
available at
(“Oh, the smarts. The guy had thought everything through, both on the politics and the policy. When I interviewed for the job, it wasn't really an interview. It was me listening basically for an hour and a half to Governor Clinton just go through the entire landscape of the campaign. And in the very first time I talked to him . . . he said, 'It's all going to come down to Illinois on March 17. If I win the game in Illinois, I win Illinois, and I'll get the nomination.' That's exactly what happened. But he had it in his head back in September.”).

[23]
Id
. (“We called him ‘Secretariat’ because he was just the absolute thoroughbred of thoroughbreds of campaigners. Whether it was working a rope line or giving a speech or devising the policy or just having the stamina to last through four 20-hour campaign days in a row and do it with good humor and grace. None of us had ever seen anything like this before. He is the politician probably not only of his generation, but if you're thinking just pure raw political skills, he's probably the politician of the century. And it was an awesome sight to watch.”).

[24]
Id
. (“I thought it was just to be a terrific experience. That this was a smart guy who was going to move the party a little bit, bring ideas into the campaign and have a noble loss. Even if he got the nomination, George Bush looked unbeatable. But I thought it would be a terrific, important experience. But at some level, I think even if Clinton thought that maybe what he was doing was a sort of doing a practice run, he also had this unbelievable inner confidence.”).

[25]
There is a certain symmetry or coming full circle in the Clinton-Obama saga. It is also clear that the Obama Administration’s domestic policy achievements in its first few years would have been close to nil had the United States Supreme Court nullified the Patient Protection and Affordable Care Act (PPACA), so insistently passed by the Obama Administration.
Chief Justice John Roberts’s controlling opinion in
National Federation of Independent Business v. Sebelius
, 2012 U.S. Lexis 4876, * (2012), upholding the crux (the individual mandate, requiring most persons in the United States to purchase health insurance or pay a penalty) of the PPACA. While Chief Justice Roberts rejected the more expected twin justifications, the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, and the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18, thus jeopardizing a future course of Congressional action, he did form a majority with Justices Ginsburg, Breyer, Sotomayor and Kagan to uphold the mandate as an exercise of Congress’s taxing power under the Constitution. Chief Justice Roberts, joined by Justices Breyer and Kagan, and with the combined votes of Justices Scalia, Kennedy, Thomas and Alito also struck down as exceeding the Spending Clause, Art. I, § 8, cl. 1, Congress seeking to withdraw, retroactively, state funds for States that refuse to accede to the Medicaid expansion authorized by the PPACA.  See,
e.g.
, J. Rosen, “Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity,”
The New Republic
, June 29, 2012 (“
Marshall achieved a similar act of judicial jujitsu in 
Marbury v. Madison
, when he refused to confront president Jefferson over a question of executive privilege but laid the groundwork for expanding judicial power in the future.”
).

[26]
Kennedy v. Louisiana
, 554 U.S. 407 (2008) (there must be homicide or intended homicide in order for the death penalty to be imposed) (approvingly citing
Enmund v. Florida
, 458 U.S. 782 (1982), for the proposition that the Supreme Court "overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place.").