Happy Martin Luther King, Jr. Day and Inauguration Day! Below, please find a roundup of Federalist Society Review articles discussing the racial equality of which Martin Luther King, Jr. dreamed, and the executive power the framers carefully crafted.
Equality Under the Law
The Twin Commands: Streamlining Equality Litigation Based on Students for Fair Admissions, by Skylar Croy and Daniel Lennington
The Supreme Court held that racial preferences violate the Constitution’s equal protection guarantee, but it can be hard to win cases asserting that right. Two experienced equality litigators discuss how the Supreme Court’s opinion in Students for Fair Admissions gives litigators the tools to bypass time-consuming disparity studies and cut to the heart of the issues in litigation: the Constitution’s guarantee of equality under the law.
Racially Discriminatory Corporate Policies: Who's Liable?, by Dan Morenoff
When corporations adopt policies that discriminate based on race and get sued, who is liable? Dan Morenoff argues that there is “a surprisingly under-appreciated near-consensus that American law makes individual decisionmakers liable for programmatic discrimination by the enterprises through which those decisionmakers discriminate.” Officers and directors of major corporations should take note.
Racial Preferences in Economic Benefits: From Widely Accepted to Legally Indefensible, by George La Noue
The Supreme Court’s determination that racial preferences in college admissions are illegal got a lot of attention, but admissions are not the only context in which such preferences have been employed—and successfully challenged. Prof. George La Noue writes about government preferences in distributing economic benefits—including Covid-19-related relief—and the lower court decisions that have turned the legal tide by striking them down.
In case you missed it, the 2024 National Lawyers Convention focused on the theme of Group Identity and the Law and included numerous panels related to equality under the law. Watch now!
Executive Power Under the Constitution
Originalism As King, by John C. Yoo
Prof. Yoo reviews Michael McConnell’s book, The President Who Would Not Be King: Executive Power Under the Constitution, praising the author’s brilliance as a legal scholar and jurist, and outlining his scrupulously originalist analysis of difficult questions of executive power.
The Accidental Defender of the Constitution, by Andrew McCarthy
Legal commentator Andy McCarthy reviews Defender in Chief: Donald Trump’s Fight for Presidential Power, John Yoo’s book which argues that by fighting battles on numerous fronts against attacks on his authority, “Trump has safeguarded the presidency as the Framers envisioned it when they crafted our founding law.”
Can Originalism Constrain the Imperial Presidency?, by Lee J. Strang
Prof. Lee Strang reviews The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, by Saikrishna Bangalore Prakash, in which the author “describes the causes of today’s out-sized presidency, details support for his claims that the living presidency departs from the Constitution’s original meaning, and then suggests means to tame the living presidency.”
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].