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One Further Thought on the OLC Memo

In Noel Canning, strong evidence was presented that recess appointments were understood originally to mean the recess between sessions of the Senate. From this point, it follows that Congress could (and probably had to) give the President the power to make interim appointments during a session when the Senate was on a break. Thus, there was no conflict between the two so long as the interim appointment was time limited or there was some clear norm that a formal nomination would quickly follow for Senate consideration.

Given the modern interpretation of the Recess Appointment Clause (in other words, that these picks can happen whenever the Senate says that it is in recess), and the fact that a President might want to avoid Senate confirmation for one of these positions, I think that there is a conflict or a problem. In practice, though, if Whitaker does nothing of consequence until a nominee is chosen, then I doubt a court will gainsay the OLC Memo’s conclusion.

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The OLC Memo on the Acting Attorney General

The memo is very thorough, and I’m almost convinced that the Whitaker appointment is legal. Here is my remaining constitutional question.

I’m still not clear on what the point of a recess appointment is if the President can simply make an “acting” appointment. One thought is there is some profound difference between being the “acting” somebody and the real somebody. In formal terms, though, I do not see why that is the case. Now you could also say that the “acting” appointment is more time-limited than a recess appointment. But that’s not true when, as in this case, we are near the end of a Congress.

My position is that Whitaker is lawfully the Acting Attorney General today, but that his appointment can only run until the end of this Congress. To say that a statute can grant an “acting” appointment beyond the duration of a recess appointment strikes me as wrong. If any of the examples cited in the memo actually did that, though, then I would have to reconsider my position.

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Vanderbilt Law Review, Volume 71, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2018 issue:

ARTICLES

Adam N. Steinman, Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018).

Kent Barnett, Christina L. Boyd & Christopher J. Walker, Administrative Law’s Political Dynamics, 71 Vand. L. Rev. 1463 (2018).

Christopher R. Leslie, Hindsight Bias in Antitrust Law, 71 Vand. L. Rev. 1527 (2018).

Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593 (2018).

ESSAY

James D. Nelson, The Trouble with Corporate Conscience, 71 Vand. L. Rev. 1655 (2018).

NOTES

Ahsin Azim, Common Sense: Rethinking the New Common Rule’s Weak Protections for Human Subjects, 71 Vand. L. Rev. 1703 (2018).

Madison Tate Santana, Trafficked in Texas: Combatting the Sex-Trafficking Epidemic Through Prostitution Law and Sentencing Reform in the Lone Star State, 71 Vand. L. Rev. 1739 (2018).

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Andrew Johnson in Messages and Papers of the Presidents

In my edition of Messages and Papers, here’s part of the essay on Andrew Johnson, which gives the standard view of him in the 1920s.

“In integrity of purpose, in personal and moral courage, in intensity of patriotism he has no superior among our Presidents. That his impeachment marks one of the most dangerous epochs of American history there can now be no question among people whose opinion is at all worthy of respect. Even intelligent Republicans now take this view of the matter. Not long since in a lecture before a college in this city, Mr. Justice John M. Harlan, of the Supreme Court of the United States, stated that as his opinion. He is certainly a competent witness. . . .

If a true history of the United States is ever written, while Andrew Johnson will not stand in the front rank of American statesmen, he will unquestionably stand in the front rank of American patriots. He did more, and risked more, to preserve the Union that was done by all the men combined who voted for his conviction.”

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Call For Papers

ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois). 
 
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress. 
 
More details are available here  
 
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Jury Unanimity in Criminal Cases

One interesting result yesterday was that Louisiana approved a state constitutional amendment providing that juries must be unanimous to convict a defendant of a crime. This means that only one state–Oregon–says that in some criminal cases there can be a conviction without a unanimous jury.

In a fractured decision 46 years ago, the Supreme Court held that the Sixth Amendment as incorporated against the states permitted non-unanimous jury verdicts in criminal cases. If a case arises from Oregon presenting this question, the Court should grant review and make clear that the Sixth Amendment requires unanimous jury verdicts in all criminal cases. There is, though, a chance that Oregon will reform its own law and render the issue moot.

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The Puny James Madison

James Madison did not always have the stellar reputation that he now does. Indeed, until the twentieth century nobody few paid attention to Federalist #10, now seen as the most important of those essays. In my edition of Messages and Papers of the Presidents, Senator Albert Beveridge of Indiana (and biographer of John Marshall) wrote the introduction to the Madison section. Here is part of what he said:

His character was not masterful. He was a follower of mightier men. He was easily influenced by such lordly wills as Hamilton, easily seduced by such subtle minds as Jefferson. Thus his public service was a series of contradictions, compromises, doubts and fears. . . . Between those tremendous mountain peaks of power, Hamilton and Jefferson, standing over each other, Madison was the valley.

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Barry Goldwater on Political Contributions by Unions and Corporations

One of the curiosities in my library is Barry Goldwater’s book The Conscience of a Conservative, which launched his presidential campaign and was an important political text in the 1960s. In a discussion of the evils created by labor union donations to politicians when not all union members agreed, Senator Goldwater said the following:

In order to achieve the widest possible distribution of political power, financial contributions to political campaigns should be made by individuals and individuals alone. I see no reason for labor unions–or corporations–to participate in politics. Both were created for economic purposes and their activities should be restricted accordingly.

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The dark history of the whiteness of milk


Milk is having a moment lately. A dark moment. Or, more to the point, a white moment. As the recent NY Times article Why White Supremacists Are Chugging Milk (and Why Geneticists Are Alarmed) explained, white nationalists and members of the so-called alt-right have been using milk as a symbol of white supremacy since the early days of the Trump presidency. It started with an event that has since been dubbed “the milk party,” in which a large group of white men gathered in front of a livestreaming camera on the streets of New York City carrying cartons of milk and voicing everything from off-color taunts to explicitly racist, sexist, anti-Semitic, and homophobic rants. The atmosphere was raucous. After taking a swig of milk from his carton, one barechested man approached the camera and sneered. “An ice cold glass of pure racism,” he growled into the lens.

After that night, milk quickly went viral, joining the ranks of Pepe the Frog and the “okay” emoji as symbols of twenty-first century, post-Obama white supremacy. Pro-Trump supporters carried cartons of it to rallies. The hashtag #MilkTwitter was used in hundreds of tweets explicitly connecting milk with racist memes and sentiments. Richard Spencer added a milk-bottle emoji to his Twitter profile with the phrase “I’m very tolerant… lactose tolerant!”

    

This all may sound like the sort of fringe phenomenon that is best ignored, dismissed, or shrugged off as being nothing more than the provocative antics of far-right trolls. But not only is racist humor cloaked in irony worth taking seriously, this is not milk’s first rodeo with hate and ignorance. Far from it. In fact, the story of milk’s relationship with racism, sexism, colonialism, and other forms of oppression is notable in large part because of just how not-fringe it is. It’s a story about the rhetoric of modernity, progress, and scientific advancement, and features an esteemed cast of characters including university scientists, USDA publicists, the US National Dairy Council, the FDA, and the U.S. Code. And it’s a story with huge implications for the future of US food policy in the decades to come.

Over the next several weeks I’ll be telling the tale of the sinister side of milk. Today I’m taking you back in time to the late 19th century, to the years surrounding the passage of the first US immigration law that excluded an entire ethnic group, the Chinese Exclusion Act.

A “wretched, impotent, and effeminate race”: the gendered and racial politics of food

Exclusion of Chinese. The Cooly Trade. Those are the names of Chapters 7 and 8 of US Code Title 8: Aliens and Nationality. Yes, today’s US Code. The laws themselves have been repealed, but the ghost of them remains alive and well in those chapter titles—and, some would argue, in current-day politics around race, immigration, and food policy.

The United States had a policy of relatively free and open immigration during the 18th and early 19th centuries; the policy was rarely questioned until the late 1800s. The California Gold Rush in the mid-1800s brought with it a surge of immigration from China, which continued as Chinese immigrants sought jobs in agriculture, mining, railroad construction, restaurant, laundry, and other industries.

While Chinese immigrants represented the largest group of nonwhite immigrants who came to the United States between 1870 and 1880, they comprised only 4.3% of all immigrants who entered the country during that time. That said, they were viewed by many with vitriol, accused of stealing jobs from white workers. They were also accused of being dirty in mind and in body, accused of spreading disease and “moral and racial pollution” to American cities. Chinese men were also seen as undermining acceptable gender roles by engaging in jobs like cleaning and cooking, which were seen as “women’s work.”

These widespread anti-Chinese sentiments were bolstered by the opinions of respected experts who perpetuated racist ideologies under the guise of science. Much of that science concerned a perceived link between physical and mental strength (or weakness) and diet. Eating animal-based foods like meat and dairy was associated with intellectual superiority and virile masculinity exemplified by the white western man, while plant-eating was associated with Asian cultures and was thought to represent emasculation and to confer weakness of both mind and body. As E. Melanie DuPuis noted in Angels and Vegetables: A Brief History of Food Advice in America, “the racial rhetoric of the day . . . portrayed Asians as effeminate and enfeebled and the Chinese ‘leaf diet’ as a cause of degeneracy.”

In 1884 American neurologist named James Leonard Corning published Brain exhaustion, with some preliminary considerations on cerebral dynamics, in which he sought to explore the numerous ‘demands upon the thinking apparatus’ as well as possible remedies for a range of ‘mental phenomena.’ Corning spoke in one chapter of ‘defective brain nutrition’ and the role between various types of food on the brain’s development, health, and disease. In one passage, Corning linked the perceived intellectual inferiority of Chinese people to the (supposed) plant-based, milk-and-meat-deficient nature of their diets:

Where mental courage, tenacity of purpose, and concentrated energy are required the introduction of large quantities of fibrin and albumen into the system produces the most marvelous results. Thus, flesh-eating nations have ever been more aggressive than those peoples whose diet is largely or exclusively vegetable. The effeminate rice-eaters of India and China have again and again yielded to the superior moral courage of an infinitely smaller number of meat-eating Englishmen’ (emphasis added).

Not only were Chinese and other Asian people intellectually weak because they ate plants, argued Corning, but white people were intellectually superior because they ate animals (and drank milk), noting that the “most wonderful instance of the intellectual vigor of flesh-eating man is the unbroken triumph of the Anglo-Saxon race.” Corning’s medical opinions were shared by many of his peers: a year before he published Brain exhaustion, a respected Australian doctor named Stephen Mannington Caffyn published How, When, and What to Eat: A Guide to Colonial Diet, in which he cautioned that “[w]e might expect to find rice-eaters everywhere a wretched, impotent, and effeminate race, and such is the case.”

That medical experts like Corning and Caffyn perpetuated these racist and sexist tropes and grounded them in “science” gave significant legitimacy to these sentiments, leading to what Carol Adams described in her landmark work The Sexual Politics of Meat as a “racialized politics of meat” that worked to split the “world into intellectually superior meat eaters and inferior plant eaters.” The same could be said of milk as well.

     

The Chinese Exclusion Act was passed in 1882 with widespread support from lawmakers, many of whom called Chinese immigrants “rats,” “beasts,” and “swine” while the bill was being debated. Former Union general and California senator John F. Miller introduced the bill referring to the Chinese as a “degraded and inferior race.” The sentiment was widespread and long-lasting, and was sometimes linked back to the role of food: a 1902 report published by the American Federation of Labor (AFL) supporting the Chinese Exclusion Act framed the union’s views on Chinese immigration in terms of diet, titling it “Meat vs. Rice: American Manhood vs. Asiatic Coolieism, Which will Survive?

Even Justice John Marshall Harlan, whose lone dissent in the infamous 1896 case Plessy v. Ferguson upholding the constitutionality of the “separate but equal” doctrine is widely seen as an example of courage and strength of character, viewed Chinese people worthy of distain and exclusion. “The white race deems itself to be the dominant race in this country,” he wrote in his Plessy dissent. “And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” He went on to note without hesitation or critique that “[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” While Harlan used this example as a way to point out the absurdity of the “separate but equal” doctrine—explaining that by “the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana [cannot]”—it underscores the extent to which Chinese immigrants were vilified at every level of power and in every corner of American life.

The Chinese Exclusion Act was amended and expanded in 1924 to prevent citizens of other Asian nations from immigrating to the United States, and remained in effect until it was repealed in 1943. During and immediately after World War I, US animus toward Asian people took on a renewed significance. As DuPuis explained, as the “need for strong and aggressive bodies to fulfill national imperial ambitions” led to the “politics of ingestion [becoming] caught up in questions about the physical strength of the armed forces.” In the process, bodies “were compared across races and nations, and so it was that the Asian body came to represent nutritional deficiency in American gastropolitical discourse at this time.” Specifically, continued DuPuis,

[t]he Asian body became the sign of colonial subjection and effeminacy, while the tall, meat-eating and milk-drinking masculine American working-class body signified the superiority of the white diet. This characterization served as justification for white imperial projects in the post–World War I era. Colonial non-meat eaters were viewed as conquered peoples, defeated by diet. In their shared disdain for nonwhite races, the working and middle classes found a common identity as members of a powerful nation.

Next time: dairy milk’s role in crafting modern tropes of idealized white masculinity.

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Introducing Guest Blogger -ISELIN GAMBERT

 

Concurring Opinions is delighted to introduce guest blogger Iselin Gambert!  Iselin, who is one of my colleagues at GW Law School,  is a professor of legal writing.  She teaches courses in legal rhetoric and communication and coordinates the law school’s Writing Center. In her scholarship, she seeks to ask timely questions about the ways in which political, legal, linguistic, and cultural forces impact our daily lives and our relationship with food and other animals. Her current scholarly projects revolve around the use of language and rhetoric as a tool in cultural, political, and legal debates around sexism, racism, food policy, and the exploitation of animals. Her article —Got Mylk? The disruptive possibilities of plant milk– is forthcoming in the Brooklyn Law Review, and was recently identified as a “Notable & Quotable” by the Wall Street Journal.

Welcome Iselin!