Texas Tech School of Law’s constitutional law expert examines the recent controversial topics facing the U.S. legal system.
It doesn't take long for Richard Rosen, the Glenn D. West Endowed Professor of Law in the School of Law at Texas Tech University and a constitutional law expert, to tick off the list of recent issues that either have or could come up before the U.S. Supreme Court. Even the court itself is one of those issues.
From presidential power to immigration, the eviction moratorium, abortion, Second Amendment and vaccine mandates, public perception suggests there are more issues today that are under constitutional scrutiny today than ever before. Rosen, who has held a law degree since 1973 and spent more than 26 years in the U.S. Army, isn't so sure.
“I think there have always been challenges to the Constitution, but it may seem more in the forefront now because the press is covering a lot of these issues, and some of them are very controversial,” said Rosen, who serves as the director of the Center for Military Law and Policy and came to Texas Tech after a distinguished career as an officer in the U.S. Army Judge Advocate General's Corps.
“I think it's also indicative of why people may perceive that there are more constitutional law issues today. I think our country is much more divided today than it's ever been in my lifetime. I can't remember anything like this since maybe the Vietnam War protests when I was in college in 1970 at Ohio State.”
As a constitutional and military law expert, Rosen examines closely the intents and ramifications of laws that could have an impact on the Constitution or, at the very least, will face challenges in the courts on their constitutionality. The two most controversial laws at the moment involve the always contentious topic of abortion and the more recent divisive subject of vaccine mandates.
The most recent controversy involving abortion thrust Texas into the spotlight with the recent passage of Senate Bill 8, the “Heartbeat Bill,” passed in the Texas Legislature. The bill prevents women from obtaining an abortion once a fetal heartbeat is detected, usually around six weeks into pregnancy and well before some women even realize they are pregnant. The law also allows no exceptions for pregnancies caused by rape or incest.
Medical experts, however, have said the term “Heartbeat Bill” is misleading because embryos at six weeks do not have a developed heart, and that any similar sounds detected through an ultrasound are electrical impulses.
Still, the bill passed and went into effect in September. What is unusual about this law is that it prohibits public officials from enforcing the statute. Rather, it empowers private citizens to sue abortion providers and anyone who aids and abets them, from nurses to those giving pregnant women rides to a clinic. Private citizens can seek to enjoin abortions, receive no less than $10,000 in statutory damages and recover their court costs and attorney's fees.
Already, a doctor in San Antonio has said he will continue to perform abortions in defiance of the law, and two suits have been filed against him. But those suits were filed by pro-choice advocates who did so to challenge the constitutionality of the law.
Locally, citizens of Lubbock voted to ban all abortions in the city limits, creating a sanctuary city from abortions. The Lubbock City Council and legal advisers initially refused to initially enforce the measure on the grounds it was unconstitutional and in direct violation of Roe v. Wade, the landmark national case that legalized abortion in the U.S.
“Clearly, these are cleverly written laws, and because of the way they're drafted, which is by giving only private citizens the authority to enforce them, it's very difficult for an abortion provider or anyone who aids and abets in an abortion to challenge the laws through pre-emptive lawsuits in the federal courts,” Rosen said. “If this were the state enforcing the law, you could go to federal court and get an injunction of declaratory relief to declare the law unconstitutional. Now, you're dealing with private citizens bringing suits and there are all sorts of obstacles to getting a federal court to review the case.”
For Rosen, however, the key case to watch isn't from Texas, but Mississippi. Oral arguments for Dobbs v. Jackson Women's Health Organization are set to be heard before the Supreme Court on Dec. 1, challenging a Mississippi law that bans almost all abortions after the 15th week of pregnancy. A federal district court ruled the Mississippi law was unconstitutional because it bans abortions before a fetus becomes viable, usually around the 24th week of pregnancy. The Court of Appeals for the Fifth Circuit affirmed the district court's decision.
Dobbs presents the Supreme Court the opportunity to overturn Roe v. Wade and Planned Parenthood v. Casey, which protects the right to an abortion before a fetus becomes viable.
“States can regulate abortions to make sure health standards are met and the woman gives informed consent,” Rosen said. “But that's it. So, clearly, it's an unconstitutional law based on precedent. The Supreme Court agreed to review those issues, so it's possible Roe and its progeny could get overruled. If the Supreme Court overturns Roe, then everything about the constitutionality of the Texas statute and Lubbock ordinance becomes academic.”
The most recent hot-button issue on the table for constitutional law experts is the legality of vaccine mandates. Since the first COVID-19 vaccines rolled out at the end of 2020, only 55.5% of U.S. citizens have been fully vaccinated according to the Centers for Disease Control (CDC), meaning they have received two doses of either the Pfizer or Moderna vaccine or one dose of the Johnson & Johnson vaccine.
Vaccine resistance has been a factor in the spread of the Delta variant of the COVID-19 strain. This has led to a recent surge and has hit children particularly hard since vaccines have not been approved for those under age 12. Even though vaccine rates have increased some as the Delta variant spread across the U.S., the White House has taken unprecedented steps to put more vaccines in arms.
In September, President Joe Biden announced vaccine mandates for all U.S. businesses with 100 or more employees. Companies that do not adhere to the mandate issued through the Occupational Safety and Health Administration (OSHA) will face significant fines. Also, he is making COVID-19 vaccines mandatory for all U.S. service members.
As a retired military member, Rosen said now that the Pfizer vaccine has received full authorization from the CDC, soldiers can be required to take the vaccine or be court-martialed or discharged from the military for refusing an order.
He said a similar controversy came up in the late 1990s and early 2000s with the anthrax vaccine. Then, the courts upheld the requirement to get the vaccine even in an experimental stage.
For private citizens, Rosen said he suspects vaccine mandates are “probably legal” and that the punishment for not taking the vaccine would be getting fired. Enforcing the mandate, however, would be the tricky part.
The issues come down to whether the government can use temporary emergency powers when it considers a situation to be a public health emergency. According to Vickie Sutton, a Horn Distinguished Professor and the director for the Center for Biodefense, Law and Public Policy in the School of Law, this is what is known as distributive justice, where everyone carries a small burden to help society and their own family members or close circle of contacts.
“Because we chose to live in organized societies and not as roving bands of nomads, we have implicitly agreed that some of our personal freedoms will be burdened,” Sutton said.
The government, Sutton said, has a responsibility to protect public health, and when a vaccine is mandated it is because the small burden placed on individuals is outweighed by the massive benefit of improving public health. However, since privacy is one of the most highly protected individual rights, the mandate must be done as narrowly as possible.
“Mandating a vaccine for your job in a hospital, for example, considers the risk to the very people you are entrusted to protect from disease and harm,” Sutton said. “So, individual professions might be singled out for vaccine mandates to accomplish the narrowness requirement. Even for the hospital workers, a vaccine requirement does not mean you will be forced to be vaccinated. You can leave that employment if you feel that strongly opposed to vaccination, and that provides the freedom required by the constitution.
“No one is being forced to be vaccinated, as has been misrepresented in the media. Yes, changing jobs is a burden, but not one that would be likely to be found as an unconstitutionally impermissible burden in this case.”
Sutton said, however, a vaccine requirement for a profession with no contact with the public, the elderly or children might be too broad.
Constitutional balance, she said, requires the voices of voters objecting to too much infringement on privacy interests. Since this is a balancing test, the balance can shift, and when the risk to the public health is reduced enough, the privacy interest will begin to outweigh the government mandates for pandemic countermeasures like vaccines and masks.
She views vaccine mandates as similar to other rights guaranteed in the Constitution that are burdened by limits. For example, freedom of speech is guaranteed in the First Amendment, but it is limited; there are bans on child pornography and obscenity, and you're not allowed to shout “Fire!” in a crowded theater. Vaccine mandates are made for a public health emergency, but the mandate cannot be made permanent unless the risk to the public is extraordinary.
“Childhood vaccines are an example of how this public health measure has changed the survival of children in our society to such a positive degree that mandating vaccines for all children is a constitutionally permissible burden,” Sutton said. “The question for us is whether, in a non-public health emergency, a vaccine can be mandated for adults. The risk to the public would have to be extremely large.
“I think, after the pandemic is relatively under control, it may never warrant a vaccine mandate for adults. But a case could present itself in the future that would warrant such a mandate.”
One subject currently under the radar, but that Rosen is keeping a close eye upon, is free speech. It is of particular interest considering he works on a college campus.
Recently, the Foundation for Individual Rights in Education (FIRE) released a report on the status of free speech on college campuses. The report rated how well free speech is encouraged at colleges and universities across the U.S. as well as individual students' views on what should and should not be allowed when it comes to free speech.
One thing that stunned Rosen in this report was that 66% of students surveyed said it is acceptable to shout down speakers to prevent them from speaking on campus, and 23% said it is acceptable to use violence to stop a speech. He was quick to point out that those percentages are lower at Texas Tech – around 46% think shouting down a speaker is unacceptable, and 90% of students believe it is unacceptable to use violent protest to stop a speech on campus. But the overall sentiment generated by the report, to him, was alarming.
“That's disturbing, and we're a state school, and we're subject to the First Amendment,” Rosen said. “That doesn't mean we have to let anybody who wants to speak come in and speak. You probably have to have a sponsor and it has to be appropriate to the institution. But you have a right to speak, and the administration, to my knowledge, has always supported that. I don't think we have a problem here with our administration or the president or the provost.
“Civil right activist Angela Davis spoke here a few years ago and I didn't even know she was here. I didn't care. I don't agree with her, but I think it would have been interesting to hear her.”
Rosen can see the issues brewing on college campuses in the future, and the current “cancel culture” is not helping matters.
“People go out to protest or to demonstrate, and then you get counter-demonstrators and it becomes violent. I think that's disturbing,” Rosen said “When you talk about free speech, especially in public places around state college campuses, you talk about the marketplace of ideas. A healthy debate is always better than censoring speech.”
Rosen said other very important issues face the courts right now. Obviously, with what recently happened as an influx of Haitian immigrants illegally crossed the Texas-Mexico border in Del Rio, immigration continues to be a hot-button topic regarding presidential policies, both past and present.
Presidential power, in general, is under heavy scrutiny, from the so-called Muslim ban issued by former President Donald Trump to the extension of the eviction moratorium instituted by President Biden that recently expired. All these have experienced constitutional challenges.
The question about whether the Second Amendment allows for the lawful carry of firearms outside the home is under scrutiny in a case arising from the state of New York. It is the first major Second Amendment case to come before the Supreme Court since 2010.
“The Second Amendment gives you the right to keep and bear arms, and ‘bear' must mean something more than just keep them,” Rosen said. “So, the question is, does that include being able to bring your guns outside the home? New York allows it, but you have to show cause to have the gun outside the home – something more than self-defense. The fact that there is a lot of crime and you could be mugged and things like that, that doesn't count by themselves in New York.
“There was a case that came up a couple of years ago where the state of New York didn't allow gun owners to take their guns to transport them from their home to a firing range, to go hunting or to go to a second home. When the Supreme Court granted judicial override and review of that law, the city of New York changed its law and got rid of that prohibition, as did the New York legislature.”
One lesser issue of particular interest to Rosen is the question of whether it is constitutional to subject retired military members to court-martial jurisdiction. As a military retiree, if Rosen made disparaging remarks about the president or governor, could he be court-martialed for doing so?
“A case recently decided by the highest military court, the Court of Appeals for the Armed Forces, upheld court-martial jurisdiction over retirees,” Rosen said. “However, late last year, the District Court for the District of Columbia declared the court-martial of certain retirees to be unconstitutional,” Rosen said. “Ultimately, Supreme Courts can get involved in this to see if I'm still subject to the Uniform Code of Military Justice. Not that I care, but I thought, if I want to write an editorial that's critical of the president or the governor, the legislature of Texas or Congress, I don't want to get court-martialed for contemptuous words.”
Time for reform?
One of the most controversial issues brought up during the 2020 presidential campaign could affect all these issues simultaneously – packing the court.
Trump was able to nominate three conservative justices to the U.S. Supreme Court before he was voted out of office, significantly swinging the makeup of the court toward conservative values. Progressives during the presidential campaign brought up the idea of adding four justices to the court if Democrats regained control of the presidency, which they did with Biden.
Since the election, public conversations about packing the courts have quieted down somewhat, but they haven't gone away. In April, Biden issued an executive order forming the Presidential Commission on the Supreme Court, a bipartisan group of experts tasked with providing an analysis on the debate for and against Supreme Court reform. Among topics to be examined are the court's role in the constitutional system, length of service for justices and the size of the court.
“I think a number of them will recommend packing the court, adding additional justices, because they don't like what's there now,” Rosen said. “Probably a terrible idea. The court is already politicized enough, but I think they want to get their way in the Court. Democrats have a majority in Congress, and so they might try to pass legislation before the 2022 midterm elections. Whether they'll get it through the Senate is a different issue, because you still have the filibuster, plus the fact there may be some Democrats like West Virginia's Joe Manchin, for example, who may not go along with this.
“I think it's a bad idea, personally, because then every political party that comes in can add more justices. As a result, the Supreme Court would no longer adjudicate matters based upon their interpretation of the law, but politics.”
As an example, Rosen points to the struggles President Franklin Delano Roosevelt experienced trying to pass the New Deal through Congress in the 1930s in an effort to alleviate the effects of the Great Depression. It wasn't until he appointed several judges at the start of his second term that the legislation became law.
Outside of adding justices to the Supreme Court and loading the lower courts with judges of certain ideologies, the next best method of constitutional reform would be adding amendments.
The last amendment to the Constitution, the 27th Amendment, was passed in 1992 preventing members of Congress from giving themselves a pay raise that would take effect during the current session. Before that, the 26th Amendment, which granted citizens age 18 and older the right to vote, was passed and ratified in 1971.
Rosen said adding amendments to the Constitution takes some heavy lifting, and there has been talk of a new constitutional convention. The problem with a constitutional convention, he says, is that it's just as easy to take away existing rights as it is to add others.
“I'm afraid free speech may be in trouble from those who don't believe in robust free-speech rights anymore,” Rosen said. “Or the religion clauses. There were quite a few religion cases decided by the Court last term. There also are a lot of people who want to get rid of the Second Amendment, which would cause even greater divisiveness in the country. In short, a constitutional convention could remove existing, fundamental constitutional rights, depending on who controls it.”
The Equal Rights Amendment has remained in perpetual limbo since its passage by Congress in 1972. The amendment would guarantee equal legal rights for all U.S. citizens regardless of sex. But it failed to be ratified by three-fourths of the states by the congressionally imposed deadline, thus it never became part of the Constitution.
Rosen isn't sure he sees a need for it today considering the advancements women have made in society and the workplace. Women now comprise the majority of college students – including this year's first-year law school class – and Rosen anticipates women will lead the country in the very near future. Nevertheless, both houses of Congress have initiated efforts to revive the Equal Rights Amendment, an initiative Rosen supports.
Rosen's best suggestion to solving all the controversial issues is applying the laws equally and fairly, without prejudice or political influence.
“Everybody turns to the courts, but that's because they trust the courts,” Rosen said. “For the most part.”