Law School Professor Olatunde Johnson Discusses Contemporary Constitutional Issues

Olatunde Johnson’s interest in a law career was sparked shortly after she graduated from Yale with a B.A. in literature. Working for the Children’s Defense Fund in Washington, D.C., she found herself surrounded by lawyers and was intrigued by how they approached the law. “They defined law quite broadly,” she recalls. “They thought of law as not just litigation, but legislative advocacy. I went to law school because I wanted to develop a full range of tools to advocate effectively for issues that I cared about.”

Johnson honed those tools as a law clerk for the prestigious District of Columbia Circuit Court of Appeals, and then at the U.S. Supreme Court working for Justice John Paul Stevens. “As a young lawyer it is incredible training,” she said. “You enter the legal profession able to take apart and put together almost any legal issue that faces you,” said Johnson, who also worked for Senator Edward M. Kennedy at the Senate Judiciary Committee.

Given her expertise in constitutional law and Congressional power, "The Record" asked Johnson to discuss recent clashes between the executive and legislative branches.

Q. Taking as a starting point the president’s fractious relationship with Congress, can you talk a bit about the balance of power between the two branches of government?

There’s a long history of struggle between presidents and Congress and a recurring question as to whether a president’s executive orders infringe on Congress’ lawmaking power. There is not really a strong claim to be made that Obama’s gun control executive orders do so. If you look at the specific orders, a lot of them are about information sharing among federal agencies, harnessing more agency resources for background checks, reports from the Centers for Disease Control. These are squarely within the president’s power. It’s rare for the Supreme Court, or any court, to hold that an executive order has overstepped its bounds. I think questions about the constitutionality of these orders reflect the fact that 23 of them came down at the same time on a very controversial issue. But I must add that Obama has issued fewer executive orders than did George W. Bush.

Q. A recent appeals court decision challenges the president’s authority to make interim appointments. It involves the National Labor Relations Board, but could it go beyond that?

The president has the power to nominate judges and certain agency officials, and Congress is supposed to give its advice and consent. In this case, three NLRB appointees couldn’t get confirmed by Congress. So what happens when Congress doesn’t advise or consent, and nominees are allowed to languish? Historically presidents often appoint nominees when Congress is out of session, and that is what Obama did in this case. But the D.C. Circuit said that the power to make such recess appointments is limited to the several weeks after one session ends in December and the next begins in January. Under this interpretation, a president cannot make recess appointments at any other time. It will be interesting to see whether the Supreme Court ultimately addresses this question and how it rules on the president’s power.

Q. How are race, poverty, educational achievement and segregated housing intertwined?

There’s a wealth of social science data about the harm of concentrated poverty. Most of us see these neighborhoods all the time, and people typically call them ghettos. Some important studies show how these neighborhoods didn’t just happen over time, they were created by federal, state and local housing policies, and of course by private forms of discrimination. Social science tells us that being in a neighborhood with a high poverty rate compounds the effect of poverty. It’s harder to have high quality education when you go to a school that has a very high poverty rate, and you’re less likely to get high quality teachers. A lot of evidence shows that it’s good to have peers and parents with social capital and resources to bring to the educational environment. What I found really interesting, as a lawyer who thinks about law and anti-discrimination statutes, is that this isn’t a natural or fixed feature of the American landscape. We create and recreate it all the time through zoning policies and decisions about where to site low-income housing. In fact, we end up perpetuating residential segregation and concentrating poverty into these areas.

Q. What are the solutions to this?

I’ve written about the notion of federal spending as a force for good, particularly around race but also disability and economic integration. There are strengths that people get from living next to their cousins and their neighbors and their social support networks that you don’t want to break up. At the same time I’m a firm believer that people should have choices to live in neighborhoods that may give them more opportunities to attend better schools. Our federal policy has often not reflected a balance between those goals. There are statutes that require those who receive federal funds to take affirmative steps to promote racial integration, to assess racial impacts, and to take steps to correct it. And there are regulations that say you can’t engage in something that has a disparate impact on particular racial or ethnic groups. We generally think of civil rights laws as being something you take into court and litigate. But they are also enforced through many regulations and administrative action.

Q. How do these administrative actions work in the real world?

Several years ago in San Francisco they were designing a train network to allow people to get to the airport. After community groups asked why it wasn’t being done in a way that served the Latino community near those routes, the federal government looked and found there was an alternate route that would better serve a broader population. So the federal government enforces this either by denying or withholding money until the problem is fixed. Of course it has to have a significant impact on a group, and usually you have to assess alternatives before the federal government will step in.

Q. What Supreme Court cases are you following?

Among the cases that I’m looking at right now are Fisher v. the University of Texas, which challenges UT’s affirmative action program, and another from Alabama that challenges Section 5 of the Voting Rights Act. Both cases raise the question of how much more we need to do in terms of racial remedy. Do we have to rethink what we had thought of as being standard racial remedies? I am also tracking the same-sex marriage cases: "Hollingsworth v. Perry," which is the challenge to California’s Proposition 8 prohibiting same-sex marriage, and "United States v. Windsor," which challenges the federal Defense of Marriage Act (DOMA). Beyond the equal protection claims and the potential social impact of the cases, the cases are interesting to me as a legislation scholar. California’s case arises in the context of a constitutional amendment adopted by a majority of voters—how should that affect the court’s equal protection analysis or willingness to resolve this case? And the DOMA case raises a host of interesting issues including about whether Congress has standing to defend the law since the executive branch won’t.

Q. Are the struggles over the balance of power between Congress and the president different because of this president?

These struggles happen with every administration. What I think is distinctive in recent years is how the Congress has been quite gridlocked. The use of the filibuster is increasing, and that’s distinctive to the Obama administration. I’m a big advocate of legislative power, in theory. The legislature has the capacity to be very responsive to people, and it’s also a place that, hopefully, has open deliberation.

Q. Is it time to overhaul the filibuster rules?

I came at this quite skeptical of the notion that you needed to reform the filibuster, and that’s because when I was working in the Senate for (the late) Sen. Ted Kennedy, he was participating in a filibuster of George W. Bush’s judicial nominees and spoke eloquently about how important it was to have this constitutional authority given to the Senate to give its advice and consent on judicial nominees who were going to be on the court their whole lives. But now people from both sides of the aisle feel that the institution has become broken. There are real questions of whether Congress can effectively tackle the big issues that it needs to tackle.

Q. Are there any workable solutions?

The proposals that I think are the most interesting would force senators to actually talk and deliberate. Maybe senators won’t use the filibuster as much if there’s the risk of tying up Senate business. There’s another idea that involves holding a declining number of votes over a set of days or weeks for what you need to end a particular filibuster. That would also encourage senators to take to the floor and to talk about the issues, instead of using it to obstruct something or prevent a final vote.

Q. What are you writing and researching right now?

Next year will be the 50th anniversary of the Civil Rights Act of 1964, legislation that changed our society in important ways. It addressed discrimination on the basis of race and ethnicity and gender in employment and public accommodations, and it ushered in the focus on civil rights law and legislative power. After that you get the Voting Rights Act in 1965, the Fair Housing Act in ‘68, then in the ’90s the Americans with Disabilities Act. So it really focused attention on the power of Congress to address questions of discrimination, and as an empirical matter the ’64 Civil Rights Act helped create the society that we have today, one characterized by more integration and opportunity for minorities and for women. People have raised the question about whether we still need the act in the same way. A lot of people say the problems are not just about discrimination but about poverty, access to various resources, education. I want to really look at where the act is limited, and where we might have to turn to other strategies in effective ways that are helpful to minorities and women.