Coale Mind

This is the first half of my presentation to Professor Rory Ryan's Federal Courts class at Baylor Law School, about SB8, on November 23, 2021. The presentation addresses four issues raised in the litigation about the law:
(1) sovereign immunity as defined by Ex Parte Young,
(2) standing (both to sue about SB8, and under it),
(3) whether Texas avoided "state action" (and with it, the federal civil-rights laws) by its delegation of enforcement to private citizens, and
(4) limits on federal-court power to enjoin an unconstitutional law, especially as stated by In Re Debs.
This episode has the introduction and the discussion of the first topic about Young.
PLEASE NOTE that there are occasional short skips in the recording, especially at the very start, but they do not interfere with the flow of the presentations. The PowerPoint is available here and a video recording here. 

Celebrate Thanksgiving this year with "Coale Mind," which examines the legal underpinnings of our country's national holidays. Somewhat surprisingly, they are grounded in a fairly obscure part of the U.S. Code that sets vacation policy for federal employees, rather than one of the more well-known portions of that Code or the Constitution. From there, I examine some interesting lessons that the scheduling of Thanksgiving, in particular, has to teach us about (1) the growth in the power of the federal bureaucracy since the Civil War, (2) the power of retail interests to affect public policy, and (3) the power of tradition (here, the ancient custom of a "harvest ritual" to both affect the law and become a part of it. 

In 1895, the Supreme Court affirmed a contempt conviction against Eugene Debs, the leader of a nationwide strike by railroad workers. The conviction arose from a federal-court injunction, obtained by federal prosecutors to prevent private actors from infringing on activity protected by the U.S. Constitution. Both the United States and the State of Texas rely on that opinion, In re Debs, in the ongoing litigation about the constitutionality of the new Texas abortion statute. The strength of the analogy between the Texas case and Debs  will form an important part of the opinion that the Supreme Court ultimately reaches about that law. 

This episode reviews the new Texas law (Tex. Educ. Code sec. 28.0022(a)(4)(A), (C)) about teaching "Critical Race Theory" in the state school system. My special guest is my friend of more than thirty years, Dr. Michael Hester of the University of West Georgia, who teaches in its communications school, coaches the debate team, and serves as a special advisor to the university's Chief Diversity Officer. In this episode we consider:

• What is "Critical Race Theory?? Where does it come from? What questions does it try to answer?
• Does the higher-education version of Critical Race Theory have anything to do with (a) K-12 education, or (b) the specific provisions of this statute?
• What is the 1619 Project, anyway?
• What should someone read who wants to understand Critical Race Theory better? and
• What should a high school student read who wants to know more about CRT?

This episode was a lot of fun to put together and I hope you enjoy it. 

A few weeks ago, I considered whether the new Texas abortion statute, the "Texas Heartbeat Act," violated the "Separation of Powers" Clause of the Texas Constitution of 1876. This week I examined whether the Heartbeat Act may violate the "Open Courts Clause," another unique feature of the 1876 state constitution, which also has no direct equivalent in the U.S. Constitution. 

While the application of that clause to the Act would raise some novel questions, the near-shutdown of abortion services in Texas over the last month suggests that the practical effect of the Act has been to deny the constitutional guarantee of "open courts" to providers--who would otherwise seek to defend the legality of the services they offer. 

"Treason!" cry former President Trump and supporters, criticizing calls made by General Mark Milley to his counterparts in China and other countries during the waning days of the Trump Administration. This episode considers the validity of that claim, both under the Constitution's definition of "treason," as well as general principles about civilian-military relationships in the United States. 

I talk "the state of the State" with Matt Rinaldi, the new statewide chair of the Texas Republican Party.  We succinctly talk about the Governor's emergency powers, the power grid, border security, SB8 -- and, a special bonus topic that you must listen all the way to the end to hear! 

Building on an insightful op-ed in today's Boston Globe about the Supreme Court's 1981 Grendel's Den case, this episode considers whether the Heartbeat Act's delegation of enforcement authority to millions of private citizens may violate the Texas Constitution's separation-of-powers clause -- a clause that does not appear in the U.S. Constitution. 

In this episode I interview my old friend Chrysta Casteneda, a well-known oil-and-gas litigator in Texas who ran for a position on Texas's powerful Railroad Commission in 2020.  She describes why the "lights went out" in Texas in February 2021 as several things went wrong at once, and examines whether we have done enough to protect ourselves against another epic failure of our electrical grid as the state continues to grow. 

Welcome to the second year of Coale Mind!

In a previous episode of this podcast, I questioned whether the U.S. Court of Appeals for the Fifth Circuit – the federal appellate court for Texas, Louisiana, and Mississippi – may have grown more conservative than the U.S. Supreme Court under the leadership of Chief Justice Roberts. In particular, I looked at two Fifth Circuit cases that the Supreme Court reviewed in the last term—Collins v. Yellen, about the structure of the regulator for Fannie Mae and Freddie Mac—and California v. Texas, about the constitutionality of the Affordable Care Act.
 
The Supreme Court has now ruled and the answer to the question is . . . it depends. These cases ultimately show that not all conservativism is the same . . . .