Neomi Rao Background Report
On November 14, 2018, President Trump nominated Neomi J. Rao to the D.C. Circuit Court of Appeals seat previously held by Judge Brett M. Kavanaugh. The nomination immediately sparked intense controversy, for reasons related both to Rao’s own record and the unique circumstances surrounding her nomination and this moment in history.
Two decades into her career, Neomi Rao
is deeply embedded in an ultraconservative political milieu. Her generation of
hard-right partisans comprises the veterans of the 1990s culture wars. But Rao,
despite her ties to traditional pillars of the right wing such as the Koch
brothers, Leonard Leo, and the Federalist Society, is no mere establishment Republican.
Rao currently serves as Administrator of
the Office of Information and Regulatory Affairs (OIRA), and on her watch OIRA
has begun laying waste to a vast range of legal protections for vulnerable
people. The targets include Title IX protections for sexual assault survivors,
prohibitions on racial discrimination in housing, protections ensuring that
doctors cannot refuse to treat LGBTQ patients, and more. Under Rao, OIRA has
adopted a slash-and-burn extremism that reflects harsh indifference to human
consequences.
What is so significant about this
transformation of OIRA is that its roots can clearly be traced to long-held
attitudes of its chief. Even among similarly strident young conservatives –
such as her contemporary, former judicial nominee Ryan Bounds – Rao in her
twenties would have stood out for opinions and writings that were brutal, even
tinged with cruelty. A raft of these
writings came to light in
January 2019, shortly after her nomination, and the revelation was
a bombshell.
Rao wrote op-eds and articles that
lobbed attacks at LGBTQ advocacy, racial justice, and climate.
She wrote insultingly about the speech and mannerisms of leading
African-American scholars. She saved some of her harshest judgment for
survivors of sexual assault, blaming survivors for being attacked.
The writings are appalling, and Rao’s
supporters hastened to dismiss them as irrelevant because she was younger when
she penned them. But it is impossible to dismiss the evidence that Rao, in
mid-career, is determinedly translating her extreme views into policy affecting
millions of Americans. What makes her nomination even more unconscionable is
the fact that she has been named to fill Kavanaugh’s former seat.
For weeks in 2018, the nation was
convulsed over sexual abuse allegations leveled against Kavanaugh by Dr.
Christine Blasey Ford and others during his nomination to the Supreme Court.
The nomination of Rao was a severe blow to women’s rights advocates who did not
hesitate to call Rao out as a rape apologist. Clearly, the White House either
did not know or did not care how deeply this nomination would undermine the
faith of women – and many men – in our justice system.
It also comes at a time of heightened
sensitivity about the racial justice records of judicial nominees. The judicial
nomination of Ryan Bounds was withdrawn
after Senators Tim Scott and Marco Rubio reportedly made clear they “would
oppose him over racially-charged writings” in his record. Like Rao, Bounds had
a record replete with offensive writings about people of color, rape survivors,
LGBTQ Americans and others. In an effort to rescue his nomination, Bounds attempted
to apologize for
his earlier views. As of this writing, Rao has not –
and there is intense pressure for senators who rejected Bounds to reject Rao’s
nomination on similar grounds.
At the same time, Rao’s intense
anti-regulatory zeal has arrayed powerful pro-business interests on her side.
The Wall Street Journal editorialized
aggressively in her favor. The corporate-friendly Trump Administration has
openly admitted to searching for judicial nominees who are hostile toward
government agencies and their powers. Former White House Counsel Don McGahn
unabashedly laid out a “coherent
plan” to install judges who will gut federal
laws, roll back civil rights, dismantle climate protections, and gut worker
rights. “These efforts to reform the
regulatory state begin with Congress and the executive branch,” McGahn said,
“but they ultimately depend on courts.” Rao embodies this spirit.
Rao also shares with many other Trump
judicial nominees an expansive view of presidential power and authority. At a
time when President Trump may be facing legal jeopardy, it is no coincidence
that his White House has shown a pattern of nominating judges with a strong
likelihood of finding legal justification for abuses of executive power.
This report addresses Rao’s legal
philosophy and her record regarding critical legal rights and protections. Our research finds that throughout her
career, Rao has shown exceptional hostility to the rights of women, LGBTQ
Americans, workers, consumers, people of color, people with disabilities, and
the environment, while aligning herself with the interests of the wealthy and
powerful. AFJ strongly opposes her confirmation.
BIOGRAPHY
Since her confirmation in July 2017 as Administrator of the
Office of Management and Budget’s Office of Information and Regulatory Affairs
(OIRA), Rao has overseen and championed President Trump’s agenda of stripping away public protections and safety standards.
Before
joining the Trump Administration, Rao worked as a law professor at George Mason
Law School. There, she took a leading role in advocating to change the name of the law school in
honor of Justice Antonin Scalia, following a multi-million dollar donation from
the Charles Koch Foundation. The Kochs donated $10 million to support the school’s
renaming, fueling a student-led lawsuit over concerns about the law school’s
academic independence. The suit sought disclosure of any agreements the school
may have made with the Koch brothers in exchange for the funds.
Rao was
also the director and founder of the center for the Study of the Administrative
State, founded in 2015 at what is now Antonin Scalia Law School. The Koch
Foundation’s 2016 grant agreement binds the law school to provide funding to the center for at
least ten years, prioritizing its influence. Consistent with the agenda of its
wealthy and powerful benefactors, the Center fights against protections for the environment, consumers, and
workers.
While
working at the law school, Rao, along with the law school dean, also met with
Leonard Leo, the influential executive at the Federalist Society who has played
a key role in Trump’s judicial appointments. Rao and Leo’s personal
relationship is evinced by emails uncovered by UnKoch My Campus through a Freedom
of Information Act request.
Rao’s
affinity for Leo’s Federalist Society began long before it became the main outside
group to which Trump has delegated important aspects of the judicial
nomination process. She joined at age 23 and has been a member since then. Rao
is a frequent speaker at Federalist Society events, listing at least 32 Federalist Society speeches in her Senate Judiciary Questionnaire.
Rao also gave a 2016 speech, “Executive Agency Overreach and Civil Justice,” at the
Lawyers for Civil Justice National Conference. This organization advocates to limit Americans’
access to the courts. In 2018, she received the Heritage Foundation
Distinguished Alumni Award.
Rao’s
public appearances and early writings strongly suggest she would be an
ideological, partisan jurist if confirmed to the D.C. Circuit. She has
consistently opposed judges appointed by Democratic presidents. Rao testified in opposition to Supreme Court nominee
Sonia Sotomayor, criticizing Sotomayor’s “personal, consequentialist approach
to judging.” Rao also wrote skeptically about Elena Kagan’s nomination to the Supreme
Court, arguing that “Ms. Kagan and those preparing her face a simple, political
problem: ‘progressive’ views of judging are difficult to defend.”
Rao’s
antipathy to Democrats emerged early; she once criticized a liberal group on Yale’s campus as
“representative of the modern elitist
class of Democrat bent on paternalistic social engineering” [emphasis
added]. In an article arguing against the movement for women’s equality, she wrote, “Women can be reduced neither to the Hillary Clinton bitch-model nor to the primeval earth mother
wielding mystical powers over men” [emphasis added].
Prior to
her career as a law professor, Rao served from 2005 to 2006 in the George W.
Bush Administration as Special Assistant to the President and Associate Counsel
in the White House Counsel’s Office. From 2002 to 2005, Rao was in private
practice at Clifford Chance LLP in London. She worked as Counsel for
Nominations and Constitutional Law for the U.S. Senate Judiciary Committee from
2001 to 2002. Rao also interned for the Institute for
Justice, which was initiated with seed money from the Koch brothers. The Institute for Justice’s purported mission is to “litigate[] to limit the size and
scope of government power.” After college, Rao wrote for the Weekly Standard, a
conservative publication.
Rao also clerked for Supreme Court
Justice Clarence Thomas and for Fourth Circuit Court of Appeals Judge J. Harvie
Wilkinson, III. Rao received her J.D. from the University of Chicago Law
School in 1999 and a B.A. from Yale University.
SEXUAL
ASSAULT AND WOMEN’S RIGHTS
Rao’s record
contains egregious, deeply offensive statements regarding sexual assault,
women’s rights, and gender equality. Writings from her twenties foretell Rao’s
efforts throughout her career to undermine protections for women’s rights and
assault survivors, as well as efforts toward equality.
Campus Sexual Assault and Title IX Rollbacks
Many of
Rao’s writings concern women’s rights and sexual assault on college campuses.
Most notably, Rao suggested that survivors of sexual assault bear
responsibility for violence perpetrated against them if they drink or do not
exercise control over their own “sexuality.”
In a 1994
article titled “Shades of Gray,” Rao appears to place the
responsibility of sexual assault on survivors if they choose to consume
alcohol:
Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink.And if she drinks to the point where she can no longer choose, well, getting to that point was a part of her choice [emphasis added].
Moreover,
Rao offered her opinion that “[i]t has always seemed
self-evident to me that even if I drank a lot, I would still be responsible for
my actions.” While Rao conceded that someone “who rapes a drunk girl should be
prosecuted,” she continued to blame survivors by arguing, “[a]t the same time, a good way to avoid a potential date rape is
to stay reasonably sober” [emphasis added].
In
addition to perpetuating attitudes that blame and shame victims, Rao downplayed
the responsibility of those who perpetrate sexual assault at the expense of
survivors. In another article, she attacked the idea that consent is a simple
concept that should be adhered to without exception. She argued that the
“controversy” – referring to sexual assault and date rape – “has been painted
in terms of ‘yes’ and ‘no,’ reducing
sex to something merely consensual” [emphasis added]. Rao suggested that survivors who accuse men of sexual
assault do so not because an assault occurred, but because “casual sex for
women often leads to regret and a profound loss of self-esteem. This in turn
can force women to run from their choices and actions.”
Rao also
contended that women’s “sexuality” is to blame for sexual violence. Rao asserted that “[w]omen believe falsely that they
should be able to go anywhere with anyone.” Women’s sexuality, in Rao’s view, is expressed in a way
that goes beyond the “blatant signs” of choosing to “wear short skirts or bright
lipstick.” Rao argued that “when playing the modern dating game women have to
understand and accept the consequences of their sexuality.” Instead of holding
perpetrators responsible for sexual assault, Rao claimed there are signals given off by women
that cause “misunderstandings,” such as “subtle glances, ambiguous words.”
Far from
walking back any of these comments, in her notes for a
2018 speech, Rao said:
When I was an undergraduate at Yale, now a number of years ago, I greatly enjoyed participating in the debates of that time with my classmates . . . We engaged in public debates, in writing in various newspapers and magazines . . . Although students at Yale were disproportionately of a progressive or liberal perspective, I found that my more conservative (sometimes contrarian) perspective was often sought out and treated with respect.
Given
Rao’s history, it is notable that OIRA, under Rao’s leadership, signed off on
Education Secretary Betsy DeVos’s efforts to roll back protections for survivors
of sexual assault on college campuses. The proposed rule, while not yet final, would make a
series of changes to Title IX processes on college campuses that many survivor
groups oppose. As organizations such as End Rape on Campus and Know Your IX explain, “[I]f the proposed rule becomes law,
survivors will lose access to their education and schools will continue to
sweep sexual violence under the rug. The new rule will stop survivors from
coming forward and make schools more dangerous for all students.”
The language of the DeVos proposed rule reflects the sentiment of Rao’s previous writings that stigmatize and blame sexual assault survivors. The rule changes several important processes that currently ensure survivors’ rights, and instead focuses on elevating protections for the alleged sexual assailant. When discussing changes to internal processes that determine repercussions for sexual assault, the rule states that “pending the finding of facts sufficient for the [university] to make a determination regarding responsibility, the requirement mitigates the stigma and reputational harm that accompany the allegation of sexual misconduct” [emphasis added]. By weakening protections and deterrent measures, this rule would unnecessarily burden and re-traumatize survivors.
In the era
of the #MeToo movement and at a time when there is growing public awareness
regarding sexual violence, Rao’s views – views that lay the blame for sexual
violence on survivors – raise serious concerns about her fitness to serve as a
lifetime appointee to the federal bench.
Violence Against Women Act
At a 2014 Federalist Society event, Rao criticized the Violence Against Women Act (VAWA),
a landmark law with bipartisan support that protects survivors of sexual and
domestic violence and seeks to root out sexual violence. In discussing Supreme
Court precedent, Rao stated: “So they’re able to invalidate things like the Guns Free School Zone Act or parts of
the Violence Against Women Act, which are really kind of grandstanding
statutes, which are largely covered by other state laws or something like
that” [emphasis added]. Rao continued, arguing that the Court won’t invalidate
statutes “when it’s anything really important.”
By implying that parts of VAWA are
“grandstanding” and unimportant, Rao further minimized the positive impact of
VAWA on survivors and families. One study found that, following the passage of
VAWA, “the rate of intimate partner
violence against females declined 53% between 1993 and 2008” and “[t]he number
of victims of intimate partner violence declined, from approximately 2.1
million victimizations in 1994 to around 907,000 in 2010.” Moreover, “between
1993 and 2007, the number of intimate partner homicides of females decreased
26%, and the number of intimate partner homicides of males decreased 36%.”
If Rao is so dismissive of a law that
has made such a difference, it raises serious questions as to her ability to
fairly apply acts of Congress.
Sexual Harassment Guidance
Under Rao,
OIRA has held up proposed guidance from the Equal Employment Opportunity
Commission (EEOC) to give employers additional information on how to handle
sexual harassment. The proposed guidance has been delayed at OIRA since November 2017. Moreover, it is unusual for OIRA to review an
independent agency’s guidance. The proposed guidance would assist the EEOC and employers
in preventing, investigating, and addressing sexual harassment in the
workplace. Additionally, the status of the sexual harassment guidance does not
appear to be available on any OIRA public platform.
Women’s Equality and Pay Equity Rollbacks
Rao’s other writings show her broader
hostility towards women’s equality. For example, in the 1993 article “The Feminist Dilemma,” Rao argued that “[i]n exchange for access into the working world and
sexual freedom, women have lost much of the previous caring and affection of
men.” She criticized women who fight against structural inequality: “Women
should be able to realize themselves as human beings without identifying
themselves as a marginalized group. True liberation cannot come from coddling
and support sessions. The real world will simply not wait for women to come out
of therapy.” This callous perspective demonstrates Rao’s disregard for the real
inequalities that women face every day, both then and now.
Rao, moreover, is directly connected to
rolling back public protections that would promote pay equity for women in the
workplace. One group highlighted how an EEOC report, which was
completed after
six years of researching the issue, showed how “employee pay data was critical to enforcing
the nation’s anti-discrimination and related civil rights laws.” As a result,
the EEOC required employers to submit a form including various kinds of data
that advocates explained were “necessary to enforce pay discrimination laws, a pressing
concern given the persistent pay disparities across lines of gender, race, and
ethnicity.”
As the
National Women’s Law Center (NWLC) and the Labor Council for Latin American
Advancement (LCLAA) explained in related litigation, Rao was instrumental in halting the
previously established pay data collection process. Less than two months after
becoming the administrator of OIRA, Rao issued a memo explaining how the agency would cease implementing the pay
data collection process. Rao argued, “some aspects of the revised collection of
information lack practical utility,
are unnecessarily burdensome, and do not adequately address privacy and
confidentiality issues” [emphasis added].
Rao’s
rollback of public protections for gender pay equity echoes her earlier
ideological writings. However, efforts advocating for pay equity are vital because the gender pay gap has significant consequences
for women’s lives. Without adequate data to accurately measure pay disparity – as
the public protection that Rao blocked was designed to do – the possibility of
realizing pay equity for women shrinks even further.
Women’s Health Care
As an academic, Rao frequently uses her
ideas regarding “dignity” in constitutional law as an ideological framework to
couch problematic stances regarding social justice. Using this framework, Rao cited
“dignity” in expressing her opposition to a woman’s right to access health
care.
For example, in a 2011 article titled “Dignity as Intrinsic Human Worth,” Rao twisted the reasoning the Supreme
Court outlined in Planned Parenthood v. Casey, 505 U.S.
833 (1992),to allude
that the “dignity” of fetuses should perhaps override the right of women to
control decisions regarding their health care. Rao explained how Casey
“explicitly connected dignity, autonomy, and choice as ‘central to the liberty
protected by the Fourteenth Amendment.’” She then challenged this reasoning by
stating that while “the plurality highlighted the inherent dignity of a woman’s
freedom to choose an abortion . . . itminimized the competing inherent dignity of
the fetus to life.” In Rao’s view, courts “have often avoided the
conflict by emphasizing
the centrality of one of these dignities at the expense of the other.”
In another article titled“A Backdoor to Policy
Making: The Use of Philosophers by the Supreme Court,” Rao described Roe v. Wade, 410 U.S.
113 (1973), as “perhaps the
most disputed decision in recent history” and argued that “there weremany persuasive
legal arguments against recognizing a constitutional right to abortion.”
Notably, Rao asserted that “substantive due process arguably has no textual
support in the Fourteenth Amendment Due Process Clause, and was at any rate
severely discredited after the Lochner era.” In addition, Rao argued “most
states have historically prohibited abortion.”
As the head of OIRA, Rao has overseen or
approved rollbacks of protections for women’s health care,
including: allowing
employers to refuse to
cover birth control by claiming religious or moral objections; overseeing a proposed domestic gag rule under which Title X healthcare providers
would be prohibited from referring or supporting abortion
care services for patients accessing family planning; overseeing a proposed
rule that would interfere with women’s ability to receive insurance coverage
for abortion care; allowing medical professionals to refuse to provide reproductive and contraceptive care
based on “conscientious objections”; and engaging in a process to eliminate anti-discrimination protections under the Affordable Care Act (ACA) for women who
have terminated a pregnancy.
Rao’s hostility towards women’s rights
to access health care raises serious concerns about her ability to protect
women’s constitutional rights as a federal judge.
RACIAL JUSTICE
Rao has
written disparagingly about racial justice. As head of OIRA, Rao approved the
rollback of protections against discrimination based on race in housing. As the
NAACP Legal Defense and Educational Fund (LDF) stated, Rao’s writings are “offensive” and fit
into “a pattern of this Administration’s judicial nominees who demonstrate
hostility to civil and human rights principles of equality. No litigant with a
civil rights claim before her could trust she would fairly and impartially
provide equal justice under the law.”
In a 1994 piece titled “How the Diversity Game is Played,”
Rao disparaged “multiculturalists”: “Some people believe the multicultural
movement exists only on the radical fringes, but it infects nearly every area
of college life.” She warned, “[u]nderneath their touchy-feely talk of tolerance, they seek to undermine American
culture” [emphasis added]. In conclusion, Rao called diversity initiatives on
campus a “silly little game.”
Rao
expressed disdain for women or people of color who identify strongly with their
gender or ethnicity. Rao wrote, “Though the diversity bean counters consider me a
minority (Asian Indian, if you’re curious), I find myself in the awkward
position of not considering my race and gender very important. To the
‘multicultural police’ this means I’m a ‘traitor.’” She added, “[t]hose who
reject their assigned categories are called names: So-called conforming blacks
are called ‘oreos’ by members of their own community, conservatives become
‘fascists.’” Criticizing those who celebrate diversity of all forms, Rao wrote
that “multiculturalism fans the flames
of minority resentment against everybody else” [emphasis added].
Rao also wrote disparagingly about non-white, non-male affinity
groups:
More than a third of registered undergraduate organizations are based on race, ethnicity, or gender. While this is not wrong in itself, it seems that Yalies should have more creative ways of organizing themselves. This separation is not just to promote cultural awareness, but usually to advance some political agenda.
Rao also
displayed biased ideas toward African-Americans. For example, in discussing
Henry Louis Gates and Cornel West, well-known black professors and public
figures, Rao criticized not only the content of their book tour discussion in
1996, but also their speech patterns. Rao wrote that “[r]ace may be a hot, money-making issue,”
trivializing the actual issue of racism and those advocating for a more
racially just society. Despite the “money-making” aspect of discussing race,
she explained that “even West seems to realize that it can be talked to death.”
Her description of West is couched in racist terms:
“His slow English transfixed the salt-and-pepper bourgeois audience . . . Gesticulating
wildly with his white starched cuffs and cufflinks shining in the spotlight.”
Rao’s personal critiques and word choice suggest an inability to arbitrate
issues around civil rights in an unbiased manner.
Rao also
wrote in a derogatory manner about affirmative action. In a book review, she discussed affirmative action as the “anointed
dragon of liberal excess.” In another article, she wrote that
“Yale has dedicated itself to a relatively firm meritocracy, which drops its standards only for a few
minorities, some legacies and a football player here or there” [emphasis
added]. She also argued, in a 2009 law review article, that affirmative action diminishes the
inherent dignity of minority applicants: “Choosing to put out a separate
entrance for minorities, not just a welcome mat, overlooks or minimizes the
dignitary harms to individuals, even if that entrance is in front and not at
the back of the building.”
In another
article, Rao lamented:
In this age of affirmative action, women’s rights, special rights for the handicapped and welfare for the indigent and lazy, elitism is a forgotten and embarrassing concept. Elitist ideals and social hierarchies are something from an unenlightened past. In our new feelgood era, everybody is okay, and political and academic standards can adjust to accommodate anyone [emphasis added].
Finally,
Rao has criticized efforts to address hate speech. In 2011, she wrote, “[y]et the dignity of recognition protected by hate
speech regulations runs headlong into the dignity of the speaker, a dignity
protected by allowing the maximum degree of freedom of speech.” Rao’s article
undervalues the impact of hateful rhetoric, especially in an era where racist
hate speech has so often incited violence against minorities.
Under
Rao’s leadership, OIRA reviewed and is in the process of working with
the Department of Housing and Urban Development to roll back rules that protect against housing discrimination based on
race. This rule had previously allowed courts to consider “disparate impact”
when evaluating housing discrimination claims. Previous protections,
implemented in 2013, were reaffirmed in the landmark 2015 Supreme Court case Texas
Dep’t of Housing and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015). The proposed
roll back directly undermines this Supreme Court precedent.
LGBTQ RIGHTS
Hostility Toward LGBTQ Equality
Rao’s
writings demonstrate a hostility toward LGBTQ rights and equality. One notable
example is a 1994 article she authored titled “Queer Politics.”
In the article, Rao characterized the decades-long struggle for LGBTQ rights
and equality as a part of “[t]rendy political movements” which, in her opinion,
“have only recently added sexuality to the standard checklist of traits
requiring tolerance.”
Later in
the same article, Rao proposed that homophobia “is often more deeply
rooted” than racism and sexism because people view “homosexuality as a behavior
– and behaviors, unlike gender and race, are subject to change.” She explained her view that “[w]hen homosexuality is viewed as a correctable
behavior, it can be judged as being immoral, unnatural, and contrary to
religious doctrine” [emphasis added]. She justified this kind of
ideology by stating “no one knows whether sexuality is a biological phenomenon
or a social construct. The truth may lie somewhere in the middle.”
Rao’s personal biases are also reflected in her commentary on Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court case which held that a Texas law criminalizing sex between two partners of the same sex was unconstitutional. In a 2013 law review article, Rao minimized the holding and societal impact of Lawrence by describing the case as “about a right to particular sexual behavior.” In another article, Rao argued that “Lawrence expresses a strong preference for certain values but fails to articulate a coherent constitutional principle”.
Particularly
given her criticism of substantive due process, discussed above, which has been
a foundation of modern constitutional jurisprudence and has protected LGBTQ
individuals in cases such as Lawrence
and Obergefell
v. Hodges, 135 S.
Ct. 2584 (2015), it seems that Rao will endanger LGBTQ rights if confirmed to
the D.C. Circuit.
Marriage Equality
In
addition to her general animus towards LGBTQ rights, Rao has fought to
undermine marriage equality. Rao began publicly voicing her opposition to
marriage equality in her twenties. In an article titled “How the Diversity Game is Played,” she criticized “homosexuals [who]
want to redefine marriage and parenthood.”
On several
occasions, Rao cloaked her anti-LGBTQ views using a concept she calls the “dignity of recognition.”
As discussed below, she argued that this particular conception of dignity – one
that recognizes the equal dignity of LGBTQ individuals to marry – does not
belong in our constitutional jurisprudence. Rao expressed her problematic views
regarding marriage equality using this “dignity of recognition” framework in a
series of articles published prior to the historic 2015 Supreme Court decision
in Obergefell, which established the constitutional
right to marriage equality.
For
example, in a 2013 article regarding United
States v. Windsor, 133 S. Ct. 2675 (2013), the case that
struck down part of the discriminatory Defense against Marriage Act (DOMA), Rao
expressed her view that the Court’s decision in Windsor was based on
“the unusual right to recognition” and that its use of “dignity rights [has] a
problematic relationship to individual rights and the structural protections of
federalism.” Although Rao wrote that she might “support as a political matter”
the shift in public opinion away from an “exclusionary definition of marriage,”
she quibbled that the acknowledgement of states’ recognition of the dignity of marriage
equality was “a novel constitutional right to recognition unconnected to any
substantive right.”
Moreover,
Rao has articulated her belief that the historic fight for marriage equality
may have been unnecessary, as she considered options available to same-sex
couples prior to marriage equality to be on an equal footing with marriage. In
a 2011 article, Rao wrote dismissively of a concept that “requires the state adopt
policies that express the equal worth of all individuals and their life choices,
such as requiring gay marriage, not
just legally equivalent civil unions, because of the expressive and
symbolic importance of marriage” [emphasis added].
Attacks on Public Protections for the LGBTQ Community
The
hostility Rao demonstrated towards the LGBTQ community in her writings extends
to her current role as the head of OIRA. The Trump Administration has rolled back a series of protections for the LGBTQ
community: eliminating protections against discrimination for LGBTQ patients
accessing health care; supporting the expansion of Title IX religious
exemptions; failing to collect data about LGBTQ individuals in the census; and
removing a sexual orientation question from a crucial elder survey.
Under Rao’s
leadership, OIRA is finalizing a rule proposed by the Department of Health and Human Services
(HHS) that would allow health care providers to refuse to provide medical care
to patients towards whom providers have “conscientious objections.” This
encompasses LGBTQ patients and women seeking reproductive care. Larry T.
Decker, executive director of the Secular Coalition for America, explained how this rule “does not protect
conscience but instead weaponizes it, turning religious belief into yet another
barrier between vulnerable patients and the health care they need.”
Additionally,
Rao’s office worked with Betsy DeVos’s Department of Education to roll back
protections for LGBTQ students on college campuses. Proposed changes to Title
IX would expand schools’ ability to discriminate against LGBTQ students under
the guise of religious exemptions. Under current policy, many schools can “claim religious exemptions from certain Title IX
provisions, such as admissions of certain students or counseling services, but
must submit a letter to the U.S. Department of Education requesting specific
exemptions.” DeVos claims this protective step is “confusing or burdensome” and proposed to eliminate it in a new proposed rule that Rao’s office signed off on. These
rollbacks of protections greatly threaten the rights of the LGBTQ community,
whether facing discrimination at school or in the doctor’s office.
At the same time, the Trump Administration
is attempting to eliminate gender identity protections from the Affordable Care
Act’s anti-discrimination provisions. Section 1557 of the ACA prohibits discrimination on
the basis of “race, color, national origin, sex, age, or disability,” which the
Obama Administration interpreted to include discrimination based on “gender
identity” and “sex stereotyping.” However, the Trump administration, with input
from Rao’s office, engaged in a process to eliminate those protections for LGBTQ patients
from Section 1557’s anti-discrimination provision. This change puts the rights
and health of LGBTQ individuals severely at risk and discourages LGBTQ
individuals from seeking health care due to fear of discrimination.
DISABILITY RIGHTS
Rao has written numerous articles criticizing bans on “dwarf-tossing,” a
degrading practice in which individuals throw little people for sport or
entertainment. The competitive practice is most commonly performed in bars, where little people are paid
to be thrown onto mattresses or against Velcro walls. Dwarf-tossing has
encouraged violence towards little people, even paralyzing one man who eventually died after he
was picked up and thrown against his will.
Despite
the real-world consequences of the vile practice, Rao is fixated on the theory
that bans on dwarf-tossing violate the “dignity” of little people who wish to
participate. She argued that a French ban on dwarf-tossing demonstrates how
“concepts of dignity can be used to coerce individuals by forcing upon them a
particular understanding of dignity.” Rao argues that the state’s restriction
of such activity impinges upon the individual’s ability to make money, drawing
parallels to prostitution and pornography.
The organization
Little People of America wrote a letter urging the Senate to reject Rao’s confirmation to the D.C.
Circuit because of her views on dwarf-tossing:
We
vehemently disagree with Ms. Rao’s view that banning dwarf tossing negates
individual’s[sic] dignity. A ban on dwarf tossing event[sic] significantly
reduces the risk of inevitable bodily harm to the person being tossed. We
strongly support our community in having individual choice in every aspect of
their lives and we advocate for equal employment opportunities so that our
community need not be constrained to earning a living by being the recipient of
a dehumanizing and injurious activity.
As an
expert at the Center for American Progress noted, “I hear some of you say Dwarf Tossing is a choice, but
it’s not when our bodies are more delicate than yours, our spines more
compressed, our respiratory systems more compromised. A plastic bubble doesn’t
protect you from paralysis . . . And if
it’s legal in a bar, it spreads into the street.” Rao’s unashamedly ableist
writings and callous advocacy against bans on dwarf-tossing raise questions as
to whether she will give proper effect to some of our nation’s most important
laws ensuring equality for persons with disabilities.
HEALTH CARE
Like
many Trump nominees, Rao has openly criticized the Affordable Care Act. Most
notably, she criticized Chief Justice John Roberts for his
opinion in the 2014 case King v. Burwell, 135 S. Ct. 475 (2014), which held the
ACA tax mandate was constitutional:
Rather
than follow the natural reading of the law – that ‘established by the State’
means ‘established by the State’ – Roberts resorted to the Affordable Care
Act’s purported goals, echoing the arguments of political supporters that
giving the law its ordinary meaning would push health insurance markets into a
‘death spiral.’ The talking points trumped the law.
Rao
also denounced liberals who support the
constitutionality of the ACA – even comparing their defense of the ACA to past criticisms
of the Bush Administration’s overreach and abuse of executive power: “Leave the
Constitution to the courts, their argument goes. Yet many liberals don’t want
the courts involved in constitutional issues either – at least not in any
robust way.” Rao bemoaned that “[a]s challenges to ObamaCare work their way
through the courts, we hear lamentations that such attempts represent judicial
activism and are undemocratic. This leaves the president to protect the
Constitution.” Moreover, she juxtaposed the ACA’s objective of providing health
care to millions of people to the transgressions of the Bush Administration,
arguing that “when George W. Bush asserted his own interpretation of the
Constitution, liberals raised the specter of an ‘imperial presidency.’”
Additionally,
Rao criticized the conservative justices on the
Supreme Court for not creating a “revolution” that would overturn “important”
acts such as the ACA. She complained about the failure of the Supreme Court to
overrule progressive laws, specifically noting “when it comes to something important . . . or we get the Affordable
Care Act, well we’re not going to really interfere in those areas. So there
seems like they’re saying we can draw a line, but they just won’t. Not when
it’s anything really important.”
Rao’s
demonstrated animosity toward the ACA makes her a threat to millions of
Americans’ health care should she be confirmed to the second most powerful
court in the country.
PUBLIC PROTECTIONS
Rao’s
actions as head of the Office of Information and Regulatory Affairs and her record
as an administrative law professor indicate that she will erode vital public
protections – including those safeguarding consumers, workers, the environment,
and health and safety – if confirmed to a lifetime appointment on the D.C.
Circuit.
OIRA, part
of the Office of Management and Budget, reviews drafts of executive branch rules
and regulations. As administrator, Rao oversees changes to public protections.
Rao also works with agencies throughout the process of promulgating, changing,
or rescinding significant regulations. As Rao stated in a Bloomberg Government interview, significant
regulations are reviewed by her office, and she “get[s] to determine
whether a rule is significant ultimately.” Rao further explained, “Irrespective of economic impacts . .
. we will review things that are
important enough for us to review them . . . In part, that’s at the discretion of OIRA and also
the White House.” In this interview, Rao takes pride in the central role she
plays in the Trump Administration’s policy-making process.
As
discussed above, since taking over as head of OIRA in July 2017, Rao has played a role in dismantling
protections against racial discrimination in housing, removing protections
against discrimination based on gender identity, and blocking the authorization
of vital sexual harassment protections. She has also given a green light to
corporate greed at the expense of protecting all Americans. She acquiesced to
big oil corporations’ demands by turning back the clock on
protections preventing natural gas leaks.
The Trump
Administration has a goal to eliminate two existing regulations for each newly
promulgated regulation. Rao bragged about this harmful rollback of public
protections, describing it as “an unprecedented advance against the regulatory
state.” Further, Rao conceded that she became head of OIRA in order
to roll back public protections: “I’m not sure I would have taken this job if I
wasn’t optimistic about the possibility of rolling some of this back.” With
public protections for consumers, the environment, workers, and health and
safety “in the crosshairs of the new administration,” Rao accepts
a great deal of responsibility for the damage inflicted upon us all.
There is
evidence that Rao’s office disregarded legal requirements in order to repeal
public protections at such a hasty pace. According to a study
by the Institute for Policy Integrity at New York University School of Law, on
average, the government normally defeats challenges to regulations 70 percent of
the time. However, during the Trump Administration, more than 90 percent of
legal challenges to major deregulatory actions have been successful. According
to the NYU study, the Trump Administration is losing because Rao’s office bypasses legal requirements, such as properly
incorporating public feedback or conducting cost-benefit analyses. For an
individual who wants to be a judge, Rao has shown a disturbing willingness to
put aside the law to carry out her ideological agenda.
Rao’s
assault on public protections for consumers, workers, the environment, and health
and safety stems from her unabashed disdain for the so-called “administrative
state.” She has argued that agencies should have less power to issue public
protections and enforce safety standards, including independent agencies, which
historically have been insulated from political management. She opined that
such agencies should no longer be independent: “The precedents and functional
justifications for supporting agency independence have largely collapsed. The
issue is ripe for reconsideration.”
As one example,
Rao criticized the Consumer Financial Protection
Bureau’s broad authority to issue protections against unfair lending practices,
predatory financial companies, and powerful banks.
Rao has
also taken radical stances on critical legal doctrines that have been crucial
in ensuring that the federal government, since the New Deal, has the ability to
protect health and safety, consumers, workers, and the environment. Rao suggested that the nondelegation doctrine, last
used successfully in 1935 by a famously reactionary Supreme Court, should be revived. Since 1935, as Justice Scalia noted, “we [the justices] have ‘almost never felt qualified to
second guess Congress regarding the permissible degree of policy judgment that
can be left to those executing or applying the law.’” Whitman
v. Am. Trucking Ass’ns,
531 U.S. 457, 474-75 (2001).
Nevertheless,
despite almost 90 years of precedent, the nondelegation doctrine is not dead
according to Rao, who says she “happen[s] not to be one of those people”
claiming its demise. In fact, she has stated, “I would support more robust
enforcement of the nondelegation doctrine.” She also wrote, “[P]erhaps the time has come to revisit judicial
enforcement of a more robust non-delegation doctrine.” If confirmed, Rao would
no doubt adhere to her promises by attempting to limit Congress’s ability to
give federal agencies the ability to protect the health and safety of the
American people.
In
addition to accepting the nondelegation doctrine, Justice Scalia also accepted
the legal principle that gives agencies the authority to determine how they
will carry out their mandates when the congressional act governing their
actions might be open to different interpretations – referred to as “Chevron deference.” As Justice Scalia noted, “[i]n the long run, Chevron will endure and be given its full
scope” because “it more accurately reflects the reality of government, and thus
more adequately serves its needs.”
Rao’s
record shows she disagrees on this point and would tie the hands of precisely
those agencies that Congress has recognized have the knowledge and experience
to enforce critical laws, safeguard essential protections, and ensure the
health and safety of the public. In a report for the Heritage Foundation, Rao argued for “more robust” judicial review, stating:
I think courts can provide more meaningful checks on agency action and authority, enforcing both statutory and constitutional due process. And we’ve seen over the past few years that the Supreme Court, particularly Justices Thomas, Alito, and Gorsuch, is engaged in a reconsideration of the non-delegation doctrine and the judicial deference doctrines.
In another
article, Rao offered a strategy for reconsidering Chevron deference, arguing that her “insights about how delegation
benefits members of Congress and undermines separation of powers can provide a
foundation for reevaluating the deference regimes.”
Rao has
already impacted the lives of all Americans by rolling back vital public
protections and would undoubtedly continue to do so if given a lifetime
appointment to the D.C. Circuit. Rao even expressed interest in getting “libertarian law professors on the courts” in order to turn back
the clock on public protections. As she said then: “The proponents of judicial
restraint have overwhelmingly won or captured . . . both in the academy and in
the courts, they have prevailed to a large extent. So . . . do you think it’s
possible to still fight the war?” Rao envisions her role in dismantling public
protections as waging a war, a goal worthy of anti-protection judicial
activism. Given her own professed views and actions as a top Trump official,
she would almost certainly apply such activism on the bench.
Two areas where this agenda is abundantly apparent is in protecting clean air and water and in protecting workers.
CLIMATE
Rao’s
writings from her twenties deny the impact of climate change, and her recent
rollbacks of environmental protections display her continued antipathy to the
notion of climate change.
While in
her twenties, Rao authored several articles expressing her disdain for
environmentalism and her rejection of mainstream scientific theories. She wrote derisively of “[t]he three major environmental bogeymen,
the greenhouse effect, the depleting ozone layer, and the dangers of acid
rain.” She criticized environmental groups at Yale for “accept[ing] issues such
as global warming as truth with no reference to the prevailing scientific
doubts.” Rao also bashed environmental groups for “promot[ing] a dangerous
orthodoxy that includes the unquestioning acceptance of controversial theories
like the greenhouse effect.” At the time Rao published her article, President
George H. W. Bush had already signed the 1990 Clean Air Act into law, attempting to address the
near-universally acknowledged problem of acid rain. As recently reported, climate impacts are extreme and
dramatic.
In another
article titled “Choking on the ‘Greenies’ Diet,” Rao asked, “[w]hen was the last time you hugged a tree? If you don’t
remember, you obviously haven’t been on a college campus recently.” After
describing examples of environmental activism, Rao explained, “These are just a
few examples of eco-insanity on college campuses. But funny as they may be,
environmental hysteria in the university has dangerous implications for the
real world.” Warning of environmentalists’ desire to force people “to live up
to their standards of environmental purity,” Rao cautioned that they “seem
perfectly comfortable discarding scientific evidence and common sense in their
crusade to ‘save’ the Earth.” Rao’s words age poorly, as the scientific
community has fully embraced the existential dangers of our changing climate.
Rao’s
efforts to roll back environmental protections at OIRA have
only served to exacerbate this crisis.
As head of
OIRA, Rao supported
changes that reduced public protections against mercury
pollution. The Mercury and Air Toxics Standards
(MATS) are protections to track and reduce the amount of mercury power plants
may release into the air, aiming to shield the public from dangerous
neurotoxins. Highly
successful, the MATS has reduced mercury pollution from power plants more than 81% from 2011 to 2017.
Further, the number of children born each year with prenatal exposure
to dangerous methylmercury levels has decreased by half. Despite these benefits, Rao’s
office misrepresented the benefits and costs of the MATS.
Other
major environmental protections Rao helped roll back include the Clean Power Plan and the Methane
and Waste Prevention Rule. Rao approved a proposal
to rescind the public protection that aimed to reduce
greenhouse gas emissions from power plants. This proposal ignored the impact of the
changing climate on the public, warping its cost-benefit analysis. Rao also acquiesced to corporate interests
at the expense of public
health when she turned back the clock on
protections preventing natural gas leaks.
Rao’s
cynicism regarding scientific realities about climate also carried through to
her work at OIRA. In a proposal for a deficient replacement for the Clean Power Plan,
Rao’s office censored climate language and minimized its cost
on public health. While attempting to roll back standards preventing harmful
leaks from refrigerant and air conditioning appliances, Rao withheld information regarding the impact of climate change on children.
LABOR
Rao’s
consistent rhetoric touting the far-reaching benefits of deregulation and
economic freedom betray a strong bias in favor of corporate interests. Her
libertarian faith in free markets and devotion to rolling back protections
would leave workers at the mercy of their more powerful employers.
The Trump Administration
has acted aggressively to roll back safety protections for workers. For
example, Rao’s office allowed revisions to Occupational Safety and Health protections
that would allow certain employers to conceal workplace injuries. Rao’s office
has apparently refused to meet with labor groups to discuss
worker safety rules, despite her claim that her agency maintains transparency
and an open-door policy. Similarly,
Rao’s office oversaw the EPA’s proposed rule that would lower minimum age
requirements for applying pesticides, a rule that the EPA recently dropped after outside scrutiny.
OIRA is
also in the process of reviewing changes to Department of Labor standards under
the Fair Labor Standards Act that would allow employers to avoid paying some workers for overtime work. The change would
disqualify millions of American workers from overtime pay after the Trump Administration
dropped the legal defense of a rule that would have “doubled the minimum salary required”
for exemptions under the Fair Labor Standards Act. The rule the Trump
Administration chose not to defend would have made an estimated 4.2 million additional workers eligible for
overtime pay.
EXECUTIVE POWER
Rao, like
many other Trump nominees and appointees, supports an expansive view of
executive power.
Perhaps
most significantly, Rao is a proponent of the “unitary executive” theory. She has
advocated vigorously for the President to obtain complete control of the
executive branch – most notably independent agencies – where Congress has
specifically enacted legislation to insulate agencies and agency officers from
political influence. These agencies, such as the Federal Reserve Board, the National
Labor Relations Board and Consumer Product Safety Commission, are critical to
protecting the health and safety of the American people.
In fact,
Rao’s record suggests she believes that the President, as the head of the
executive branch, retains absolute control over agencies. As a result – and as
her 2011 article titled “A Modest Proposal: Abolishing
Agency Independence in Free Enterprise Fund v. PCAOB,” suggests – Rao supports
eliminating the “independence” of
independent agencies altogether. She also wrote:
[T]he ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President . . . Limits on the President’s removal authority have always been in tension with the basic constitutional design.
She argued that courts should ignore congressional intent and lead a
“wide assault on agency independence.”
Before she
was nominated to head OIRA, Rao promoted the idea that
independent agencies should be under the authority of OMB. At OIRA, Rao has
already asserted White House control over actions at agencies like the EEOC.
Rao’s
record also has potential implications for the Mueller investigation.
Notably,
Rao criticized the Supreme Court’s decision in Morrison v. Olson,
487 U.S. 654 (1988), which upheld
the independent counsel statute in effect at the time. Rao argued that
“[i]ndependent discretion for executive officers” is “contrary to the best
understanding of Article II” powers outlined in the Constitution. She explained
her view that the President “must have the ability to remove all executive
branch officers at will.” This extreme view of presidential power is
particularly dangerous at a time when the President repeatedly threatens to
remove Robert Mueller in order to impede the investigation.
Moreover,
in a 2009 article, “The President’s Sphere of Action,” Rao emphasized that there is only a
limited ability to hold the President accountable while he is in office. By
implication, she dismisses the notion that the President can be held
accountable criminally. While she conceded that “even after removal from office, a
President may be criminally liable for his actions,” Rao noted how “[t]he slow,
ponderous, and majoritarian methods of holding the President accountable leave
a significant space in which the President may act unimpaired.”
She explained how the President, vested with the
constitutional powers given to the executive branch, may choose to ignore or
override laws passed by Congress and decisions by the Supreme Court on the
basis that he or she deems them unconstitutional:
If after careful review the President determines that a statute is unconstitutional, he may decline to enforce it. The President may also decide not to follow Supreme Court precedent, and in the rare instance, may decide against enforcement of a particular judgment [emphasis added].
In
addition to supporting the idea that the President can ignore and override the
other two coequal branches of government, Rao observed that there are sometimes
no contemporaneous means of recourse to thwart the President from taking
unitary actions. Rao explained that “[u]nlike Congress and the Supreme
Court, the President can act alone in his judgment of what the Constitution
requires.” Rao also noted how “[j]udicial review, political condemnation, and
even impeachment may follow, but they do not impede the President at the moment
of action.”
In another
article, Rao contended that the President’s authority over
foreign affairs extends to his or her ability to override international law and
treaties – many of which are often confirmed by the Senate:
As
Commander-in-Chief of the nation’s military, the President leads the conduct of
war, which provides a significant source of authority to interpret the
obligations of the law of war.
Rao explained how “even after determining that
international law applies to a contemplated action, the President may have, in
certain circumstances, the authority to disregard international law. This may
include the unilateral authority to terminate treaties.”
Rao’s expansive views of presidential
power and control of independent agencies are especially concerning in this era
of rampant abuses of power and disdain for the rule of law by the Trump Administration.
CRIMINAL JUSTICE
In an article titled “On the Use and Abuse of Dignity in Constitutional Law,” Rao
proposed limiting constitutional protections for criminal defendants. Discussing
Miranda v. Arizona, 384 U.S. 436 (1966),Rao
explained her view that “Miranda exemplifies the recurring problem in
criminal cases – promoting the dignity of the accused may greatly discount the
dignity of the victims of crime.” Instead of highlighting how Miranda
strengthened vital Fourth Amendment protections for individuals against abuses
of governmental power and violations of constitutional rights by state actors,
Rao proposed that protections like Miranda protect the rights of
defendants at the expense of victims.
Rao also criticized the Supreme Court’s efforts to protect
the trial rights of defendants. In particular, she argued that the Supreme
Court’s decision in Indiana v. Edwards, 554 U.S.
164 (2008), to prevent a defendant with severe mental illness from representing
himself infringed on his dignity.
In Edwards, the Supreme Court held that a defendant who demonstrated some
mental incapacity, but was competent enough to stand trial, could be prevented
from representing himself without violating the Sixth Amendment. In the
majority opinion, Justice Stephen Breyer explained the concern over balancing
the right to represent oneself with a defendant’s right to a fair trial: “insofar
as a defendant’s lack of capacity threatens an improper conviction or sentence,
self-representation in that exceptional context undercuts the most basic of the
Constitution’s criminal law objectives, providing a fair trial.”
Instead of recognizing the importance of securing
fair trial rights for defendants – especially defendants who demonstrate mental
incapacity – Rao suggested that the concern for a defendant’s ability to
sufficiently defend himself may inappropriately infringe on the defendant’s
dignity. Rao failed to address, however, how allowing a defendant with a severe
mental illness “the ultimate human dignity of choosing how to represent
himself” could result in unjust rulings that infringe on his or her
constitutional rights and, ultimately, liberty.
CONCLUSION
Throughout
her career, Neomi Rao has shown her dedication to dismantling public
protections and safety standards intended to protect all Americans. Moreover,
she has shown hostility to the rights of women and sexual assault survivors,
racial justice, LGBTQ equality, and the climate. She has opposed the existence
of independent agencies and advocated for an expansive, virtually unchecked
interpretation of presidential power. For these reasons, Alliance for Justice
strongly opposes her confirmation to a lifetime seat on the federal bench.