Chad Readler

United States Court of Appeals for the Sixth Circuit

AFJ Opposes
Court Circuit Court

On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.

As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”

His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.

Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.

Biography

Chad Readler received his B.A. from the University of
Michigan in 1994 and his J.D. from the University of Michigan Law School in
1997. He clerked for Judge Alan E. Norris on the U.S. Court of Appeals for the
Sixth Circuit before joining Jones Day. He
has been in the Trump Administration since January 30, 2017, serving, until August 28, 2018, as Acting Assistant Attorney General
for the Civil Division of the Justice Department; he is currently the Principal Deputy Assistant Attorney
General of the Civil Division. On June 18, 2018, President Trump formally nominated him to the Sixth Circuit Court of
Appeals for the seat of Judge Deborah Cook.

Like many Trump
judicial nominees, Readler is a member of the ultraconservative Federalist
Society, an outside group to which Trump has delegated important aspects of the
judicial nomination process. He joined the organization at age 29 and was a member until 2017. Readler has spoken at least ten times at Federalist Society events
and has contributed at least two articles in Federalist Society publications. Readler was also a member of two clubs
whose memberships are limited to men: the Kit-Kat Club and the Review Club.

Health Care

In February
2018, a group of Republican attorneys general and governors filed a lawsuit arguing that the Affordable Care Act (ACA) was
unconstitutional. In June, Chad Readler filed a brief supporting that effort, specifically attacking the law
that ensures insurance companies cannot deny coverage or charge higher rates to
people with preexisting conditions. Readler’s brief argued that the Republican
tax bill’s elimination of the tax penalty in the ACA caused the individual
mandate and the bulk of the Affordable Care Act, including protections for
those with preexisting conditions, to suddenly become unconstitutional.

As previously
mentioned, Readler’s brief was criticized by experts and members of both
political parties for its blind partisanship and lack of merit. The potential
repercussions of this litigation, for the reputation of the Justice Department
and for the millions of Americans who rely on affordable health coverage, are
staggering.

Readler’s Partisan Attack On The ACA

If Readler is
successful, insurance companies will be able to hike prices, deny or
drop coverage because of preexisting conditions, and charge women more than men.
In fact, Readler’s efforts would reportedly take health care away from 52 million Americans, including cancer survivors, people
with diabetes, and pregnant women. The suit also threatens other popular provisions of the ACA, including the provision
that allows children to stay on their parents’ insurance until they are 26.

As the American
Medical Association and other physicians’ groups made clear, a ruling for Readler “would have a
devastating impact on doctors, patients, and the American health care system as
a whole.” The American Cancer Society,
American Diabetes Association, American Heart Association and other leading
health groups said striking down these provisions “would be devastating for
the millions of Americans who suffer from serious illnesses or have preexisting
conditions and rely on those protections under current law to obtain
life-saving health care.” They added, if Chad Readler’s position is adopted:

[P]eople with serious illnesses are likely to be denied coverage due to their preexisting conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered. Without access to comprehensive coverage, patients will be forced to delay, skip, or forego care.

Criticism Of ACA Brief

The Constitution
requires the executive branch to “take care that the law be faithfully
executed.” As the Justice Department has stated, the “Attorney General has a
duty to defend and enforce both the Acts of Congress and the Constitution; when
there is a conflict between the requirements of the one and the requirements of
the other, it is almost always the case that he can best discharge the
responsibilities of his office by defending and enforcing Acts of
Congress.” Attorney General Jeff
Sessions made clear at his confirmation hearing, laws
“should be defended vigorously, whether or not the solicitor general agrees
with them or not, unless it can’t be reasonably defended.” As a former DOJ
lawyer said, “[t]he Justice Department has a long-standing, durable,
bipartisan commitment to defend acts of Congress. It’s a cornerstone of what
they do.”

Chad
Readler ignored his duty. In stark contrast to Readler’s rank partisanship,
three career Justice Department lawyers refused to sign the brief, and a
veteran Justice Department lawyer even resigned in protest. As former Solicitor General
Donald Verrilli said, calling Readler’s brief “a sad moment,” “I find it impossible to believe that
the many talented lawyers at the Department could not come up with any
arguments to defend the ACA’s insurance market reforms, which have made a
difference to millions of Americans.” An ideologically diverse group of legal
scholars filed an amicus brief against Readler, saying the Justice
Department was arguing for an “unlawful usurpation of congressional power” that
“violate[d] basic black-letter principles” of law. Even Lamar Alexander, the Republican Chairman of
the Senate Committee on Health, Education, Labor, and Pensions called Readler’s brief “as far-fetched as any I’ve ever heard.”

Belying
the argument that the ACA could not be “reasonably defended,” in the absence of
the Justice Department defending the law, a coalition of state attorneys general stepped in
to protect Americans’ health insurance, led by California Attorney General
Xavier Becerra. Oral arguments were held on September 5, 2018 in the District Court for the
Northern District of Texas.

Education

Against Public Education

Readler once described the legal arguments against school
privatization and charter schools as “at bottom, [] nothing more than outdated
preferences for public education.” Readler, serving as the Chair of the Education, Public Institutions,
Miscellaneous and Local Government Committee of the Ohio Constitutional
Modernization Commission, then pushed to eliminate a provision of Ohio’s Constitution that provides
students with the right to a “thorough and efficient” education. The former president of the
Ohio School Boards Association noted that eliminating this provision of the Ohio
Constitution would mean there would be
no right to public education in Ohio.

Readler’s
proposal would have reversed DeRolph v. State, 78 Ohio St.
3d 193 (1997), a landmark
Ohio Supreme Court case that found the state had “failed in its constitutional
responsibility to provide a thorough and efficient system of public
schools.” Id. 202. William Phillis, executive director of the Ohio Coalition
for Equity and Adequacy of School Funding, made clear that “[t]here are over 1,000 new school buildings in Ohio that
wouldn’t be there without [the] ‘thorough and efficient’” provision of the
Constitution that Readler fought, but failed, to eliminate. Phillis added, “The ‘thorough and efficient’ standard has held the
legislature’s feet to the fire for 160 years. Without a standard, public
education could be diminished markedly and citizens would have no viable
recourse via the courts.”

In defending his
position, Readler said, “I think education policy is better set by educators and
legislators than judges.” He reportedly added: “the legislative and executive branches
are best poised to decide education policy and that the check on their actions
is re-election, not the courts.”

At a time when
many Trump judicial nominees won’t affirm the correctness of Brown v. Board of Education,
when a Trump judicial nominee argued that Title IX is unconstitutional, and when Jeff Sessions and Betsy DeVos criticized the Individuals with
Disabilities Education Act, it is deeply troubling that Readler is so
dismissive of the role of the courts in enforcing bedrock constitutional and
statutory protections to ensure equal education.

Lack of Accountability in School Privatization

While trying to
gut public education, Readler, who served as Chair of the Ohio Alliance for Public Charter Schools from 2010
to 2016, also supported school privatization and fought oversight of Ohio’s charter schools, which have long been
enmeshed in corruption and scandals. In fact, Ohio has been referred to as the “Wild, Wild West” of charter
schools because of the system Readler vigorously fought to maintain.

Studies repeatedly
show Ohio’s charter schools fail students. A report from the pro-charter National Alliance for Public Charter
Schools said that Ohioans should be “outraged” by the “well-documented,
disturbingly low performance” of its charter schools. “If traditional public
schools were producing such results, we would rightly be outraged.” Reportedly, “more than 95 percent of local charter
schools got grades of a D or F in overall performance towards making kids
proficient, according to the latest state report cards.”

When Ohio’s
attorney general tried to add public scrutiny and accountability to charter
schools, Chad Readler fought those efforts. In Hope
Acad. Broadway Campus v. White Hat Mgmt., L.L.C., 46 N.E.3d 665 (Ohio 2015), White Hat, a for-profit school management
company, was attempting to take possession of the publicly funded assets of
charter schools – schools that White Hat had mismanaged – and then charge the
public to buy them back. In an amicus brief supporting White
Hat, Readler argued that holding management companies – which received millions
of dollars in taxpayer dollars to run schools – accountable as public entities would “have substantial detrimental effects on the operation of
community schools in Ohio.” It bears mentioning that the accountability
measures he worried would cause “detrimental effects” included “audits” and “ethics
obligations,” hardly unreasonable expectations for institutions charged with
the education of children.

While the Ohio
Supreme Court ruled in favor of White Hat as a matter of contract law, Justice
William O’Neill in dissent called the White Hat-charter school relationship “a fraudulent
conversion of public funds into personal profit.” Justice Paul Pfeifer in
dissent described the charter school agreement that Readler was defending as
too corrupt to be enforceable: “[T}he contracts in this case are plainly and
obviously unconscionable.”

In fact, Readler
repeatedly questioned the ability of courts to hold failing charter schools
accountable, arguing that “public policy debates over
education should remain on the floor of the General Assembly rather than the
courtrooms of the judiciary.” Indeed, when Ohio Attorney General Marc Dann
attempted to hold other charter schools accountable for failing to meet
academic benchmarks, alleging that the schools “violated their
charitable status that allows them to receive tax payer money,” Readler criticized his efforts: “Given the unprecedented
nature of the lawsuit where the attorney general is taking an aggressive role
in trying to regulate the performance of public schools, I would expect the new
attorney general to examine whether this is an action worth continuing.”

In keeping with
his public statements and his work in the White
Hat case, Readler has consistently sided against charter school
accountability in litigation. See e.g.,League
of Women Voters of Wash. v. State,
355 P.3d 1131 (Wash. 2015) (Readler argues for Washington school privatization
law that unconstitutionally shifts money from common schools to charter schools
without “local control and local accountability”); State
ex rel. Ohio Cong. of Parents & Teachers v. State Bd. of Educ.,
111 Ohio St.3d 568
(2006) (Readler advocates for Ohio school privatization law over concerns that
the law “effects a schismatic educational program under which an assemblage of
divergent and deregulated privately owned and managed community schools competes
against public schools for public funds”); See
State ex rel. Rogers v. New Choices Cmty, 2009 Ohio 4608 (Ohio Ct. App. Sept 4,
2009) (Readler argues that a charter school is not subject to oversight by the
attorney general as a charitable trust).

In part due to
Readler’s efforts, malfeasance in Ohio’s school privatization movement continued.
One example is the scandal involving Electronic Classroom of Tomorrow
(ECOT), an online charter school. Ohio spent $929 million between 2016-2017
funding charter schools. The state’s largest charter school, ECOT, received
$104.3 million of that money. But reportedly “an audit of the 2015-2016 school year
found ECOT was getting money for 9,000 students without proof that those
students ever existed or were learning anything.” Another review found up to 70 percent of ECOT’s students failed to log on for
classes so frequently that they could technically be considered truant. Ohio’s
auditor released a report finding that ECOT leaders may
have broken the law. In 2018, unable to pay back $80 million it owed the state,
ECOT closed.

Given the poor
results and scandals, it is no surprise that in 2016, Readler’s organization,
“after a decade of shaping the state’s charter-school policy” disbanded.

Protections For LGBTQ Students

Before joining
DOJ, in his personal capacity, Readler proposed language, as chair of Ohio’s Constitutional
Modernization Commission, that explicitly excluded anti-discrimination
protections for LGBTQ youth in Ohio schools. In fact, when the vice chair of
the commission pointed out to Readler that his language omitted protections
based on both disability and sexual orientation, Readler agreed that
protections for persons with disability should be included, but did not do the
same for sexual orientation. As recounted in the commission’s recorded minutes, “[i]n regards to sexual orientation
[Readler] recognized that it was a topic on the minds of many policymakers and
that this is an evolving issue that would require some discussion.”

Work with Betsy Devos

Along with U.S.
Education Secretary Betsy DeVos, Readler sided with for-profit schools over
defrauded students.

Readler
defended DeVos’s repeated delay of an Obama-era
rule which would have made it easier for students to receive debt relief when they
are victims of illegal or deceptive tactics by colleges. In addition to a suit
by students, 19 state attorneys general filed suit challenging the Department of Education’s efforts to
delay implementation of the regulations.

Readler also defended
DeVos when four borrowers filed a nationwide class action against DeVos’s Department of
Education for, according to Harvard Law School’s Project on Predatory Student Lending,
“illegally and unfairly denying relief to tens of thousands of former
[Corinthian Colleges, Inc.] students whom the Department of Education
determined are entitled to have their loans discharged and their loan payments
refunded.” Corinthian, which ultimately declared bankruptcy and had its own
debt relieved, according to Harvard’s Project, “took in billions
in taxpayer money and used boiler-room-style high-pressure tactics and
racially-targeted advertising to build its business, all while producing
outcomes for students so terrible that it had to lie about them.”

And Readler defended DeVos when 18 state attorneys general sued the Department of Education for failing to enforce the
Gainful Employment Rule, which implemented the requirement in the Higher
Education Act that all for-profit schools “prepare students for gainful
employment in a recognized occupation.”
The current version of the rule had been upheld by courts after
challenges from the for-profit college sector.

Voting Rights

Readler, at
Jones Day, worked for Donald Trump’s campaign during the 2016 election, defending the campaign from allegations of voter intimidation. Readler also served as an attorney for the Koch-funded “Buckeye Institute,” a far-right think tank that has filed
numerous briefs in support of restrictive voting laws in Ohio, including voter roll purges, rolling back early voting, and limitations on allowing voters to
cast absentee and provisional ballots.

In NE.
Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016); NE.
Ohio Coalition for the Homeless v. Husted, 2016 U.S. App. LEXIS 18451 (6th Cir. 2016) (denial of
petition for en banc review), Readler represented the Buckeye Institute in
support of Ohio voter laws that required perfectly matched addresses or
birthdates on provisional and absentee ballots, reduced the amount of time
allowed to address clerical errors before ballots are thrown out, and limited
the ways that poll workers can assist voters. As the district court observed, “[t]he
history of Ohio’s racially discriminatory voting laws goes back to its founding[,]”
citing expert data that minority voters used provisional balloting at higher
rates and had their provisional and absentee ballots rejected at higher rates
than whites in Ohio elections. See NE.
Ohio Coalition for the Homeless v. Husted, 2016 U.S. Dist. LEXIS 74121 (SD Ohio June 7, 2016).

The district
court found that all three challenged provisions imposed an undue burden on the
right to vote and disproportionately impacted minority voters. See NE.
Ohio Coalition for the Homeless,
837 F.3d at 618. However, a divided Sixth Circuit panel reversed as to two of
the provisions, still finding the “perfection requirement” to be an undue
burden on the right to vote but overturning the district court’s determination
that the law disproportionately impacted minority voters. Id.

Also
representing the Buckeye Institute, Readler helped to end early voting in Ohio during “Golden Week.” After
the 2004 elections in Ohio forced voters to wait in lines that lasted into the
early morning of the following day, the Sixth Circuit found many voters to be “effectively disenfranchised.” Accordingly, Ohio adopted a policy to
allow a five-day “Golden Week” for voters to register and vote at the
same time before registration closed 30 days before the election. After
Republicans in Ohio attempted to eliminate Golden Week in 2014, a district
court issued an injunction reinstating it, finding that removing
it would disproportionately impact minority voters. The Sixth Circuit, in a
divided opinion, reversed the lower court ruling.

At Jones Day,
Readler defended the state of Ohio’s efforts to stop young people who turned 18
before a general election from voting in a presidential primary in Ohio
ex rel. Schwerdtfeger v. Husted,
2016 Ohio Misc. LEXIS 18 (Mar. 11, 2016).

Later, at DOJ, Readler repeatedly defended President Trump’s Commission on
Election Integrity. In ACLU
v. Trump, 266 F. Supp. 3d 133 (D.D.C. 2017), Joyner v. Presidential Advisory
Commission on Election Integrity,
2018 U.S. Dist. LEXIS 20196 (SD Fla. Feb 6, 2018) and EPIC v.
Presidential Advisory Commission on Election Integrity, 878 F.3d 371 (D.C. Cir. 2017), Readler
defended the actions of a commission that sought to boost voter suppression laws based on the President’s various widely
renounced conspiracy theories about voter fraud. The commission, which found no credible
evidence of widespread voter fraud, was disbanded in January 2018.

Readler
also defended the Trump Administration’s
controversial “Citizenship Question” proposal for the 2020 census in Kravitz
v. United States Dep’t of Commerce, No. GJH-18-1041 (D. Md., Aug. 22, 2018).
Civil rights organizations pointed out that the Citizenship Question will lead
to an undercount of historically under-represented communities, which will lead
to a direct loss of federal funding and representation. The administration
argued that adding the Citizenship Question was required to enforce Section 2
of the Voting Rights Act (VRA) of 1965, and Commerce Secretary Wilbur Ross even
testified before Congress that the question was
originally proposed by the Justice Department based on VRA concerns. Civil
rights groups challenged this assertion as being pretextual and sought discovery
from the administration. In fact, released documents in June showed that Ross was asked by
Kris Kobach “at the direction of Steve Bannon,” not DOJ, to propose the
citizenship question. And in September,
even more documents were released by the New York Attorney General that
show that the Justice Department originally opposed, rather than conceived the
question.

Despite these
facts, Readler asserted in July that the challengers had
“failed to make the ‘strong showing’ of bad faith or improper behavior,” such
as pretextual motives, necessary to justify discovery for the Department of
Commerce’s decision to add a Citizenship Question to the census. In other
words, based on materials available to the public both before and after his
brief was filed, the overwhelming evidence now suggests that Readler defended a
clearly pretextual policy meant to undercount historically under-represented
communities.

Immigration

Readler is a
chief legal defender of President Trump’s and Jeff Sessions’s assault
on immigrants.

Separation of Children at the Border

Most notably,
Readler defended the Trump Administration’s policy of
separating immigrant children from their parents at the border. Thousands of families were torn apart by the
inhumane practice Readler defended, and the policy sparked global outrage. To
date, hundreds of children remain separated from their
families without any plan to reunite them.

Illustrative is
the case of L. v. United States Immigration & Customs Enf’t
(“ICE”),
310 F. Supp. 3d 1133 (S.D. Cal. 2018), which involved a then-six-year-old
girl who came to the United States with her mother, Ms. L., from the Democratic
Republic of Congo (DRC). At the border, an asylum officer determined that Ms.
L. had a credible fear of persecution if forced to return to the DRC and thus
properly showed she had demonstrated a significant possibility of ultimately
being granted asylum. Yet, after four days of being detained together in San
Diego, Ms. L’s daughter was taken from her and sent halfway across the country
to Chicago. Readler was quick to defend the policy after the ACLU sued Immigration and Customs Enforcement (ICE) on behalf of Ms.
L in February 2018. A federal judge subsequently issued a
nationwide injunction disagreeing with Readler’s position and
requiring the reunification of families. Despite Readler’s efforts to oppose the injunction, Ms. L and her daughter were finally reunited in March 2018.

Indefinite Detention of Immigrant Children

Following the
ruling that children could not be separated from their parents at the border,
President Trump signed an executive order he claimed would resolve the family
separation issue. Trump’s solution, as dictated in the executive order, was to
detain immigrant families at the border for an indefinite duration. In defense
of this executive order, Readler filed a brief requesting the court to modify a policy called the Flores
Agreement, which had prevented the government from detaining
immigrant children for a period longer than 20 days. In DOJ’s brief, Readler
requested the court remove the 20 day time limit “so that ICE may detain alien minors who have arrived with
their parent or legal guardian together in ICE family residential facilities”
for an indefinite amount of time.

Muslim Ban

Readler also defended
Trump’s Muslim ban. In the Trump Administration’s brief to the Supreme Court,
Readler and others argued that the executive order was “not a so-called ‘Muslim
ban,’ and campaign comments cannot change that basic fact.” Further, Readler’s brief contended that controversial sections of the
order were “not even arguably related to religion.”

Ending DACA for Dreamers

Additionally,
Readler defended efforts to end the Deferred Action for Childhood
Arrivals (DACA) program for Dreamers who were brought to the U.S.
as children. When the Texas attorney general
sought to end even current protections for Dreamers, Readler advanced the administration’s “conclusion that
DACA is unlawful” and “DHS’s efforts to end DACA on an orderly timeline.” Although litigation remains ongoing, ending
DACA could place approximately 690,000 Dreamers at risk of deportation.

Threatening Cutting Funding to “Sanctuary Jurisdictions”

On January 25,
2017, President Trump issued an executive order, titled “Enhancing Public Safety in the
Interior of the United States.” The order threated to cut federal funding for
local jurisdictions that Trump and Sessions argued were so-called “sanctuary
jurisdictions.” Readler defended the order and the Trump administration’s
policies in court, fighting constitutional challenges by local governments,
including Philadelphia, Chicago, and San Francisco.

The U.S.
District Court for the Eastern District of Pennsylvania, the Fourth Circuit,
and the Ninth Circuit have disagreed with Readler and blocked the order.
Illustrative of these holdings, after Readler’s oral arguments, the Ninth
Circuit ruled to uphold an injunction restricting the implementation of
the executive order, finding that “[i]n
sum, by its plain terms, the Executive Order directs the agencies of the
Executive Branch to withhold funds appropriated by Congress in order to further
the Administration’s policy objective of punishing cities and counties that
adopt so-called ‘sanctuary’ policies.” The Ninth Circuit also commented how
“[n]ot only has the Administration claimed for itself Congress’s exclusive
spending power, it has also attempted to coopt Congress’s power to legislate.”

In the Eastern
District of Pennsylvania, Readler argued that “[t]he modest intergovernmental cooperation called
for by the challenged conditions” aligned with Supreme Court precedent. Just as
the Ninth Circuit did, the district court for the Eastern District of
Pennsylvania rejected this argument and upheld the injunction against the
executive order.

Denying Immigrants Humane Conditions

In
Doe
v. Kelly, 878 F.3d 710 (9th Cir. 2017), immigrants detained in U.S.
Customs and Border Protection Facilities in the Tucson sector of the border
challenged the denial of access to basic, humane conditions during the course
of their confinement. The immigrants described the conditions in the facilities:

[D]etainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers. And they are forced to go without adequate food, water, medicine, and medical care.

The District
Court of Arizona issued a preliminary injunction, forcing the U.S. Customs and
Border Protection Facilities in the Tucson sector to provide basic standards of
living for detained immigrants at the border while they waited to be transferred
to long-term ICE detention facilities: clean bedding, personal hygiene needs,
and proper delivery of medical care.

In
response, Readler challenged the preliminary injunction in the Ninth
Circuit. The court ultimately rejected Readler’s arguments that “compliance
with this requirement reduced hold room capacities” and overextended processing
times. Instead the court upheld the district court’s injunction, requiring the
facilities to provide the initial basic requests.

Consumer
Protections

As an attorney for Big Tobacco, Readler fought health
protections for consumers.

In one case
Readler, on behalf of R.J. Reynolds, challenged Buffalo’s effort to prohibit tobacco
ads around schools, playgrounds and day care centers. Because of his work on
behalf of the tobacco industry, health advocates, such as Tobacco Free Kids and Truth Initiative, urged Readler to recuse himself from working
on issues involving tobacco at DOJ. Once Readler was at the Justice Department,
his name appeared on filings to delay implementing an FDA rule concerning electronic cigarettes,
cigars, and tobacco used in hookahs. It was reported by The Washington Post that “[t]he Justice Department said in
a filing that Readler’s name appeared in filings ‘as a matter of course,’ but
he had not participated in the case.”

In another case,
Readler challenged the structure of the independent
Consumer Financial Protection Bureau (CFPB). Congress created the CFPB after the largest financial
crisis since the Great Depression, to protect consumers from unscrupulous
banks. To help ensure the agency was independent from special interests,
Congress established the CFPB as an independent agency, headed by a director
who cannot be removed by the President without cause. Since the CFPB was
created, its enforcement work has returned over $12 billion in relief to 29 million
consumers.

In PHH
Corp. v. CFPB, 881
F.3d 75 (D.C. Cir. 2018) (en banc), the CFPB found that PHH Corp. harmed
consumers when it took kickbacks from mortgage insurers to which it referred
customers, and CFPB fined PHH $109 million. When PHH responded by challenging
CFPB’s existence, a panel led by D.C. Circuit Court Judge Brett Kavanaugh found that the CFPB was “unconstitutionally structured.” Chad Readler, in his brief, agreed that the CFPB’s provision that the director can
only be removed “for cause,” should be struck down. Kavanaugh’s ruling and
Readler’s argument were later overturned by the full D.C. Circuit.

Reproductive
Rights

Throughout his
tenure at DOJ, Readler has supported the Trump Administration’s efforts to
restrict women’s reproductive rights across the country.

Readler attacked the right of a young immigrant woman in
government custody, Jane Doe, to have access to abortion care in Garza v. Hargan, 874 F.3d
735 (D.C. Cir. 2017) (en banc), (vacated as moot), even after she successfully followed and
completed all of the burdensome requirements mandated by Texas to have the
procedure. Readler, in a petition for Supreme Court review, argued against allowing the young woman to access the abortion
care, as she had “[n]o [c]onstitutional [r]ight [t]o [a]n [a]bortion” because
she is “not a U.S. citizen. She is not a permanent resident, legal or
otherwise” and she “cannot avail herself of the constitutional rights afforded
those legally within our borders.” However, as D.C.
Circuit Court Judge Patricia Millet explained
in her concurrence allowing Doe to access her abortion care, Doe’s “capacity to
make the decision about what is in her best interests by herself was approved
by a Texas court consistent with state law. She did everything that Texas law requires
to obtain an abortion.”
The young woman ultimately won the case and was able to make the right
choice for herself regarding her own body and health.

On another
occasion, Readler supported overturning in part the Ninth Circuit’s
decision against fake women’s health centers in NIFLA
v. Becerra, 138 S. Ct.
2361 (2018). In NIFLA, anti-abortion
centers challenged a California law requiring licensed centers to “disseminate a notice to all
clients, as specified, stating, among other things, that California has public
programs that provide immediate free or low-cost access to comprehensive family
planning services, prenatal care, and abortion, for eligible women.” Readler
submitted a brief as amicus curiae that supported the fake health centers. The
Supreme Court, 5-4, ruled for the fake women’s health center.

LGBTQ
Rights

As the Acting
Assistant Attorney General of DOJ’s Civil Division, Readler has been
responsible for advancing the anti-LGBTQ agenda of Jeff Sessions, defending
discrimination by signing an amicus brief in support of the discriminatory
actions of the bakery in Masterpiece
Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). Notably, in
Readler’s Masterpiece Cakeshop brief, he took the position that Colorado’s antidiscrimination
law was applied unconstitutionally under the First Amendment’s Free Speech
Clause – a position that only Justices Gorsuch and Thomas took.

Readler also defended Trump’s transgender military ban. The ban has since been blocked by federal courts across the country,
including the Ninth Circuit Court of Appeals’ recent denial of the Trump Administration’s attempt to stay an
injunction on the ban.

Workplace
Discrimination

Chad Readler
has questioned laws that prohibit discrimination in employment. In a 1998 article for the University of Michigan Law
Review headlined “Local Government Anti-Discrimination Laws: Do They Make a
Difference?” Readler wrote:

A final alternative that may be preferable to state regulation, and even federal regulation, is leaving private companies free to choose their own employment policies . . . The free market often is far more innovative than government . . . Private employers are ‘regulated’ by consumers who can punish them for adopting unpopular employment practices by choosing not to be employees or purchase products and services. The private sector is more effective and efficient in crafting employment policies than local, state, and federal governments.

A central aspect
of Readler’s article was opposition to local laws that
prohibit discrimination based on sexual orientation. Using the examples of gay
rights ordinances in Florida, Ohio, and Colorado, Readler argued, “[w]hen local
governments pass anti-discrimination ordinances, local communities engage in
heated debate and controversy . . . Although these measures may allow citizens
to discuss these issues and help form local policy, the harm done to community
morale may outweigh any purported advantages of local government enforcement.
Federal control would largely eliminate the numerous local battles that can
tear apart local communities.”

At DOJ, Readler
opposed federal employment protections for LGBTQ Americans when he signed an amicus brief in Zarda
v. Altitude Express Inc.,
883 F.3d 100 (2d Cir. 2018), arguing that a worker can be fired, or not hired,
because of their sexual orientation. In Zarda,
an employee, Donald Zarda, sued his former employer alleging that it had
violated the Civil Rights Act of 1964 by discriminating against him because he
was gay.

The employer,
with the Trump Administration as amicus curiae, argued that Title VII does not
apply to a worker who was fired, or not hired, because of their sexual
orientation. Notably, the Justice Department, under Readler’s leadership, took
the rare step of reversing its own position. The Justice Department had previously taken
the position, during the Obama Administration, that
“the protection of Title VII of the Civil Rights Act of 1964 extends to claims
of discrimination based on an individual’s gender identity, including
transgender status.”

Not only did
Readler reverse DOJ’s own position, but he refused to defend the position of
the Equal Employment Opportunity Commission, saying “the EEOC is not speaking for the United States.” The EEOC
remained consistent, and successfully argued to the Second Circuit that “Sexual Orientation Discrimination
is Discrimination ‘Because of . . . Sex’ Under Title VII.”

Workers’
Rights

Readler, in Nevada
v. United States Department of Labor, No. 4:16-CV-00731 (E.D. Tex. May 1, 2018) helped disqualify millions of American workers from
overtime pay by dropping the defense of a rule that reportedly “doubled the minimum salary required”
for exemptions under the Fair Labor Standards Act. Readler’s brief stated, “The
Department has decided not to advocate for the specific salary level ($913 per
week) set in the final rule at this time and intends to undertake further
rulemaking to determine what the salary level should be.”

The Obama
Administration had issued a rule that required employers to pay overtime to most salaried
workers earning less than $47,476 annually. The salary cutoff for overtime pay
now stands at $23,660. The overtime rule would have made an estimated four
million additional workers eligible for overtime pay.

In November
2016, a judge in the Eastern District of Texas blocked the new overtime eligibility rules.
Rather than defending the rules, Readler dropped the defense of the raise for
millions of workers.

Death Penalty

Readler has
advocated for subjecting children to the death penalty, which would be in violation
of both Supreme Court precedent and
norms recognized throughout the world. In an article titled, “Make Death Penalty for Youth Available Widely,” he argued that “[i]f
the United States is to have a death penalty, and 38 states and the federal
government have said that we should, then the penalty should be available in
nearly all instances in which someone commits a capital offense, including when
the offender is 16 or 17.” Readler defended
this position by arguing “children are growing up faster than at any time
before” and “the execution of those who commit capital offenses at 16 or 17
does not constitute cruel and unusual punishment.” He elaborated, “[o]ne may
quickly imagine an 11-year-old being sentenced to death for bringing a gun to
school and shooting his teacher because he was upset about not being allowed on
the playground the day before. That is a far cry from a 17-year old committing
a premeditated and heinous murder.” Instead of prohibiting the death penalty
for minors – which the Supreme Court ultimately did in 2005 in Roper
v. Simmons, 543
U.S. 551 (2005) – Readler argued that “[r]ather than declaring the penalty
cruel and unusual when it is applied to a juvenile offender, states, local
prosecutors and, in the end, juries should decide the punishment that fits each
capital crime.”

3D Guns

On August 15,
2018, Readler submitted a brief on behalf of the State Department in a case involving
untraceable plastic firearms produced by 3D printers. Earlier in 2018, the Trump
Administration had shifted course and moved to provide a private company with a
special exemption to publish designs for firearms that wouldn’t be detected by
metal detectors or traceable by law enforcement after a crime.

When a coalition
of states and the District of Columbia moved to block this new State Department
decision to remove 3D firearm material from a munitions classification list,
Readler’s brief defended the government’s actions.

In the brief, Readler recognized the states’ claim that the federal
government’s new position would “make it significantly easier to produce
undetectable, untraceable weapons, pos[e] unique threats to the health and
safety of the States’ residents and employees, and compromis[e] the States’
ability to enforce their laws and keep their residents and visitors safe.”
However, Readler argued that the “harms
alleged by Plaintiffs with respect to the specific items at issue in this
motion fall well short of irreparable harm,” the standard required for a
preliminary injunction.

Further, Readler
argued that it was not the role of the State Department to regulate these
dangerous weapons in the manner the states proposed, as “the domestic harms
about which Plaintiffs are allegedly concerned are not properly regulated by
the Department under current law.” Readler added that it is not “in the public
interest for the Court to second-guess the national security determinations of
the Executive Branch.”

Judge Robert
Lasnik of the District Court for the Western District of Washington ruled
against Readler and granted the preliminary injunction, noting:

The plaintiff
States and the District of Columbia, as sovereigns, represent more than 160
million people, many of whom have seen the threat level of their daily lives
increase year after year. The District of Columbia, New York, California,
Virginia, Maryland, Minnesota, New Jersey, and Pennsylvania have all endured
assassinations or assassination attempts. School shootings involving students
of all ages have occurred in Colorado, Oregon, Washington, Connecticut, Illinois,
California, Virginia, Pennsylvania, North Carolina, Massachusetts, Maryland,
Iowa, Hawaii, Minnesota, New York, and New Jersey during the past twenty years.
During the same time frame, California, Colorado, Connecticut, Illinois,
Minnesota, Hawaii, Massachusetts, Maryland have experienced workplace shootings
with multiple victims. And, of course, hijackers were able to crash airplanes
into fields and buildings in Pennsylvania, New York, and the District of Columbia/Virginia
in 2001. Plaintiffs have a legitimate fear that adding undetectable and
untraceable guns to the arsenal of weaponry already available will likely
increase the threat of gun violence that they and their people experience.

Access to Justice

In Walmart v. Dukes, 131 S. Ct.
2541, 2556–57 (2011), the Supreme Court found against female employees of
Walmart who suffered under a company-wide pattern of discrimination based on
sex. The Court decided that the victims’ injuries were not in “common” enough
to form a class-action suit. By dismissing the class action, a court majority
of five male justices not only prevented the women of Walmart from banding
together to pursue their case against the discriminatory practices of Walmart
management, but they dealt a bigger blow against the fight for equal pay and
promotion.

Readler, in a Jones Day presentation “Litigation
Trends: The Good, The Bad And The Ugly,” wrote with his colleagues: “Good:
The USSC (Walmart, Comcast) and the OHSC (Stamco, Cullen) have given life to Rule 23 certification requirements,
requiring courts to ‘rigorously analyze’ Rule 23 requirements, including a
review of the ‘merits’ of the case and requiring close scrutiny of expert
evidence.”

Later, in
a 2015 article, “The bitter and sweet of the Wal-Mart/Comcast/Halliburton triumvate:
more grounds for defeating class certification, but more exposure to discovery,”
Readler wrote, “Corporate litigants are still celebrating recent United States
Supreme Court victories by defendants in high profile class-action cases. As
they should.”

In 2013, Readler
presented before the Federalist Society a teleforum on: “The Class Action Fairness Act goes
to Court: Standard Fire Insurance Co. v.
Knowles.” There does not appear to be a recording
of this presentation available.

Conclusion

Readler has built
a career on rolling back protections for America’s most vulnerable citizens,
including children who are separated from their families, communities of color,
and people with preexisting health conditions. Even among Trump nominees,
Readler’s record stands out as one that has negatively impacted the lives of
millions. He has overwhelmingly used the legal system for ideological and
partisan gain, and there is no credible reason to believe that he could put
aside his views and become a neutral arbiter. He should not be rewarded with a
lifetime seat on the federal bench. Alliance for Justice strongly opposes Chad
Readler’s nomination to the Court of Appeals for the Sixth Circuit.

Chad Readler

More on Readler

Chad Readler Background Report

AFJ Opposes Chad Readler

Press Release

Readler Confirmation Vote Is Vote Against Health Care

Press Release

Readler, Murphy Wrong for Sixth Circuit

Press Release

Nominee Readler Pushing “Morally Bankrupt” Detention Policy

Blog

Chad Readler’s Lack of Conscience

Video

Stop Readler

Biography

Health Care

Readler’s Partisan Attack On The ACA

Criticism Of ACA Brief

Education

Against Public Education

Lack of Accountability in School Privatization

Protections For LGBTQ Students

Work with Betsy Devos

Voting Rights

Immigration

Separation of Children at the Border

Indefinite Detention of Immigrant Children

Muslim Ban

Ending DACA for Dreamers

Threatening Cutting Funding to “Sanctuary Jurisdictions”

Denying Immigrants Humane Conditions

Consumer Protections

Reproductive Rights

LGBTQ Rights

Workplace Discrimination

Workers’ Rights

Death Penalty

3D Guns

Access to Justice

Conclusion

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Consumer
Protections

Reproductive
Rights

LGBTQ
Rights

Workplace
Discrimination

Workers’
Rights