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Wednesday, April 15, 2020

Homestead 42

The fifth (and penultimate) episode of Plot Against America aired last night. It is the first episode where we see the government acting to disadvantage Jews, either directly or through inaction in the face of private violence. We have seen examples of private Anti-Semitism bubbling to the surface--desecration of a cemetery, anti-Semitic comments and insults and confrontations in public--without an explicit link to anything from the government. There is an Anti-Semite in the White House, but we have not seen him say or do anything to give the public "permission" to act out. The closest was a state dinner for German Foreign Minister Joachim von Ribbentrop.

That changed this week in two respects. We see a group of thugs (the hint is they are from the German-American Bund) violently attach the audience at stump speech by (Jewish) presidential candidate Walter Winchell, while police stand by and watch. And we hear later radio reports that the Winchell audience attacked the bystanders.

The centerpiece of the episode is implementation of Homestead 42. This an Interior program (designed by a rabbi who works in the administration) that asks/urges/coerces/orders/conspires with companies to transfer Jewish (or "urban," in the parlance) employees from the East Coast to rural areas off the coasts, with the government paying moving expenses but not increased salary or bonuses. Herman, a salesman for Met Life, is transferred to Danville, Kentucky. He joins a lawsuit to enjoin the transfer, but the lawsuit fails in the district court; facing another year of litigation, he quits his job rather than move.

So would such a law would be invalid today, would it have been invalid then, and why?

Under current law, workers would seem to be able to raise the following. It violates § 1981, by creating unique contract terms for Jewish works (Jewish is treated as a race for § 1981 purposes). It also may violate Title VII, depending on whether an unwanted transfer is an adverse employment action. THere is an argument that the companies act under color of federal law and are violating the First and Fifth Amendments, depending on how coercive the government program is. And the program violates the First and Fifth Amendments, by compelling (or even encouraging) private action that targets certain people for disadvantage (or at least unwanted action) because of race and religion. Although the program is "voluntary" in that the workers can quit their jobs rather than move, a point Interior Secretary Henry Ford makes, it still singles out one group for a Hobson's Choice.

The more interesting question is whether it would have been declared invalid in 1942. The claims against the companies would be tougher--there was no Title VII, § 1981 had not been pulled from the scrap heap, and the state-action doctrine was in its infancy, the "close nexus" test not yet developed. As for the claims against the United States, would this sort of race- or religion-based targeting of a group for relocation off the coasts and to the middle of the country have survived challenge in 1943? Put differently, would Korematsu and Endo have come out differently were the United States not at war, steadfastly neutral in the War in Europe and with a thriving economy?*

[*] Keeping the rest of history constant, the Court to hear this case would have looked 67 % the same as the Korematsu Court. It would have included five FDR appointees (Black, Reed, Frankfurter, Douglas, and Murphy), plus Stone, a Republican Coolidge appointee, whom Lindbergh might have elevated to Chief in 1941, as FDR did in real life.

Posted by Howard Wasserman on April 15, 2020 at 09:31 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink

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