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Neomi Rao Afj Nominee Report Afj

Neomi Rao Afj Nominee Report Afj

AFJ NOMINEE REPORT AFJ

U.S. Court of Appeals for the District of Columbia Circuit WWW.AFJ.ORG CONTENTS

Introduction, 1 Biography, 2 SEXUAL ASSAULT AND WOMEN’S RIGHTs, 4 RACIAL JUSTICE, 7 LGBTQ RIGHTS, 9 Disability RIGHTS, 11 Health Care, 12 PUBLIC PROTECTIONS, 13 CLIMATE, 15 LABOR, 16 EXECUTIVE POWER, 17 Criminal Justice, 19 Conclusion, 19

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her twenties would have stood out for opinions and writings that were brutal, INTRODUCTION even tinged with cruelty. A raft of these writings came to light in January 2019, On November 14, 2018, President shortly after her nomination, and the Trump nominated Neomi J. Rao to the revelation was a bombshell. D.C. Circuit Court of Appeals seat

previously held by Judge Brett M. Rao wrote op-eds and articles that Kavanaugh. The nomination lobbed attacks at LGBTQ advocacy, immediately sparked intense racial justice, and climate. She wrote controversy, for reasons related both to insultingly about the speech and Rao’s own record and the unique mannerisms of leading African- circumstances surrounding her American scholars. She saved some of nomination and this moment in her harshest judgment for survivors of history. sexual assault, blaming survivors for

being attacked. Two decades into her career, Neomi

Rao is deeply embedded in an The writings are appalling, and Rao’s ultraconservative political milieu. Her supporters hastened to dismiss them generation of hard-right partisans as irrelevant because she was younger comprises the veterans of the 1990s when she penned them. But it is culture wars. But Rao, despite her ties impossible to dismiss the evidence that to traditional pillars of the right wing Rao, in mid-career, is determinedly such as the Koch brothers, Leonard translating her extreme views into Leo, and the Society, is no policy affecting millions of Americans. mere establishment Republican. What makes her nomination even

more unconscionable is the fact that Rao currently serves as Administrator she has been named to fill of the Office of Information and Kavanaugh’s former seat. Regulatory Affairs (OIRA), and on her watch OIRA has begun laying waste to For weeks in 2018, the nation was a vast range of legal protections for convulsed over sexual abuse vulnerable people. The targets include allegations leveled against Kavanaugh Title IX protections for sexual assault by Dr. Christine Blasey Ford and others survivors, prohibitions on racial during his nomination to the Supreme discrimination in housing, protections Court. The nomination of Rao was a ensuring that doctors cannot refuse to severe blow to women’s rights treat LGBTQ patients, and more. Under advocates who did not hesitate to call Rao, OIRA has adopted a slash-and- Rao out as a rape apologist. Clearly, the burn extremism that reflects harsh White House either did not know or did indifference to human consequences. not care how deeply this nomination

would undermine the faith of women – What is so significant about this and many men – in our justice system. transformation of OIRA is that its roots can clearly be traced to long-held It also comes at a time of heightened attitudes of its chief. Even among sensitivity about the racial justice similarly strident young conservatives – records of judicial nominees. The such as her contemporary, former judicial nomination of judicial nominee Ryan Bounds – Rao in was withdrawn after Senators Tim

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Scott and Marco Rubio reportedly Our research finds that throughout her made clear they “would oppose him career, Rao has shown exceptional over racially-charged writings” in his hostility to the rights of women, LGBTQ record. Like Rao, Bounds had a record Americans, workers, consumers, people replete with offensive writings about of color, people with disabilities, and people of color, rape survivors, LGBTQ the environment, while aligning herself Americans and others. In an effort to with the interests of the wealthy and rescue his nomination, Bounds powerful. AFJ strongly opposes her attempted to apologize for his earlier confirmation. 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. BIOGRAPHY

At the same time, Rao’s intense anti- Since her confirmation in July 2017 as regulatory zeal has arrayed powerful Administrator of the Office of pro-business interests on her side. The Management and Budget’s Office of Wall Street Journal editorialized Information and Regulatory Affairs (OIRA), aggressively in her favor. The Rao has overseen and championed corporate-friendly Trump President Trump’s agenda of stripping Administration has openly admitted to away public protections and safety searching for judicial nominees who standards. are hostile toward government agencies and their powers. Former Before joining the Trump Administration, White House Counsel Don McGahn Rao worked as a law professor at George unabashedly laid out a “coherent plan” Mason Law School. There, she took a to install judges who will gut federal leading role in advocating to change the laws, roll back civil rights, dismantle name of school in honor of Justice climate protections, and gut worker , following a multi-million rights. “These efforts to reform the dollar donation from the regulatory state begin with Congress Foundation. The Kochs donated $10 and the executive branch,” McGahn million to support the school’s renaming, said, “but they ultimately depend on fueling a student-led lawsuit over courts.” Rao embodies this spirit. concerns about the law school’s academic independence. The suit sought Rao also shares with many other disclosure of any agreements the school Trump judicial nominees an expansive may have made with the Koch brothers in view of presidential power and exchange for the funds. authority. At a time when President Trump may be facing legal jeopardy, it Rao was also the director and founder of is no coincidence that his White House the Center for the Study of the has shown a pattern of nominating Administrative State,1 founded in 2015 at judges with a strong likelihood of what is now Antonin Scalia Law School. finding legal justification for abuses of The Koch Foundation’s 2016 grant executive power. agreement binds the law school to provide funding to the center for at least This report addresses Rao’s legal ten years, prioritizing its influence.2 philosophy and her record regarding Consistent with the agenda of its wealthy critical legal rights and protections. and powerful benefactors, the Center

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fights against protections for the Rao’s antipathy to Democrats emerged environment, consumers, and workers. early; she once criticized a liberal group on Yale’s campus as “representative of the While working at the law school, Rao, modern elitist class of Democrat bent on along with the law school dean, also met paternalistic social ” with , the influential [emphasis added]. In an article arguing executive at Society who against the movement for women’s has played a key role in Trump’s judicial equality, she wrote, “Women can be appointments.3 Rao and Leo’s personal reduced neither to the Hillary Clinton relationship is evinced by emails bitch-model nor to the primeval earth uncovered by UnKoch My Campus mother wielding mystical powers over through a Freedom of Information Act men” [emphasis added]. request.4 Prior to her career as a law professor, Rao Rao’s affinity for Leo’s served from 2005 to 2006 in the George began long before it became the main W. Bush Administration as Special outside group to which Trump has Assistant to the President and Associate delegated important aspects of the Counsel in the White House Counsel’s judicial nomination process. She joined at Office.7 From 2002 to 2005, Rao was in age 23 and has been a member since private practice at Clifford Chance LLP in then. Rao is a frequent speaker at London.8 She worked as Counsel for Federalist Society events, listing at least Nominations and Constitutional Law for 32 Federalist Society speeches in her the U.S. Senate Committee from Senate Judiciary Questionnaire. Rao also 2001 to 2002.9 Rao also interned for the gave a 2016 speech, “Executive Agency ,10 which was initiated Overreach and Civil Justice,” at the with seed money from the Koch brothers. for Civil Justice National The Institute for Justice’s purported Conference. This organization advocates mission is to “litigate[] to limit the size and to limit Americans’ access to the courts. In scope of government power.” After 2018, she received the Heritage college, Rao wrote for the Weekly Foundation Distinguished Alumni Award. Standard, a conservative publication.11

Rao’s public appearances and early Rao also clerked for Supreme Court writings strongly suggest she would be Justice and for Fourth an ideological, partisan jurist if confirmed Circuit Court of Appeals Judge J. Harvie to the D.C. Circuit. She has consistently Wilkinson, III. Rao received her J.D. from opposed judges appointed by the University of Chicago Law School in Democratic presidents. Rao testified in 1999 and a B.A. from Yale University. opposition to Supreme Court nominee Sonia Sotomayor, criticizing Sotomayor’s “personal, consequentialist approach to judging.”5 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.”6

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be responsible for my actions.” While Rao conceded that someone “who SEXUAL ASSAULT rapes a drunk girl should be prosecuted,” she continued to blame survivors by arguing, “[a]t the same AND WOMEN’S time, a good way to avoid a potential date rape is to stay reasonably sober” [emphasis added].

RIGHTS In addition to perpetuating attitudes Rao’s record contains egregious, deeply that blame and shame victims, Rao offensive statements regarding sexual downplayed the responsibility of those assault, women’s rights, and gender who perpetrate sexual assault at the equality. Writings from her twenties expense of survivors. In another article, foretell Rao’s efforts throughout her she attacked the idea that consent is a career to undermine protections for simple concept that should be adhered women’s rights and assault survivors, as to without exception. She argued that well as efforts toward equality.12 the “controversy” – referring to sexual assault and date rape – “has been painted in terms of ‘yes’ and ‘no,’ a. Campus Sexual Assault and reducing sex to something merely Title IX Rollbacks consensual” [emphasis added]. Rao Many of Rao's writings concern suggested that survivors who accuse women’s rights and sexual assault on men of sexual assault do so not college campuses.13 Most notably, Rao because an assault occurred, but suggested that survivors of sexual because “casual sex for women often assault bear responsibility for violence leads to regret and a profound loss of perpetrated against them if they drink self-esteem. This in turn can force or do not exercise control over their women to run from their choices and own “sexuality.” actions.”

In a 1994 article titled “Shades of Gray,” Rao also contended that women’s Rao appears to place the responsibility “sexuality” is to blame for sexual violence. of sexual assault on survivors if they Rao asserted that “[w]omen believe choose to consume alcohol: falsely that they should be able to go anywhere with anyone.” Women’s Unless someone made her drinks sexuality, in Rao’s view, is expressed in a undetectably strong or forced them way that goes beyond the “blatant signs” down her throat, a woman, like a of choosing to “wear short skirts or bright man, decides when and how much lipstick.” Rao argued that “when playing to drink. And if she drinks to the the modern dating game women have point where she can no longer to understand and accept the choose, well, getting to that point consequences of their sexuality.” Instead was a part of her choice [emphasis of holding perpetrators responsible for added]. sexual assault, Rao claimed there are signals given off by women that cause Moreover, Rao offered her opinion that “misunderstandings,” such as “subtle “[i]t has always seemed self-evident to glances, ambiguous words.” me that even if I drank a lot, I would still

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Far from walking back any of these states that “pending the finding of facts comments, in her notes for a 2018 sufficient for the [university] to make a speech, Rao said: determination regarding responsibility, the requirement mitigates the stigma When I was an undergraduate at and reputational harm that accompany Yale, now a number of years ago, I the allegation of sexual misconduct” greatly enjoyed participating in the [emphasis added]. By weakening debates of that time with my protections and deterrent measures, this classmates . . . We engaged in rule would unnecessarily burden and re- public debates, in writing in various traumatize survivors. newspapers and magazines . . . Although students at Yale were In the era of the #MeToo movement disproportionately of a progressive and at a time when there is growing or liberal perspective, I found that public awareness regarding sexual my more conservative (sometimes violence, Rao's views – views that lay contrarian) perspective was often the blame for sexual violence on sought out and treated with survivors – raise serious concerns about respect. her fitness to serve as a lifetime appointee to the federal bench. Given Rao’s history, it is notable that OIRA, under Rao’s leadership, signed b. Violence Against Women Act off on Education Secretary Betsy DeVos’s efforts to roll back protections At a 2014 Federalist Society event, Rao for survivors of sexual assault on college criticized the Violence Against Women campuses. The proposed rule, while not Act (VAWA), a landmark law with yet final, would make a series of bipartisan support that protects changes to Title IX processes on college survivors of sexual and domestic campuses that many survivor groups violence and seeks to root out sexual oppose. As organizations such as End violence. In discussing Supreme Court Rape on Campus and Know Your IX precedent, Rao stated: “So they’re able explain, “[I]f the proposed rule becomes to invalidate things like the Guns Free law, survivors will lose access to their School Zone Act or parts of the Violence education and schools will continue to Against Women Act, which are really sweep sexual violence under the rug. kind of grandstanding statutes, which The new rule will stop survivors from are largely covered by other state laws coming forward and make schools or something like that” [emphasis more dangerous for all students.” added].14 Rao continued, arguing that the Court won’t invalidate statutes The language of the DeVos proposed “when it’s anything really important.” rule reflects the sentiment of Rao’s previous writings that stigmatize and By implying that parts of VAWA are blame sexual assault survivors. The rule “grandstanding” and unimportant, Rao changes several important processes further minimized the positive impact that currently ensure survivors’ rights, of VAWA on survivors and families. One and instead focuses on elevating study found that, following the passage protections for the alleged sexual of VAWA, “the rate of intimate partner assailant. When discussing changes to violence against females declined 53% internal processes that determine between 1993 and 2008” and “[t]he repercussions for sexual assault, the rule number of victims of intimate partner

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violence declined, from approximately liberation cannot come from coddling 2.1 million victimizations in 1994 to and support sessions. The real world around 907,000 in 2010.” Moreover, will simply not wait for women to come “between 1993 and 2007, the number out of therapy.” This callous perspective of intimate partner homicides of demonstrates Rao’s disregard for the females decreased 26%, and the real inequalities that women face every number of intimate partner homicides day, both then and now. of males decreased 36%.” Rao, moreover, is directly connected to If Rao is so dismissive of a law that has rolling back public protections that made such a difference, it raises serious would promote pay equity for women questions as to her ability to fairly apply in the workplace. One group acts of Congress. highlighted how an EEOC report, which was completed after six years of c. Sexual Harassment Guidance researching the issue, showed how “employee pay data was critical to Under Rao, OIRA has held up proposed enforcing the nation’s anti- guidance from the Equal Employment discrimination and related civil rights Opportunity Commission (EEOC) to laws.” As a result, the EEOC required give employers additional information employers to submit a form including on how to handle sexual harassment. various kinds of data that advocates The proposed guidance has been explained were “necessary to enforce delayed at OIRA since November 2017. pay discrimination laws, a pressing Moreover, it is unusual for OIRA to concern given the persistent pay review an independent agency’s disparities across lines of gender, race, guidance. The proposed guidance and ethnicity.”15 would assist the EEOC and employers in preventing, investigating, and As the National Women’s Law Center addressing sexual harassment in the (NWLC) and the Labor Council for Latin workplace. Additionally, the status of American Advancement (LCLAA) the sexual harassment guidance does explained in related litigation, Rao was not appear to be available on any OIRA instrumental in halting the previously public platform. established pay data collection process.16 Less than two months after d. Women’s Equality and Pay becoming the administrator of OIRA, Equity Rollbacks Rao issued a memo explaining how the Rao’s other writings show her broader agency would cease implementing the hostility towards women’s equality. For pay data collection process. Rao example, in the 1993 article “The argued, “some aspects of the revised Feminist Dilemma,” Rao argued that collection of information lack practical “[i]n exchange for access into the utility, are unnecessarily burdensome, working world and sexual freedom, and do not adequately address privacy women have lost much of the previous and confidentiality issues” [emphasis caring and affection of men.” She added]. criticized women who fight against structural inequality: “Women should Rao’s rollback of public protections for be able to realize themselves as human gender pay equity echoes her earlier beings without identifying themselves ideological writings. However, efforts as a marginalized group. True advocating for pay equity are vital

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because the gender pay gap has were many persuasive legal arguments significant consequences for women’s against recognizing a constitutional lives. Without adequate data to right to abortion.” Notably, Rao accurately measure pay disparity – as asserted that “substantive due process the public protection that Rao blocked arguably has no textual support in the was designed to do – the possibility of Fourteenth Amendment Due Process realizing pay equity for women shrinks Clause, and was at any rate severely even further. discredited after the Lochner era.”18 In addition, Rao argued “most states have e. Women’s Health Care historically prohibited abortion.”19 As an academic, Rao frequently uses As the head of OIRA, Rao has overseen her ideas regarding “dignity” in or approved rollbacks of protections for constitutional law as an ideological women’s health care, including: framework to couch problematic allowing employers to refuse to cover 17 stances regarding social justice. Using birth control by claiming religious or this framework, Rao cited “dignity” in moral objections; overseeing a expressing her opposition to a proposed domestic gag rule under woman’s right to access health care. which Title X healthcare providers For example, in a 2011 article titled would be prohibited from referring or “Dignity as Intrinsic Human Worth,” supporting abortion care services for Rao twisted the reasoning the patients accessing family planning; Supreme Court outlined in Planned overseeing a proposed rule that would Parenthood v. Casey, 505 U.S. 833 (1992), interfere with women’s ability to to allude that the “dignity” of fetuses receive insurance coverage for abortion should perhaps override the right of care; allowing medical professionals to women to control decisions regarding refuse to provide reproductive and their health care. Rao explained how contraceptive care based on Casey “explicitly connected dignity, “conscientious objections”; and autonomy, and choice as ‘central to the engaging in a process to eliminate protected by the Fourteenth anti-discrimination protections under Amendment.’” She then challenged the (ACA) for this reasoning by stating that while women who have terminated a “the plurality highlighted the inherent pregnancy. dignity of a woman’s freedom to choose an abortion . . . it minimized the Rao’s hostility towards women’s rights competing inherent dignity of the to access health care raises serious fetus to life.” In Rao’s view, courts “have concerns about her ability to protect often avoided the conflict by women’s constitutional rights as a emphasizing the centrality of one of federal judge. these dignities at the expense of the other.” In another article titled “A Backdoor to RACIAL JUSTICE Policy Making: The Use of Philosophers Rao has written disparagingly about by the Supreme Court,” Rao described racial justice. As head of OIRA, Rao Roe v. Wade, 410 U.S. 113 (1973), as approved the rollback of protections “perhaps the most disputed decision in against discrimination based on race in recent history” and argued that “there housing. As the NAACP Legal Defense

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and Educational Fund (LDF) stated, While this is not wrong in itself, it Rao’s writings are “offensive” and fit seems that Yalies should have more into “a pattern of this Administration’s creative ways of organizing judicial nominees who demonstrate themselves. This separation is not hostility to civil and human rights just to promote cultural awareness, principles of equality. No litigant with a but usually to advance some civil rights claim before her could trust political agenda. she would fairly and impartially provide equal justice under the law.” Rao also displayed biased ideas toward African-Americans. For example, in In a 1994 piece titled “How the Diversity discussing Henry Louis Gates and Game is Played,” Rao disparaged Cornel West, well-known black “multiculturalists:” “Some people believe professors and public figures, Rao the multicultural movement exists only criticized not only the content of their on the radical fringes, but it infects nearly book tour discussion in 1996, but also every area of college life.” She warned, their speech patterns. Rao wrote that “[u]nderneath their touchy-feely talk of “[r]ace may be a hot, money-making tolerance, they seek to undermine issue,” trivializing the actual issue of American culture” [emphasis added]. In racism and those advocating for a conclusion, Rao called diversity initiatives more racially just society. Despite the on campus a “silly little game.” “money-making” aspect of discussing race, she explained that “even West Rao expressed disdain for women or seems to realize that it can be talked to people of color who identify strongly death.” Her description of West is with their gender or ethnicity. Rao couched in racist terms: “His slow wrote, “Though the diversity bean English transfixed the salt-and-pepper counters consider me a minority (Asian bourgeois audience . . . Gesticulating Indian, if you’re curious), I find myself in wildly with his white starched cuffs and the awkward position of not cufflinks shining in .” Rao’s considering my race and gender very personal critiques and word choice important. To the ‘multicultural police’ suggest an inability to arbitrate issues this means I’m a ‘traitor.’” She added, around civil rights in an unbiased “[t]hose who reject their assigned manner. categories are called names: So-called conforming blacks are called ‘oreos’ by Rao also wrote in a derogatory manner members of their own community, about affirmative action. In a book conservatives become ‘fascists.’” review, she discussed affirmative action Criticizing those who celebrate as the “anointed dragon of liberal diversity of all forms, Rao wrote that excess.” In another article, she wrote “multiculturalism fans the flames of that “Yale has dedicated itself to a minority resentment against everybody relatively firm meritocracy, which drops else” [emphasis added]. its standards only for a few minorities, some legacies and a football player Rao also wrote disparagingly about here or there” [emphasis added]. She non-white, non-male affinity groups: also argued, in a 2009 law review article, that affirmative action More than a third of registered diminishes the inherent dignity of undergraduate organizations are minority applicants: “Choosing to put based on race, ethnicity, or gender. out a separate entrance for minorities,

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not just a welcome mat, overlooks or undermines this Supreme Court minimizes the dignitary harms to precedent. , even if that entrance is in front and not at the back of the building.”20 LGBTQ RIGHTS In another article, Rao lamented: a. Hostility Toward LGBTQ

In this age of affirmative action, Equality women's rights, special rights for the Rao’s writings demonstrate a hostility handicapped and welfare for the toward LGBTQ rights and equality. One indigent and lazy, elitism is a notable example is a 1994 article she forgotten and embarrassing authored titled “Queer Politics.” In the concept. Elitist ideals and social article, Rao characterized the decades- hierarchies are something from an long struggle for LGBTQ rights and unenlightened past. In our new equality as a part of “[t]rendy political feelgood era, everybody is okay, and movements” which, in her opinion, political and academic standards “have only recently added sexuality to can adjust to accommodate anyone the standard checklist of traits [emphasis added].21 requiring tolerance.”

Finally, Rao has criticized efforts to Later in the same article, Rao proposed address hate speech. In 2011, she wrote, that homophobia “is often more deeply “[y]et the dignity of recognition rooted” than racism and sexism protected by hate speech regulations because people view “homosexuality as runs headlong into the dignity of the a behavior – and behaviors, unlike speaker, a dignity protected by gender and race, are subject to allowing the maximum degree of change.” She explained her view that freedom of speech.”22 Rao’s article “[w]hen homosexuality is viewed as a undervalues the impact of hateful correctable behavior, it can be judged rhetoric, especially in an era where as being immoral, unnatural, and racist hate speech has so often incited contrary to religious doctrine” violence against minorities. [emphasis added]. She justified this kind of by stating “no one Under Rao’s leadership, OIRA reviewed knows whether sexuality is a biological and is in the process of working with phenomenon or a social construct. The the Department of Housing and Urban truth may lie somewhere in the Development to roll back rules that middle.” protect against housing discrimination based on race. This rule had previously Rao’s personal biases are also reflected allowed courts to consider “disparate in her commentary on Lawrence v. impact” when evaluating housing , 539 U.S. 558 (2003), the Supreme discrimination claims. Previous Court case which held that a Texas law protections, implemented in 2013, were criminalizing sex between two partners reaffirmed in the landmark 2015 of the same sex was unconstitutional. Supreme Court case Texas Dep’t of In a 2013 law review article, Rao Housing and Cmty. Affairs v. Inclusive minimized the holding and societal Cmtys. Project, Inc., 135 S. Ct. 2507 impact of Lawrence by describing the (2015). The proposed roll back directly case as “about a right to particular

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sexual behavior.”23 In another article, (2013), the case that struck down part of the Rao argued that “Lawrence expresses a discriminatory Defense of Marriage Act strong preference for certain values but (DOMA), Rao expressed her view that the fails to articulate a coherent Court’s decision in Windsor was based on constitutional principle” [emphasis “the unusual right to recognition” and that added].24 its use of “dignity rights [has] a problematic relationship to rights and the Particularly given her criticism of structural protections of .”27 substantive due process, discussed Although Rao wrote that she might above, which has been a foundation of “support as a political matter”28 the shift in modern constitutional jurisprudence public opinion away from an “exclusionary and has protected LGBTQ individuals in definition of marriage,”29 she quibbled that cases such as Lawrence and Obergefell the acknowledgement of states’ v. Hodges, 135 S. Ct. 2584 (2015), it recognition of the dignity of marriage seems that Rao will endanger LGBTQ equality was “a novel constitutional right to rights if confirmed to the D.C. Circuit. recognition unconnected to any substantive right.”30 b. Marriage Equality In addition to her general animus Moreover, Rao has articulated her belief towards LGBTQ rights, Rao has fought that the historic fight for marriage equality to undermine marriage equality. Rao may have been unnecessary, began publicly voicing her opposition as she considered options available to to marriage equality in her twenties. In same-sex couples prior to marriage an article titled “How the Diversity equality to be on an equal footing with Game is Played,” she criticized marriage. In a 2011 article, Rao wrote “homosexuals [who] want to redefine dismissively of a concept that “requires the marriage and parenthood.” state adopt policies that express the equal worth of all individuals and their On several occasions, Rao cloaked her life choices, such as requiring gay anti-LGBTQ views using a concept she marriage, not just legally equivalent civil calls the “dignity of recognition.”25 As unions, because of the expressive and discussed below, she argued that this symbolic importance of marriage” 31 particular conception of dignity – one [emphasis added]. that recognizes the equal dignity of LGBTQ individuals to marry – does not c. Attacks on Public belong in our constitutional jurisprudence. Rao expressed her Protections for the LGBTQ problematic views regarding marriage Community equality using this “dignity of The hostility Rao demonstrated towards recognition” framework in a series of the LGBTQ community in her writings articles published prior to the historic extends to her current role as the head of 2015 Supreme Court decision in OIRA. The Trump Administration has rolled Obergefell, which established the back a series of protections for the LGBTQ constitutional right to marriage community: eliminating protections equality.26 against discrimination for LGBTQ patients accessing health care; For example, in a 2013 article regarding supporting the expansion of Title IX v. Windsor, 133 S. Ct. 2675 WWW.AFJ.ORG PAGE 11

religious exemptions; failing to collect At the same time, the Trump data about LGBTQ individuals in the Administration is attempting to census; and removing a sexual eliminate gender identity protections orientation question from a crucial elder from the Affordable Care Act’s anti- survey. discrimination provisions. Section 1557 of the ACA prohibits discrimination on Under Rao’s leadership, OIRA is the basis of “race, color, national origin, finalizing a rule proposed by the sex, age, or disability,” which the Obama Department of Health and Human Administration interpreted to include Services (HHS) that would allow health discrimination based on “gender care providers to refuse to provide identity” and “sex stereotyping.” medical care to patients towards However, the Trump administration, whom providers have "conscientious with input from Rao’s office, engaged in objections.” This encompasses LGBTQ a process to eliminate those protections patients and women seeking for LGBTQ patients from Section 1557’s reproductive care. Larry T. Decker, anti-discrimination provision. This executive director of the Secular change puts the rights and health of Coalition for America, explained how LGBTQ individuals severely at risk and this rule “does not protect conscience discourages LGBTQ individuals from but instead weaponizes it, turning seeking health care due to fear of religious belief into yet another barrier discrimination. between vulnerable patients and the health care they need.”

Additionally, Rao’s office worked with DISABILITY Betsy DeVos’s Department of Education to roll back protections for LGBTQ students on college campuses. Proposed RIGHTS changes to Title IX would expand schools’ ability to discriminate against Rao has written numerous articles LGBTQ students under the guise of criticizing bans on “dwarf-tossing,” a religious exemptions. Under current degrading practice in which individuals policy, many schools can “claim religious throw little people for sport or exemptions from certain Title IX entertainment. The competitive provisions, such as admissions of certain practice is most commonly performed students or counseling services, but in bars, where little people are paid to must submit a letter to the U.S. be thrown onto mattresses or against Department of Education requesting Velcro walls. Dwarf-tossing has specific exemptions.” DeVos claims this encouraged violence towards little protective step is “confusing or people, even paralyzing one man who burdensome” and proposed to eliminate eventually died after he was picked up it in a new proposed rule that Rao’s office and thrown against his will. signed off on. These rollbacks of protections greatly threaten the rights of Despite the real-world consequences the LGBTQ community, whether facing of the vile practice, Rao is fixated on the discrimination at school or in the doctor’s theory that bans on dwarf-tossing office. violate the “dignity” of little people who wish to participate. She argued that a French ban on dwarf-tossing

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demonstrates how “concepts of dignity can be used to coerce individuals by forcing upon them a particular

32 HEALTH CARE understanding of dignity.” Rao argues that the state’s restriction of such activity impinges upon the individual’s Like many Trump nominees, Rao has ability to make money, drawing openly criticized the Affordable Care Act. parallels to prostitution and Most notably, she criticized Chief Justice 33 pornography. for his opinion in the 2014

case King v. Burwell, 135 S. Ct. 475 (2014), The organization Little People of America wrote a letter urging the which held the ACA tax mandate was Senate to reject Rao’s confirmation to constitutional: the D.C. Circuit because of her views on dwarf-tossing: Rather than follow the natural We vehemently disagree with Ms. reading of the law – that Rao’s view that banning dwarf ‘established by the State’ means tossing negates individual’s[sic] ‘established by the State’ – Roberts dignity. A ban on dwarf tossing resorted to the Affordable Care Act's event[sic] significantly reduces the purported goals, echoing the risk of inevitable bodily harm to the arguments of political supporters person being tossed. We strongly that giving the law its ordinary support our community in having meaning would push health individual choice in every aspect of insurance markets into a ‘death their lives and we advocate for spiral.’ The talking points trumped 34 equal employment opportunities so the law. that our community need not be constrained to earning a living by Rao also denounced liberals who support being the recipient of a the constitutionality of the ACA – even dehumanizing and injurious comparing their defense of the ACA to past activity. criticisms of the Bush Administration's overreach and abuse of executive power: As an expert at the Center for American “Leave the Constitution to the courts, their Progress noted, “I hear some of you say argument goes. Yet many liberals don’t Dwarf Tossing is a choice, but it's not want the courts involved in constitutional when our bodies are more delicate issues either – at least not in any robust than yours, our spines more way.” Rao bemoaned that “[a]s challenges compressed, our respiratory systems to ObamaCare work their way through the more compromised. A plastic bubble courts, we hear lamentations that such doesn't protect you from paralysis . . . attempts represent and And if it’s legal in a bar, it spreads into are undemocratic. This leaves the president the street.” Rao’s unashamedly ableist to protect the Constitution.” Moreover, she writings and callous advocacy against juxtaposed the ACA’s objective of providing bans on dwarf-tossing raise questions health care to millions of people to the as to whether she will give proper transgressions of the Bush Administration, effect to some of our nation’s most arguing that “when George W. Bush important laws ensuring equality for asserted his own interpretation of the persons with disabilities.

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Constitution, liberals raised the specter of Government interview, significant an ‘imperial presidency.’” regulations are reviewed by her office, and she “get[s] to determine whether a Additionally, Rao criticized the conservative rule is significant ultimately.”37 Rao justices on the Supreme Court for not further explained, “Irrespective of creating a “revolution” that would overturn economic impacts . . . we will review “important” acts such as the ACA. She things that are important enough for complained about the failure of the us to review them . . . In part, that’s at Supreme Court to overrule progressive laws, the discretion of OIRA and also the specifically noting “when it comes to White House.”38 In this interview, Rao something important . . . or we get the takes pride in the central role she plays Affordable Care Act, well we’re not going to in the Trump Administration’s policy- really interfere in those areas. So there making process. seems like they’re saying we can draw a line, but they just won’t. Not when it’s anything As discussed above, since taking over really important.”35 as head of OIRA in July 2017, Rao has played a role in dismantling Rao’s demonstrated animosity toward the protections against racial ACA makes her a threat to millions of discrimination in housing, removing Americans’ health care should she be protections against discrimination confirmed to the second most powerful based on gender identity, and blocking court in the country. the authorization of vital sexual harassment protections. She has also given a green light to corporate greed at the expense of protecting all PUBLIC Americans. She acquiesced to big oil corporations’ demands by turning back the clock on protections preventing PROTECTIONS natural gas leaks. Rao’s actions as head of the Office of The Trump Administration has a goal to Information and Regulatory Affairs and eliminate two existing regulations for her record as an administrative law each newly promulgated regulation. Rao professor indicate that she will erode bragged about this harmful rollback of vital public protections – including those public protections, describing it as “an safeguarding consumers, workers, the unprecedented advance against the environment, and health and safety – if regulatory state.” Further, Rao conceded confirmed to a lifetime appointment on that she became head of OIRA in order the D.C. Circuit. to roll back public protections: “I’m not sure I would have taken this job if I OIRA, part of the Office of Management wasn’t optimistic about the possibility of and Budget, reviews drafts of executive rolling some of this back.”39 With public branch rules and regulations. As protections for consumers, the administrator, Rao oversees changes to 36 environment, workers, and health and public protections. Rao also works safety “in the crosshairs of the new with agencies throughout the process administration,”40 Rao accepts a great of promulgating, changing, or deal of responsibility for the damage rescinding significant regulations. As inflicted upon us all. Rao stated in a Bloomberg

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There is evidence that Rao’s office Rao has also taken radical stances on disregarded legal requirements in critical legal doctrines that have been order to repeal public protections at crucial in ensuring that the federal such a hasty pace. According to a study government, since the New Deal, has by the Institute for Policy Integrity at the ability to protect health and safety, University School of Law, on consumers, workers, and the average, the government normally environment. Rao suggested that the defeats challenges to regulations 70 nondelegation doctrine, last used percent of the time. However, during successfully in 1935 by a famously the Trump Administration, more than reactionary Supreme Court, should be 90 percent of legal challenges to major revived.43 Since 1935, as Justice Scalia deregulatory actions have been noted, “we [the justices] have ‘almost successful. According to the NYU study, never felt qualified to second guess the Trump Administration is losing Congress regarding the permissible because Rao’s office bypasses legal degree of policy judgment that can be requirements, such as properly left to those executing or applying the incorporating public feedback or law.’” Whitman v. Am. Trucking Ass’ns, conducting cost-benefit analyses. For 531 U.S. 457, 474-75 (2001). an individual who wants to be a judge, Rao has shown a disturbing willingness Nevertheless, despite almost 90 years of to put aside the law to carry out her precedent, the nondelegation doctrine ideological agenda. is not dead according to Rao, who says she “happen[s] not to be one of those Rao’s assault on public protections for people” claiming its demise.44 In fact, consumers, workers, the environment, she has stated, “I would support more and health and safety stems from her robust enforcement of the unabashed disdain for the so-called nondelegation doctrine.”45 She also “administrative state.” She has argued wrote, “[P]erhaps the time has come to that agencies should have less power revisit judicial enforcement of a more to issue public protections and enforce robust non-delegation doctrine.” If safety standards, including confirmed, Rao would no doubt adhere independent agencies, which to her promises by attempting to limit historically have been insulated from Congress’s ability to give federal political management. She opined that agencies the ability to protect the such agencies should no longer be health and safety of the American independent: “The precedents and people. functional justifications for supporting agency independence have largely In addition to accepting the collapsed. The issue is ripe for nondelegation doctrine, Justice Scalia reconsideration.”41 also accepted the legal principle that gives agencies the authority to As one example, Rao criticized the determine how they will carry out their Consumer Financial Protection mandates when the congressional act Bureau’s broad authority to issue governing their actions might be open protections against unfair lending to different interpretations – referred to practices, predatory financial as “Chevron deference.” As Justice companies, and powerful banks.42 Scalia noted, “[i]n the long run, Chevron will endure and be given its full scope” because “it more accurately reflects the

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reality of government, and thus more the war?”48 Rao envisions her role in adequately serves its needs.” dismantling public protections as waging a war, a goal worthy of anti- Rao’s record shows she disagrees on protection judicial activism. Given her this point and would tie the hands of own professed views and actions as a precisely those agencies that Congress top Trump official, she would almost has recognized have the knowledge certainly apply such activism on the and experience to enforce critical laws, bench. safeguard essential protections, and ensure the health and safety of the Two areas where this agenda is public. In a report for the Heritage abundantly apparent is in protecting Foundation, Rao argued for “more clean air and water and in protecting robust” judicial review, stating: workers.

I think courts can provide more meaningful checks on agency action and authority, enforcing both CLIMATE statutory and constitutional due Rao’s writings from her twenties deny process. And we’ve seen over the the impact of , and her past few years that the Supreme recent rollbacks of environmental Court, particularly Justices Thomas, protections display her continued Alito, and Gorsuch, is engaged in a antipathy to the notion of climate reconsideration of the non- change. delegation doctrine and the judicial deference doctrines. While in her twenties, Rao authored several articles expressing her disdain In another article, Rao offered a for environmentalism and her rejection strategy for reconsidering Chevron of mainstream scientific theories. She deference, arguing that her “insights wrote derisively of “[t]he three major about how delegation benefits environmental bogeymen, the members of Congress and undermines greenhouse effect, the depleting ozone separation of powers can provide a layer, and the dangers of acid rain.” She foundation for reevaluating the criticized environmental groups at Yale deference regimes.”46 for “accept[ing] issues such as global warming as truth with no reference to Rao has already impacted the lives of all the prevailing scientific doubts.” Rao Americans by rolling back vital public also bashed environmental groups for protections and would undoubtedly “promot[ing] a dangerous orthodoxy continue to do so if given a lifetime that includes the unquestioning appointment to the D.C. Circuit. Rao acceptance of controversial theories even expressed interest in getting like the greenhouse effect.” At the time “libertarian law professors on the courts” Rao published her article, President in order to turn back the clock on public George H. W. Bush had already signed protections.47 As she said then: “The the 1990 Clean Air Act into law, proponents of judicial restraint have attempting to address the near- overwhelmingly won or captured . . . universally acknowledged problem of both in the academy and in the courts, acid rain. As recently reported, climate they have prevailed to a large extent. So impacts are extreme and dramatic. . . . do you think it’s possible to still fight

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Power Plan and the Methane and In another article titled “Choking on the Waste Prevention Rule. Rao approved a ‘Greenies’ Diet,” Rao asked, “[w]hen was proposal to rescind the public the last time you hugged a tree? If you protection that aimed to reduce don’t remember, you obviously haven’t greenhouse gas emissions from power been on a college campus recently.” plants. This proposal ignored the After describing examples of impact of the changing climate on the environmental activism, Rao explained, public, warping its cost-benefit analysis. “These are just a few examples of eco- Rao also acquiesced to corporate insanity on college campuses. But interests at the expense of public funny as they may be, environmental health when she turned back the clock hysteria in the university has on protections preventing natural gas dangerous implications for the real leaks. world.” Warning of environmentalists’ desire to force people “to live up to Rao’s cynicism regarding scientific their standards of environmental realities about climate also carried purity,” Rao cautioned that they “seem through to her work at OIRA. In a perfectly comfortable discarding proposal for a deficient replacement for scientific evidence and common sense the Clean Power Plan, Rao’s office in their crusade to ‘save’ the Earth.” censored climate language and Rao’s words age poorly, as the scientific minimized its cost on public health. community has fully embraced the While attempting to roll back existential dangers of our changing standards preventing harmful leaks climate. from refrigerant and air conditioning appliances, Rao withheld information Rao’s efforts to roll back environmental regarding the impact of climate protections at OIRA have only served to change on children. exacerbate this crisis.

As head of OIRA, Rao supported changes that reduced public protections against LABOR mercury pollution. The Mercury and Air Rao’s consistent rhetoric touting the Toxics Standards (MATS) are protections far-reaching benefits of deregulation to track and reduce the amount of and betray a strong mercury power plants may release into bias in favor of corporate interests. Her the air, aiming to shield the public from libertarian faith in free markets and dangerous neurotoxins. Highly devotion to rolling back protections successful, the MATS has reduced would leave workers at the mercy of mercury pollution from power plants their more powerful employers. more than 81% from 2011 to 2017. Further, the number of children born each year The Trump Administration has acted with prenatal exposure to dangerous aggressively to roll back safety methylmercury levels has decreased by protections for workers. For example, half. Despite these benefits, Rao’s office Rao’s office allowed revisions to misrepresented the benefits and costs of Occupational Safety and Health the MATS. protections that would allow certain employers to conceal workplace Other major environmental protections injuries. Rao’s office has apparently Rao helped roll back include the Clean

WWW.AFJ.ORG PAGE 17 refused to meet with labor groups to National Labor Relations Board and discuss worker safety rules, despite her Consumer Product Safety Commission, claim that her agency maintains are critical to protecting the health and transparency and an open-door policy. safety of the American people. Similarly, Rao’s office oversaw the EPA’s proposed rule that would lower In fact, Rao’s record suggests she minimum age requirements for believes that the President, as the head applying pesticides, a rule that the EPA of the executive branch, retains absolute recently dropped after outside scrutiny. control over agencies. As a result – and as her 2011 article titled “A Modest Proposal: OIRA is also in the process of reviewing Abolishing Agency Independence in changes to Department of Labor Free Enterprise Fund v. PCAOB,” standards under the Fair Labor suggests – Rao supports eliminating the Standards Act that would allow “independence” of independent employers to avoid paying some agencies altogether. She also wrote: workers for overtime work. The change would disqualify millions of American [T]he ability to remove principal workers from overtime pay after the officers is necessary and sufficient Trump Administration dropped the for presidential control of the legal defense of a rule that would have executive branch. This means that “doubled the minimum salary all agencies, including the so-called required” for exemptions under the independent agencies, must Fair Labor Standards Act. The rule the answer to the President . . . Limits Trump Administration chose not to on the President’s removal defend would have made an estimated authority have always been in 4.2 million additional workers eligible tension with the basic constitutional for overtime pay. design.49

She argued that courts should ignore congressional intent and lead a “wide EXECUTIVE assault on agency independence.”50

Before she was nominated to head POWER OIRA, Rao promoted the idea that independent agencies should be under Rao, like many other Trump nominees the authority of OMB. At OIRA, Rao has and appointees, supports an expansive already asserted White House control view of executive power. over actions at agencies like the EEOC.51 Perhaps most significantly, Rao is a proponent of the “unitary executive” Rao’s record also has potential theory. She has advocated vigorously for implications for the Mueller investigation. the President to obtain complete control of the executive branch – most notably Notably, Rao criticized the Supreme independent agencies – where Congress Court’s decision in Morrison v. Olson, has specifically enacted legislation to 487 U.S. 654 (1988), which upheld the insulate agencies and agency officers independent counsel statute in effect at from political influence. These agencies, the time.52 Rao argued that such as the Federal Reserve Board, the “[i]ndependent discretion for executive

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officers” is “contrary to the best government, Rao observed that there understanding of Article II” powers are sometimes no contemporaneous outlined in the Constitution.53 She means of recourse to thwart the explained her view that the President President from taking unitary actions. “must have the ability to remove all Rao explained that “[u]nlike Congress executive branch officers at will.”54 This and the Supreme Court, the President extreme view of presidential power is can act alone in his judgment of what particularly dangerous at a time when the Constitution requires.” Rao also the President repeatedly threatens to noted how “[j]udicial review, political remove in order to condemnation, and even impede the investigation. impeachment may follow, but they do not impede the President at the Moreover, in a 2009 article, “The moment of action.”58 President’s Sphere of Action,” Rao emphasized that there is only a limited In another article, Rao contended that ability to hold the President accountable the President’s authority over foreign while he is in office.55 By implication, she affairs extends to his or her ability to dismisses the notion that the President override international law and treaties – can be held accountable criminally. While many of which are often confirmed by she conceded that “even after removal the Senate: from office, a President may be criminally liable for his actions,” Rao noted how As Commander-in-Chief of the “[t]he slow, ponderous, and majoritarian nation’s military, the President leads methods of holding the President the conduct of war, which provides accountable leave a significant space in a significant source of authority to which the President may act interpret the obligations of the law unimpaired.”56 of war.59

She explained how the President, Rao explained how “even after vested with the constitutional powers determining that international law given to the executive branch, may applies to a contemplated action, the choose to ignore or override laws President may have, in certain passed by Congress and decisions by circumstances, the authority to the Supreme Court on the basis that he disregard international law. This may or she deems them unconstitutional: include the unilateral authority to terminate treaties.”60 If after careful review the President determines that a statute is Rao's expansive views of presidential unconstitutional, he may decline to power and control of independent enforce it. The President may also agencies are especially concerning in decide not to follow Supreme Court this era of rampant abuses of power and precedent, and in the instance, disdain for the by the Trump may decide against enforcement of Administration. a particular judgment [emphasis added].57

In addition to supporting the idea that the President can ignore and override the other two coequal branches of

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context undercuts the most basic of the Constitution’s criminal law CRIMINAL objectives, providing a fair trial.”63 Instead of recognizing the importance of securing fair trial rights for JUSTICE defendants – especially defendants In an article titled “On the Use and who demonstrate mental incapacity – Abuse of Dignity in Constitutional Law,” Rao suggested that the concern for a Rao proposed limiting constitutional defendant’s ability to sufficiently protections for criminal defendants. defend himself may inappropriately Discussing Miranda v. , 384 U.S. infringe on the defendant’s dignity. Rao 436 (1966), Rao explained her view that failed to address, however, how “Miranda exemplifies the recurring allowing a defendant with a severe problem in criminal cases – promoting mental illness “the ultimate human the dignity of the accused may greatly dignity of choosing how to represent discount the dignity of the victims of himself”64 could result in unjust rulings crime.”61 Instead of highlighting how that infringe on his or her Miranda strengthened vital Fourth constitutional rights and, ultimately, Amendment protections for individuals liberty. against abuses of governmental power and violations of constitutional rights by state actors, Rao proposed that protections like Miranda protect the CONCLUSION rights of defendants at the expense of Throughout her career, Neomi Rao has victims. shown her dedication to dismantling public protections and safety standards Rao also criticized the Supreme Court's intended to protect all Americans. efforts to protect the trial rights of Moreover, she has shown hostility to defendants. In particular, she argued the rights of women and sexual assault that the Supreme Court’s decision in survivors, racial justice, LGBTQ equality, v. Edwards, 554 U.S. 164 (2008), and the climate. She has opposed the to prevent a defendant with severe existence of independent agencies and mental illness from representing advocated for an expansive, virtually 62 himself infringed on his dignity. In unchecked interpretation of Edwards, the Supreme Court held that presidential power. For these reasons, a defendant who demonstrated some strongly opposes mental incapacity, but was competent her confirmation to a lifetime seat on enough to stand trial, could be the federal bench. 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

Endnotes 1. Sen. Comm. On the Judiciary, 116th Cong., Neomi Jehangir Rao Questionnaire for Judicial Nominees, 2, available at https://afj.org/wp-content/uploads/2019/01/Neomi-Rao-Senate-Judiciary-Questionnaire.pdf. 2. FOIA Request from UnKoch My Campus, “Grant Agreement”, at 150, available at https://ia802807.us.ar- chive.org/2/items/GMUFOIACharlesKochFoundationFull/GMU%20FOIA%20Charles%20Koch%20Founda- tion%20Full.pdf. 3. FOIA Request from UnKoch My Campus, “Lunch with Henry Butler, Neomi Rao, and Leonard Leo” Email Calendar Invite, April 19, 2016, at 420, available at https://ia802807.us.archive.org/2/items/GMUFOIACha- rlesKochFoundationFull/GMU%20FOIA%20Charles%20Koch%20Foundation%20Full.pdf. 4. FOIA Request from UnKoch My Campus, Emails Between Neomi Rao and Leonard Leo, at 513, 598 avail- able at https://ia802807.us.archive.org/2/items/GMUFOIACharlesKochFoundationFull/GMU%20FOIA%20 Charles%20Koch%20Foundation%20Full.pdf. 5. Neomi Rao, Testimony, Hearing before the Senate Judiciary Committee Hearing on “Continuation of the Nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States,” July 16, 2009, at 3, available at https://afj.org/wp-content/uploads/2019/02/Rao-Sotomayor-Testimony.pdf. 6. Neomi Rao, Elena Kagan and the ‘Hollow Charade,’ Wall Street Journal, May 11, 2010, at 2, available at https://afj.org/wp-content/uploads/2019/02/Rao-Kagan-comments.pdf; Using standards applied in the past by Republicans, Rao’s comments regarding Sotomayor and Kagan alone should be disqualifying. As Mike Lee said about Goodwin Liu, who had questioned whether Justice Alito would apply the law in a “mechanical way abstracted from human experience” and would turn a blind eye to discrimination: “[Liu’s] comments about Justice Alito were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.” John Cornyn remarked that Liu’s comments “raise some serious questions about whether [Liu has] the sort of temperament and the ability to set aside . . . strongly held academic and scholarly views. . . ” 7. Sen. Comm. On the Judiciary, 116th Cong., Neomi Jehangir Rao Questionnaire for Judicial Nominees, 2, available at https://afj.org/wp-content/uploads/2019/01/Neomi-Rao-Senate-Judiciary-Questionnaire.pdf. 8. Id. 9. Id. 10. Id. at 3. 11. Id. 12. Rao’s writings are similar to the writings of another Trump nominee, Ryan Bounds, whose nomination was withdrawn after Senators Tim Scott and Marco Rubio refused to support him, following the discovery of his earlier, problematic writings. See Karoun Demirjian, White House withdraws judicial nominee Ryan Bounds, after GOP realizes he didn’t have votes for confirmation, Post, July 19, 2018, https:// www.washingtonpost.com/powerpost/senate-gop-withdraws-judicial-nominee-ryan-bounds-delivering- a-blow-to-trumps-court-plans/2018/07/19/0d81ff50-8b83-11e8-8aea-86e88ae760d8_story.html?utm_ter- m=.355d27de66c0. 13. This report only contains key examples of her disturbing writings. To see more of Rao’s commentary, as well as links to a series of original articles in full, please see Alliance for Justice’s website at afj.org/rao. 14. Neomi Rao, Interviewer, “Overruled,” Federalist Society, the , and Reason, Recording at (24:18), available at https://fedsoc.org/commentary/videos/overruled-the-long-war-for-control-of-the-u- ssupreme-court-event-video and https://www.youtube.com/watch?time_continue=1613&v=rfpdFYp3Hbk (Nov. 19, 2014). 15. Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment, National Women’s Law Center, et al., v . Office of Management and Budget, et al., (No. 17-2458), 2, available at https://democracy- forward.org/wp-content/uploads/2017/11/22-1-Memo-in-Support-of-MSJ.pdf. 16. Id. at 11-12. 17. See e.g., Neomi Rao, Three Concepts of Dignity, 86 Notre Dame L. Rev. 183, 252 (2011), available at https://afj. org/wp-content/uploads/2019/01/12-Three-Concepts-of-Dignity-reduced-size.pdf; Neomi Rao, The Trou- ble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, 31 (2013), available at https://afj.org/ wp-content/uploads/2019/02/Rao-The-Trouble-With-Dignity-and-Rights-of-Recognition.pdf; Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201, 243 (2008), available at https://afj.org/wp-content/uploads/2019/02/Rao-On-the-Use-and-Abuse-of-Dignity-in-Constitutional-Law_. pdf. 18. Id. at 1380. 19. Neomi Rao, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court, 65 U. Chi. L. Rev. 1371, 1379-80 (1998), available at https://afj.org/wp-content/uploads/2019/02/Rao-Backdoor-to-policy-mak- ing_.pdf. 20. Neomi Rao, Gender, Race, and Individual Dignity: Evaluating Justice Ginsburg’s Equality Jurisprudence, State L. J. 1053, 1080 (2009), available at https://afj.org/wp-content/uploads/2019/02/Rao-Gen- der-Race-and-Individual-Dignity-Evaluating-Justice-Ginsburgs-Equality-Jurisprudence_.pdf. 21. Neomi Rao, Book Review: “In Defense of Authentic Elitism,” Yale Free Press, Jan. 1995, available at https:// afj.org/wp-content/uploads/2019/02/Rao-In-Defense-of-Authentic-Elitism.pdf. 22. Neomi Rao, Three Concepts of Dignity, 86 Notre Dame L. Rev. 183, 252 (2011), available at https://afj.org/ wp-content/uploads/2019/01/12-Three-Concepts-of-Dignity-reduced-size.pdf. 23. Neomi Rao, The Trouble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, 31 (2013), available at https://afj.org/wp-content/uploads/2019/02/Rao-The-Trouble-With-Dignity-and-Rights-of-Recognition. pdf. 24. Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201, 243 (2008), available at https://afj.org/wp-content/uploads/2019/02/Rao-On-the-Use-and-Abuse-of-Dignity-in-Consti- tutional-Law_.pdf. 25. See Neomi Rao, Three Concepts of Dignity, 86 Notre Dame L. Rev. 183, 189 (2011), available at https://afj.org/ wp-content/uploads/2019/01/12-Three-Concepts-of-Dignity-reduced-size.pdf. 26. See Neomi Rao, The Trouble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, 31 (2013), available at https://afj.org/wp-content/uploads/2019/02/Rao-The-Trouble-With-Dignity-and-Rights-of- Recognition.pdf; Neomi Rao, Dignity of Recognition and Federalism, Volokh Conspiracy, Sept. 26, 2013, available at https://afj.org/wp-content/uploads/2019/02/Rao-Dignight-of-Recognition-and-Federal- ism-Volokh-Conspiracy.pdf; Neomi Rao, Windsor and the Problem with Rights of Recognition, Volokh Conspiracy, Sept. 25, 2013, available at https://afj.org/wp-content/uploads/2019/02/Rao-Windsor-and-the- Problem-with-RIghts-of-Recognition-Volokh-COnspiracy.pdf. 27. Neomi Rao, The Trouble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, 30 (2013), avail- able at https://afj.org/wp-content/uploads/2019/02/Rao-The-Trouble-With-Dignity-and-Rights-of-Recogni- tion.pdf. 28. Id. at 34. 29. Id. 30. Id. at 30. 31. Neomi Rao, Three Concepts of Dignity, 86 Notre Dame L. Rev. 183, 188-89, 270-71 (2011), available at https:// afj.org/wp-content/uploads/2019/01/12-Three-Concepts-of-Dignity-reduced-size.pdf. 32. Id. at 227. 33. Id. at 228-29. 34. Neomi Rao, The Supreme Court’s Rule by Talking Points, Wash. Examiner, July 7, 2015 https://afj.org/ wp-content/uploads/2019/02/Rao-The-Supreme-Courts-rule-by-talking-points_.pdf. 35. Neomi Rao, Interviewer, “Overruled,” Federalist Society, the Charles Koch Institute, and Reason, Recording at (24:18), available at: https://fedsoc.org/commentary/videos/overruled-the-long-war-for-control-of-the-u- ssupreme-court-event-video and https://www.youtube.com/watch?time_continue=1613&v=rfpdFYp3Hbk (Nov. 19, 2014). 36. Sen. Comm. On the Judiciary, 116th Cong., Neomi Jehangir Rao Questionnaire for Judicial Nominees, 37- 38, available at https://afj.org/wp-content/uploads/2019/01/Neomi-Rao-Senate-Judiciary-Questionnaire.pdf. 37. Neomi Rao, In/Site: OIRA Administrator Neomi Rao, Bloomberg Government, Recording at (15:12), available at https://about.bgov.com/event/insite-administrator-neomi-rao/ (Sept. 25, 2018). Rao asked who deter- mines what regulations are “significant” and thus require OIRA review. She responded, “I get to determine whether a rule is significant ultimately” after an agency preliminarily designates its significance. 38. Neomi Rao, In/Site: OIRA Administrator Neomi Rao, Bloomberg Government, Recording at (15:44), avail- able at https://about.bgov.com/event/insite-administrator-neomi-rao/ (Sept. 25, 2018). “Irrespective of economic impacts . . . we will review things we think are important enough for us to review them. In part that’s at the discretion of OIRA and of the White House;” Id. at (16:07) “Agencies generally will send us quarterly or monthly, depending on the agency, a list of upcoming regulations with their significance . . . we talk through those regulations with the agency . . . there is an ongoing dialogue and back and forth, you know mostly at the staff level.” 39. Neomi Rao, The Administrative State and the Structure of the Constitution, , Recording at (30:40), available at https://www.heritage.org/the-constitution/event/the-administra- tive-state-and-the-structure-the-constitution (Oct. 4, 2017). 40. Neomi Rao, Panel Moderator, “The Time for Regulatory Reform in Congress,” The C. Boyden Gray Center for the Study of the Administrative State and the Administrative Law and Reg- ulatory Practice Section, Recording at (1:40), available at https://vimeo.com/207306375 (Mar. 2, 2017). 41. Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1234 (2014), available at https://www.law.ua.edu/pubs/lrarticles/Volume%2065%20Issue%205/Issue%205/Rao_1205- 1276.pdf. 42. Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463, 1479-80, 1490 (2015), available at https://www.nyulawreview.org/wp-content/uploads/2018/08/ NYULawReview-90-5-Rao.pdf. 43. Neomi Rao, Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1, 3-7 (2018). 44. Neomi Rao, Panelist, “Supreme Court Case Discussion,” Conservative Women’s Network, Recording at (6:52), available at ------https://www.youtube.com/watch?v=uE6wuAJcWsY.- 45. Neomi Rao, Panelist, “Constitutional Problems in Financial Regulation,” Public Policy Conference on Financial Regulation: Political, Administrative, and Constitutional Accountability, The C. Boyden Gray Center for the Study of the Administrative State, Recording at (1:00:30), available at: https://vimeo. com/195655839/ (Dec 9, 2016). 46. Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463, 1520 (2015), available at https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawRe- view-90-5-Rao.pdf. 47. Neomi Rao, Interviewer, “Overruled,” Federalist Society, the Charles Koch Institute, and Reason, Re- cording at (23:15, 26:48), available at: https://fedsoc.org/commentary/videos/overruled-the-long-war- for-control-of-the-u-ssupreme-court-event-video and https://www.youtube.com/watch?time_contin- ue=1613&v=rfpdFYp3Hbk (Nov. 19, 2014).. 48. Id. at (26:55). 49. Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1234 (2014), available at https://www.law.ua.edu/pubs/lrarticles/Volume%2065%20Issue%205/Issue%205/Rao_1205- 1276.pdf. 50. Neomi Rao, A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB, 79 Fordham L. Rev. 2541, 2543 (2011), available at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?arti- cle=4719&context=flr. 51. See e.g. above section regarding sexual harassment guidance being held up at OIRA, AFJ Rao Report at 6. 52. Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1230 (2014), available at https://www.law.ua.edu/pubs/lrarticles/Volume%2065%20Issue%205/Issue%205/Rao_1205- 1276.pdf. 53. Id. at 1220, 54. Id. at 1227. 55. Neomi Rao, The President’s Sphere of Action, 45 Willamette L. Rev. 554, 567 (2009), available at http://wil- lamette.edu/law/resources/journals/review/pdf/volume-45/wlr45-3-rao.pdf. 56. Id. 57. Id. at 551-52. 58. Id. at 554. 59. Neomi Rao, and International Law Compliance: The Executive Branch is a ‘They’ Not an ‘It,’ 96 Minn. L. Rev. 194, 218 (2011), available at http://www.minnesotalawreview.org/wp-content/up- loads/2012/01/Rao_MLR.pdf. 60. Id. at 219. 61. Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201, 230 (2008), available at https://afj.org/wp-content/uploads/2019/02/Rao-On-the-Use-and-Abuse-of-Dignity-in-Consti- tutional-Law_.pdf. 62. Neomi Rao, Three Concepts of Dignity, 86 Notre Dame L. Rev. 183, 230 (2011), available at https://afj.org/ wp-content/uploads/2019/01/12-Three-Concepts-of-Dignity-reduced-size.pdf. 63. Id. 64. Id.

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