Balkinization  

Saturday, August 23, 2014

Sara Mayeux, We Are All Law and Economics Now

Mary L. Dudziak

For your Saturday, I thought I'd share a post from the U.S. Intellectual History Blog by Sara Mayeux, who is currently a Sharswood Fellow at the University of Pennsylvania Law School. Sara looks at law and economics from the perspective of intellectual history, asking "how did law and economics go from an oddball preoccupation of a few Chicago professors to one of the dominant intellectual frameworks for thinking and talking about law?"  You will think, of course, that Steven Teles already answered the question, but Sara compares Teles' work with landmark intellectual historian Dan Rodgers' Age of Fracture, and also legal historian Brad Snyder.

Sara writes, in part, that "In contrast to Teles’s emphasis on particular personalities and institutions, Daniel Rodgers paints law and economics as one detail in a larger panorama." Meanwhile "Brad Snyder composes a rock-and-roll ballad of generational rebellion, in which law and economics was one of many shiny ’60s alternatives to the stodgy proceduralism of legal scholars past." And then Sara synthesizes these different approaches to causality. Her synthesis, all the links you need, and wonderful writing can be found here. Hat tip to Sam Moyn (@Peiresc @saramayeux). And if you've ever wondered why scholars ever use Twitter, now you know. (@marydudziak)



Friday, August 22, 2014

The Augmented Contraception Coverage Regulations (and an NPRM on extension of the accommodation to some for-profit employers)

Marty Lederman

As promised, the federal government today issued an an interim final rule in which it has augmented the secondary accommodation for nonprofit religious employers that have religious objections to including contraceptive coverage in their employee (or student) insurance plans.  The augmented regulation responds directly to the Supreme Court's suggestion in its Wheaton College order that the Government might "rely[] on [a nonprofit employer's] notice [to HHS of its religious objection] . . . to facilitate the provision of full contraceptive coverage under the Act,” and in so doing guarantee that the employees of that objecting organization would continue to receive cost-free access to contraceptive services while at the same time eliminating any religious objection that such organizations might have had to the requirement that they file "Form 700" in order to opt out.

The government has simultaneously issued a proposed rule, as to which it is soliciting comments for 60 days (until October 21), on how it might extend to certain closely held for-profit entities, such as Hobby Lobby, the same accommodation that is available to non-profit religious organizations--something that the Court in Hobby Lobby described as a less-restrictive means of advancing the government's compelling interests without any significant harm to the employees and students of objecting employers and schools.  Under the proposed rule, covered companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds, even if they retain employee health plans.  The proposal offers two possible definitions of covered, closely held for-profit companies, and seeks comments on those and other possible definitions, and whether other steps might be appropriate to implement this policy. 


* * * * 

The new interim final rule for nonprofit organizations

This is, in sum, how the accommodation would now work as to a nonprofit employer (or school) that offers its employees (or students) a "self-insured" insurance plan.  (See this post for explanation of the distinction between insured and self-insured plans.)  Under the augmented rule, such an employer or school would have two, alternative means of opting out of coverage.  It can continue to use Form 700, as many organizations have done.  Or, in the alternative:

1.  An objecting organization that has an objection to submitting Form 700 to the plan's third-party administrator need only inform the Department of Health and Human Services that it has a religious objection to offering contraception coverage.  The organization must also provide HHS with the name and contact information for any of the plan’s third party administrators and health insurance issuers.  HHS has provided a "model notice" that eligible organizations may, but are not required to, use  


2.  At that point, HHS would inform the Department of Labor of the organization's opt-out.


3.  DOL would, in turn, inform the plan's third-party administrator (TPA), if any, that it is obliged to offer contraceptive coverage--initially from its own resources--to the organization's employees (and/or students) without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries.  (Moreover, the TPA must provide notice of this separate treatment to the plan beneficiaries, and do so separate from materials distributed in connection with the eligible organization’s group health coverage.  The notice to employees must make clear that the objecting organization is neither administering nor funding the contraceptive benefits.)


4.  The notice from DOL to the TPA -- rather than any form signed or submitted by the objecting organization -- will then become a "plan instrument" that designates the TPA as an ERISA "plan administrator" for purposes of contraception coverage.*


5.  The federal government would then reimburse the TPA for its payments in the form of an adjustment to the TPA’s assessed user fees for the ACA exchanges.  In other words, the cost of the contraceptive coverage in the self-insured setting is ultimately borne by the government itself, rather than by the organization or by the plan TPA.


6.  In a hypothetical case in which the objecting organization does not use either an issuer or a third-party administrator,  the government will not have any way of guaranteeing that the organization's employees are eligible for contraceptive coverage.  In addition to the option of (i) not using a third-party administrator, an organization also has the options of (ii) using an insured rather than a self-insured plan; or (iii) not providing employer (student) health insurance in the first instance.**  


7.  The earlier regulation had provided that eligible organizations that establish or maintain self-insured group health plans “must not, directly or indirectly seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services” and “must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.”  Although the Departments had interpreted this solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services, these provisions nevertheless had caused some confusion and disputation in the courts.  Accordingly, and because such conduct is generally unlawful and is prohibited under other state and federal laws in any event, the augmented regulation deletes the prohibitions in question.


* * * *


This should take care of any religious objections that eligible organizations might assert, almost all of which I described in this post (and most of which were based on mistakes of law even before this augmentation).  For example, under this regulation:



-- The objecting organization would not be obliged to direct (or require, or instruct) the TPA to provide contraception coverage.

-- The objecting organization would not be obliged to inform the TPA that it is opting out of providing coverage.

-- The objecting organization would not be obliged to inform or “notify” the TPA of the TPA’s obligation to provide contraception coverage.

-- The TPA would not be an “agent” of the objecting organization for purposes of contraception coverage.

-- The objecting organization would not be required to take any steps to help administer the TPA’s provision of contraceptive coverage.

-- The objecting organization would not be required to enter into, or sustain, a contract with a TPA that provides its employees with contraceptive coverage, or to “identify” a TPA to contract with if it has no such contract already.

-- The objecting organization need not refrain from objecting to the TPA’s provision of contraceptive coverage to its employees.

-- The objecting organization would not be required to act hypocritically by not "practicing what it preaches," or to do anything else that a reasonable observer might view as approval or endorsement of contraception use or coverage.

-- The objecting organization would not be required to confer a legal status upon the TPA, such as "plan administrator."

As I explained several weeks ago, however, it appears that at least some of the objecting organizations will continue to raise purported religious objections to this further accommodation--indeed, that they would continue to make RFRA claims for exemptions no matter what the government does, as long as the government continues to require plan issuers or TPAs to offer contraceptive coverage to the objecting employer's employees when the employer opts out.

These organizations will continue to object to the accommodation because (in the words of counsel for some of them) it allegedly requires them to "offer[] health plans through an insurance company or third-party administrator" at a time when that same issuer company or TPA is also providing contraceptive coverage to the organization's employees.  

As I explained, this is not a claim that the organization itself is offering coverage, or paying for it, or facilitating it.  Nor is it even a claim that the organization's action is a "but-for" cause of the employees' access to such coverage or eventual use of contraception:  As I've stressed on several occasions, the employees will receive the coverage in any event--that's the whole point of the "preventive services" provision of the ACA--and these plaintiffs presumably would not conclude that they were complicit if their opting out caused the government itself to offer the coverage to those same employees.

Instead, the residual theory of complicity, as I understand it, is that the accommodation requires the organization to contract with an issuer or a TPA, and that the organization's choice of contractor, together with its employee hiring decisions, will be responsible for the fact that a particular insurance company offers contraceptive coverage to a particular set of employees.  As the brief for Thomas Aquinas College puts it:  "Plaintiffs’ insurance company or TPA will provide the objectionable coverage to Plaintiffs’ employees only by virtue of their enrollment in Plaintiffs’ health plans and only 'so long as [they] are enrolled in [those] plan[s].'”  For example, if Thomas Aquinas College had contracted with Aetna, rather than with Benefits Allocation Systems, to be the plan's third party administrator, then it would be Aetna, rather than BAS, that would offer coverage to Aquinas employees under the accommodation.  And if any one of those employees left Thomas Aquinas College employment next month, they would then receive coverage from another party, other than BAS.

The premise of this argument is mistaken:  The regulation does not require the organizations to contract with an issuer or a TPA--and if they do not do so, then the government currently has no way of ensuring contraceptive coverage for their employees.  But even if that were not the case--i.e., even if federal law coerced the organizations to contract with such an issuer or TPA--Thomas Aquinas College and the other plaintiffs haven't offered any explanation for why, according to their religion, the College's responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees' eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees' contraceptive services.

Be that as it may, it appears that this will now be the primary (if not the only) argument the courts will have to contend with in light of the government's newly augmented accommodation.


The proposed extension of the accommodation to some closely held for-profit companies

The new proposed rule, subject to notice-and-comment review, accepts the Hobby Lobby Court's invitation:  It would extend to certain closely held for-profit entities, such as Hobby Lobby itself, the same accommodation that is available to non-profit religious organizations.  

The agencies offer up two possible definitions of covered, closely held for-profit companies:

-- Under the first proposed approach, "a qualifying closely held for-profit entity would be an 
entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners."

-- Under the second, alternative proposed approach, a qualifying, closely held entity would be "a for-profit entity in which the ownership interests are not publicly traded, and in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners."


According to the preamble, these approaches "might serve to identify for-profit entities controlled and operated by individual owners who likely have associational ties, are personally identified with the entity, and can be regarded as conducting personal business affairs through the entity.  These appear to be the types of entities the Court sought to accommodate in Hobby Lobby."  The preamble further suggests that there may also be "useful definitions or principles in state laws governing close corporations, or other areas of law" that could be employed.

The agencies are seeking comments on those and other possible definitions, and whether other steps might be appropriate to implement the policy. 

 ______________________________

* That's what is said to afford the government the statutory authority under ERISA to compel the TPA to be the intermediary.  As for DOL's statutory authority, the Preamble states that "[i]n establishing and implementing this alternative process, DOL is exercising its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A)."

** The regulation further confirms that because "church plans" are exempt from ERISA pursuant to ERISA section 4(b)(2), a third party administrator of a self-insured church plan "cannot become the plan administrator by operation of 29 CFR 2510.3-16, although such third party administrators may voluntarily provide or arrange separate payments for contraceptive services and seek reimbursement for associated expenses under the process set forth in 45 CFR 156.50."  Thus, as I've explained, there is nothing at stake--and thus no valid RFRA claim--in cases such as Little Sisters, where a church plan TPA will not voluntarily offer contraceptive coverage if and when the employer opts out. 


Is life "priceless"?

Sandy Levinson


In a recent article in the Washington Post about whether the U.S. should pay ransom, in the context of the savage killing of James Foley, Adam Taylor writes, "It wasn't about figures. $100 million is a lot of money, but a life is priceless."  I must say that my first thought when I read this was that the central lesson of my first-year torts course at Stanford almost 45 years ago--which I consider the best course I've ever had, on any subject, anywhere (taught by Marc Franklin)--brought home the point that this statement is simply and utterly wrong.  The legal system prices human lives all the time; that is, among other things, what insurance policies are about, and, of course, the essence of tort law is to monetize the costs of what from a social perspective are completely foreseeable accidents.  We know, when we decide to build skyscrapers or major bridges, etc., that people are going to die.  Ditto, incidentally, with regard to raising speed limits on automobiles or continuing to allow the sale of alcohol in bars, etc., etc.  To be sure, we don't know exactly who is going to die, and that makes all the difference, just as Barack Obama doesn't know exactly whom he is sentencing to death when deploying troops or allowing the use of drones that will generate "collateral damage."  For many, that non-specificity makes all the difference.  Once we are presented with the picture of Mr. Foley, whose life could have been saved by the payment of a ransom, he becomes the "child in the well," where society spends an excess of funds to rescue the tot instead of spending the same money more wisely to save many more "statistical lives' unattached to particular faces.  And, of course, the difference between Mr. Foley and the child in the well is that we don't believe that rescuing the child will in fact create incentives for further children to fall down wells, whereas payment of ransom to thugs in fact does generate extremely bad incentives.  There is absolutely no excuse for what was done to Mr. Foley, but perhaps we have to treat war journalilsts the way we treat soldiers:  i.e., they voluntarily enlisted in a very dangerous occupation, for a mixture of reasons, including patriotism and devotion to the public weal, but part of the deal is that their lives will be on the line, to be protected only at "acceptable" cost.

Even if it is true that most of us consider our own lives "priceless," no society has ever operated on that basis, and none ever will.  

Ferguson and Foreign Relations

Mary L. Dudziak

My take on the international reaction to the crisis in Ferguson, Missouri, is at Foreign Affairs this morning. Here's a snippet:
As the turmoil in Ferguson, Missouri, unfolds, questions about the United States’ commitment to human rights are once more headlining news coverage around the world. The uncomfortable international spotlight on such domestic problems should not be surprising. American racial inequality regularly dominated foreign news coverage during the 1950s and 1960s. U.S. policymakers were eventually forced to respond, in part to protect America’s image abroad. As it reflects on how to handle the protests in Ferguson, the Obama administration would do well to consider the fact that, in previous decades, federal intervention was eventually needed to protect both civil rights and U.S. foreign relations.

The killing of Michael Brown, an unarmed teenager, by a police officer -- and the resulting protests -- have been front-page news in many countries. On August 20, Saudi Arabia’s Al Watan and the Kuwait Times published the same shocking photograph of an officer in riot gear pointing a rifle at a woman on the ground.... Iran's Ayatollah Ali Khamenei took to Twitter to criticize the U.S. human rights record, posting photos from Ferguson alongside historic images of racial segregation and using the hashtag #Ferguson....
In the body of the essay, I compare Ferguson with the civil rights crisis in Birmingham, Alabama in May 1963, which also featured brutal police suppression of civil rights demonstrators. Resolution of  the Birmingham crisis led to a desegregation plan on the local level, as well as, ultimately, a shift in civil rights politics that led ultimately led to the Civil Rights Act of 1964.

But the Little Rock crisis in 1957-58 may be a better comparison, depending on whether there is follow-through. As I explain here, federal government involvement in Little Rock was more effecting at protecting the nation's image than in meaningfully desegregating schools. I conclude this way:
Then, as now, protecting rights serves U.S. international relations. Whether it also leads to real justice in Ferguson, however, depends on a sustained effort once the foreign press has gone home.

Wednesday, August 20, 2014

New Paper on the Fourteenth Amendment.

Mark Graber

I have just posted "Constructing Constitutional Politics: Thaddeus Stevens, John Bingham and the Forgotten Fourteenth Amendment" on SSRN.  The abstract of the paper is as follows:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.
If my analysis is correct, Section 1 of the Fourteenth Amendment had no original meaning.  More to the point, we ought to understand the Fourteenth Amendment as an attempt to construct rather than to constrain politics.  Needless to say, I welcome all comments and suggestions.

Taking Liberties with the Last Word

Guest Blogger

Rob Weiner
Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue.  The Halbig case presents a prime example.  On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc.  The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.
To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review.  The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuit, allowing such subsidies.  A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth.  If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response.  Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases.  But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict.  D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.
Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue.  The other cases cited presented no conflict.  Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.
Read more »

War and Peace in Time and Space

Mary L. Dudziak

My new paper War and Peace in Time and Space was inspired/provoked by the indomitable Yxta Maya Murray, who invited me to participate in a symposium on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace at Seattle University Law School. Yxta's commitment to peace as something that does or can truly exist in the world helped me to see that, in my work on wartime, I was not taking peace seriously enough. This led me to revisit the question of what peace might be in a nation engaged in ongoing armed conflict. My answer to this puzzle is to turn to geography/spaciality. I will keep working on this in my next book, but here's my take so far.
This essay is a critical reflection on peace, written for a symposium issue on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace. Peacetime and wartime are thought to be temporal concepts, alternating in history, but ongoing wartime seems to blot out any time that is truly free of war. In spite of this, peace is the felt experience of many Americans. We can understand why peace is thought to exist during ongoing war by turning to geographies of war and peace. The experience of American war is not only exported, but is also concentrated in particular American communities, especially locations of military bases. Memorialization of war death is one of the “spaces of the dead,” as Thomas Laquere calls it, separated from daily life. The persistence of war and the separation of killing, dying and the dead from the center of American life is an example of the way war and peace are spatial. War is also simultaneously infused into domestic life and segregated in the context of militarization. This has been on display in the crisis in Ferguson, Missouri in August 2014. One thing that makes Ferguson so dramatic is the diffusion of war materiel into domestic policing. It also matters deeply that the officers pointing the weapons are largely white, and the demonstrators are predominately largely African American, making clear the racial geography of militarized policing. In the end, this essay raises the question of whether peace should be sought or celebrated. Perhaps the space of peace during persistent conflict can only be a space of privilege.
My paper is on SSRN. It this topic sounds familiar, it's because I started thinking about it on this blog a while ago.

Tuesday, August 19, 2014

The Future as a Concept in National Security Law

Mary L. Dudziak

I will follow up soon on Frank Pasquale's thoughtful post on history and the crisis in Ferguson, Missouri.  Today I'm posting a new paper from a conference on The Future of National Security Law.  The topics of race and national security are intersecting before our eyes. But the paper takes up something more abstract:  the concept of "The Future."  Here's the abstract:
The Concept of the Future in National Security Law
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a “next attack,” and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

Sunday, August 17, 2014

Texas Prosecutor Indicts Ham (you fill in the blank)

Stephen Griffin

It's been said that a prosecutor could get a grand jury to indict a ham sandwich.  In the Texas case, it's a governor.  At moments like these, I'm grateful to listservs I belong to, such as Conlawprof, for showing me that I'm not an outlier.  Like a number of constitutional law scholars, I'm very troubled by the indictment of Rick Perry.  I'm certainly no fan of Governor Perry, but closely analogous issues were discussed and argued out during the 1998 Clinton impeachment.  Should prosecutors clothed with the authority of a grand jury intervene in matters of high (or low) politics with criminal indictments?  I say no.  If they have facts to present, provide them to the legislature or whatever body is tasked with the responsibility of impeachment.


True, we could imagine a governor committing an "ordinary" crime, one completely unconnected with his official responsibilities.  But no one could make that case here, so I'm setting aside the issue of whether it might be better for a prosecutor to proceed against a chief executive accused of, say, murder, rather than a legislature pursuing impeachment and conviction.  Governor Perry isn't being indicted for just vetoing a law, but this comes pretty close.  What we have at most is a case of Texas (and Austin) hardball politics.  Governor Perry tried to remove a prosecutor he probably didn't like very much after she violated the law and perhaps brought her office into disrepute.  And that's a crime?  That doesn't seem very plausible to me and I wonder if the prosecutor has really thought through the broader constitutional implications of what he and the grand jury are doing.


I am fortunate that I can feel the warm embrace of consistency, since I argued against a prosecutor (Ken Starr) having such a power during the Clinton impeachment.  I argued that Congress was the only body who could properly investigate and remove a president.  As long as the Texas constitution has roughly similar provisions to the federal Constitution, which seems to be the case, the same separation of powers/checks and balances logic holds here.  Governor Perry should be held to account in the political/electoral/democratic arena, not by a single prosecutor, jury, or judge.

Saturday, August 16, 2014

Politics By Other Means

Guest Blogger


Rob Weiner


In prior posts, I have described Halbig v. Sebelius and King v. Sebelius, the legal challenges to tax subsidies under the Affordable Care Act, as anti-democratic -- an effort by the losing side in a legislative battle to induce credulous or partisan judges to overturn the policy choices of our elected representatives.  The charge has prompted righteous indignation among opponents of the ACA.  Now, the Constitutional Accountability Center has turned up a video documenting the genesis of the legal theory advanced in Halbig, and it proves my point.[1] 

At an American Enterprise Institute conference in late 2010, Thomas Christina, a lawyer for various industry groups on health care issues, presented the results of his search for a statutory “defect” to undermine the ACA.  Focusing on the ACA’s tax subsidies enabling low income families to afford health insurance, Christina identified the statutory language that opponents of the Act have read to bar tax subsidies in States with Federal, rather than state-established insurance Exchanges.  Immediately after Christina’s presentation, AEI scholar Michael Greve, like a fire and brimstone preacher, urged the flock to find some way -- any way -- to eviscerate the statute:

This bastard [the ACA] has to be killed as a matter of political hygiene.  I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.  I don’t care who does it, whether it’s some court some place, or the United States Congress.  Any which way.  Any dollar spent on that goal is worth spending.  Any brief filed toward that end is worth filing. Any speech or panel contribution toward that end is of service to the United States.[2]
 Law Professor Jonathan Adler later came across the video of the Conference and took on  Mr. Greve’s challenge, publishing an article with the Cato Institute’s Michael Cannon that elaborated on the “defect” discovered by Christina.  Initially, Adler and Cannon characterized the ostensibly defective provision as a “glitch” or “legal mistake.”  And if that supposed error gutted the statute, well, all the better.
Read more »

Thursday, August 14, 2014

The Historical Resonance of Ferguson

Frank Pasquale

When I was in college, I was fortunate enough to take a history course from Morton Horwitz, on the Warren Court. It was inspiring on many levels. We learned about the NAACP's decades-long strategy to win civil rights for African Americans. We saw that legal struggle result in a series of legendary Supreme Court decisions.We also discussed the global pressures on the US to reform--how it was embarrassed, in the midst of Cold War rivalries, to be criticizing Soviet abuses while tolerating so many outrageously racist practices on its own soil.

Two items brought Horwitz's course to mind for me today. Mary Dudziak's scholarship on Cold War Civil Rights illuminates parallels between our eras. As she argues, in Little Rock in the 1950s, the "image of American democracy was at stake:" "foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in the nation."

Twitter is creating a similar dynamic around #Ferguson. Gezi Park veterans from Turkey are tweeting tips on how to deal with tear gas. The police militarization has made the front page of Australian papers. The Financial Times, based in London, is reporting on it. America's own leading magazines are acknowledging that "black people . . . across the South are as politically vulnerable as they’ve been since the emergence of the civil rights movement." Add to that the brutality toward Eric Garner, and mounting evidence of the racialized targeting of police attention, and the civil rights picture is bleak nationwide. Not only the 14th Amendment, but also the 1st Amendment, is endangered.

Where do we go from here? Ronald K.L. Collins offers another compelling historical analogy:
[T]he First Amendment victory in [New York Times v.] Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.
It's hard to imagine that the same Court that gave us Florence v. County of Burlington is up to questioning the militarization of police. But we can hope that, as a growing chorus of conservative voices criticize police violence, it will at least consider intervening.

Lubet on Free Speech and Salaita

Andrew Koppelman

My friend and colleague Steven Lubet has just published a short piece in the Chicago Tribune concerning the controversy over the University of Illinois's decision not to hire Prof. Steven Salaita:


Free speech and U. of I.'s Steven Salaita

Steven Lubet

Controversial scholar Steven Salaita ­ who has been most benignly described as "deeply critical of Israel" ­ has been fired or "non-hired" by the University of Illinois, depending on which news source you believe. In either case, it appears Salaita's numerous tweets, which have included venomous comments about Israelis and Jews, played a role in his job loss. Thus, he is either an avatar of academic freedom or the victim of his own extremism, again depending on your point of reference. Needless to say, the situation is not quite that simple. There are actually three distinct principles involved, and they do not necessarily lead to a single neat conclusion.
Read more »

The Assault on Journalism in Ferguson, Missouri

Frank Pasquale

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its "reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend." Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post's Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

Read more »

Tuesday, August 12, 2014

Dana Milbank on the death of American optimism

Sandy Levinson

Dana Milbank has a column in the Washington Post about the death of American optimism about the future, based primarily on a Wall Street Journal/NBC poll of Americans.  "Thus, When asked if “life for our children’s generation will be better than it has been for us,” fully 76 percent said they do not have such confidence. Only 21 percent did. That was the worst ever recorded in the poll; in 2001, 49 percent were confident and 43 percent not.."   As one might expect given the percentages, pessimism cuts across class, racial, and ethnic lines, even if there are differences in the level of pessimism. " In other words, the gloom goes beyond wealth, gender, race, region, age and ideology. This fractious nation is united by one thing: lost faith in the United States."

What accounts for this?  There are, of course, many potential explanations, including the slow recovery from the Great Recession.  But Milbank writes at he shares the belief of Fred Yang, one of the pollsters, "that something deeper is also at work: Americans are reacting, in part, to the breakdown of the political system, which leaves people quite rationally worried about American decline and the nation’s diminishing ability to weather crises."  Needless to say, I agree, but, perhaps also needless to say, is that Milbank, like almost all of his fellow pundits, resolutely refuses to connect the dots between the "breakdown of the political system" and the constitutional order imposed on us by the 1787 Constitution, as insufficiently amended. So the question is how much longer can references to "the breakdown of the political system" avoid any mention of what in major ways constitutes the basics of that system, i.e., the Constitution? Or let me put it this way:  If I am correct that most readers of Balkinization (including lurkers) share the sense of pessimism--if they do not, that itself would be fascinating and worth independent study--how many of them believe that the Constitution will prove to be a net positive force in making things better over the next, say, two decades, as against a cause of further despair?  It is possible, of course, that one could rationally believe that the Constitution makes no difference at all, one way or the other, that Marx (or anyone else you might put in his place) was right in viewing constitutions as merely epiphenomenal  on what is really important, whether it's the economy, stupid; our falling away from religion; the sheer force of globalization and the ever greater competition for limited resources, or what have you.  But that view, at least, means that we can stop praising the irrelevant Constitution, which would be an improvement over venerating it, at least as far as I am concerned.

Thomas on the Seventh Amendment in Puerto Rico

Jason Mazzone

My colleague Suja Thomas has a very interesting post at the Volokh Conspiracy on a recent decision of a district court that the Seventh Amendment requires the availability of civil juries in Puerto Rican courts. The decision is a bit of a mind bender. There is a key background issue of whether Puerto Rico is an incorporated or unincorporated territory and the district court appears to have hedged its bets on that question by characterizing the right to a jury trial as so fundamental that it must apply in either case. To reach that result, the district court says also that the Seventh Amendment jury trial right applies in state courts. And to get there (because the Supreme Court has not incorporated the Seventh Amendment right against the states), the district court views the incorporation issue open for new examination after McDonald v Chicago. Suja, an expert on the historic role of civil juries, does a nice job of laying out the complexities of the case and previewing what all of this might mean for Puerto Rico (assuming the First Circuit doesn't reverse) -- and beyond.  

ObamaCare Plaintiffs’ 2012 Supreme Court Briefs Read the Act Exactly As They Now Say It Cannot be Read (and Why that Matters for Chevron)

Abbe Gluck

I have another piece out in Politico on the Halbig and King  (Obamacare subsidies) cases.  Here are a few excerpts (a lot more in the full link):

"[I]n the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read. Namely, they assumed that the subsidies were available on the federal exchanges and went so far as to argue that the entire statute could not function as written without the subsidies. That’s a far cry from their argument now that the statute makes crystal clear that Congress intended to deny subsidies on the federal exchanges.

I am not a fan of the “gotcha” flavor that some aspects of this case have taken on, but the challengers’ 2012 statements are relevant as a legal matter because what the government has to prove to win—as a matter of black-letter law under the Chevron doctrine—is that the statute is ambiguous. (Chevron says that federal courts defer to the relevant agency’s reading of the statute when a federal statute is unclear—here, that agency is the IRS.)
 ...

Indeed, the plaintiffs went so far as to say the entire Affordable Care Act should have been struck down without the subsidies—because the act would not be able to function as written without them.
From the brief:
 
The Federal Government only subsidizes coverage purchased within an exchange, thus giving insurance companies a reason to sell there despite the distinct regulatory burdens imposed on plans offered through the exchanges. The exchanges cannot be severed from the provisions already addressed. Without the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions. Premised on the mandate, the insurance regulations, and the subsidies, the insurance exchanges cannot operate as intended by Congress absent those provisions. (p. 51, emphasis added).

...
 Next, consider the 2012 brief of the state governments who joined the constitutional challenge—a brief that, along with the joint dissent’s description, flatly contradicts the challengers’ new narrative that 1) Congress never thought any states might not operate the changes themselves; 2) the subsidies were somehow intended to be a carrot to entice states to establish their own exchanges on penalty of losing them entirely if the feds had to do it; and that 3) this makes the ACA’s exchange provisions analogous to Medicaid’s carrot/stick cooperative federalism regime.
From the State Government Petitioners 2012 brief:
 
The ACA’s second set of supply-side provisions is found in Subtitles D and E of Title I. Subtitle D mandates the creation in each State of “health benefit exchanges,” which will be run by either the State or the federal government. ACA §§ 1301–1343…. If a State is not willing to create and operate an exchange, the federal government will step in and do so itself. ACA § 1321(c). Subtitle E then establishes tax credits and other subsidies for the lower-income individuals and small businesses that purchase plans on the exchanges. ACA §§ 1401–21. Congress has estimated that getting these new exchanges up and running will cost at least $350 billion in federal spending by decade’s end. Letter from Douglas Elmendorf, Director, CBO, to the Hon. Nancy Pelosi. (p.9, emphasis added)

....

Far from arguing—or even suggesting—that the subsidies were limited to state exchanges, the challengers and the joint dissent affirmatively argued that subsidies are essential for the insurance-exchange provisions to function as written. Now, however, the same challengers say that Congress purposefully designed a federal exchange without those same subsidies—that Congress intentionally configured that exchange, and all the pieces of the statute linked to it, to be doomed to fail.

I have argued before, and continue to argue, that the Affordable Care Act, read textually in context and as a whole—as interpreters of all stripes (textualist, purposivist, pragmatist) agree statutes should ideally be read—makes clear that the subsidies are to be provided on federal exchanges. Other provisions of the statute, like 36B(f), which requires reporting to the IRS of subsidies on state and federal exchanges, make no sense otherwise. But the government does not even need to go that far to kick this challenge where it belongs—out of the courts and back into the political arena of Congress, where it is entirely appropriate to haggle over the act to the death as a matter of policy. But this is a law case, and all the government needs to show under the law is that the statutory text is, at a minimum, ambiguous—that there are at least two ways it can be read. The court and the challengers (alongside the Congressional Budget Office, the reporters covering the statute’s enactment and former staffers and elected members) already have made that case, and then some."

For more, check out the full piece....

Monday, August 11, 2014

Lawrence Summers on constitutional reform

Sandy Levinson



Former Secretary of Treasury (and Harvard President)Lawrence Summers has just published an op-ed in the Washington Pos, "Ending Presidents' Second Term Curse," arguing that we need to move to a single-term presidency, perhaps, he writes, of six years.  The evidence, he suggests, is that second-term presidents rarely accomplish anything significant.  A similar (unacknowledged) argument was made during the Bicentennial more than a quarter century ago by elite Washington lawyer Lloyd Cutler and political scientist James Sundquist, who advocated a single six-year term. 

 Summers concludes his column by writing, somewhat laconically, that “that National reflection on reform is overdue.” Well, yes!  But one wonders what model of constitutional change Summers has in mind.  Who, for example, will be doing the reflecting, with what result?  Is he calling, for example, for a nationwide mass movement to “reflect” on the multiple explanations for the fact, as he puts it in his opening sentence, that “Disillusionment with Washington has rarely run higher.”  Or is his column, as one might expect given his background and its venue, directed at fellow insiders who will….  Do what? Call for a constitutional amendment in the absence of a national outcry that such a fundamental change (which would, among other things, make us like Mexico, which relies on a president who serves a single six-year term)?  Why would anyone believe that two-thirds of each house of Congress would support, without significant pressure from their constituents, such a change?  Or, perhaps, Summers will lend his illustrious presence to the call for a new Article V constitutional convention that will have a mandate to engage in a truly comprehensive set of “national reflections” on the various reforms that are indeed overdue in our sclerotic 18th century constitutional order?

I do not mean to be as snarky as I may sound.  I am grateful to practically anyone who is willing to go beyond attacking one or another contemporary “leader” and instead suggests that we need to look at the extent to which our basic institutional structures may be at least partially to blame for our predicament.  And Summers is obviously no ordinary person.  His endorsement of an Article V constitutional convention could be a breakthrough moment, requiring other establishmentarians, automatically identified as “serious” and “thoughtful,”  to take seriously ideas that they simply dismissed when made by ordinary “folks” who lack such credentials.  
I’m not sure where I stand on the single-six-year term, though I do know that my support would be conditional on including the power of Congress, by a two-thirds vote meeting in joint session (to limit the power of the Senate) to vote “no confidence” in an incumbent president anytime after, say, the first two years of the six-year term. In any event, it’s good to have Secretary Summers’ contribution to the discussion of our constitutional system.  But will in fact anyone (beyond predictable academics) take it seriously enough even to discuss it? Is this just another example of "sound and fury" (of the kind that I often engage in) that in fact "signif[ies] nothing" about the actual potential for changing our remarkably dysfunctional system?

Constitutional Reverence is Structural

Gerard N. Magliocca

One theme of this blog is that we give too much reverence to the Constitution's structure.  Upon reflection, the unheralded decision by the First Congress to make the first set of amendments an appendix contributed to that problem by setting the 1787 text apart from the work of subsequent generations.  (A 2011 paper by Mehrdad Payandeh entitled Constitutional Aesthetics:  Appending Amendments to the United States Constitution explores some of these issues.)

Madison wanted to write his proposed amendments directly into the text, but Roger Sherman convinced the House of Representatives that this was wrong.  Sherman's main argument was that there should be no confusion between what was approved by the Constitutional Convention and signed by its delegates (including Sherman himself) and what came later.  If you think about that, though, the argument is rather weak.  The signatures do not need to be included in the legal text that everyone sees, and even if they were anyone knowledgeable about constitutional law would not think that George Washington approved (or disapproved) of Prohibition or giving women the right to vote.  Moreover, almost all state and national constitutions do not follow Sherman's view.  They are single documents with amendments inserted into an appropriate place, and you would use annotations to learn when a given provision was ratified.

On the other hand, keeping the 1787 text pristine does enhance its status as compared to the amendments, which may have been Sherman's objective, as he was unenthusiastic about a bill of rights.  And if the Constitution's legitimacy comes from the heroism of the revolutionary leaders who proposed the plan, keeping their names tied to an unchanging text may be a useful legal fiction.  The point is that the way that First Congress set up the amendment process reinforces that view that there is something special about the original text that should not be changed.

One final thought.  Suppose Congress wanted to issue a "Restatement" of the Constitution that put the amendments and the 1787 text together. Would that require an Article Five amendment even though no new text would be added?

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