Balkinization bloggers showered with honors

JB

I forgot to add in my previous post that two other Balkinization contributors, David Gans and Doug Kendall, along with Elizabeth Wydra, were honored by the Green Bag for Exemplary Writing for their amicus brief, Brief of Professors as Amici Curiae in Support of Reversal, McDonald v. City of Chicago (7th Cir. 2009). (Full disclosure: I signed this brief, but this fact should not detract from its quality).

Congratulations to David, Doug and Elizabeth!




Posted 7:05 PM by JB [link]

D.C. Circuit Speaks on Gitmo Habeas Merits

Deborah Pearlstein

Cross-posted at Opinio Juris

The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.

There is a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.

The panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.

Then there’s the matter of the accuracy of the panel’s sweeping – and unnecessary-to-the-ruling – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.



Posted 2:27 PM by Deborah Pearlstein [link]

Eugene Fidell and Marty Lederman Honored for Exemplary Legal Writing

JB

The Green Bag's awards for "Exemplary Legal Writing" in 2009 include two Balkinization contributors.

Eugene Fidell won for his October 8, 2009 B'zation essay Appellate Review of Military Tribunals.

Marty Lederman, now serving his country in the Office of Legal Counsel, won for his OLC opinion, Constitutionality of the Ronald Reagan Centennial Commission Act of 2009, 33 Op. Office of Legal Counsel (2009).

Congratulations to Gene and Marty! They have set an example for the rest of us to follow.




Posted 11:14 AM by JB [link]

What CLS Got Wrong

Brian Tamanaha

Like Sandy, I too agree with just about all of Mark's post, except for the essential point he neglected to mention. The pertinent passage is his closing:

I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?

By almost all accounts, Bush v. Gore was an embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on. This consensus view confirms that much more is involved than getting to five. Although Mark cites Holmes, the favorite authority for skeptical assertions, Holmes also wrote, "It has given me great pleasure to sustain the constitutionality of laws that I believe to be as bad as possible because I helped thereby to mark the difference between what I would forbid and what the Constitution prohibits."

CLS was correct that the law is whatever the court decides, but this does not mean that whatever it decides is legitimate or proper. The crucial mistake of CLS was its failure to emphasize that, while legal analysis is frequently capacious enough to support any outcome (especially at the level of Supreme Court cases), nonetheless, usually certain arguments are legally stronger than others. Mark's own comment (on the weakness of the arguments against validity) confirms this. That is why Jack is right to focus on the soundness of legal analysis.

It is not just about marshaling five votes, at least not for judges with integrity, but about coming up with and adhering to the most compelling legal argument. The more often we emphasize this the harder it will be for judges to engage in cynical analysis.


Posted 12:05 AM by Brian Tamanaha [link] (60) comments

The Justices Roberts

Mark Tushnet

As Sandy Levinson's posts (including the most recent) have suggested, when we think about the current administration and the Supreme Court, our thoughts almost inevitably turn to the mid-1930s. It's easy to push the parallels between the Roosevelt and Obama administrations too hard, but some parallelism does seem to be there: taking office mid-crisis, offering ambitious policy proposals with some prospect of success in Congress, and -- importantly here -- facing a Supreme Court staffed by justices whose ideological formations (or "judicial philosophies," if you like) contain important elements that could be used to put into constitutional peril some aspects of the administration's policy proposals. (Here too we shouldn't exaggerate. The Court in the mid-1930s endorsed an expansive, Hamiltonian interpretation of the general welfare clause, thereby putting its stamp of constitutional approval on the Roosevelt administration's Keynesian spending programs. The full story is, as they always are, even more complicated.)
Posted 10:16 PM by Mark Tushnet [link]

The Day after Barnette v. Sibelius

Sandy Levinson

I agree with every word of Mark's post: It really does boil down to whether the Conservative Majority would dare to strike down the most important domestic social policy legislation in the past forty years, which, like the Civil Rights Act of 1964, would have passed only after vicious filibusters. But let's assume they do. Then what?

Bush v. Gore is an interesting evocation, since the one thing we know for sure is that Al Gore rolled over and played dead on December 13, proclaiming his duty to accept, without further protest, the decision of the Court, whatever its intellectual merits. He therefore provided no leadership for anyone who might have wished to engage in serious protest beyond signing angry ads. So, possibility one is that Barack Obama, the former University of Chicago professor, says "I really regret that the Court came to the decision it did, but we are a country that believes in 'the rule of law,' which means that five justices get the final say on what the Constitution means, whatever the rest of us think of their decision. So, until those in the majority have the courtesy to resign or die--and assuming that the Republicans will allow me to place justices more sympathetic to my own constitutional vision on the Court--I will just have to accept the fact that health reform is off the table, given that no other bill is likely to survive the Senate (which, incidentally, is also intellectually indefensible, but that's as irrelevant as what I think of the Supreme Court's decision). The Constitution is indeed whatever the Supreme Court says it is, so let's move on...."

But there are, of course, other possibilities. Perhaps the President would summon up the emotional energy to denounce the decision and to suggest that there is no reason that the country must be in thrall to a group of five "willful men" (since I assume that Ginsburg and Sotomayor will be in dissent against any such decision), anymore, incidentally, than we should continue to be in thrall to an almost terminally dysfunctional Senate. Therefore, he will devote his energies and political skills to a debate about structural fundamentals, beginning with the Supreme Court--should it be packed, should it require a supermajority to invalidate federal legislation, etc.) and moving on to the Senate. Indeed, he will suggest that the use of the veto power on policy (instead of constitutional) grounds is itself an affront to 21st century democracy, so that he would himself be willing to support that diminution in presidential power as part of a grand bargain by which the Senate is transformed into an institution that makes sense for our present world. This is obviously unlikely, but if one is looking for silver linings in a Supreme Court invalidation of the legislation, this would certainly be it for me.

It is not surprising that my friend Randy Barnett supports such drastic judicial intervention, since he has no regard at all for the notion of "judicial restraint." His impressive corpus of work, the best defense of a basically libertarian Constitution currently available, calls on courts and judges to be far more interventionist than has been the case for almost a century. But I am more than curious about the wing of conservatives who have embraced "judicial restraint." Consider in this context the savage criticisms by Richard Posner and J. Harvie Wilkinson of the Heller opinion as activism run riot (a view that I do not necessarily subscribe to, even though I find the Scalia opinion itself intellectually indefensible). Will they really suppport such a de facto coup?

A final question: Where would Randy advise his clients to file the original suit, since it might be embarrassing if the Court was faced with a district and a unanimous circuit court opinion finding no problem with the legislation. So what's the best forum to shop? Concomitantly, what is to stop proponents of the legislation from initiating the litigation, seeking a declaratory judgment that they will be violating no one's rights in requiring proof of insurance? Or will the final legislation direct that any litigation take place in DC (and what is the current likely split on the DC circuit with regard to such arguments)?



Posted 12:36 PM by Sandy Levinson [link] (102) comments

Liberals, the Individual Mandate, and Critical Legal Studies

Mark Tushnet

This morning's Washington Post has a story on proposed legal challenges to the individual mandate in the pending health care legislation. (In brief, conservatives are arguing that Congress lacks the power to require people to purchase health insurance or pay a penalty, under either the commerce clause and the power to tax and spend for the general welfare.) The story observes that liberal-leaning constitutional scholars think that, as Erwin Chemerinsky puts it, "There are many close constitutional questions. But this is not among them," or, as Jack Balkin says, "All of these arguments don't work, but they're interesting to debate."

I'm afraid that these reactions demonstrate that liberal-leaning constitutional law types haven't absorbed the lessons of critical legal studies -- or, indeed, the lesson Justice William Brennan taught his law clerks by holding up one hand with his fingers splayed: "With five votes you can do anything." The CLS lesson was -- and is -- that where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate.

I lack both the interest and the energy to work out the arguments in detail, but I've thought enough about the constitutional issues to be able to sketch out an argument, compatible with existing law, that the individual mandate (a) doesn't fall within Congress's power to regulate interstate commerce, (b) doesn't fall within Congress's power to tax and spend for the general welfare, and (c) is (in its penalty aspect) a direct tax prohibited by the Constitution. I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?




Posted 10:36 AM by Mark Tushnet [link]

Apparently, Senator Hatch has not read the text of the individual mandate (or else he's just fibbing)

JB

Orrin Hatch and his friends get the benefit of the pages of the Wall Street Journal to tell us things about the individual mandate that are not actually true.

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Is that so? Let's look at the House and Senate Bills.

Here's the House Bill:

‘‘PART VIII—HEALTH CARE RELATED TAXES
‘‘SUBPART A. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE
COVERAGE.
‘‘Subpart A—Tax on Individuals Without Acceptable Health Care Coverage
‘‘Sec. 59B. Tax on individuals without acceptable health care coverage.
‘‘SEC. 59B. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE
HEALTH CARE COVERAGE.
‘‘(a) TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed
a tax equal to 2.5 percent of the excess of—
‘‘(1) the taxpayer’s modified adjusted gross income for the taxable year, over
‘‘(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

Now let's look at the Senate Bill:

‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE
‘‘Sec. 5000A. Requirement to maintain minimum essential coverage.
‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ES21
SENTIAL COVERAGE.
‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginning after 2013 ensure that the individual,and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
‘‘(b) SHARED RESPONSIBILITY PAYMENT.—
‘‘(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with
respect to the individual in the amount determined under subsection (c).
‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
‘‘(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month—
‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or
‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.
‘‘(c) AMOUNT OF PENALTY.—
‘‘(1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year.
‘‘(2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the
applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.
‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)—
‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.
‘‘(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.

The House bill is a tax on adjusted gross income. You pay the tax if you don't purchase health insurance. Put another way, if you don't want to buy health insurance you can just pay the tax.

The Senate bill is a penalty tax. If you don't want to purchase health insurance, you pay the tax. The penalty is assessed for as long as you don't buy insurance. Such taxes are quite common-- think, for example, about the penalties imposed for failing to pay your income tax on time, or a tax on polluters who fail to purchase and install anti-pollution equipment. The Senate bill can also be classified as an excise tax on an event-- failure to pay premiums in a given month.

Congress's powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress's powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or "head" taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.

Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.

The reason why Senator Hatch does not tell you what is in the bill in his op-ed is because once you read it, you will see that what he says is not true. The individual mandate is structured as a tax. And the tax is perfectly constitutional under Congress's powers to tax and spend for the general welfare.


Posted 6:55 PM by JB [link]

Rethinking CONventional Wisdom on State Hospital Licensure

Frank Pasquale

If there is one aspect of contemporary health care regulation that conservatives have decried, it's certificate of need (CON) laws. These laws require licensure of new health facilities (and sometimes expansions of facilities) in thirty-seven states. Denounced as relics of socialist central planning, they were a prime target of the Bush-Era Dose of Competition report. But, as David Leonhardt notes, it appears that CON laws are reducing costs without impairing quality in some areas.

First, a bit of background. As health costs rose in the 1960s, many policymakers believed that a surplus of health services was to blame. Policymakers worried that health care costs were rising due to “induced demand:” the more doctors and hospitals there were, the more these actors would try to counteract the normal price-depressing effect of increased competition by finding more wrong with patients, thus “inducing” demand for their services. Although such a strategy could rarely work in a normal market, health care is a credence service—it is very hard for the average consumer to “second guess” his or her provider about the amount or nature of care needed.*

In 1974, Congress passed the National Health Planning and Resources Development Act. The Act required new health care facilities, and additions to existing facilities, to obtain a Certificate of Need (CON) from the appropriate state agency as a prerequisite to receiving federal funds via the Medicare and Medicaid programs. As a result of these laws, those opening new health care entities needed to demonstrate to state commissions that their services are actually needed by the community.

Over time, state boards started addressing concerns beyond “induced demand," including social goals of equity and fair distribution of health resources. When I emailed a New Jersey policymaker who has worked in this area, he told me that the state would be unlikely to license specialty hospitals that concentrate on the most lucrative cases because they would threaten the ability of safety net hospitals to use revenue from such cases to cross-subsidize uncompensated care. He called such egalitarian concerns "explicit and leading factor[s] of discussion at all levels in CON proceedings.”

Leonhardt is more concerned about the classic CON goal of cost-control, and sees CON laws as a key reason for positive developments in Richmond, Virginia:

Since 1996, the Richmond area has lost more than 600 of its hospital beds, mostly because of state regulations on capacity. . . . Richmond has gotten rid of 15 percent of its hospital beds, and its health care still looks a lot like the rest of the country’s, only cheaper and a bit better. . . .

[Meanwhile, health facilities vastly expanded in South Dakota after it scrapped its CON law in 1988.] In other industries, all that new capacity might have led to a glut, in which workers and equipment sat idle. But health care is different. Doctors and patients tend to believe that more care is better, and patients often don’t pay much extra for any additional care. So new doctors, nurses and equipment generally stay busy.

Dr. John Wennberg of the Dartmouth Medical School refers to this phenomenon as supply-sensitive care. Dr. Marlon Priest, the chief medical officer of Bon Secours, puts it this way: “If you build 100 beds, they’ll get used.” . . . [But] [m]ore care is not always better care. Sometimes, in fact, it’s worse. Just consider the recent research showing that radiation from CT scans will eventually kill thousands of patients a year.

I'm not fully sold on the Dartmouth studies (here's one critique of them), and I do worry that efforts to fight overtreatment will lead to some "meat ax" rationing that denies care to the poorest. But when cost saving initiatives are combined with a commitment to preserve access to care for all, they may be as close to a "Pareto optimal" health policy as we can get.

*(Lawyers have their own version of this "induced demand" problem, encapsulated in the old saw: "When there was one lawyer in town, he had no business; when another moved in, he was swamped with cases." I suppose laws against barratry are offer a loose parallel to CON in the legal profession. Antitrust may stand in the way of legal and medical professionals' own actions to avoid "induced demand.")

X-Posted: Concurring Opinions.

Posted 5:06 PM by Frank Pasquale [link]

Population of the American states and the Senate

Sandy Levinson

Wikipedia has a very helpful entry on the population of the US states. One gets to 50% of the total population, according to 2008 census estimate, with the nine largest states, California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, and Georgia. (Note, though, that the percentages are calculated by including the populations of US territories such as Puerto Rico and the District of Columbia, which, of course, have no voting representation in Congrees.) So one might divide the Senate into two groups, one of 18 senators who represent a majority of the population, the other of the remaining 82 senators who represent slightly less than 50% of "we the people." If one adds four more states, North Carolina, New Jersey, Virginia, and Washington, one reaches 60% of the total population, and adding yet eight more states, ending with Minnesota, reaches 75%.

So what this means is that 42 senators represent 75% of the population, while the remaining 58 (beginning with Colorado and going through Wyoming) have just short of a filibuster-proof majority in the Senate while representing, by definnition, less than 25% of the total population. It is possible, of course, that 2010 census figures will demonstrate that, say, it would take the top 22 states, with 44 senators, to get up to 75% of the population, so that the remainder of the population would have "only" 56 senators.

I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of "necessary" compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the "representation" of slaves. The inability of the Security Council to reform itself, because of the assignment of veto powers, is a major problem with the contemporary United Nations. Ditto the Senate. Many people probably don't really care about the UN (and may even view it as basically illegitimate); they obviously don't really want a more "functional" Security Council. But can we afford the same complacence about the American government and the egregious Senate?
Posted 11:05 PM by Sandy Levinson [link] (69) comments