Coming to a Theater Near You: Constitutionalism, Constitutional Orders and the AALS

Mark Graber

Posted 10:48 AM by Mark Graber [link] (18) comments

Hobby Lobby Part III-A—Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?

Marty Lederman

The plaintiffs in Hobby Lobby and Conestoga Wood argue that federal law compels them to act contrary to their religious obligations, by requiring them to offer (and pay for and administer) employee health insurance plans that include contraception coverage. As I explained in my most recent post, that turns out to be a simple misreading of the law:  Although employee plans must include contraception coverage, the Affordable Care Act does not require that employers offer such plans to their employees, nor even impose substantial pressure upon them to do so.

I received several thoughtful responses to that post, questioning whether that conclusion can be right.  My correspondents have not taken issue with my reading of the law.  Nor have they argued that the law imposes a duty on the plaintiffs to offer health insurance plans.  They have suggested, however, that the law must have a very different practical effect than I surmised because, if I were correct, then most employers would be dropping their health insurance plans—something that is not happening and that the government does not expect to happen anytime soon.
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Posted 9:22 AM by Marty Lederman [link]

The Utah Attorney General's office blows it

Andrew Koppelman

An underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General's office in litigating the case.

Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal.  That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.

In Utah, however, the state inexplicably neglected to request a stay before the ruling issued.  That led to a bizarre phone conversation between Judge Robert Shelby and the AG's office, which the judge describes in pp. 5-6 of the transcript of the hearing, here.  The AG's office asked whether a stay would be issued, and the judge properly responded that he had received no request for such a stay and would not consider one until he received a motion in writing.  Given the uncertainty of the outcome, his refusal to issue a stay (and the Tenth Circuit's subsequent, similar decision) is questionable.  It means that some same-sex couples will get licenses of uncertain validity, with human costs that are hard to assess in advance.  But the door to this result was opened by the AG's goof, which put the state procedurally in the wrong at the outset of the appeal.
Posted 11:05 AM by Andrew Koppelman [link]

Happy Boxing Day!

Gerard N. Magliocca

In honor of the holiday, I give you this passage from A.V. Dicey (the famed British constitutional scholar) written more than a century ago that fits well with some of the themes of this blog:

"The constitution of a Federal state must, as we have seen, generally be not only a written but a rigid constitution, that is, a constitution which cannot be changed by any ordinary process of legislation. Now this essential rigidity of federal institutions is almost certain to impress on the minds of citizens the idea that any provision included in the constitution is immutable and, so to speak, sacred. The least observation of American politics shows how deeply the notion that the constitution is something placed beyond the reach of amendment has impressed popular imagination. The difficulty of altering the constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the constitution. The House of Lords has lasted for centuries; the American Senate has now existed for more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modify the constitution of the Senate. To this one must add that a federal constitution always lays down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism."
Posted 11:55 AM by Gerard N. Magliocca [link] (7) comments

An Interview with Orly Lobel-- Talent Wants to be Free

Guest Blogger

Kiel Brennan-Marquez
Orly Lobel 

[Yale ISP fellow Kiel Brennan-Marquez interviews University of San Diego Law Professor Orly Lobel  about her new book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding (Yale University 2013)]


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Posted 11:11 AM by Guest Blogger [link]

Judge Shelby and Justice Scalia

Jason Mazzone

Whatever the merits of Judge Robert J. Shelby's ruling today that Utah's same-sex marriage ban violates the Fourteenth Amendment, his opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger. Some sample statements from today's decision:

• Justice Scalia . . . recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest . . . disagreement that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." [Windsor, 133 S. Ct. at] 2709 (Scalia, J., dissenting).
• The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
• The court . . . agrees with the portion of Justice Scalia's dissenting opinion in Lawrence in which Justice Scalia stated that the Court's reasoning logically extends to protect an individual's right to marry a person of the same sex.
• [T]radition alone cannot form a rational basis for a law. . . . [A]s Justice Scalia has noted in dissent, "'preserving the tradition institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).

Inasmuch as Justice Scalia has never "recommended" that lower federal courts strike down state marriage laws, Judge Shelby's "agreement" with Scalia is nothing of the kind. Call me old fashioned, but it seems to me that if you can't fairly represent the opinions of Supreme Court justices, you have little business being on a district court.     



Posted 6:29 PM by Jason Mazzone [link] (79) comments

Hobby Lobby Part III—There is no “Employer Mandate” [UPDATED 12/18]

Marty Lederman

As I explained earlier, the crux of plaintiffs’ RFRA claims in Hobby Lobby and Conestoga Wood is that the HHS “Preventive Services” Rule substantially burdens the religious exercise of the companies’ owners and managers by putting them to an untenable choice between their civil and religious obligations.  As the Hobby Lobby complaint puts it:  “Plaintiffs will face an unconscionable choice: either violate the law, or violate their faith.” 
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Posted 9:36 AM by Marty Lederman [link]

Throwing The Civil Rights Cases

Gerard N. Magliocca

Many scholars who have examined the Supreme Court's 1883 decision in The Civil Rights Cases argue that the Government's briefs in the case were terrible. They neglected to raise points that might have swayed the Court and were poorly written overall.  The Court (save for Justice Harlan) found most of the statute unconstitutional, and Congress did not enact a similar civil rights law until 1964.

This leads me to ask the following question. Is it possible that the Government wanted to lose The Civil Rights Cases and thus intentionally wrote lackluster briefs?  Before you fit me for a tin-foil conspiracy hat, consider this. There is a longstanding custom that the Department of Justice should defend the constitutionality of a federal statute.  Every once in a while, though, the DOJ concludes that it cannot do that.  (The most recent example was DOMA.)  I am not clear, however, that in the nineteenth century there was an understanding that the DOJ could make exceptions like this.  What would the DOJ do then?  Maybe it would just write a really weak brief.  Imagine what the Obama Administration brief in support of DOMA would have looked like if they were compelled to write one.  Would it have been really strong?  Probably not.

There is circumstantial evidence to suggest why the Administration of President Chester Arthur may have wanted the Civil Rights Act of 1875 invalidated.  Basically, the political environment was not hospitable for civil rights enforcement by the 1880s.  If the law were upheld, then the Administration would have been obligated to enforce it (and get criticized) or not enforce it (and get criticized).

Anyway, it's an interesting topic for someone to research.  Perhaps there are internal documents among Arthur's papers that shed light on this.  A bad brief could just a bad brief, but it's suspicious.
Posted 11:33 AM by Gerard N. Magliocca [link] (24) comments

Hobby Lobby Part II -- What’s it all about?

Marty Lederman

(i) federal law requires the companies in question to offer their employees access to a medical insurance plan;

(ii) the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;

(iii) the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[] others to engage in, or otherwise support[] [the use of] abortion-causing drugs and devices”; and

(iv) the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”

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Posted 5:36 AM by Marty Lederman [link]

How Congress Works (And the ObamaCare Subsidies Lawsuit)

Abbe Gluck

     It’s that crazy time of year when time is short, but I cannot resist a couple of quick posts about the pending Obamacare health exchange lawsuit, which should be decided within the next week or so by a district court in Washington D.C.(Judge Paul Friedman), and followed by several similar decisions in suits pending in Virginia, Oklahoma and Indiana.  The case is incredibly important—if the challengers win, consumers on more than half of the Obamacare health insurance exchanges will receive no tax subsidies to help cover the cost of insurance, an outcome that will devastate the operation of the Act. The case, in my view, is also incredibly weak.  And perhaps most significantly for law professors, the case shows us just how much lawyers and courts have to learn about the legislative process.  This post will offer some “Congress 101,” and explain how an understanding of the ACA’s legislative process should have put this case to bed long ago.  In my next post on this subject, I will tackle some of the other issues in the case, including some interesting Chevron arguments.

     A quick summary of the case, for those not up to speed: The health reform statute, the ACA, sets up new insurance marketplaces (like Expedia for health insurance) and provides generous subsidies to individuals and families with incomes up to 400% of the federal poverty level to help them buy insurance in those marketplaces, which are called insurance exchanges. The statute makes states the default operators of those exchanges but if a state chooses not to operate one or fails to, the federal government steps in.  As most readers know, more than half of the states have decided not to operate their own exchanges, and so the federal government is doing so (how it’s doing in that regard is another important story, but one not relevant here).
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Posted 9:59 AM by Abbe Gluck [link]

Hobby Lobby Part I -- Framing the issues

Marty Lederman

Earlier this month, the Supreme Court announced that it will consider two related cases involving claims for religious exemptions to what has commonly (but inaccurately) been called the “contraception mandate” under the Affordable Care Act—Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Corp. v. Sebelius.  The cases will be consolidated for oral argument, which the Court will almost certainly hear between March 24 and April 2.  The first briefs in the cases will be filed on January 10.  Amicus briefs on both sides are due January 28.
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Posted 10:28 PM by Marty Lederman [link]

Nelson Mandela and the American Constitution

Gerard N. Magliocca

The death of Nelson Mandela raises the age-old question of whether individual leaders or impersonal forces drive history.  Most of the time it's the latter, but there are exceptional circumstances where the man or woman plays a pivotal role.  South Africa is one example.  The relatively peaceful transition of power in 1994 was hardly inevitable, and Mandela's personal qualities made a huge difference.

With that in mind, I cannot help but reflect on how much was lost when Lincoln was assassinated at a crucial juncture of our history.  Not only did America lose his exceptional skills and authority, but he was succeeded by a series of presidents who were not up to the task.  Andrew Johnson is an obvious example, but lately I've come to think that Ulysses S. Grant was almost as bad.  He had a chance to make Reconstruction work, but he squandered that opportunity through corruption and cluelessness.  Ron Chernow, who was written fine biographies of Alexander Hamilton and George Washington, is now working on Grant.  I wonder if he will be able to explain what went wrong.
Posted 4:16 PM by Gerard N. Magliocca [link] (70) comments

Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter

Guest Blogger

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

We have been arguing (here, here, and here) that a religious exemption to the contraception mandate would raise serious concerns under the Establishment Clause. In our last post, we rejected the argument that employees are not burdened when the government creates an exemption from a government-provided benefit. Here, we want to consider a different objection, namely, that the Supreme Court has, in fact, allowed religious employers to impose substantial burdens on their employees. This objection rests, in turn, on a more general claim, which is that the Establishment Clause does not prohibit costs shifting when the government lifts burdens it has imposed on private religious actors. Read more »
Posted 11:15 AM by Guest Blogger [link]

Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?

Guest Blogger

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

Last week, we argued here and elsewhere that a basic constitutional issue has been overlooked in the religious freedom challenge to the contraception mandate. In brief, the missing argument is that granting a statutory exemption to the mandate for religious employers would violate the Establishment Clause by imposing a significant burden on the employees who are the intended beneficiaries of the mandate. A longstanding nonestablishment principle prohibits the government from lifting its burden on the religious beliefs of one party when that would mean shifting the cost to third parties who do not share those beliefs. Now that the Supreme Court has agreed to hear Hobby Lobby and Conestoga Wood, it is imperative that this constitutional issue be aired. Read more »
Posted 6:04 PM by Guest Blogger [link]

Reality mimics parody

Andrew Koppelman

A story in today's New York Times, about a new wave of legal challenges to the Affordable Care Act, includes the following description of a remarkably principled individual:

One plaintiff in the District of Columbia case, David Klemencic, the sole owner of a carpet and flooring store in the town of Ellenboro, W.Va., was also a plaintiff in the constitutional challenge to the individual mandate. In an interview, Mr. Klemencic, who does not have any employees, said he had deep, philosophical objections to any effort by the government to require him to purchase insurance, and would refuse to accept a subsidy even if eligible. “I go to the doctor now, I go to the dentist now, I take my checkbook and I pay for it,” he said. “If I’m forced into some sort of program where it’s subsidized by the government, I won’t go see a doctor.”

About ten years ago, the satirical newspaper The Onion ran the following fictitious story:

Libertarian Reluctantly Calls Fire Department

CHEYENNE, WY—After attempting to contain a living-room blaze started by a cigarette, card-carrying Libertarian Trent Jacobs reluctantly called the Cheyenne Fire Department Monday. "Although the community would do better to rely on an efficient, free-market fire-fighting service, the fact is that expensive, unnecessary public fire departments do exist," Jacobs said. "Also, my house was burning down." Jacobs did not offer to pay firefighters for their service.

 
 Here, reality has outpaced fantasy.  Presumably, if Klemencic's house catches fire, he will resist any effort by the fire department to trespass on his property.
Posted 4:05 PM by Andrew Koppelman [link]

Is Our Constitution Broken?

Gerard N. Magliocca

I'll note (since nobody else yet has) that our own Sandy Levinson is profiled in an article by Jeffrey Toobin in this week's New Yorker.  Unfortunately, the article is behind a paywall.
Posted 1:47 PM by Gerard N. Magliocca [link]

More on pardons

Sandy Levinson

Today's NYTimes has a number of responses to my Monday letter on presidential pardons (itself reprinted), as well as my final thoughts.  I continue to find it significant that no one, whether those writing letters to the Times or Balkinization discussants, has actually defended Obama's (or Bush's) hesitation to exercise the constitutionally-granted pardon power.  Jeffrey Crouch, who has written an interesting book on the pardon power, has a letter repeating his concerns about abuses of that power, including, especially, George H.W. Bush's "last Christmas in Washington" pardons of a number of people who were being investigated for their role in "Iran gate" and their potential ability to implicate Bush himself.  He also pardoned Elliot Abrams, who had lied to Congress; that pardon presumably helped rehabilitate Mr. Abrams and make possible his service in the administration of George W. Bush.  I conclude my "on-line" response--the print version had to be edited for reasons of space--with the following:

Finally, Professors Crouch and Ruckman set out the conflicting arguments about the use of the presidential pardon power. All such powers are subject to misuse.

The question is whether we fear “sins of commission” like the Marc Rich pardon more than the “sins of omission” of presidential heartlessness.

 
UPDATE:  The Washington Post has a strong editorial  criticizing the President for his stinginess in granting pardons (or commutations).  He is, indeed, the stingiest president in modern history.  (He has, however, pardoned ten turkeys during his five years in office.)  Interestingly enough, one of the Post's polls based on the obviously unscientific responses of their online readers indicates that 53% "oppose" the proposition that the President should issue more pardons and only 47% "support" it.  I realize that those who write letters to the NYTimes or respond to Balkinization posts are no more scientific a sample, but this heartless majority nonetheless surprises me unless it is based on the premise that Obama should do nothing at all, period. 
Posted 12:33 PM by Sandy Levinson [link] (19) comments