Sunday, December 29, 2013
Coming to a Theater Near You: Constitutionalism, Constitutional Orders and the AALS
Saturday, December 28, 2013
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”?
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.
Friday, December 27, 2013
The Utah Attorney General's office blows it
An underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General's office in litigating the case.
Thursday, December 26, 2013
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:
Saturday, December 21, 2013
An Interview with Orly Lobel-- Talent Wants to be Free
Friday, December 20, 2013
Judge Shelby and Justice Scalia
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:
Monday, December 16, 2013
Hobby Lobby Part III—There is no “Employer Mandate” [UPDATED 12/18]
Sunday, December 15, 2013
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.
Friday, December 13, 2013
Hobby Lobby Part II -- What’s it all about?
Thursday, December 12, 2013
How Congress Works (And the ObamaCare Subsidies Lawsuit)
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
Wednesday, December 11, 2013
Hobby Lobby Part I -- Framing the issues
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
Tuesday, December 10, 2013
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.
Monday, December 09, 2013
Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
Wednesday, December 04, 2013
Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?
Nelson Tebbe, Richard Schragger, and Micah Schwartzman
Tuesday, December 03, 2013
Reality mimics parody
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:
Monday, December 02, 2013
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.
Sunday, December 01, 2013
More on pardons
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: