Hobby Lobby and the Politics of Recognition

Joseph Fishkin

In substantive health policy terms, the Court’s decision today in Hobby Lobby was surprisingly minuscule.  The majority and Justice Kennedy insist repeatedly that the substantive impact of the decision on women’s health insurance coverage for contraception, with no copays, will be “precisely zero.”  All they are holding, they insist, is that a statute, the Religious Freedom Restoration Act (RFRA), requires the Department of Health and Human Services (HHS) to expand modestly the set of religious entities that are subject to a special contraception two-step.  (These entities declare they don’t want to cover some contraceptives, and then either their insurer, or in the case of self-insured corporations, their third-party benefit administrator, must provide the contraceptive coverage at no cost to the employees.  This works because contraceptive coverage saves money; its long-run cost is probably negative.*)  HHS set up this accommodation for what we might call actual religious entities, like churches; the Court says that “closely held” for-profit corporations owned by religious people should get this accommodation too.

So, the Court has traded an easily administrable bright line (for-profit corporations versus not) for an ambiguous, future-litigation-inviting test (“closely held” enough versus not).  Other than that, what did Hobby Lobby accomplish exactly?  It doesn’t move the needle much—maybe none at all, if the administration behaves as the Court suggests—on the question of how many women will actually get coverage for contraceptives with no co-pays.  (Most women have it, but quite a lot do not, either because they’re uninsured, or because they still have “grandfathered” pre-ACA employee plans, or because their employer is too small.)

But this case was never really about health policy.  It isn’t really even about the ACA, except peripherally.  This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46).  None of these—neither (a), (b), nor (c)—is really a legal claim.  These are political claims.  But this is high politics, not low politics.  These are claims about how our nation is constituted and the place of religion in it.

This explains the oddest part of the Court’s decision.
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Posted 7:26 PM by Joseph Fishkin [link]

Justice Ginsburg's inexplicable first two pages

Sandy Levinson

I will leave it to my betters to offer far more learned commentary than I on the implications of Hobby Lobby (though I suspect that, as in so many other instances, we won't know for many years of its actual importance:  remember Lopez?).  All I want to say is that I found the beginning of Justice Ginsburg's otherwise able dissent to be absolutely inexplicable.  Reading Justice Alito's opinion, I was impressed by how it adopted the rhetoric of quasi-minimalism:  i.e., closely held corporations, they objected only to four among a bunch of contraceptive methods, etc.  If the Court overreached, it was in deciding the case without remanding it for a full hearing on whether there really and truly is a less-restrictive-alternative other than the government's paying the money (which is disingenuous in the extreme, given that there is no chance whatsoever that Congress would pass an appropriation to cover contraception).  But Ginsburg violated the first rule of tactical dissents:  Do not cry "The British are coming"" or "The sky is falling" unless in fact the British are coming or the sky is falling.  She could so easily have conceded, thinking of future cases, that the decision was, in its own way, a modest one, but even the modest version was a mistake in its analysis of RFRA.

I would be extremely interested, when the papers are open after I'm gone, if the other dissenters pushed back on the extremity of the first couple of pages or if they a) agreed that that was the proper tone to adopt or b) felt they simply couldn't take on the (self-appointed?) leader of the "liberal bloc."  I think that Ginsburg has publicly spoken of her admiration for Justice Brandeis.  Perhaps she should reread Alex Bickel's Unpunblished Opinions of Justice Brandeis, which included some suppressed dissents on the ground that it would be better to pretend agreement and then, at a later case, argue that the precedent was in fact a narrow one rather than to ring the alarm and thus concede the merits of a later argument about its breadth.  I wonder, for example, if Justice Scalia would change some of his rhetoric in Lawrence and Windsor about the logic of those opinions requiring same-sex marriage.  He was right, of course, but was he well-advised to say it?  I suspect that his comments have been cited with frequency by judges ruling in favor of same-sex marriage.

One other point:  The Court has literally no idea what to do with the concept "religion," other than to suggest that it is fundamentally impermeable to standard-form rational analysis.  "Because this is the way I feel" seems to be a conclusive argument in the religions realm  (except where drugs are concerned).  I presume that secular conscience will never be similarly protected, though the Court does not explain why, unless it is because of a kind of brute textual positivism drawn from the "free exercise of religion" clause of the Religious Freedom Restoration Act.  That may be correct, just as we're stuck with the stupidity of January 20 as Inauguration Day because of the 20th Amendment.  In any event, those of us unhappy with the decision should perhaps blame Congress for passing RFRA (which I supported) and RLUPA than the Court for trying to give content to the rather extreme language of the statutes.

UPDATE:  A very sophisticated friend has suggested that another explanation for the tone of Ginsburg's dissent is that it was actually responding to a penultimate version that, perhaps, had not yet gotten Kennedy's vote.  That version might well have been more extreme (not limiting the analysis to closely held corporations, for example, or emphasizing that religious objections to vaccinations will basically not be honored, etc.).  But the actual Opinion of the Court simply didn't merit the kind of language Ginsburg uses at the beginning, and those of us who are on her side of the debate would have been better served with a more modulated dissent.  Now what will she say in the future if there are indeed five votes for "stronger" accommodationism?

FURTHER UPDATE:  As one of the discussants below suggests, perhaps Ginsburg (justly) feels that she was taken to the cleaners by the too, too clever Chief Justice on NAMUNDO, but the point is that she went along with that opinion and what she later discovered was its dreadful language.  I'm not suggesting that she should have signed Alito's opinion, which I wouldn't have signed either.  The disagreement is whether it can accurately be described as the sky falling.  What will she say the next time if the sky really does fall?.  She ought to be able to say that the majority was lying through its teeth when it promised that the decision was temperate, but she has given up that rhetoric by refusing to take seriously the language actually used in the opinion.  The opening of her dissent is the equivalent of the letters that I'm sure all of us have received, even if from groups on the opposite side of the spectrum, that suggest that a piece of relatively mainstream legislation is the beginning of the end (any gun control means the confiscation of all weapons, any attempt to get control over entitlements, given the greater percentage of geezers like myself, means the end of social security, and so on).  It's all too effective strategy for fund-raising, but it makes legislation and compromise near impossible.       


Posted 5:16 PM by Sandy Levinson [link] (29) comments

Hobby Lobby, a small victory for women's rights

Andrew Koppelman

Monday's Supreme Court decision in Burwell v. Hobby Lobby could have been a disaster for women’s health and equality and, in the long run, for religious freedom. The Court cleverly devised a solution that avoided that disaster and decently accommodates the interests that had collided. The decision was a small victory for women’s equality—a core issue that many lower courts casually ignored.

You can read the rest of this piece at The New Republic's website, here.
Posted 4:21 PM by Andrew Koppelman [link]

Hobby Lobby as Separation of Powers

Jason Mazzone

Although I have followed with interest the Hobby Lobby and Conestoga Wood cases, I have not previously written about them. I am not a religion specialist and much of the discussion about the cases (at this blog and elsewhere) has involved questions of religious freedom, religious accommodation, and religious establishment that seemed to me better left to experts. As a generalist in constitutional law, it seemed to me the cases were largely about separation of powers. Where, I wondered, did HHS actually get the power to require, as it had in its regulations implementing the Affordable Care Act, some employers but not others--indeed, some corporations but not others; some religious objectors but not others--to provide employees with morning-after pills?

Since I suspect that with today's ruling in favor of Hobby Lobby and Conestoga Wood under the Religious Freedom Restoration Act (RFRA) we'll quickly be focused again on religion, I want to note that much of Justice Alito's opinion has a separation-of-powers theme. Repeatedly, he casts the ruling as bringing a runaway agency to congressional heel. I recognize of course that not everyone will agree that deference to Congress warrants today's outcome. But rarely has the Supreme Court so thoroughly trounced an agency's interpretation of congressional directive. Some relevant portions of Justice Alito's opinion are below the jump--but it is worth reading the whole thing with an eye to congressional versus executive power.

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Posted 11:44 AM by Jason Mazzone [link]

Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision

Marty Lederman

The Supreme Court will almost certainly issue its decision in Burwell v. Hobby Lobby this morning (at about 10:15).  The Chief Justice likely assigned himself the lead opinion at conference back in March.

Here are six possibilities that you might not have considered concerning the decision.  I am not predicting that all of them will come to pass--indeed, perhaps none will.  But each of them is distinctly possible (I'd say that Nos. 1 and 3 are probable), and none should come as a surprise:

1.  The Court unanimously rejects the government's "threshold" argument that none of the plaintiffs can sue under RFRA.  This is the basic question that has dominated debate in the lower courts.  But for reasons I explained here, I think it very likely that there will be few, if any, Justices who conclude that the suits should be tossed out without reaching the merits.

2.  The Court does not resolve the question of whether for-profit corporations can "exercise religion".  As I've discussed in several posts (such as this one), this is not the most propitious case for the Court to examine this abstract question, which has dominated public discussion.  Indeed, the Court might never have to resolve it.  The much easier and more appropriate route for the Court would be to hold that it is the individual corporate directors -- the Greens in Hobby Lobby; the Hahns in Conestoga Wood -- who can bring RFRA suits, since if the federal law here burdens anyone's exercise of religion by requiring or coercing violation of religious obligations, it is the obligations asserted by those individuals acting in their capacity as corporate decision-makers (not shareholders).

3.  The Court holds that there is no "employer mandate" and that federal law does not require the corporations to provide insurance coverage for contraceptive services.  Those of you who have been reading along with my posts will recognize this argument.  As I explained recently, the remarks of several Justices (including the Chief Justice) at oral argument in March suggested that most if not all of the Justices may reject the factual premise that every court of appeals has assumed--namely, that corporations of a certain size have a legal duty to provide an employee health plan that includes contraceptive coverage, and that they are subject to a penalty or fine if they do not do so.  They don't; and they aren't.  Please note:  This would not mean that the government necessarily wins.  It would, instead, shift the initial merits question to whether federal law imposes substantial pressure on these or any other employers to offer such a plan (notwithstanding that many if not most employers nationwide will abandon their plans), something I've discussed at length in several Balkinization posts (see posts III, III-A, III-B, VIII, IX, XIV and XV here). 

4.  The Court does not resolve the merits, but instead remands the case to the lower courts for adjudication of either or both of two factual disputes.  These possibilities both came up at oral argument, after having received almost no attention in the briefs.  First, the Court might remand the cases for trial on the question of whether federal law does, in fact, impose substantial pressure on these particular employers to provide an employee health plan (see Point 3, above), something their lawyer, Paul Clement, urged the Court to give him an opportunity to demonstrate.  Second, the Court might remand the cases for trial on the question of whether the government could offer for-profit employers the same option that it has afforded nonprofit religious employers, pursuant to which they could opt out of involvement with contraceptive coverage, which would then be provided, and paid for, by third-party insurers or administrators.  This is an alternative that plaintiffs' counsel first proposed at the end of his oral argument (see page 40).  When Justice Breyer asked the Solicitor General about this alternative, the SG explained that because the plaintiffs had not previously suggested such a solution would be acceptable to them, the government had not yet calculated whether it was something that might be feasible:  "You're talking about a very open-­ended increase in the cost to the government.  Now, we don't know how much that cost would be. . . .  Since this wasn't litigated in the lower courts, there's not a record on it.  So I can't tell you what that ­­ what that increased cost is going to be, but it could be quite considerable."  The Court might well instruct the lower courts to make factual findings about the cost and feasibility of that option.  Alternatively, but less likely, the Court might even hold that RFRA requires the government to extend its secondary accommodation to at least certain sorts of for-profit corporations.

5.  The Court raises questions about the agencies' statutory authority to offer religious accommodations that are not required by RFRA.  This is a question that Justice Kennedy appeared to be interested in (see pages 56-58 and 70-71 of the transcript).  [The Court might even hold that the agencies lacked authority to draw a for-profit/nonprofit line in crafting the secondary accommodation.]

6.  Some of the Justices (but not a majority) reject the common assumption that RFRA incorporates the pre-Smith free exercise doctrine.  RFRA famously uses the language of strict scrutiny--if the plaintiff demonstrates that federal law imposes a substantial burden on her exercise of religion, the government must show that denying a religious exemption would be "in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”  42 U.S.C. § 2000bb-1.  As I explained in an earlier post, however, Congress did not intend to impose strict scrutiny; instead, it intended to incorporate the Court's own pre-1990 Free Exercise Clause jurisprudence, which could hardly have been described as the application of strict scrutiny (indeed, the government virtually always prevailed--unanimously--in cases arising in the commercial sector):

Congress intended RFRA to incorporate by reference the Supreme Court’s Free Exercise Clause doctrine from the period between Sherbert v. Verner (1963) and Employment Division v. Smith (1990), a body of case law that Congress determined to be “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”  42 U.S.C. § 2000bb(a)(5).  The committee reports made clear that courts should “look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened and the least restrictive means have been employed in furthering a compelling governmental interest. . . .  [T]he compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”  S. Rep. No. 111, 103d Cong., 1st Sess. 8-9; accord H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. 7 (1993); see also id. at 14-16 (views of Reps. Hyde, Sensenbrenner, McCollum, Coble, Canady, Inglis, and Goodlatte) (“A major issue of contention in the 102nd Congress was whether the bill was a true ‘restoration’ of the law as it existed prior to Smith or whether it sought to impose a statutory standard that was more stringent than that applied prior to Smith. . . .  Several changes were made to the bill during the Judiciary Committee markup in late September of 1992 and prior to the bill’s introduction in 103rd Congress.  [ML:  Most importantly, earlier proposed versions of RFRA had required the government to show that denial of an exemption was “essential to” a compelling government interest; but RFRA as enacted requires the government merely to show that the denial is “in furtherance” of a compelling interest.]  These changes resolved the ambiguity about the standard to be applied and made it clear that the bill does not reinstate the free exercise standard to the high water mark as found in Sherbert v. Verner and Wisconsin v. Yoder, but merely returns the law to the state as it existed prior to Smith. . . .  The amendments . . . make clear that the purpose of the statute is to ‘turn the clock back’ to the day before Smith was decided.”).

In particular, RFRA’s use of the phrase “substantial burden” was designed to refer to the sorts of burdens on religious exercise that the Court of the pre-Smith era would have recognized as triggering the requirement for the government to justify denial of an exemption under the “compelling interest” test.  See 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (amendment offered by Senators Hatch and Kennedy, and unanimously agreed to by the Senate, to change “burden” to “substantially burden,” “is intended to make it clear that the pre-Smith law is applied under the RFRA in determining whether” a governmental burden on religion “must meet the [compelling interest] test”).

That has been the Court's understanding of RFRA, too.  See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (RFRA “adopts a statutory rule comparable to the constitutional rule rejected in Smith”).

At oral argument in Hobby Lobby, however, at least two Justices hinted that, in their view, RFRA's words ought to be taken at face value, which would make the statute much more restrictive than the pre-Smith jurisprudence:  "It's more than pre-Smith," said Justice Scalia.  (See also Justice Alito at page 50.)  As it happens, there has been a very heated debate among the Justices this Term, in several statutory cases, about the relationship between what might simplistically be characterized as textualist and purposivist methods of statutory interpretation.  In light of those decisions, I can easily imagine a Justice Scalia opinion in Hobby Lobby, joined by one or more other Justices, arguing that the words of RFRA must be applied according to their literal terms, regardless of what Congress intended and regardless of how unexpected the results might be.  Even so, I'd be very surprised if such a view commands a majority of the Court:  Justice Scalia has lost most of those interpretive battles this Term; and a Scalian, textualist reading of RFRA would result in a virtual revolution in federal law, across the U.S. Code--something that I doubt five Justices would endorse.  



Posted 7:50 AM by Marty Lederman [link]

A More Nuanced View of Legal Automation

Frank Pasquale

A Guardian writer has updated Farhad Manjoo's classic report, "Will a Robot Steal Your Job?" Of course, lawyers are in the crosshairs. As Julius Stone noted in The Legal System and Lawyers’ Reasoning, scholars have addressed the automation of legal processes since at least the 1960s. Al Gore now says that a "new algorithm . . . makes it possible for one first year lawyer to do the same amount of legal research that used to require 500."* But when one actually reads the studies trumpeted by the prophets of disruption, a more nuanced perspective emerges.
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Posted 10:20 AM by Frank Pasquale [link]

Rhetorical Combat on the Supreme Court?

Mark Tushnet

Posted 1:43 PM by Mark Tushnet [link]

Noel Canning, Constitutional Hardball, and Constitutional Workarounds

Mark Tushnet

Posted 1:33 PM by Mark Tushnet [link]

What the EPA case *Really* Has to Say About the Obamacare Subsidies Lawsuits

Abbe Gluck

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Posted 11:22 AM by Abbe Gluck [link]

What is a Citizen?

Gerard N. Magliocca

This past week I led a teacher workshop for the "We The People" program, which is a civic education initiative at all levels that I participated in as a high school student.  One part of our discussion was about the definition of citizenship, which gave me the idea for this post.  Here's the question:  What is the constitutional significance of United States citizenship?

One clear answer is that only citizens may be elected to Congress or to the White House.  (You can be a federal judge without citizenship.)  And then there is . . . nothing.  There is no other benefit or right that the Constitution reserves to citizens.  As Ripley used to say, "Believe It or Not."

"Wait a minute," you might think.  "Only citizens vote, serve on juries, and get passports."  That is true, but these are not constitutional requirements.  States can give voting rights to aliens (at the ballot box and in the jury box) and Congress can do the same for federal juries, passports, and for voting in the District of Columbia.  John Bingham argued in the 1850s that states could not give aliens the right to vote, but that view was rejected then and is hard to justify given the broad latitude that states have over voter eligibility (and he had to cite Dred Scott as his best case!)

My analysis makes a hash of a leading argument in the immigration debate.  Some people say that Democrats want to give illegal immigrants amnesty because they will vote for Democrats when they become citizens.  But they could vote for Democrats now if states gave them the ballot.  (I very much doubt, by the way, that a federal court would rule that states are preempted from expanding suffrage in this way, as it would be extraordinary to say that a traditional state power like that is preempted.)  Now the odds that any state will do this are close to zero, but you never know.

UPDATE:  Eugene Volokh correctly pointed out to me that Section 2 of the Fourteenth Amendment refers specifically to citizens in setting forth its penalty for states that disenfranchise voters. Since Section 2 has never been enforced (and some think it was superseded by the Fifteenth Amendment), I don't think that detracts from my point, which is that the constitutional significance of citizenship is dependent on state law to a degree that is often overlooked.

Posted 8:24 PM by Gerard N. Magliocca [link] (17) comments

The Evangelical Origins of the Living Constitution

JB

John W. Compton's The Evangelical Origins of the Living Constitution (Harvard University Press 2014) is an outstanding addition to the literature on American constitutional development. The book argues that the progressive critique of the Constitution in the early twentieth century that led to the New Deal was presaged and to some extent made possible by earlier social movements of evangelical Christians in the nineteenth century who sought to ban alcohol and lotteries. The idea that the Constitution's practical meaning must adjust to changing social conditions is often associated with the progressive critique of the 1920s and 1930s. But Compton shows that evangelicals made similar moves decades before in order to reshape constitutional understandings and justify government power to ban alcohol and lottery sales.

In the early nineteenth century, three different features of constitutional doctrine stood in the way of evangelical efforts at reform. The first was the doctrine of vested rights, protected by the Contracts Clause, which prevented states from abolishing lotteries once legislatures had granted lottery companies corporate charters. (The key precedent was the Dartmouth College Case). Second, the Due Process Clause (or its equivalent in state constitutions) allowed alcohol producers to challenge state attempts at prohibition on the ground that this would destroy their investment in business. Third, attempts to ban interstate shipment and sales of alcohol and lottery tickets were limited both by the Commerce Clause and by the Dormant Commerce Clause.  The federal government was widely believed to lack the power to enact police regulations through the Commerce Clause. Although the states did have a police power, because the of the Dormant Commerce Clause, it was assumed that they could not ban or tax the interstate shipment of goods moving through their borders because it was necessary to keep the channels of interstate commerce clear.

Evangelical mobilizations during the nineteenth century successfully whittled away at all three of these basic assumptions of nineteenth century constitutionalism.  Eventually courts agreed that the Contracts Clause did not bar states' attempts to ban lotteries, because state legislatures could not contract away their power to protect the health, safety and welfare of their citizens. In Mugler v. Kansas, the Supreme Court interpreted the Due Process Clause to allow a total ban on alcohol sales in the state of Kansas, even though this effectively destroyed the value of the owners' investments in alcohol. Finally, in the Lottery Case, Champion v. Ames, the Supreme Court took a significant step toward erasing the distinction between commerce and police by allowing the federal government to completely ban the interstate shipment of lottery tickets, even though its reasons for doing so were essentially no different than police power rationales.

During the nineteenth and early twentieth centuries, judges sometimes tried to treat these cases as narrow carveouts that did not alter basic constitutional principles protecting common law rights and the system of dual federalism. Eventually, however, progressives pointed to these earlier decisions about alcohol and lotteries to justify state police power to protect workers' rights, and federal power to regulate the economy generally.  Thus, in his famous dissent in Lochner v. New York, Justice Holmes used "the prohibition of lotteries" to justify his argument that "state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract."  It became increasingly difficult to cabin these examples as special regulations of contraband; they seemed to stand for the broader authority of both federal and state governments to modify property and contract rights in the interests of public health, safety and welfare.

Compton's discussion of these cases is admirably clear and straightforward, in the process, he shines new light on the history of American constitutional development. He does a tremendous service in recalling cases and debates that were once very important to constitutional theory but are no longer.  (One example is the original package doctrine, which fascinated and bedeviled courts and commentators for decades but has largely been superseded by statutory and judicial innovations). And he shows why key cases like Mugler v. Kansas and Champion v. Ames were so controversial in their day, and how much was at stake in now-forgotten struggles over lottery and alcohol regulation. (Although Champion is still taught in some courses, Mugler is largely forgotten today, and few people spend very much time on the development of the Contract Clause.)

It has long been understood that vice laws played a role in the development of constitutional doctrine, but Compton shows us why. Equally important, Compton offers wonderful examples of nineteenth century versions of democratic or popular constitutionalism. He shows how waves of earlier social mobilizations organized around religion shook up constitutional doctrines, paving the way for progressive triumphs decades later. Like twentieth century social movements (in which religious groups also sometimes played major roles) nineteenth century evangelicals used political organization and social persuasion to influence legal and policy elites, eventually moving ideas from "off the wall" to "on the wall."  Of course, the role that religious groups played in the fight for abolition of slavery is well known; but Compton shows how religious groups also affected constitutional understandings of federalism, contract and property rights, and due process.

In fact--and especially in the book's discussion of antebellum constitutional doctrine--slavery is the elephant in the room, yet Compton says very little about it. Although the omission is important, it is also to some extent excusable. Explaining the many connections between Compton's argument and contemporaneous debates over slavery would have greatly lengthened the book and complicated his story. Nevertheless, the debates over the right to sell and transport alcohol and lottery tickets had remarkable similiarties to the arguments for and against the right of slaveholders to take their slaves into federal territories (and into other states). The important differences were that (1) slavery, unlike alcohol and lottery tickets, was widely seen as a "special" form of property because it was deemed contrary to natural law (Southerners like Chief Justice Taney vehemently disagreed on this point); and (2) neither North nor South wanted to treat slaves as articles of commerce. Doing so would have led to potentially explosive conclusions about Congress's power to regulate or even ban the interstate slave trade (Note, however, that it was generally conceded that Congress could ban the international trade of slaves through its powers to regulate commerce with foreign nations).

In sum, The Evangelical Origins of the Living Constitution is a truly valuable book that greatly enhances our understanding of the development of constitutional law in the nineteenth century. After reading this book, and grasping its lessons, you will not be able to teach the basic Constitutional Law course the same way again. That is not true of many books, and it is a mark of its excellence and its importance.


Posted 12:57 AM by JB [link]

What Bond, Pom Wonderful, and Abramski Have In Common: The Enduring Mystery of the Canons of Statutory Interpretation

Abbe Gluck

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Posted 1:56 PM by Abbe Gluck [link]

Is Heller the new Lopez?

Gerard N. Magliocca

In recent weeks various bloggers and commentators have noted that the Justices seem uninterested in taking another Second Amendment case.  Certiorari petitions were denied this Term on a couple of major gun control issues that have divided the lower courts, and the Court has not taken a Second Amendment case since 2010.  This leads me to wonder if Heller is the new Lopez.

While Lopez is an important symbol for limits on Congress's enumerated powers and seemed like a big deal at the time, in practice the case did not do much to rein in those powers.  Will the same true be true for Heller?  The decision is surely valuable for the NRA and other gun rights' groups, but thus far it has also not led to much change in the courts (aside from a few lower court opinions).  Gun regulation also would not look much different today if Heller had come out the other way.  Second Amendment advocates would have attacked the case as wrong and concentrated on more legislative successes.  Likewise, were gun control advocates set back by Heller?  Maybe a little bit, but they started doing poorly in Congress in 1994--well before Heller.

Some cases are very important for academics and for their statement about constitutional values (Bond and the Treaty Power is a recent example), but not for lawyers and policymakers.  Heller is looking like one of these eunuchs. 
Posted 1:35 PM by Gerard N. Magliocca [link] (47) comments

Why the Supreme Court Should Stop Fetishizing Dictionaries and Start Caring About Words

Guest Blogger

The case concerns the president’s recess appointment power under Article II, sec. 2, cl. 3 of the Constitution. The Recess Appointments Clause states:
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Posted 10:40 AM by Guest Blogger [link]

Departmentalism: What Went Wrong?

Stephen Griffin

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Posted 5:54 PM by Stephen Griffin [link]

"Should Judges Be Patriotic?"

Mark Tushnet

Posted 10:06 AM by Mark Tushnet [link]

Conservatives, Abu Khattala, and Guantanamo

Mark Tushnet

Posted 9:54 AM by Mark Tushnet [link]

From a "Republic of Suffering" to an Empire?

Mary L. Dudziak

In This Republic of Suffering: Death and the American Civil War, Drew Gilpin Faust powerfully explored the impact of death and dying on the United States. During the Civil War, she wrote, the “work of death” was the nation’s “most fundamental and enduring undertaking.” Proximity to the dead, dying and injured transformed the United States, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” War deaths have moved to the sidelines of American life in the 21st century. If shared experience with death helped constitute American identity in the Civil War, how is American identity now, in part, constituted through its absence? I have a short reflection on this on the OUP Blog today.
Posted 2:56 PM by Mary L. Dudziak [link]

The Future of Frictionless Sharing: Facebook's New Audio-Identification Feature

Guest Blogger

BJ Ard
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Posted 8:56 AM by Guest Blogger [link]

Hobby Lobby Part XV -- “There’s No Employer Mandate” Update: The Justices’ engagement at oral argument, and an important new Standard & Poor’s report

Marty Lederman

In a series of posts preceding the oral argument in Hobby Lobby (see especially Posts III and IX, as well as posts III-A and III-B, in my compendium) I explained that the litigation had proceeded, in the lower courts and in most of the briefs, on the basis of a fundamental misconception.  The plaintiffs in Hobby Lobby and Conestoga Wood argue that federal law requires them to act contrary to their religious obligations by offering employee health insurance plans that include contraception coverage.  This legal requirement, the argument goes, puts the plaintiffs to an “unconscionable choice” between violating the law and violating their religious obligations.   

But there is no such legal obligation:  The so-called “employer mandate” does not exist.  To be sure, if employers choose to offer their employees a health insurance plan, that plan must include many required features, including coverage of persons with pre-existing conditions, coverage for dependents up through age 26, and cost-free coverage of such services as immunizations, colo-rectal cancer screening . . . and women's health services, including access to 18 contraceptive methods.  But employers are legally entitled to decline to offer such an employee plan at all.  If they do so, federal law (26 U.S.C. 4980H(a)) imposes a tax on employers such as Hobby Lobby, Martel, and Conestoga Wood (just short of $2000 per employee) to help defray the cost to the government of subsidizing their employees’ purchase of insurance on an exchange.  But there is no penalty, because there is no legal duty.  Moreover, if employers do choose not to provide such a plan, the direct effect would be a cost savings to the employer, even after accounting for the tax assessment.  (More on that below.) 

This post is an update on the “there’s no employer mandate” argument, focusing on the its treatment during the Hobby Lobby oral argument in March, and on an important new report from Standard & Poor’s that sheds further light on the viability of the employers’ choice. 

At the oral argument, Hobby Lobby’s counsel, Paul Clement, pressed the central argument in the plaintiffs’ briefs:  “You have a government law that specifically says you must do something that violates your religion.” 

Justice Sotomayor questioned whether that was an accurate description of the law:
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Posted 4:39 PM by Marty Lederman [link]

Surveillance, Capture, and the Endless Replay

Frank Pasquale

Global opposition to surveillance may be coalescing around the NSA revelations. But the domestic fusion centers ought to be as big a story here in the US, because they exemplify politicized law enforcement. Consider, for instance, this recent story on the "threat" of "Buy Nothing Day:"

Fusion Centers and their personnel even conflate their anti-terrorism mission with a need for intelligence gathering on a possible consumer boycott during the holiday season. There are multiple documents from across the country referencing concerns about negative impacts on retail sales.

The Executive Director of the Intelligence Fusion Division, also the Joint Terrorism Task Force Director, for the D.C. Metropolitan Police Department circulated a 30-page report tracking the Occupy Movement in towns and cities across the country created by the trade association the International Council of Shopping Centers (ICSC).

Yes, police were briefed on the grave threat of fake shoppers bringing lots of products to the till and then pretending they'd forgotten their wallets. Perhaps the long game here is to detain members of the Church of Stop Shopping to force them to make Elves on the Shelf for $1 an hour.

More seriously: no one should be surprised by the classification of anti-consumerist activists as a threat, given what Danielle Keats Citron & I documented, and what the ACLU continues to report on. But we do need more surprising, more arresting, characterizations of this surveillance. Fortunately, social theory provides numerous models and metaphors to counter the ideology of "nothing to hide."
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Posted 9:06 AM by Frank Pasquale [link]

Hobby Lobby Part XIV -- How this week’s Sixth Circuit decision in a nonprofit case can inform the Supreme Court's "substantial burden" analysis in Hobby Lobby

Marty Lederman

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Posted 5:58 AM by Marty Lederman [link]

Legal academics as public intellectuals

Mark Tushnet

Posted 5:19 PM by Mark Tushnet [link]

Symposium on Nick Parrillo's Book, Against The Profit Motive

Heather K. Gerken

Posted 10:13 AM by Heather K. Gerken [link]