an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Don't Buy the Cooperative-Federalism-Makes-Halbig-Logical Argument
I had hoped to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another inaccurate narrative about ObamaCare to take hold. Over at Volokh, my friend Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and to penalize them if they don't). It is true we see schemes like that all the time--Medicaid is a prime example--but the insurance exchange design is NOT one of them. This federalism argument was made before the D.C. Circuit and even Judge Griffith didn't buy it in his ruling for the challengers. I tried to dispel this myth back in March, when I wrote the following on this blog:
is not a conditional spending program analogous to Medicaid. The challengers' strategy in
this round has been to contend that the subsidies are part of an
overarching ACA "carrots and sticks" strategy to lure states into
health reform and penalize them if they decline. On that version of
the story, it might make sense that subsidies would be unavailable in states
that do not run their own exchanges. In their view, the subsidies are therefore
exactly like the ACA’s Medicaid provision (from appellants’brief: “The ACA’s subsidy provision
offered an analogous ‘deal’ to entice states to establish Exchanges—because
Congress (wisely, in hindsight) knew it had to offer huge incentives for the
states to assume responsibility for that logistically nightmarish and
politically toxic task.”)
Putting aside the fact that no one
thought the states wouldn’t want to run the exchanges themselves (indeed,
Senators were demanding that option for their states), the exchange provisions
simply do not work in the same way as Medicaid. Unlike the ACA’s Medicaid
provisions, the exchange provisions have a federal fallback: Medicaid is
use it or lose it; the exchanges are do it, or the feds step in and do it for
you. In other words, this isn’t Medicaid; it’s the Clean Air Act
(CAA). If a state decides not to create its own implementation plan under
the CAA, its citizens do not lose the benefit of the federal program—the feds
run it. The same goes for the ACA’s exchanges and so it would be nonsensical to
deprive citizens in federal-exchange states of the subsidies. More
importantly, if we are going to compare apples to oranges, the ACA’s Medicaid
provisions have an explicit provision stating that if the state declines
to participate, it loses the program funds (this was the provision at issue in NFIB
v. Sebelius in 2012). The ACA’s subsidy provisions, in
contrast, have no such provision, strong evidence that the subsidies were was
not intended to be forfeited if the states did not participate. If the
challengers are going to insist on strict textual arguments, this is exclusio
unius 101: the rule of interpretation that provides that where Congress
includes a specific provision in one part of the statute but does not include
an analogous provision elsewhere, that omission is assumed intentional."
* * *
may be true that the ACA’s politics have created a landscape no one ever
predicted—one in which federalism-focused states, whose congressional representatives
were demanding the states’ rights to
establish exchanges instead of the federal government—have decided that
politics is more important than federalism and opted out.But what’s happened in hindsight doesn’t change
what happened when the statute was enacted and how the statute is actually designed. What happened when the statute was designed was that no one thought the states needed a carrot to do this and the statute was never designed as a "use or lose it" incentive, like Medicaid.
Halbig, King, and the Limits of Reasonable Legal Disagreement
I participated in the debates over the constitutionality of the Affordable Care Act (ACA). Although I thought the federal government had substantially stronger arguments on its side, I did not dismiss the arguments of those who disagreed with me. There often has been reasonable, irreconcilable disagreement over the meaning of the Constitution, and the Supreme Court had never before allowed Congress to impose a purchase mandate under the Commerce Clause or an exaction labeled a penalty under the Taxing Clause. I thought the “Lopez question” required an answer.
Halbig and King (plus the Indiana and Oklahoma cases) are different. I can accept as reasonable, even if ultimately unpersuasive, the argument that the relevant provisions of the ACA are ambiguous. What I cannot accept as reasonable or responsible, however, is the argument—accepted by the D.C. Circuit panel majority in Halbig—that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished when it passed the ACA: self-destructively limit the tax subsidies that make health insurance affordable for millions of Americans to those who have the good fortune of happening to reside in states that set up their own health insurance exchanges.
Yes, the statute provides that the subsidies are to be calculated in part based on the cost of the monthly premium for the health insurance plan that an individual buys “through an Exchange established by the State under [Section] 1311” of the ACA. 26 U.S.C. §36B(b). But for goodness sake, that is an odd place in the statute for Congress to say—no, for Congress to whisper—that subsidies are not available in federally facilitated exchanges, thereby placing the viability of the entire statute in jeopardy if state officials decline to create exchanges. The part of the law that determines who is eligible for the subsidies—as opposed to how they are to be calculated—does not distinguish between state and federally facilitated exchanges. See 26 U.S.C. §36B(a).
More importantly, Section 1311 purports to require each state to establish an exchange: “Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)[.]” The section then defines an “Exchange” as an entity that necessarily has been established by a state: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” See also § 1563(b) (stating that “[t]he term ‘Exchange’ means an American Health Benefit Exchange established under [§] 1311”). Section 1321 later makes plain that Section 1311 must be taken stipulatively, not literally. That is, a state may, as a matter of fact, “elect” to establish an exchange or not, and if it does not, then the federal government “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements” (my emphasis).
In other words, the part of the ACA that uses the “established by the State” language asserts by definition, regardless of the fact of the matter, that the state is establishing the exchange. Another part of the statute directs the federal government to stand in the shoes of the state—to be the state for purposes of the statutory language and structure—if a state as a matter of fact does not create an exchange.
No doubt, Congress could have been clearer. So what else is new? Cf. Bond v. United States, 134 S. Ct. 2077 (2014). And yes, that lack of perfect clarity may cause some interpreters reasonably to view the statute as ambiguous, as opposed to clearly favoring the government’s position. But it is not reasonable to conclude that the statute clearly and insanely says what the plaintiffs say it says.
In light of these straightforward statutory interpretation arguments, as well as other arguments offered by six of the eight federal judges to decide the question so far (including, by the way, a Republican appointee), how can it be maintained that the statute—as clear as day yet unbeknownst to anyone at the time—denies subsidies to individuals who purchase health insurance policies in federally run exchanges?
Some may conclude that I am not as tolerant of reasonable legal disagreement as I think I am or used to be. Others may conclude that I care too much about the draconian financial consequences for millions of Americans and insurance companies if this litigation succeeds.
I have considered these possibilities, and I have rejected them. The plaintiffs’ case is so weak and transparently political that it is dismaying to see it be taken seriously.
by Neil Siegel [link]
Confirmation that the Supreme Court's suggested fix will almost certainly not mollify the plaintiffs: Recent developments in the nonprofit challenges to the contraceptive coverage accommodation
As I've discussed, the Supreme Court in Hobby Lobbyin effect redirected the most contentious questions in the contraceptive-coverage challenges to those cases in which nonprofit organizations are challenging the government's regulatory accommodation for objecting religious nonprofit organizations. Subsequently, in its order in the Wheaton College case, the Court invited the federal government to develop a regulatory fix that might both satisfy the nonprofit challengers to the contraceptive coverage rule and at the same time guarantee that the women who work for those employers will continue to receive cost-free contraceptive coverage.
I've suggested that the Court’s proposal (or plea, or hope) for such a cost-free regulatory solution might be far easier said than done, since some of the objecting organizations are likely to continue to raise RFRA objections even to the sort of compromise that the Court appears to contemplate.
Now, we have the first two important moves in the next phase of litigation challenging the accommodation . . . the first of which announces that the government is accepting the Court's invitation to modify the accommodation, and the second of which confirms that such a modification will not fully bridge the gap, and that the RFRA challenges will continue nonetheless.
The commentary about Halbig so far has viewed it mainly through two lenses. Through one lens, most obviously, it’s a statutory interpretation case—one that illustrates some shortcomings of a certain hyper-formalistic, acontextual approach to reading statutory text. Through the other lens, Halbig is a political case: a highly charged proxy fight about Obamacare that illustrates how thin and permeable the membrane is between some judges’ substantive political views of a law and their interpretation of it.
I think Halbig is even more interesting through a third lens: as a federalism case.
Here, ironies abound. In NFIB v. Sebelius, the majority decided that the ACA’s Medicaid expansion raised constitutional questions because it put a gun to the head of the states: you will lose an enormous chunk of federal money unless you agree to expand Medicaid. To the utter consternation of the legislators who wrote and voted for the ACA, the 2-1 majority in the DC Circuit in Halbig has interpreted the exchange portion of the statute to similarly threaten states with a catastrophic loss of federal funds if they don’t comply with the federal government’s demands—this time, supposedly, the demand that the state set up an insurance exchange.
As many commentators (including other judges, in dissent in Halbig and in the majority in the 4th Circuit) have noted, it’s abundantly clear not only from the legislative history of the statute but also from other parts of its text that no such threat was ever actually contemplated. The whole point of the backup federal exchange was to give states a different kind of choice: they can either take control of (and responsibility for) the regulation of the new insurance plans in their state by establishing an exchange, or they can wash their hands of it, and let the federal government take the full credit and blame for the system that results. That was the kind of federalism the ACA had in mind: backstop federalism, in which every individual American would have access to the same substantive benefits, but they could be administered either in a cooperative-federalism way, or, in uncooperative red states, by the feds alone. This gives states real choices about how much involvement they want in the ACA’s new insurance system. It doesn’t give states the option to deprive their citizens of access to affordable health insurance.
But the Halbig panel majority doesn’t read the statute in terms of what subsidies the ACA, by its terms, intends to make available to individual citizens. Instead the panel majority manages to take the individual citizens out of the picture, and tell a simple story of a threatening federal government, holding a gun and demanding that the states set up an exchange or lose all subsidies. This analysis is overly simplistic in a couple of ways. For a start, it ignores where the gun is actually pointing. The analysis also manages to obscure the question of what a state actually has to do to set up an exchange “under” Section 1311. It may not be much at all, for reasons I discuss below, in which case the real story here is not one of the federal government requiring onerous action by states, but instead, one in which the Halbig court would turn what Congress intended as universal individual entitlement into a program of opt-in federalism, where the federal government might try to create a universal program, but it’s actually up to states to decide whether they want to opt in.
Some Roundups on Halbig and King (the ObamaCare Subsidies Cases)
Much commentary has been posted in the past 24 hours on the Obamacare subsidies rulings. Here are just a few:
Emily Bazelon comments at Slate about how implausible it is, as the D.C. Circuit holding would have it, "that Congress included in Obamacare the seeds of its own destruction, giving naysaying governors the power to kill it—without ever saying so." I have my own op-ed at Politico, arguing that the opinion does a disservice to the credibility smart textualists have been trying to build for years and is not the way that complex laws should be interpreted in a well-functioning democracy. My piece also points out that the D.C. Circuit's reading of the statute contradicts the description of the exchanges by Justices Scalia, Kennedy, Thomas and Alito in the ACA Joint Dissent, which assumed the validity of the federal-exchange subsidies and understood that the statutory scheme depends on them.
Further on the health law academic front, Tim Jost has a post on the Health Affairs blog analyzing the opinion, as does Nicole Huberfeld at HealthLawProfBlog, and Nick Bagley at Incidental Economist.
Jonathan Cohn, Ezra Klein, and Wonkblog each have posts detailing how no one involved in the drafting the statute or reporting on its enactment over 2009 and 2010 sees any any proof of the story that the challengers are telling about what the ACA means or what Congress intended. As Klein writes:
"For Congress to write a law that provides for federal exchanges but doesn't permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn't allow cars, bikes or buses to travel on them. That was...not what Congress thought it was doing. As Jonathan Cohn writes, 'not once in the 16 months I reported on the formal congressional debate did any of the law's architects suggest they were thinking along these lines.' My experience was precisely the same: architects of the bill underestimated how many states would let the federal government run their exchanges, but they always thought there would be a few, and they always assumed those exchanges would feature subsidies. Everyone in Congress — including the Congressional Budget Office in its estimates of Obamacare's cost — assumed subsidies would flow through federal exchanges."
I posted after the oral argument in the DC Circuit to say that I thought the argument that prevailed there yesterday needed to be taken seriously, so now I feel compelled to talk about what comes next.
First, I think that there are four Justices who will be waiting on the front steps of the Court for the certiorari petition from the Fourth Circuit (which ruled in favor of the Administration on the same issue yesterday). Thus, the question of whether the DC Circuit will go en banc in Halbig is, to my mind, largely beside the point. In an ordinary case, one would expect the Justices to wait and see if a circuit split could be healed before acting, but this is not an ordinary case. The Justices who lost in 2012 on the individual mandate challenge would love to get another at-bat.
Second, the split yesterday supports my argument from last year that the Affordable Care Act remains unsettled law. The fact is that many statutes are poorly drafted or have errors. What normally happens when that is true? One option is for Congress to fix that problem. That cannot be done because the Republican Party is still overwhelmingly opposed to the Act. Another option is that the courts fix or overlook the drafting issue. That assumes, though, there is a consensus that the statute should be fixed, which is also lacking along partisan lines.
Third, I argue in my new draft article that the Chief Justice's opinion in NFIB is best understood as expressing a norm that it is wrong for the Justices of one party to invalidate the signature law of the other party. Does this convention include crippling the same law with statutory construction? The Chief Justice will have a year to mull that one over.
Fourth Circuit Rules in FAVOR of Government in Obamacare Subsidies Case
Making sure our readers keep up with this roller-coaster day in health reform land: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn't even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I've been arguing in previous posts), Judge Davis also argued that this isn't a case of "textualism v. purposivism" or statutory text versus some amorphous concept of congressional intent. Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government. Posted
by Abbe Gluck [link]
The Loss in Halbig
As Marty notes, the opinion is out. Initial quick reaction, more to come: The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here); it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges. The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying the exclusio unius presumption (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism rather than the sophisticated statutory analysis that textualists have been claiming they are all about. Posted
by Abbe Gluck [link]
Halbig decided [UPDATED -- King too!: quickest circuit split ever?]
2-1, Edwards dissenting, as oral argument suggested. I'm sure we'll have more on the opinion shortly here on the blog.
On the other hand . . . the Court of Appeals for the Fourth Circuit in King just decided the issue the other way!
Our deepest condolences to the family, friends and colleagues of Professor Dan Markel of Florida State (and Prawfsblawg), who was shot at his home in Tallahassee on Friday. The latest details are here. Paul Caron has a collection of links and other remembrances are here and here. Posted
by JB [link]
Saturday, July 19, 2014
Hobby Lobby: Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise?
Will the ACA litigation be decided based on a mistake?
In a recent blog post,
Cato scholar Michael Cannon admitted that he and his colleague, Case Western
University professor Jonathan Adler, had made a mistake in an amicus brief they
submitted to the courts in the Halbig and King cases.We all make mistakes—indeed Michael has claimed
that I have made many mistakes in my analysis of these cases,
some of which were indeed mistakes.This
mistake is important, however, because it goes to the central argument that he
and Jonathan have relied on in their brief.There is a real danger that the Halbig case could be decided by the D.C.
Circuit Court of Appeals, perhaps as early as next week, based on a mistaken
understanding of the law, its purpose and history, propagated by Cannon and
Adler and apparently adopted by one of the judges in the case. Studies released in the past week demonstrate
that this mistake could have devastating consequences for the country.
Compendium of posts on Hobby Lobby and related cases
For our readers' convenience, I'm collecting here in one place links to all Balkinization posts about Hobby Lobby, Conestoga Wood, Notre Dame, and Little Sisters, et al., along with links to the briefs and oral argument in Hobby Lobby/Conestoga Wood and to a few other important posts about these cases. We'll try to keep the list relatively current as the litigation proceeds. Marty Lederman's Posts on Hobby Lobby
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more
Unpacking the forthcoming RFRA challenges to the government's accommodation (with emphasis on self-insured plans)
With its order in the Wheaton College case, the Supreme Court
invited the federal government to develop a regulatory fix that might both satisfy
the nonprofit challengers to the contraceptive coverage rule and at the same
time guarantee that the women who work for those employers will continue to
receive cost-free contraceptive coverage.
In an earlier post, I suggested that the
Court’s proposal (or hope) for such a cost-free regulatory solution is far
easier said than done, at least in cases involving “self-insured”
employers. For example, the
government may well conclude—as the Court appeared to anticipate it would—that an
employer can simply notify the government of its religious objection, and the
government will then have the legal authority to turn around and instruct the
insurance plan’s third-party administrator to offer contraceptive coverage,
subject to reimbursement from the government in the form of an adjustment to
ACA exchange user fees. If the
government promulgates such a modification to its regulation, it might mollify
some of the nonprofit plaintiff organizations; but I think it is likely that
most of those organizations will not be satisfied: They will argue that such a “fix,” too, violates their
rights under RFRA, because their act of opting out will continue to establish
the legal authority for the government to require another party to provide
If I’m right about that,
and if the government cannot come up with an alternative regulatory solution
that is satisfactory to all parties, then the courts will have little choice
but to continue adjudicating the applicability of RFRA to the government’s
“accommodation.” The first set of such
cases—many already pending—will involve nonprofit organizations currently
eligible for the accommodation.
But the government is also likely to extend the accommodation to at
least some for-profit employers with religious objections, as the Court
suggested it could and should do in the Hobby
Lobby decision. Many of those
for-profit employers may accept the accommodation. Almost certainly, however, some will not—which will mean
that the nonprofit cases challenging the accommodation will soon be joined by
similar challenges from for-profit companies.
In this post, I’ll try
to canvass the primary RFRA issues in these cases challenging the accommodation,
and how should the courts should—or are likely to--address them.
One of my research assistants transferred to another law
school last week.This was hardly a
surprise.His rejection letter from the
other school might as well have said, “Do not worry.We plan to admit you as soon as we do not
have to report your relatively low GPA and LSAT to US World News and Reports or
other institutions that rank law schools.We look forward to having you pay two years of full tuition.”Similar winks and nods occur throughout
contemporary legal pedagogy.
schools should encourage transfers is a fair question on which I have no
intelligent opinion.On the one hand, if
faculty are free to move to higher ranking institutions, so should students.On the other hand, for purposes of institutional stability, there is an obvious difference
between faculty members who over a thirty year career spend ten years at three
different institutions and law students changing schools after a year.I’m a bit of a stick in the mud, so I do not
like lots of transferring, but that is hardly a good reason to impose my
preference on others.
with continuing the above line of analysis is that contemporary law school
transfer practices are strategies for increasing tuition dollars without risking the
paper credentials of the class that have nothing to do with such concerns as
institutional stability and free choice.Administrators are well aware that in normal times they cannot gain more
tuition dollars by increasing the size of their first year class without
lowering their institution's average GPA and LSAT numbers ( in recent years, you
cannot even maintain the size of your class without lowering average GPA and
LSAT).If, however, the same students
are told go elsewhere for a year and then transfer, the law school gets two-thirds
the tuition revenue with no cost to paper credentials.
is that law school student credential reports are presently often as misleading
as law school student employment reports.The unreported credentials of the second and third year students in schools that
accept substantial transfers are likely to be much weaker than the reported
credentials of their first year class. No good reason exists, however, for
thinking first year credentials far more important than second or third year
credentials.To the extent students have
an interest in peers with strong paper credentials, that interest remains
constant over time.Employers making
decisions whether to hire a law school graduate should be more concerned with
the unreported credentials of that student’s third year class than with the
reported credentials of the first year class.
a fair case can be made that these credentials are meaningless.But to the extent they are meaningful they
ought to be accurate.And the present
practice of not counting transfers in student body credentials promotes
or is misrepresentation.
Once upon a
time, we thought that universities ought to have high ethical standards in
large part because, as the place where professional socialization took place, modeling
the very best professional ethics was extraordinarily important (we also
thought universities were places of higher learning rather than revenue
generating bodies, but that is another post).Increasingly, however, as universities are told they ought to behave
more like businesses, those who insist on higher standards are mere eggheads,
who no doubt are unfamiliar with practice. I think a bar ethics commission would look
askance at a lawyer who cooked numbers in the same way as we encourage law
schools to cook the credentials of their students.Perhaps law schools with “University” as part
of the name ought to set a better example.
Still No Opinion in Halbig (Obamacare subsidies case)- consolidated posts here
The nail-biter continues, as the D.C. Circuit is apparently still working on Halbig v. Burwell, the challenge to the ACA subsidies on the federal exchanges (the Fourth Circuit case also remains pending). As the blogosphere is alive with anticipation, I've provided links to my previous posts and to my New England Journal of Medicine primer on the case below. Stay tuned...
The Washington Post has just published a longer version of my previous post on how liberals can reclaim the Constitution. It's available here.
The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.
Accepting that opposition as the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in. Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.
Franklin Roosevelt, Hugo Black, and the Warren Court had no problems with proudly invoking the founders and showing why liberal projects were faithful to the constitutional project the framers began. We shouldn't have any problems with that approach today. Posted
by JB [link]
Congress Enacted Single-Payer Health Care!
Who knew? The following is emphatically not a serious argument, although it's something of an exercise to figure out exactly where it goes wrong.
1. Statutes that appear to conflict should be interpreted harmoniously so that each one's goals can be achieved to the greatest extent consistent with the terms of both statutes.
2. Everyone agrees that direct provision of contraceptive services by the government -- single-payer for contraceptives -- is a way of providing those services that is less burdensome on the religious conscience of objectors than anything else.
3. Taking Hobby Lobby together with the stays in Little Sisters of the Poor and Wheaton College (and subject to the qualification that the stay opinions in both of the latter cases were careful to say that they were not prejudging the merits of the RFRA claims asserted), we "know" that an entity that regards filing the required form as complicity with evil has a less restrictive means of complying with the ACA -- informing the government of its conscientious objection and of the name of its insurance carrier by means either of a court filing or a letter to HHS.
4. Some entities will regard informing the government in any way as itself complicity with evil, because the result of providing that information is that -- because of an action taken by the entity -- employees will have subsidized access to contraceptive services.
5. Again, direct provision of such services is less burdensome on religious conscience (because the objector takes no action whatsoever -- other than existing in the United States -- that makes it complicit in evil, when the government provides the contraceptive services directly).
6. Because of the lack of information (pursuant to #4), the government cannot identify which employers have religious objections to the provision of contraceptive services through their insurance carriers. So the only way to avoid burdening the religious consciences of the objectors identified in #4 is for the government to provide contraceptive services directly to everyone.
7. Because this is a big country, for every imaginable medical service there is someone who will regard providing it through that person's insurance plan as complicity with evil (imagine a particular sort of Christian Scientist [not all adherents, but a particular version]). Because of #6, the only way to avoid burdening those people's religious consciences is direct provision by the government -- single-payer for all medical services.
8. Although the ACA doesn't look like a single-payer statute, it should be interpreted to harmonize it with RFRA, and the best way to do so is #7.
(9. Alternatively, the ACA could be interpreted to make employer participation entirely voluntary [with no penalties for nonparticipation]. Everyone would get medical insurance on the exchanges.)
I have no clue about how the ACA could be interpreted to provide financing for a universal single-payer system or universal participation in the exchanges. But, unless there's some way to do so, in enacting the ACA -- in light of RFRA as interpreted in the foregoing way -- Congress would have simply been putting empty words on paper.
Zackin, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES
The status of state constitutions in American constitutional
theory is constantly changing.During
the era of grand constitutional theory, the point of the constitutional theory enterprise was to spin
an account of the good national constitution that would enable the really good
justices on the Supreme Court to strike down bad state constitutional
practices.As the Supreme Court became
staffed by less than really good justices, William Brennan (the next to last of
the really good justices) pointed out that every move liberal constitutional
theorists had proposed with respect to the national constitution might be made
with respect to state constitutions.If
William Rehnquist and friends churlishly refused to acknowledge that the Eighth
Amendment interpreted consistently with principles of human dignity prohibited
capital punishment, the really good justices on the Supreme Judicial Court of
Massachusetts might be persuaded to recognize that the similar language in the
Massachusetts Constitution interpreted consistently with principles of human
dignity prohibited capital punishment.The present, far more interesting trend, is to explore the ways in which
state constitutional practice is different from, or similar to, federal (and
foreign) constitutional practice. State constitutions, such scholars as Amy Bridges and Alan Tarr have taught us, are important documents in their own right, rather than inferior versions of or substitutes for the national constitution.
Looking for Rights in All the Wrong Places:Why State Constitutions Contain America’s Positive Rightsis an excellent
example of the wonderful scholarship that can be produced when exceptional
scholars analyze state constitutions through the prism of state constitutional
actors rather than through the prism of Warren Court liberalism.Emily Zackin, a young assistant professor in
the political science department of Johns Hopkins University, demonstrates that
the common claim that American constitutionalism is committed only to negative
rights is true only with respect to the Constitution of the United States.State constitutions, the book details, are
loaded with positive rights, constitutional provisions that require
government officials to take certain actions to supply persons with certain
goods.Through a detailed analysis of
state constitutional provisions on education, worker’s rights and environmental
laws, Zackin highlights a dimension of American constitutionalism that has too
often gone under the radar.
Looking for Rights in All the Wrong Places makes
several points explicitly and successfully.A good deal of the book unsurprisingly demonstrates the existence of a
positive rights tradition in American state constitutionalism.That tradition is lovingly detailed in all
the major chapters.As Zackin
demonstrates, constitutional provisions obligating states to pass laws
establishing public schools, protecting workers, and safeguarding the
environment are staples of state constitutions, and not unique to one or two
states in one or two periods of time.Indeed, such provisions can be found in the most liberal and most
conservative of state constitutions.Second,
there is nothing constitutionally peculiar about rather detailed
state constitutional provisions, such as the provision in the New York Constitution
dealing with certain features of ski trails in the Adirondack Mountains.Zackin details how many state constitutional
amendments are designed to constrain state legislatures and that more specific
language constrains in practice far better than general principles.Finally, Zackin suggests an important modification
to Ran Hirschl’s influential hegemonic preservation thesis.Hirschl noted that constitutional reform in
many countries seems better described as efforts to entrench longstanding
elites than as measures designed to empower and protect historically vulnerable
peoples.Looking for Rights in All the Wrong Places documents how many
constitutional amendments are passed by movements as part of their efforts to
enter corridors of power.Constitutions,
Zackin’s readers may conclude, are designed to lock in certain powerholders and
policies, but sometimes their beneficiaries are emerging powers rather than
virtue of any good book is the capacity to generate ideas that you really
cannot figure out whether they are yours and or the author's.Consider the following observations, all of
which are clearly rooted in Looking for
Rights.Once we recognize the positive rights tradition in American constitutionalism, we might consider the history of positive rights in Anglo-American constitutionalism. For much of English
political history, the Charter of the Forest (1217), which guaranteed people
access to the woodlands, was considered as central to English liberties as the
Magna Carta. Kings reconfirmed both repeatedly. Here several developmental stories might be told. Did Anglo-American constitutionalism take a sharp negative rights turn during the eighteenth century or perhaps during the seventeenth century, when radical members of Parliament reinvigorated the Magna Carta, but not the Charter of the Forests. Perhaps when English liberties travelled across the ocean, a division occurred between local governments, whose notions of
liberty were derived from the Charter of the Forest, and central governments,
whose notions of liberty were derived from Magna Carta (which also contains
more than a fair share of positive rights).Looking for Rights has as much to offer constitutional pedagogy as constitutional development. Readers may conclude that the categories we use discuss rights are derived
from national litigation.Cases on the
constitutional status of the environment and education are scattered across the
constitutional law casebook.By
comparison, a constitutional law class organized along state dimensions might
consider education as much as self-contained category as free speech. This is particularly important given the emphasis on a practice-ready curriculum. A fair case can be made that most of our students are far more likely to litigate a state constitutional provision on education or the environment than a First Amendment case. If so, our constitutional law class might reflect that reality.
most interesting feature of Zackin’s work is how she offers fresh insights into
how constitutional provisions work.Conventional constitutional theory insists that rights provisions work
by constraining government.Zackin
highlights how positive rights provisions function by empowering government, and
not simply in the obvious sense that such provisions require government to do
something.Looking for Rights explains that many movements for state
constitutional revision wish to empower supporters in the state legislature to
begin a general program of reform and, by demonstrating political strength,
convince other legislators that their political future will best be secured by
supporting the movement’s goals.Perhaps
future work will examine what we might call Zackin’s laws: “The more general the
rights provision, the more likely that provision functions by empowering the
sympathetic decision maker.The more
specific the rights provision, the more likely that provision functions by
constraining the unsympathetic decision maker.”
of course, projects for other times and perhaps other scholars.The bottom line point is that Looking for Rights is an important work
by a talented young scholar that will both change how we talk about American
constitutionalism and offer numerous fruitful paths for more creative thinking
about the entire American constitutional experience.
As everyone knows, the Supreme Court issued an order allowing Wheaton College to refuse to submit written documentation to insurance carriers regarding its unwillingness to fund contraception. According to the Times' account, "The court’s majority said Wheaton College need not fill out the forms.
Instead, the order said, the college could just notify the government in
writing. The government, it said, remains free “to facilitate the
provision of full contraceptive coverage.” This provoked a dissent from what the article describes as the "three female Justices." Similarly, in an editorial condemning the order, we read the following two sentences:
"But for the court’s male justices,[Hobby Lobby ittself] didn’t seem to go far
enough.... This prompted an angry response from the three female
justices — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan."
Two comments: First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies. After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language. But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues.
The second comment refers to the quite obvious demographic elephant in the room that the Times simply fails to consider. They prefer to portray the cleavage in the Court as the guys against the gals. Presumably we can all accept the proposition that "male justices" are simply ignorant of the importance of contraception to planning one's own life, whereas, of course, "female justices" are vividly aware of such realities. No doubt there's something to this. But, quite obviously, the male Justice Breyer, is able to figure out its importance, so presumably something more is going on, for empirically-oriented Court watches, than mere gender. What might that be?
The Times and almost everyone else in the "mainstream media" (unlike, say, Katha Pollitt in The Nation), find it indelicate to refer to the majority as "five conservative Republican Catholics" and the dissenters in Hobby Lobby as "three Jews and a clearly less conservative Catholic than her male colleagues." Can it really be pure coincidence that the Hobby Lobby five are, without exception, conservative Catholics (and not merely conservative Republicans)? Or, for that matter, that the dissenters are not? To be sure, one can't explain most of the Supreme Court decisions by reference to religious background. The Court's viciously anti-labor decisions,dating back to the arrival of the militantly anti-labor Lewis Powell, have nothing at all to do with the majority's Roman Catholicism. Indeed, one can only wish that the majority had imbibed more of the Catholic Social Justice tradition when learning the catechism (or, for that matter, that they read some of Pope Francis's comments on the poor and realized that labor unions historically have had something to with bettering the plight of the poor and downtrodden). And I seriously doubt that religion has anything to do with explaining the Court's death penalty jurisprudence (if one wants to dignify it with that term), since, again, the Catholic Church institutionally is admirably skeptical about state killing as well as other forms of killing (including, as no doubt some of you will wish to inform me, abortion). But, of course, I doubt that gender explains many of the decisions either.
The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion. But, of course, the very premise of Hobby Lobby is that religion is not simply pietism, the kind of thing one does in the privacy of one's home, church, synagogue, or mosque; instead, for millions of people, religion is an overarching way of looking at the world that influences how one acts in the world. I doubt that George W. Bush was being simply opportunistic when he named the Bible (and Jesus) as the most influential book in shaping his life, just as Bill Clinton had earlier proclaimed the centrality of his religious faith to shaping his politics. So if this is true for employers, legislators, and ven Presidents--or state governors like Ohio's John Kasich, who admirably supported Medicaid expansion in Ohio because he believed that as a (conservative) Christian, he had a duty to help the poor, even if he said the proper conservative things about how bad Obamacare is--then why should we think that judges, including members of the Supreme Court, are uniquely free from the influence of theological views that they might literally have begun learning as youngsters?
I leave open the possibility that we're better off as a society by adopting the willful blindness illustrated in the Times editorial. But maybe we're not. The paradox is that having a conversation bout the wisdom of the Times's practices in identifying judicial demographics would itself require recognizing the existence (and potential importance) of the elephant.
UPDATE: Whatever else may be meritorious or wrong about my post, I do think that a discussant below is absolutely correct in suggesting that Justice Kennedy is probably not best described as a "conservative Catholic" inasmuch as he has clearly been the leading advocate on the Court for the rights of gays and lesbians (and, I suspect, when the Court gets an appropriate case, the rights of transgendered persons as well). I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory, inasmuch as it really does require a disdain for community in favor of liberty (and what conservatives in the old days called "license").