Saturday, February 28, 2015

Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law

Andrew Koppelman

Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections.  These efforts have been fiercely resisted.  The resistance is largely unnecessary.  Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person rather than the artifact of social engineering that it really is.  Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad.  If those purposes are carefully disaggregated, the result is different from what advocates on either side have demanded. 

This issue exposes a major flaw in progressive thought, one that entrenches the very inequalities the left seeks to combat.  The individual-injury-based conception of antidiscrimination law has not only produced excessively harsh treatment of religious conservatives.  It has entrenched racial and gender subordination, by imagining discrimination to be the conduct of a few bad actors rather than a structural wrong that demands structural remedies. 

I elaborate in a forthcoming piece in the Southern California Law Review, available in draft on SSRN, here.

Windsor: Encouraging Constitutional Change, Not (Just) Clearing the Channels of Political Change

Neil Siegel

In recent posts describing a new article, Heather Gerken offers an account of the U.S. Supreme Court’s decision in United States v. Windsor that draws from John Hart Ely’s theory of judicial review. Gerken contrasts her “internalist” account of Windsor with “psychoanalytic” ones offered by scholars such as Rick Pildes, Michael Klarman, Mary Dudziak, and myself. Gerken describes her work as reflecting a distinctive focus on what Justice Kennedy’s majority opinion in Windsor “actually says,” as opposed to divining what it may portend doctrinally.

There is a more accurate way to characterize our disagreement. Gerken offers a process account of the majority opinion in Windsor, according to which the Court “dislodge[ed] an outdated consensus at the national level” about the status of gay people, thereby “ensur[ing] that the interlocking gears of our democracy—rights and structure—were free to move without committing to them moving in a particular direction.” In contrast, I view the Windsor Court as accomplishing something more substantive than just clearing the channels of political change. I view the Windsor Court as encouraging—but not yet requiring—citizens and courts to secure marriage equality.

Read more »

Friday, February 27, 2015

Where have the federalists gone? Obamacare, King, and Federalism at the Court

Abbe Gluck

The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law.  I have previously detailed why the case is textualism's big test. Today, in Politico, I explain why the case is also fundamentally about state rights.  The question is whether the Court's federalism doctrines--which, let's not forget, the Court applied against the Government in the last Obamacare case--whether these federalism doctrines, like the Court's  textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one.  After all, isn't that the point of having a rule of law in the first place?

 Here is an excerpt and a link.

The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.

The challengers maintain that the case is simply about reading plain language. (I have detailed elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.

The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.

A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

Read more:

Wednesday, February 25, 2015

Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA

Marty Lederman

One week ago, Judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas (Brownsville), issued an opinion and order in which he preliminarily enjoined nationwide operation of the Department of Homeland Security’s new “Deferred Action for Parents of Americans" (DAPA) program--the regulatory initiative that was the subject of a wide-ranging Balkinization symposium last November.  

On Monday, the federal government made a motion to Judge Hanen to stay the preliminary injunction pending the U.S.'s appeal.  In the alternative, the government asks that the injunction be amended to cover only aliens residing in Texas, since the State of Texas is the only plaintiff that Judge Hanen found to have standing--or, at the very least, that the judge should tailor his injunction so that it does not apply in states that are not party to the suit, including a dozen states that have filed a brief explaining that DAPA will substantially benefit them and their residents.*

In the meantime, Professor Michael McConnell has published a defense of Judge Hanen's judgment in a recent the Wall Street Journal.  Professor McConnell's condemnation of the DAPA program, however--like Judge Hanen's--rests on a fundamental misunderstanding of the relevant law.

Before discussing the merits, it's important to stress that Michael McConnell is right about three significant things:

First, he is absolutely correct that "we should all be able to agree that the executive branch must follow the law until it has been amended by Congress."  Indeed, everyone does agree on that--including the President, Jeh Johnson, Secretary of DHS, and the Office of Legal Counsel.  Notwithstanding the efforts of many of the President's opponents to characterize the case as raising a constitutional question concerning executive authority to disregard the law, it does not.  It might be a nice talking point for partisan wrangling, but in fact the case does not implicate any questions of a so-called "imperial" President.  As I explained here back in November, the federal government is not claiming that it can disregard statutory limitations, nor even that it can act without congressional authorization.  This is and always has been simply a matter of statutory interpretation:

If, as the government argues, Congress has conferred upon the Secretary the discretion to defer removal of these aliens – and to authorize employers to hire those aliens, see 8 U.S.C. § 1324a(h)(3) -- then the Secretary obviously does not cause the President to violate his "take Care" duty if he decides to exercise that statutorily conferred discretion.

And if, on the other hand, Congress has clearly precluded the Secretary from exercising such discretion, then that's an ordinary statutory/APA violation, just as is alleged every day in countless other cases challenging agency actions. 

Secondalthough Judge Hanen nominally issued his injunction on procedural grounds (namely, that DHS did not subject the new program to a notice-and-comment rulemaking procedure), his opinion makes it crystal clear that, if and when he reaches the merits, Judge Hanen will find that DAPA exceeds DHS's statutory authority.  Accordingly, Professor McConnell’s column is focused—as is this post—on the merits questions.  (The notice-and-comment issues warrant separate treatment elsewhere, as does the government's argument that Texas lacks Article III standing to challenge the DAPA program.)

Third, Professor McConnell is correct to emphasize a very important and largely overlooked point about Judge Hanen’s decision:  The judge does not rest his injunction on DHS's expected failure to remove (or "deport") DAPA-eligible aliens from the U.S.

Heckler v. Chaney establishes a strong presumption that Congress has afforded the agency the discretion to choose to enforce the removal laws against particular categories of aliens rather than others—a presumption that is especially strong here, because immigration law expressly directs the Secretary to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5).  As the Supreme Court recently recognized in Arizona v. United States, “a principal feature of the removal system is the broad discretion exercised by immigration officials,” which includes the decision “whether it makes sense to pursue removal at all.”

Judge Hanen acknowledges all of this.  Accordingly, in his balancing of interests for the purposes of determining whether a preliminary injunction is warranted, he stresses (pp. 118-19) that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question.  As Michael McConnell puts it, “the district court narrowly crafted its order not to touch on prosecutorial discretion.  The administration remains free to decide which illegal aliens to deport and which to permit to remain in this country.”

Why, then, does Judge Hanen conclude that DHS lacks the authority to issue the DAPA Guidance?  Because, he reasons (p.85), the program “is actually affirmative action rather than inaction.”  

What does the judge mean by this purportedly crucial action/inaction distinction? 

As noted above, the permissible DHS “inaction,” in Judge Hanen's view, is that agency may in the exercise of its prosecutorial discretion decline to remove the aliens in question from the United States, and to shift limited federal resources to the removal of other categories of aliens.  The judge writes, however, that such a permissible exercise of “prosecutorial” discretion “does not also entail bestowing benefits” (p. 87).  And because DHS purportedly has “bestowed benefits” here, Judge Hanen reasons, it has acted beyond its statutory nonenforcement authority.  Michael McConnell emphasizes the same point—that the case is centrally about DHS’s alleged conferred of benefits.

Judge Hanen and Professor McConnell are certainly correct about one thing:  DHS's conferral of deferred-action status on an alien will afford that alien at least one very significant benefit--it will free up an employer to hire that alien, something the employer could not otherwise do under federal law.  Moreover, the Judge and Professor are also correct that the Heckler v. Chaney doctrine about a presumption of unreviewable nonenforcement discretion does not address this work authorization aspect of the DAPA policy.

So where do Judge Hanen and Professor McConnell go wrong?  Simply in this:  There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.
Read more »

Monday, February 23, 2015

Still Standing in King v. Burwell

Gerard N. Magliocca

The Justices returned to work today without issuing an order for supplemental briefing on the questions raised in the media about the standing of the plaintiffs.  Why?  I can think of two reasons.

1.  Standing in the Supreme Court is purely a prudential doctrine.  In this case, the Court wants to hear the merits and just doesn't want to know about any jurisdictional problems, especially when the parties are not raising the standing issue.

2.  If the oral argument does not well from the perspective of either side, then the court could order the briefing afterwards.  That would given them an excuse to remand the case for further fact-finding or dismiss the certiorari petition as improvidently granted.  Perhaps they all want to see where the others stands before opening the escape hatch.

Why I'm in Favor of a Right-to-Vote Amendment but Against Amending the Constitution

Heather K. Gerken

The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote.  Today I posted on the question over on Rick Hasen’s Election Law Blog.  As I explain there, I’m entirely in favor of a constitutional right to vote but against amending the Constitution to add it.  I also have a new paper offering a more fully develop argument as to why the amendment game is not worth the candle. 

Contrived Threats versus Uncontrived Warnings

Guest Blogger

Einer Elhauge

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling.  The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements, but sometimes do not.  My new article, Contrived Threats v. Uncontrived Warnings, provides a general solution to this puzzle.  Such threats are unlawfully coercive only when they are contrived, meaning the threatened action would not have occurred if no threat could be made.  I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs.  When such threats are uncontrived warnings, meaning the threatened action would have occurred even if no threat could be made, they are not coercive and can only benefit the agreeing parties.  However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the different grounds that they harm third parties.  I show that this distinction explains contract law on duress and modifications, the doctrine of unconstitutional conditions, and the broad scope of the prohibition on blackmail.

This contrived-threat test also has relevance to two prominent Supreme Court cases on Obamacare.  First, it explains why the Medicaid defunding threat in Obamacare was properly held unconstitutional in NFIB.  That provision threatened to take away pre-existing Medicaid from any State that did not accept the Medicaid Expansion.  That threat was contrived because it was clear that, without a condition linking pre-existing Medicaid to the Medicaid Expansion, Congress would never have eliminated pre-existing Medicaid.  As my article details, several passages in Chief Justice Robert’s opinion (for himself and Justices Breyer and Kagan) emphasized that crucial feature of the threat, and his distinction of other Congressional threats that were constitutional stressed features showing that those threats were uncontrived warnings.

Second, this same principle explains why, in the pending case of King v Burwell, the canon of avoidance requires interpreting Obamacare not to withhold tax credits from States that do not create insurance exchanges.  Although I think that interpretation is also inconsistent with statutory text, purpose and structure, another fatal problem with that interpretation is that it posits that Congress threatened to withhold tax credits in order to coerce States to waive their constitutional right not to administer federal programs.  If one thought Congress were making such a threat, it would clearly be a contrived threat, because (if such a condition could not be imposed) the enacting Congress surely would have preferred giving tax credits to denying them given that, as NFIB itself stressed, its overriding goal was universal coverage.  Such a threat would be particularly coercive because, given other provisions in Obamacare, withdrawing tax credits would collapse State individual insurance markets below pre-Obamacare levels.  Because such an interpretation would make the provision unconstitutional under NFIB, or at a minimum raise serious constitutional doubts, the canon of avoidance requires avoiding it.

Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. You can reach him by e-mail at elhauge at

Sunday, February 22, 2015

Edward Corwin and the "Totality" of America's World War II

Mary L. Dudziak

What makes a war “total”? And how is war’s totality experienced? Edward S. Corwin, in the opening of his influential 1947 book Total War and the Constitution, turns to Deuteronomy:
Of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them…as the Lord thy God hath commanded thee.
The biblical reference enables Corwin to say that total war “is at least as old as recorded history.” He also finds in Deuteronomy a motive for total war. The Bible justified ruthlessness, “For…the Lord thy God hath chosen thee to be a special people unto himself, above all people that are upon the face of the earth.”

Total war, in this sense, went beyond domination, to elimination. Wars have been thought of as “total” when lacking genocidal objectives, however, at least for some participants. Ubiquity of violence is often a central aspect of war’s totality. The Oxford English Dictionary defines it as unrestricted war, especially “war in which civilians are perceived as combatants and therefore as legitimate targets.”

Totality takes a turn when applied to the United States. For Corwin, the totality that was relevant to American law was “functional totality,” which he defined as “the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Total war was when “every human element” of a society was involved in the conflict. He draws examples from nations under siege. During the War of 1793 in France, the Committee of Public Safety ordered that “young men will go into battle; married men will forge arms and transport food; the women will make tents, garments, and help in the hospitals.” Even children and the elderly had orders.

In the examples Corwin draws upon, including the 1935 invasion of Ethiopia, a core experience of war’s totality was collective vulnerability to violence. Corwin doesn’t explain how totality could apply to a society distant from the fighting, like the United States in World War II (with the exception of Hawai’i). Instead, he assumes its application, as he turns to the consequences of total war for government power and individual rights.

Another logic is needed to explain an American totality in World War II: a focus on the totality of power, as compared with total vulnerability to violence. Corwin’s application of total war to the American experience suggests that totality is experienced by a collective, society as a whole, with every element in society touched in some way by war. The body that feels war’s totality is the collective, and each human body within that collective might feel only some aspect of war. Many World War II Americans felt the war’s violence directly; others felt it through their connections with loved ones deployed. For others, the impact was felt through income taxes and shortages at the grocery store. The extension of war’s impact beyond its core violence is what makes American war “total,” although this experience of war's totality cannot compare with the lived experience of World War II in Europe, Asia and North Africa.

In his analysis of individual rights in this generative work, Corwin suggests that “the requirements of total war” are incompatible with fundamental American constitutional principles. But perhaps there is something more important in Corwin that we might look for elsewhere in the history of American thought. Perhaps Corwin provides a window on the way American war could be seen as present, personal, and “total,” even though the shooting, killing and dying were thousands of miles away.

I am thinking this through for an upcoming plenary at a Duke conference on violence, and for a lecture as part of a Rutgers symposium on totality, so comments and suggestions are most welcome. Please leave them here, where comments are moderated.

Saturday, February 21, 2015

Civil Rights History, Foreign Affairs, and Contemporary Public Diplomacy

Mary L. Dudziak

It seems like a good time to reflect on the policy implications of scholarship on the relationship between civil rights and U.S. foreign relations. President Obama has recently emphasized that protecting human rights matters to the fight against terrorism. And the Council on Foreign Relations in DC will soon hold an event on the International Implications of the Civil Rights Movement. The event is not open, and discussion may go in a different direction, but below are a few points I hope to have a chance to get across.

The history of the intersection of civil rights and Cold War era U.S. foreign relations is copiously documented here and here. It took a while for American diplomats and political leaders to grasp the extent of the problem and how to address it. Here’s how they got it wrong, and then right – at least for U.S. public diplomacy:

In the late 1940s, as the U.S. hoped to encourage a newly independent India to ally with the United States, but encountered persistent criticism of U.S. racial segregation and discrimination, American diplomats in India initially made things worse. They dismissed the problem and analogized American racism to the Indian caste system, suggesting that all nations have racial problems. If not exacerbating the U.S. image problem, this at least delayed addressing a critical issue during an important moment in US/Indian diplomacy.

Because the United States argued that American democracy was a model for the world (in the context of a Cold War battle for hearts and minds with the Soviets), the U.S. encountered global criticism for not living up to its own ideals. The more the U.S. emphasized the values of democracy – at the same time that there was global news coverage of American civil rights abuses – the more the U.S. was criticized as hypocritical, and the benefits American democracy were questioned. It took a very long time for American leaders to understand that they couldn’t talk about rights for other nations without protecting rights at home.

Important steps forward – Brown v. Board of Education, sending in the troops in Little Rock, and the Civil Rights Act of 1964 – along with careful management of the global story in U.S. public diplomacy, helped turn this around. By 1964, American diplomats could report that peoples in other nations had come to believe that the American government was on the side of civil rights, rather than being part of the problem. The unfortunate part of the story is that formal legal change, effectively marketed, could accomplish this. Continuing inequality, if below the radar of global news coverage, did not hold the world’s attention.

One obvious takeaway from this history is that a call for global human rights cannot be effective, and could be counter-productive, without meaningful progress toward human rights at home. There has been global coverage of the protests in Ferguson, Missouri, reminiscent of the international interest in American civil rights in the 1950s and 60s. And there has been a devastating hearts and minds problem stemming from abuses at Abu Ghraib, revelations of U.S. torture, and the continuing scar of Guantanamo. If President Obama believes that promoting human rights is important to the fight against terrorism, this history shows that there is only one effective way to begin: by starting at home.

Comments are closed on this blog, but are open and moderated here, and you can share your thoughts via Twitter.

Thursday, February 19, 2015

Windsor v. United States: Clearing the Channels of Political Change

Heather K. Gerken

Two days ago, I began describing a forthcoming paper of mine offering a new take on Windsor v. United States.  I noted that any satisfying account of Windsor must explain its many mysteries, including its unusual rhetoric and unconventional blending of rights-based and structural analysis.  Yesterday I argued that one can only understand Windsor if one grasps the core truth underlying the opinion: federalism and the First Amendment have served as interlocking gears, moving the cause of same-sex marriage forward. 

A handful of academics have tried to explain the link between rights and structure in Windsor by casting the case as an effort to use federalism to accommodate the fact of social change.  Like others, I think Windsor can be read as an effort – albeit a tentative one-- to think concretely about the relationship between social change and constitutional change.  But I have a quite different take on the fashion in which Windsor is doing so.  Windsor, in my view, was “clearing the channels of political change.”

Read more »

Wednesday, February 18, 2015

King v. Burwell: Standing Pat Or Standing Corrected

Guest Blogger

Rob Weiner
The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance.  To bring a lawsuit in federal court, plaintiffs must have standing to sue.  The prerequisite for standing is injury.  Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury.  If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.

The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief.  The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply.  They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.

    Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate.  Two of the four plaintiffs, it turns out, are veterans.  Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate.  A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold.  And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.
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Solving Windsor's Many Mysteries

Heather K. Gerken

Yesterday I noted that anyone attempting to offer a satisfying read of Windsor has to explain its unusual blending of rights and structure and its refusal to analyze the question through the lens of liberty or equality, on the one hand, or federalism, on the other.  As I’ve written in a forthcoming paper, even the text of the opinion reveals an unusual pairing of rights and federalism terminology.  In the wake of the opinion, much of the commentary dismissed Kennedy as muddle-headed and began squabbling over whether Windsor was “really” an equality opinion or liberty opinion or a federalism opinion.

What I’ve found so dispiriting about most, but not all, of the academic commentary is the rigid insistence on an either/or approach – that something is either federalism or liberty, either federalism or equality.  That view misses the crucial truth undergirding Windsor, the hidden logic that helps make sense of its many mysteries.  The key to understanding Windsor is to recognize that the ends of equality and liberty are served by both rights and structure.  It has simply been a mistake to assume that the values associated with the rights side of the Constitution are promoted solely by the rights side of the constitution.  But that mistake is made by virtually all constitutional law theorists. For just as those interested in dialogue and equality and integration write almost exclusively about rights, those who write about federalism miss what I’ve called the “discursive benefits of structure” – the ways in which federalism promotes democratic dialogue and, ultimately, democratic integration.  If you don’t understand the ways in which federalism and rights work together to promote change, you can’t understand Windsor.

The marriage-equality fight is thus a stand-in for this deep constitutional truth. Federalism and rights have long served as interlocking gears moving us forward. Kennedy’s opinion might not have been a model of clarity, but at least it recognized that important fact. Windsor is neither a rights opinion nor a federalism opinion.  It is both. And that is precisely as it should be.

That’s why the First Amendment and federalism work so well in tandem.  Dissenting speech leads to debate, which leads to organizing, which leads to policymaking, which in turn provides a rallying point for still more debate and organizing and policymaking. Social movements include pragmatic insiders, forging bargains from within, and principled outsiders, demanding more and better from without.  The key point to emphasize, however, is that federalism – far from being the enemy of dissent – supplies the policymaking gears that are all but essential for any movement to move forward.

Once you think of rights and structure as interlocking gears, once you recognize you can dissent by deciding, once you imagine federal dependence on the states as an advantage for dissenters, the many mysteries of Windsor seem less . . . mysterious.  What was at stake in Windsor wasn’t either structure or rights, neither the right of the states to bless same-sex marriage nor the rights of same-sex couples to seek that blessing.  What was a stake in Windsor was how the debate over same-sex marriage was going to unfold – specifically, whether states legalizing same-sex marriage would be allowed to pull the federal government along with it.

            Tomorrow I’ll describe why Windsor is best understood as an effort not just to accommodate social change, as many have argued, but to “clear the channels of political change” in an Elyian fashion.

Tuesday, February 17, 2015

Justice Kennedy's Mad Genius: A New Take on Windsor v. United States

Heather K. Gerken

Windsor v. United States is much on our minds these days as the Supreme Court looks poised to decide whether same-sex marriage bans are constitutional.  Windsor isn’t just a signal of where the Court is going, but an important opinion unto itself.

I’ve just written a paper offering a new take on Windsor.  The essay argues that while Windsor flouts just about everything we teach our students in constitutional law, it is right to do so.  Justice Kennedy blurs the lines between federalism, liberty, and equality, and he blurs the lines between structure and rights.  The genius of the opinion is that it recognizes that rights and structure are like two interlocking gears, moving the grand constitutional project of integration forward. While the doctrine isn’t geared to recognizing that reality, that’s the doctrine’s problem, not Windsor’s.  

There have been many articles trying to guess what Justice Kennedy was hinting when he wrote Windsor, but this read best fits with what the opinion actually says.  It’s an effort at construction and interpretation, not divination.  The paper thus begins by describing Windsor’s many doctrinal and rhetorical mysteries. It’s not just that the opinion blends -- seemingly willye nillye -- liberty, equality, and federalism analysis while refusing to follow the logic of any of those doctrinal lines.  It’s not just that the opinion reads as if a federal right to same-sex marriage doesn’t exist now but might well exist later.  Windsor’s mysteries seep down into the grain, inflecting the very text of the opinion itself.  It’s strange, for instance, that Windsor repeatedly – even doggedly -- describes the equality and liberty interest here as one recognized by the state.  The traditional rights/structure divide doesn’t accommodate such a distinction.  If same-sex couples enjoy a right to marry, it matters not at all if the right has been recognized by the state of New York. The last part of Kennedy’s phrasing is pure surplus, and yet he repeats it again and again.  That textual pairing – a right recognized by the state -- is just as strange Windsor is a federalism case.  New York’s decision to recognize same-sex marriage would be protected whether the state was recognizing a constitutional right or just making policy.  Even the doctrinal test used to invalidate DOMA is a mystery – the problem, we are told, is that DOMA is both narrow and broad.  It’s not clear why that’s a magic combination under any account of the harm. 

These mysteries pose a real challenge to anyone attempting to explain Windsor.  Any satisfying account of the opinion must explain them, which is precisely what I hope the paper does.  As I’ll explain tomorrow, in attempting to explain those mysteries, the article focuses on a core but neglected truth at the heart of the opinion – the fact that rights and structure work together to move debates forward, with federalism compensating for the shortcomings of the First Amendment.  Indeed, the paper claims that Windsor is best understood as an effort to clear the channels of political change by allowing proponents of marriage equality to take full advantage of what I've called “discursive benefits of structure” and the regulatory integration of state and federal administrative regimes. 

The Incredible Shrinking Lawsuit: The Decomposition Of King v. Burwell

Guest Blogger

Rob Weiner

A monument on the Civil War battlefield at Gettysburg identifies the “high water mark of the Confederacy,” where General Pickett’s charge temporarily breached the front lines of the Union Army.  A significant issue in that War was the refusal of Southern states to accept the result of the Presidential election.  The Union’s ultimate victory vindicated the principle of majority rule within our constitutional system.
More than 150 years later, this democratic principle is still under siege—not by force of arms, but by the persistent efforts of the losers in legislative battles who seek to overturn the majority vote in the courts.  Nowhere are those efforts more relentless and dogmatic than in the profusion of lawsuits challenging the Affordable Care Act.

The challenges, however, hit their own high water mark when the Supreme Court granted review in King v. Burwell.  Since then, the challengers’ claims, which were insubstantial to start with, have evaporated, laying bare both the absence of any coherent legal basis for the claims and the political nature of the litigation.
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Thursday, February 12, 2015

Theorists, Get Over Yourselves: A Response to Steven D. Smith

Andrew Koppelman

Steven D. Smith is one of our most powerful critics of contemporary liberal theory. He has an acute sense of the hidden flaws and gaps in contemporary conventional wisdom. Even those who disagree must, if they are honest, carefully consider his arguments.

In his most recent work, he claims that, in our political culture, the case for the specific protection of religious liberty, as opposed to liberty under other descriptions, has been undermined. As a consequence, he fears that although some freedoms will survive, freedom of religion as such may cease to exist.

Even if his argument is sound, his fears are misplaced.  He overstates the importance of one school of theorists for the future of our civilization.

My full response to Smith can be found here.

Tuesday, February 10, 2015

Standing in King v. Burwell

Gerard N. Magliocca

Two recent stories in the The Wall Street Journal raise significant questions about whether any of the named plaintiffs in King v. Burwell have standing to challenge the subsidies going to people enrolled in the federal exchange under the Affordable Care Act.  The stories are here and here.

Under the circumstances, the Court should order supplemental briefing on the issue.  It would be highly improper (and embarrassing) for the Court to decide the merits of such an important case when there are doubts about whether this is actually a "case or controversy" under Article III.

Pop Quiz on judicial proprieties

Mark Tushnet

Citing a conversation with a former FISA Court judge, Margo Schlanger reports that there is "an annual lunch bringing together FISA Court judges and legal advisors (and the Chief Justice) with the heads of the CIA, NSA, and FBI" (Schlanger, "Intelligence Legalism and the National Security Agency's Civil Liberties Gap," 6 Harvard National Security Journal, 122,166 (2015).) I understand that official Washington is a rather small town, and judges bump into executive officials all the time (a point Justice Scalia made in his opinion on recusal in the Cheney case). This strikes me as relevantly different. On a scale from "completely appropriate" to "wildly inappropriate," where do you place this annual lunch?

Monday, February 09, 2015

Distant War and the Politics of Catastrophe

Mary L. Dudziak

My earlier musing on this blog are finally turning into a book that puts war death into the history of the war powers. More particularly, I am taking as my point of departure Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War. During the Civil War, an intimacy with death and dying, and a close experience of war’s brutal after effects, would transform the United States, Faust argues, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” If the experience of war death was somehow constitutive of the republic itself during the Civil War, I have been puzzling over how American identity and politics might be affected or even constituted by its comparative absence.

Initially, I thought that all the important action in the story happens after World War II, and especially after Vietnam, when three developments isolate most Americans from the direct experience of war: the absence of a draft, the rise in military contracting, and changes in war technologies. But I’ve come to understand that the entire 20th century requires rethinking as a century of distant war.

There was deep and broad-based engagement of Americans in the two world wars, but geographic distance mattered to the politics of war declaration and authorization. In essence, distant war required a politics of catastrophe, in which presidents made decisions, and then waited for a disaster of sufficient proportions to generate political support to get strong backing from Congress for what had already been decided. Catastrophe didn’t generate a decision for armed conflict, but instead facilitated political mobilization.

This easily fits the Spanish American War, with a war declaration coming on the heels of public uproar over the sinking of the battleship Maine in Havana harbor, mistakenly attributed to the Spanish. And the World War II chapter of my War Time book illustrates the way this fits WWII (though I don’t develop this argument in that book). What was surprising to me was how well it fits World War I.

The important story comes before Woodrow Wilson sought a formal war declaration, in his failed effort to get an “armed neutrality” bill through Congress (which failed not due to the policy but due to Wilson’s political missteps). The bill would have enabled Wilson to arm merchant ships that would, in certain areas, fire upon German U-boats without warning, and would have certainly launched the U.S. into the war. Amid continuing reports of sunken ships and American deaths, Wilson had announced that an “overt act” by Germany would move the United States closer to war. Wilson, his close advisers, and the press then contemplated whether particular sinkings were the “overt act” he had in mind. Ultimately the “overt act” was the sinking of the Laconia, with only three American deaths. Wilson used the incident to build political momentum. Biographer Arthur Link wrote that  “Wilson’s decision to capitalize on the incident was apparently part of his strategy for focusing public pressure on Congress.” Others were puzzled, since many more were killed in previous incidents that had not been the magic “overt act.” This illustrates an important role of catastrophe in war politics. The terrible event doesn’t always lead to a new policy. Instead, a catastrophe is needed for political reasons: to generate support for a decision already made. And catastrophe itself is defined by politics, not by the event itself. Public opinion scholar David Berinsky has written that “the facts of war do not speak for themselves.” Neither do the facts of catastrophe.

I am continuing to work this out. In the meantime, if you are in the SF Bay Area and want to see how it all turns out, my David M. Kennedy Lecture on the United States and the World, May 12 at Stanford, will be on The Politics of Distant War: 1917, 1941, 1964. You can RSVP here. I'll give a similar lecture at the University of Washington on May 21.

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