Friday, August 22, 2014

Ferguson and Foreign Relations

Mary L. Dudziak

My take on the international reaction to the crisis in Ferguson, Missouri, is at Foreign Affairs this morning. Here's a snippet:
As the turmoil in Ferguson, Missouri, unfolds, questions about the United States’ commitment to human rights are once more headlining news coverage around the world. The uncomfortable international spotlight on such domestic problems should not be surprising. American racial inequality regularly dominated foreign news coverage during the 1950s and 1960s. U.S. policymakers were eventually forced to respond, in part to protect America’s image abroad. As it reflects on how to handle the protests in Ferguson, the Obama administration would do well to consider the fact that, in previous decades, federal intervention was eventually needed to protect both civil rights and U.S. foreign relations.

The killing of Michael Brown, an unarmed teenager, by a police officer -- and the resulting protests -- have been front-page news in many countries. On August 20, Saudi Arabia’s Al Watan and the Kuwait Times published the same shocking photograph of an officer in riot gear pointing a rifle at a woman on the ground.... Iran's Ayatollah Ali Khamenei took to Twitter to criticize the U.S. human rights record, posting photos from Ferguson alongside historic images of racial segregation and using the hashtag #Ferguson....
In the body of the essay, I compare Ferguson with the civil rights crisis in Birmingham, Alabama in May 1963, which also featured brutal police suppression of civil rights demonstrators. Resolution of  the Birmingham crisis led to a desegregation plan on the local level, as well as, ultimately, a shift in civil rights politics that led ultimately led to the Civil Rights Act of 1964.

But the Little Rock crisis in 1957-58 may be a better comparison, depending on whether there is follow-through. As I explain here, federal government involvement in Little Rock was more effecting at protecting the nation's image than in meaningfully desegregating schools. I conclude this way:
Then, as now, protecting rights serves U.S. international relations. Whether it also leads to real justice in Ferguson, however, depends on a sustained effort once the foreign press has gone home.

Wednesday, August 20, 2014

New Paper on the Fourteenth Amendment.

Mark Graber

I have just posted "Constructing Constitutional Politics: Thaddeus Stevens, John Bingham and the Forgotten Fourteenth Amendment" on SSRN.  The abstract of the paper is as follows:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.
If my analysis is correct, Section 1 of the Fourteenth Amendment had no original meaning.  More to the point, we ought to understand the Fourteenth Amendment as an attempt to construct rather than to constrain politics.  Needless to say, I welcome all comments and suggestions.

Taking Liberties with the Last Word

Guest Blogger

Rob Weiner
Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue.  The Halbig case presents a prime example.  On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc.  The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.
To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review.  The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuit, allowing such subsidies.  A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth.  If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response.  Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases.  But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict.  D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.
Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue.  The other cases cited presented no conflict.  Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.
Read more »

War and Peace in Time and Space

Mary L. Dudziak

My new paper War and Peace in Time and Space was inspired/provoked by the indomitable Yxta Maya Murray, who invited me to participate in a symposium on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace at Seattle University Law School. Yxta's commitment to peace as something that does or can truly exist in the world helped me to see that, in my work on wartime, I was not taking peace seriously enough. This led me to revisit the question of what peace might be in a nation engaged in ongoing armed conflict. My answer to this puzzle is to turn to geography/spaciality. I will keep working on this in my next book, but here's my take so far.
This essay is a critical reflection on peace, written for a symposium issue on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace. Peacetime and wartime are thought to be temporal concepts, alternating in history, but ongoing wartime seems to blot out any time that is truly free of war. In spite of this, peace is the felt experience of many Americans. We can understand why peace is thought to exist during ongoing war by turning to geographies of war and peace. The experience of American war is not only exported, but is also concentrated in particular American communities, especially locations of military bases. Memorialization of war death is one of the “spaces of the dead,” as Thomas Laquere calls it, separated from daily life. The persistence of war and the separation of killing, dying and the dead from the center of American life is an example of the way war and peace are spatial. War is also simultaneously infused into domestic life and segregated in the context of militarization. This has been on display in the crisis in Ferguson, Missouri in August 2014. One thing that makes Ferguson so dramatic is the diffusion of war materiel into domestic policing. It also matters deeply that the officers pointing the weapons are largely white, and the demonstrators are predominately largely African American, making clear the racial geography of militarized policing. In the end, this essay raises the question of whether peace should be sought or celebrated. Perhaps the space of peace during persistent conflict can only be a space of privilege.
My paper is on SSRN. It this topic sounds familiar, it's because I started thinking about it on this blog a while ago.

Tuesday, August 19, 2014

The Future as a Concept in National Security Law

Mary L. Dudziak

I will follow up soon on Frank Pasquale's thoughtful post on history and the crisis in Ferguson, Missouri.  Today I'm posting a new paper from a conference on The Future of National Security Law.  The topics of race and national security are intersecting before our eyes. But the paper takes up something more abstract:  the concept of "The Future."  Here's the abstract:
The Concept of the Future in National Security Law
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a “next attack,” and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

Sunday, August 17, 2014

Texas Prosecutor Indicts Ham (you fill in the blank)

Stephen Griffin

It's been said that a prosecutor could get a grand jury to indict a ham sandwich.  In the Texas case, it's a governor.  At moments like these, I'm grateful to listservs I belong to, such as Conlawprof, for showing me that I'm not an outlier.  Like a number of constitutional law scholars, I'm very troubled by the indictment of Rick Perry.  I'm certainly no fan of Governor Perry, but closely analogous issues were discussed and argued out during the 1998 Clinton impeachment.  Should prosecutors clothed with the authority of a grand jury intervene in matters of high (or low) politics with criminal indictments?  I say no.  If they have facts to present, provide them to the legislature or whatever body is tasked with the responsibility of impeachment.

True, we could imagine a governor committing an "ordinary" crime, one completely unconnected with his official responsibilities.  But no one could make that case here, so I'm setting aside the issue of whether it might be better for a prosecutor to proceed against a chief executive accused of, say, murder, rather than a legislature pursuing impeachment and conviction.  Governor Perry isn't being indicted for just vetoing a law, but this comes pretty close.  What we have at most is a case of Texas (and Austin) hardball politics.  Governor Perry tried to remove a prosecutor he probably didn't like very much after she violated the law and perhaps brought her office into disrepute.  And that's a crime?  That doesn't seem very plausible to me and I wonder if the prosecutor has really thought through the broader constitutional implications of what he and the grand jury are doing.

I am fortunate that I can feel the warm embrace of consistency, since I argued against a prosecutor (Ken Starr) having such a power during the Clinton impeachment.  I argued that Congress was the only body who could properly investigate and remove a president.  As long as the Texas constitution has roughly similar provisions to the federal Constitution, which seems to be the case, the same separation of powers/checks and balances logic holds here.  Governor Perry should be held to account in the political/electoral/democratic arena, not by a single prosecutor, jury, or judge.

Saturday, August 16, 2014

Politics By Other Means

Guest Blogger

Rob Weiner

In prior posts, I have described Halbig v. Sebelius and King v. Sebelius, the legal challenges to tax subsidies under the Affordable Care Act, as anti-democratic -- an effort by the losing side in a legislative battle to induce credulous or partisan judges to overturn the policy choices of our elected representatives.  The charge has prompted righteous indignation among opponents of the ACA.  Now, the Constitutional Accountability Center has turned up a video documenting the genesis of the legal theory advanced in Halbig, and it proves my point.[1] 

At an American Enterprise Institute conference in late 2010, Thomas Christina, a lawyer for various industry groups on health care issues, presented the results of his search for a statutory “defect” to undermine the ACA.  Focusing on the ACA’s tax subsidies enabling low income families to afford health insurance, Christina identified the statutory language that opponents of the Act have read to bar tax subsidies in States with Federal, rather than state-established insurance Exchanges.  Immediately after Christina’s presentation, AEI scholar Michael Greve, like a fire and brimstone preacher, urged the flock to find some way -- any way -- to eviscerate the statute:

This bastard [the ACA] has to be killed as a matter of political hygiene.  I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.  I don’t care who does it, whether it’s some court some place, or the United States Congress.  Any which way.  Any dollar spent on that goal is worth spending.  Any brief filed toward that end is worth filing. Any speech or panel contribution toward that end is of service to the United States.[2]
 Law Professor Jonathan Adler later came across the video of the Conference and took on  Mr. Greve’s challenge, publishing an article with the Cato Institute’s Michael Cannon that elaborated on the “defect” discovered by Christina.  Initially, Adler and Cannon characterized the ostensibly defective provision as a “glitch” or “legal mistake.”  And if that supposed error gutted the statute, well, all the better.
Read more »

Thursday, August 14, 2014

The Historical Resonance of Ferguson

Frank Pasquale

When I was in college, I was fortunate enough to take a history course from Morton Horwitz, on the Warren Court. It was inspiring on many levels. We learned about the NAACP's decades-long strategy to win civil rights for African Americans. We saw that legal struggle result in a series of legendary Supreme Court decisions.We also discussed the global pressures on the US to reform--how it was embarrassed, in the midst of Cold War rivalries, to be criticizing Soviet abuses while tolerating so many outrageously racist practices on its own soil.

Two items brought Horwitz's course to mind for me today. Mary Dudziak's scholarship on Cold War Civil Rights illuminates parallels between our eras. As she argues, in Little Rock in the 1950s, the "image of American democracy was at stake:" "foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in the nation."

Twitter is creating a similar dynamic around #Ferguson. Gezi Park veterans from Turkey are tweeting tips on how to deal with tear gas. The police militarization has made the front page of Australian papers. The Financial Times, based in London, is reporting on it. America's own leading magazines are acknowledging that "black people . . . across the South are as politically vulnerable as they’ve been since the emergence of the civil rights movement." Add to that the brutality toward Eric Garner, and mounting evidence of the racialized targeting of police attention, and the civil rights picture is bleak nationwide. Not only the 14th Amendment, but also the 1st Amendment, is endangered.

Where do we go from here? Ronald K.L. Collins offers another compelling historical analogy:
[T]he First Amendment victory in [New York Times v.] Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.
It's hard to imagine that the same Court that gave us Florence v. County of Burlington is up to questioning the militarization of police. But we can hope that, as a growing chorus of conservative voices criticize police violence, it will at least consider intervening.

Lubet on Free Speech and Salaita

Andrew Koppelman

My friend and colleague Steven Lubet has just published a short piece in the Chicago Tribune concerning the controversy over the University of Illinois's decision not to hire Prof. Steven Salaita:

Free speech and U. of I.'s Steven Salaita

Steven Lubet

Controversial scholar Steven Salaita ­ who has been most benignly described as "deeply critical of Israel" ­ has been fired or "non-hired" by the University of Illinois, depending on which news source you believe. In either case, it appears Salaita's numerous tweets, which have included venomous comments about Israelis and Jews, played a role in his job loss. Thus, he is either an avatar of academic freedom or the victim of his own extremism, again depending on your point of reference. Needless to say, the situation is not quite that simple. There are actually three distinct principles involved, and they do not necessarily lead to a single neat conclusion.
Read more »

The Assault on Journalism in Ferguson, Missouri

Frank Pasquale

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its "reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend." Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post's Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

Read more »

Tuesday, August 12, 2014

Dana Milbank on the death of American optimism

Sandy Levinson

Dana Milbank has a column in the Washington Post about the death of American optimism about the future, based primarily on a Wall Street Journal/NBC poll of Americans.  "Thus, When asked if “life for our children’s generation will be better than it has been for us,” fully 76 percent said they do not have such confidence. Only 21 percent did. That was the worst ever recorded in the poll; in 2001, 49 percent were confident and 43 percent not.."   As one might expect given the percentages, pessimism cuts across class, racial, and ethnic lines, even if there are differences in the level of pessimism. " In other words, the gloom goes beyond wealth, gender, race, region, age and ideology. This fractious nation is united by one thing: lost faith in the United States."

What accounts for this?  There are, of course, many potential explanations, including the slow recovery from the Great Recession.  But Milbank writes at he shares the belief of Fred Yang, one of the pollsters, "that something deeper is also at work: Americans are reacting, in part, to the breakdown of the political system, which leaves people quite rationally worried about American decline and the nation’s diminishing ability to weather crises."  Needless to say, I agree, but, perhaps also needless to say, is that Milbank, like almost all of his fellow pundits, resolutely refuses to connect the dots between the "breakdown of the political system" and the constitutional order imposed on us by the 1787 Constitution, as insufficiently amended. So the question is how much longer can references to "the breakdown of the political system" avoid any mention of what in major ways constitutes the basics of that system, i.e., the Constitution? Or let me put it this way:  If I am correct that most readers of Balkinization (including lurkers) share the sense of pessimism--if they do not, that itself would be fascinating and worth independent study--how many of them believe that the Constitution will prove to be a net positive force in making things better over the next, say, two decades, as against a cause of further despair?  It is possible, of course, that one could rationally believe that the Constitution makes no difference at all, one way or the other, that Marx (or anyone else you might put in his place) was right in viewing constitutions as merely epiphenomenal  on what is really important, whether it's the economy, stupid; our falling away from religion; the sheer force of globalization and the ever greater competition for limited resources, or what have you.  But that view, at least, means that we can stop praising the irrelevant Constitution, which would be an improvement over venerating it, at least as far as I am concerned.

Thomas on the Seventh Amendment in Puerto Rico

Jason Mazzone

My colleague Suja Thomas has a very interesting post at the Volokh Conspiracy on a recent decision of a district court that the Seventh Amendment requires the availability of civil juries in Puerto Rican courts. The decision is a bit of a mind bender. There is a key background issue of whether Puerto Rico is an incorporated or unincorporated territory and the district court appears to have hedged its bets on that question by characterizing the right to a jury trial as so fundamental that it must apply in either case. To reach that result, the district court says also that the Seventh Amendment jury trial right applies in state courts. And to get there (because the Supreme Court has not incorporated the Seventh Amendment right against the states), the district court views the incorporation issue open for new examination after McDonald v Chicago. Suja, an expert on the historic role of civil juries, does a nice job of laying out the complexities of the case and previewing what all of this might mean for Puerto Rico (assuming the First Circuit doesn't reverse) -- and beyond.  

ObamaCare Plaintiffs’ 2012 Supreme Court Briefs Read the Act Exactly As They Now Say It Cannot be Read (and Why that Matters for Chevron)

Abbe Gluck

I have another piece out in Politico on the Halbig and King  (Obamacare subsidies) cases.  Here are a few excerpts (a lot more in the full link):

"[I]n the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read. Namely, they assumed that the subsidies were available on the federal exchanges and went so far as to argue that the entire statute could not function as written without the subsidies. That’s a far cry from their argument now that the statute makes crystal clear that Congress intended to deny subsidies on the federal exchanges.

I am not a fan of the “gotcha” flavor that some aspects of this case have taken on, but the challengers’ 2012 statements are relevant as a legal matter because what the government has to prove to win—as a matter of black-letter law under the Chevron doctrine—is that the statute is ambiguous. (Chevron says that federal courts defer to the relevant agency’s reading of the statute when a federal statute is unclear—here, that agency is the IRS.)

Indeed, the plaintiffs went so far as to say the entire Affordable Care Act should have been struck down without the subsidies—because the act would not be able to function as written without them.
From the brief:
The Federal Government only subsidizes coverage purchased within an exchange, thus giving insurance companies a reason to sell there despite the distinct regulatory burdens imposed on plans offered through the exchanges. The exchanges cannot be severed from the provisions already addressed. Without the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions. Premised on the mandate, the insurance regulations, and the subsidies, the insurance exchanges cannot operate as intended by Congress absent those provisions. (p. 51, emphasis added).

 Next, consider the 2012 brief of the state governments who joined the constitutional challenge—a brief that, along with the joint dissent’s description, flatly contradicts the challengers’ new narrative that 1) Congress never thought any states might not operate the changes themselves; 2) the subsidies were somehow intended to be a carrot to entice states to establish their own exchanges on penalty of losing them entirely if the feds had to do it; and that 3) this makes the ACA’s exchange provisions analogous to Medicaid’s carrot/stick cooperative federalism regime.
From the State Government Petitioners 2012 brief:
The ACA’s second set of supply-side provisions is found in Subtitles D and E of Title I. Subtitle D mandates the creation in each State of “health benefit exchanges,” which will be run by either the State or the federal government. ACA §§ 1301–1343…. If a State is not willing to create and operate an exchange, the federal government will step in and do so itself. ACA § 1321(c). Subtitle E then establishes tax credits and other subsidies for the lower-income individuals and small businesses that purchase plans on the exchanges. ACA §§ 1401–21. Congress has estimated that getting these new exchanges up and running will cost at least $350 billion in federal spending by decade’s end. Letter from Douglas Elmendorf, Director, CBO, to the Hon. Nancy Pelosi. (p.9, emphasis added)


Far from arguing—or even suggesting—that the subsidies were limited to state exchanges, the challengers and the joint dissent affirmatively argued that subsidies are essential for the insurance-exchange provisions to function as written. Now, however, the same challengers say that Congress purposefully designed a federal exchange without those same subsidies—that Congress intentionally configured that exchange, and all the pieces of the statute linked to it, to be doomed to fail.

I have argued before, and continue to argue, that the Affordable Care Act, read textually in context and as a whole—as interpreters of all stripes (textualist, purposivist, pragmatist) agree statutes should ideally be read—makes clear that the subsidies are to be provided on federal exchanges. Other provisions of the statute, like 36B(f), which requires reporting to the IRS of subsidies on state and federal exchanges, make no sense otherwise. But the government does not even need to go that far to kick this challenge where it belongs—out of the courts and back into the political arena of Congress, where it is entirely appropriate to haggle over the act to the death as a matter of policy. But this is a law case, and all the government needs to show under the law is that the statutory text is, at a minimum, ambiguous—that there are at least two ways it can be read. The court and the challengers (alongside the Congressional Budget Office, the reporters covering the statute’s enactment and former staffers and elected members) already have made that case, and then some."

For more, check out the full piece....

Monday, August 11, 2014

Lawrence Summers on constitutional reform

Sandy Levinson

Former Secretary of Treasury (and Harvard President)Lawrence Summers has just published an op-ed in the Washington Pos, "Ending Presidents' Second Term Curse," arguing that we need to move to a single-term presidency, perhaps, he writes, of six years.  The evidence, he suggests, is that second-term presidents rarely accomplish anything significant.  A similar (unacknowledged) argument was made during the Bicentennial more than a quarter century ago by elite Washington lawyer Lloyd Cutler and political scientist James Sundquist, who advocated a single six-year term. 

 Summers concludes his column by writing, somewhat laconically, that “that National reflection on reform is overdue.” Well, yes!  But one wonders what model of constitutional change Summers has in mind.  Who, for example, will be doing the reflecting, with what result?  Is he calling, for example, for a nationwide mass movement to “reflect” on the multiple explanations for the fact, as he puts it in his opening sentence, that “Disillusionment with Washington has rarely run higher.”  Or is his column, as one might expect given his background and its venue, directed at fellow insiders who will….  Do what? Call for a constitutional amendment in the absence of a national outcry that such a fundamental change (which would, among other things, make us like Mexico, which relies on a president who serves a single six-year term)?  Why would anyone believe that two-thirds of each house of Congress would support, without significant pressure from their constituents, such a change?  Or, perhaps, Summers will lend his illustrious presence to the call for a new Article V constitutional convention that will have a mandate to engage in a truly comprehensive set of “national reflections” on the various reforms that are indeed overdue in our sclerotic 18th century constitutional order?

I do not mean to be as snarky as I may sound.  I am grateful to practically anyone who is willing to go beyond attacking one or another contemporary “leader” and instead suggests that we need to look at the extent to which our basic institutional structures may be at least partially to blame for our predicament.  And Summers is obviously no ordinary person.  His endorsement of an Article V constitutional convention could be a breakthrough moment, requiring other establishmentarians, automatically identified as “serious” and “thoughtful,”  to take seriously ideas that they simply dismissed when made by ordinary “folks” who lack such credentials.  
I’m not sure where I stand on the single-six-year term, though I do know that my support would be conditional on including the power of Congress, by a two-thirds vote meeting in joint session (to limit the power of the Senate) to vote “no confidence” in an incumbent president anytime after, say, the first two years of the six-year term. In any event, it’s good to have Secretary Summers’ contribution to the discussion of our constitutional system.  But will in fact anyone (beyond predictable academics) take it seriously enough even to discuss it? Is this just another example of "sound and fury" (of the kind that I often engage in) that in fact "signif[ies] nothing" about the actual potential for changing our remarkably dysfunctional system?

Constitutional Reverence is Structural

Gerard N. Magliocca

One theme of this blog is that we give too much reverence to the Constitution's structure.  Upon reflection, the unheralded decision by the First Congress to make the first set of amendments an appendix contributed to that problem by setting the 1787 text apart from the work of subsequent generations.  (A 2011 paper by Mehrdad Payandeh entitled Constitutional Aesthetics:  Appending Amendments to the United States Constitution explores some of these issues.)

Madison wanted to write his proposed amendments directly into the text, but Roger Sherman convinced the House of Representatives that this was wrong.  Sherman's main argument was that there should be no confusion between what was approved by the Constitutional Convention and signed by its delegates (including Sherman himself) and what came later.  If you think about that, though, the argument is rather weak.  The signatures do not need to be included in the legal text that everyone sees, and even if they were anyone knowledgeable about constitutional law would not think that George Washington approved (or disapproved) of Prohibition or giving women the right to vote.  Moreover, almost all state and national constitutions do not follow Sherman's view.  They are single documents with amendments inserted into an appropriate place, and you would use annotations to learn when a given provision was ratified.

On the other hand, keeping the 1787 text pristine does enhance its status as compared to the amendments, which may have been Sherman's objective, as he was unenthusiastic about a bill of rights.  And if the Constitution's legitimacy comes from the heroism of the revolutionary leaders who proposed the plan, keeping their names tied to an unchanging text may be a useful legal fiction.  The point is that the way that First Congress set up the amendment process reinforces that view that there is something special about the original text that should not be changed.

One final thought.  Suppose Congress wanted to issue a "Restatement" of the Constitution that put the amendments and the 1787 text together. Would that require an Article Five amendment even though no new text would be added?

Who Cares About the Constitution?

Mark Tushnet

Sandy asks that question in connection with a possible violation of the Iraqi Constitution. (Like him, I have no idea whether there was such a violation.) As a general matter, I would think that a constitutional violation counts on the "negative" side of the ledger you're keeping to add up the good things and bad things about the behavior you're being asked to evaluate. It's on the negative side because there's a rule-of-law cost associated with constitutional violations (that are conceded to be such). Other things on the positive side of the ledger might outweigh the rule-of-law cost plus whatever other costs there might be to the behavior. But, I think, it would be mistake to say that the "mere fact" of constitutional violation counts for nothing on the negative side.

So, for a provocative example, perhaps impeaching President Obama would be constitutionally lawless but on balance justified. I think what's interesting about Sandy's question is that U.S. constitutional discourse desperately wants to avoid conclusions in that form, and therefore pushes people to say that the actions they think are politically justified are also (and independently) constitutionally justified or even required.

Sunday, August 10, 2014

Who cares about the constitution?

Sandy Levinson

A Washington Post story on the ever-worsening situation in the country that used to be Iraq focuses on the seeming unwillingness of Prime Minister Maliki to leave office, as is seemingly desired by almost everyone in the country (and world) other than his specific supporters.  It includes the following paragraph

The prime minister’s political bloc won the largest share of seats in April’s parliamentary elections, but not a majority. In his speech, he charged that Iraq’s president, Fouad Massoum, had violated the constitution by not asking Maliki’s political bloc to put forward its candidate before a deadline last week.
“This act represented a coup against the constitution and the constitutional process,” Maliki said. Violation of the constitution could have serious and dangerous consequences, he said, taking the political process into a “dark tunnel.” 

What especially interests me is whether anyone really cares (or should care) about the degree to which the Iraqi constitution is being followed at the present time.  I certainly have no expertise on that constitution, and I have no real idea whether Maliki's claim is correct or not; even more do I have no idea who exactly would adjudicate his claim.  I assume that the United States Supreme Court would treat this as a "political question' and dodge it were there an American analogue.  But, as I say, that's not really the primary question.  Let's assume for the moment that Maliki's understanding is totally correct and would be found to be so by any legal interpreter.  So what?  Aren't there more important considerations at play right now than whether the Iraqi constitution is followed?  And if we are cavalier about the degree of fidelity that ought to be directed at the Iraqi constitution, does that have any implications for our views about constitutional fidelity in the good old U. S. of A.?  How do we decide which constitutions are worth obeying, even when it is clearly costly to do so, and which are not, and under what circumstances (and who decides)?

Friday, August 08, 2014

En Bunk Redux

Guest Blogger

Rob Weiner

Professor Adler's response to my previous post continues a coordinated effort to preemptively delegitimize en banc review of the Halbig case by the DC Circuit.  The effort appears to reflect the recognition that Supreme Court review of Halbig cannot be justified on the basis of a conflict among the courts of appeals if the conflicting decision has been vacated by a grant of rehearing en banc.  The grant of certiorari in such a situation would be wholly inconsistent with long-standing Supreme Court practice.  Thus, we hear denunciations of a DC Circuit decision to grant review as political before before the full Court has decided anything.

Most of Professor Adler’s latest contribution does not merit reply.  However, I do want to correct the record on two points.

First, Professor Adler accuses me of "sleight of hand" in calling attention to the DC Circuit's sua sponte order staying the judgment in Halbig until disposition of any request for rehearing. He notes that under Federal Rule of Appellate Procedure 41(b), the mandate of the Court does not issue until the time for filing a petition for rehearing has passed or the full Court has acted on a petition.  Precisely. That is why it was unnecessary for the Court to issue an order to that effect.  In my experience, such orders are not standard practice, and therefore this one raises the plausible inference that the panel majority anticipated the likely demise of its aberrant decision.

Second, Professor Adler’s suggestion that the DC Circuit rarely grants en banc review misses the point – actually, several points, but I will address only one of them here.  Rule 41 was amended in 1998 (after the opinion of Judge Edwards on which Professor Adler relies, by the way) to add inter-circuit conflicts as a ground to reconsider a decision en banc.  The Advisory Committee Notes on that change emphasized that en banc review is particularly important in cases where “a panel decision creates a conflict,” as opposed to cases where the panel merely takes sides in an existing conflict.  The reason for the Advisory Committee’s emphasis is clear. Where, as here, the panel decision engenders the conflict, en banc reconsideration can make that conflict go away.  That result may derail Professor Adler’s plans to gut the ACA, but avoiding an inter-circuit conflict is an appropriate basis for the DC Circuit to grant en banc review.

This is probably more information on the intricacies of rehearing  en banc than almost anyone cares to know. But, for the reasons noted above, I suspect it will not be the last word.   

Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at

Thursday, August 07, 2014

En Bunk: A Response to Professor Adler on En Banc Review of the ACA

Guest Blogger

Rob Weiner

On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges.  Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act.  (I filed amicus briefs on behalf of Families USA in both cases.) 

In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case.  The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents.  A decision by the en banc Court to reconsider will automatically vacate the panel opinion.  If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.

In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review.  The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case.  For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel.  A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3.  If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here.  Human fallibility being what it is, judges sometimes get an answer wildly wrong.  As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2. 

Whatever the merits of Judge Edwards’ views regarding en banc consideration in 1987, where the Court of Appeals had first granted and then vacated four en banc orders, and where the number of en bancs was increasing, those views are inapt in the context of this case and this era.  In the current hyper-partisan environment, the argument that majority rule has scant value in the context of judicial review echoes a general disdain for majority rule -- particularly when it comes to the Affordable Care Act – which was not prevalent in 1987.  The Halbig case is a prime example.  Its essential thrust is to overturn the will of the majority reflected in the votes of our elected representatives in Congress and the White House.  As Professor Michael Greve recently acknowledged, the statutory language supposedly commanding denial of subsidies to poor people was only “discover[ed]” months after the ACA had become law.  Back then, Professor Adler and his co-author Michael Cannon touted that discovery as a statutory “glitch” and a “surprise,” not a clarion declaration of Congress’s intent.  Cannon gleefully announced that this new finding would “gut” the Affordable Care Act.  Only later did the advocates seek to improvise an argument that Congress deliberately sought this self-destructive result, even though Congress explicitly stated its contrary intent in the statute -- to extend affordable health insurance to everyone, not to deny it.  Resort to judicial fiat to “gut” a duly enacted statute and to defeat the expressly stated intent of Congress is antidemocratic and illegitimate.  It justifies remedial action by the full Court.

In this context, Professor Adler’s revival of the argument that the full Court of Appeals should not reconsider the vote by a minority of judges to gut the legislation enacted by a majority of Congress would be ironic if the machinations behind it were not so transparent.  In clamoring for the Supreme Court to grant review in the Fourth Circuit case, which allowed subsidies under the ACA, the opponents of the ACA contend that the case is critically important.  At the same time, Professor Adler maintains that the D.C. Circuit ruling in Halbig, denying subsidies to low-income families, does not merit en banc review because the case is not important.
Professor Adler amps up the irony even further in citing Judge Edwards’ concern from 1987 that en banc review can induce “politicking” among the Judges on the Court.  Whatever the validity of those worries when Judge Edwards voiced them, concerns about politicizing the judicial process lack credibility now coming from those who have wielded litigation as an instrument of ideological and political warfare.  In any event, there is no reason to believe the en banc Court will be more susceptible to politics than any panel of the Court is, or was.
 Ultimately, Adler’s point boils down to the argument that the D.C. Circuit has rarely granted en banc review.  But so what?  That says nothing about whether this case is so important, or so inconsistent with Circuit precedent, or so inimical to the proper exercise of judicial review, as to warrant reconsideration.  Even if, in the usual case, the flawed nature of a decision is insufficient by itself to warrant en banc review, some decisions are so aberrant and their impact is so significant that it would be unusual and surprising if the Court did not grant review.  Halbig is such a case. 

Further, Professor Adler does not get around to dismissing until late in his post perhaps the most common reason for en banc review, that the panel opinion creates a split in the Circuits.  The Supreme Court often grants certiorari to resolve such splits, because it is neither good law nor good policy for the decision of a federal question to depend on the venue of the court deciding it.  If by granting en banc review, the D.C. Circuit ends such geographic roulette in this case, that is a good result, and it spares the Supreme Court the trouble of taking the case just to police consistency.   
In sum, Professor Adler’s arguments against en banc review of the panel decision in Halbig are wrong.  The full Court of Appeals should hear this case, extinguish the conflict between the Circuits, turn back the politicized effort to enlist the Judiciary in thwarting the Affordable Care Act, and preserve the subsidies that Congress granted to millions of low income families.  

Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at