Can He Do That? Of Appropriations, Walls and Shutdowns

David Super

Posted 3:19 PM by David Super [link]

A Different Border Wall: Judgments of Legal Quality in Texas v. United States

Neil Siegel

In his December 15 post on Texas v. United States ("Off the Wall and on the Wall in the Age of Trump"), Jack Balkin brings to bear the historicist sensibility that partially informs his magnificent 2011 book, Living Originalism. In the post, he opines that Judge Evan O'Connor invalidated all of the Affordable Care Act (ACA) "on (in [Balkin's] own view) pretty dicey legal grounds." But Balkin moves quickly from the perspective of the individual participant in the constitutional system to the perspective of the historicist appreciator of how the system functions. He explains why the arguments accepted by Judge O'Connor are already "on the wall," albeit "barely." In addition, Balkin in effect lays out a road map that, if followed by the right groups of people -- especially a unified Republican Party and conservative intellectuals who work on the arguments -- will rapidly place those arguments firmly on the wall. Most significantly, Balkin writes that "judgments of legal quality and social influence mutually shape each other," but his post focuses almost entirely on how social influence shapes judgments of legal quality, and not the other way around. 

My own view -- and I would bet that Balkin actually agrees with me, although he did not emphasize this point -- is that judgments of legal quality and the character trait of intellectual integrity are a significant part of the reason why conservative intellectuals and many professional Republicans are far from unified on the merits of this particular challenge to the constitutionality of the ACA. 

Specifically:

1. One could reject most or all of modern Article III standing doctrine and try to reground it in a new, substantially more permissive understanding of Article III. But until such an attempt succeeds, it is legally untenable for Judge O'Connor to have concluded that two obviously ideological plaintiffs in Texas have Article III standing because they feel coerced by a "mandate" that will require them to make a shared responsibility payment of $0 if they remain uninsured -- a "mandate" that gives Americans the lawful choice between complying and making the shared responsibility payment. See Nicholas Bagley's incisive analysis.

2. As Marty Lederman and I have separately explained, it is legally untenable for Judge O'Connor to have held that Congress requires an enumerated power to impose no material or expressive consequences on anyone.

3. And as a bipartisan group of experts on severability made clear, it is legally untenable for Judge O'Connor to have concluded in effect that Congress in 2017 accomplished through the reconciliation process what congressional opponents of the ACA lacked the votes to accomplish using the ordinary legislative process -- that is, repeal the entire statute merely by zeroing out the shared responsibility payment and leaving the rest of the ACA in place.

 C'mon, man.


Posted 11:43 AM by Neil Siegel [link]

Three Short and Sweet Possible Legislative Responses to Texas v. United States

Richard Primus

Nick Bagley and I have a short piece in The Atlantic offering the incoming House of Representatives three strategies for super-simple legislation that would end the litigation in Texas v. United States and preserve the ACA.  One would raise the penalty for not carrying insurance from nothing to one dollar; one would clarify that the mandate is severable; one would just repeal the mandate, which, given the absence of a penalty, now hangs atavistically around the ACA like a human appendix, doing nothing useful but threatening to blow up the whole system if attacked from the outside.  We also offer brief thoughts on why it's worth the House's time to adopt one of these fixes even though the Senate's leadership is less keen on the ACA.  The piece is here.
Posted 4:36 PM by Richard Primus [link]

Institute for Justice Podcast on the 14th Amendment

Gerard N. Magliocca

The Institute for Justice has released a podcast to mark the 150th anniversary of the Fourteenth Amendment. You can find the link here. https://ij.org/sc_long_podcast/the-fight-for-the-14th/ I am one of the participants, along with Kurt Lash and others.
Posted 10:43 AM by Gerard N. Magliocca [link]

Texas v. U.S.: Congress's Inherent Power to Require No One to Do Anything

Neil Siegel

While the constitutionality of the Affordable Care Act's minimum coverage provision (the "individual mandate") and shared responsibility payment were pending before the U.S. Supreme Court, Robert Cooter of UC Berkeley Law School and I developed a theory of Congress's taxing power that anticipated, and may have influenced, the Court's taxing power analysis in NFIB v. Sebelius.  (Several commentators, including Neal Katyal, Randy Barnett, and Jeffrey Rosen, noticed close similarities in the analysis, citations, and rhetoric between our article and the majority opinion of Chief Justice Roberts.)  According to our theory, the difference between a permissible tax and an impermissible penalty for purposes of the Taxing Clause turns on the likely effects of a federal exaction on human behavior.  Whereas a tax characteristically dampens the conduct subject to the tax and thereby raises revenue, a penalty prevents the conduct subject to the penalty and thereby does not raise revenue.

Read more »
Posted 2:20 PM by Neil Siegel [link]

All the Things You Don’t Realize Are in the ACA and Now Could Vanish

Abbe Gluck

• Health insurers could deny or cancel coverage for people with pre-existing conditions in most markets.
• You could now be charged money for insurance more based on your health, gender and occupation.
• There would be no more prohibition on lifetime limits on health care spending. (Before the A.C.A. those limits meant insurance only took you so far if you had a very serious health condition.)
•  There would be no more out of pocket maximum.
• There would be no more coverage of young adults on parents’ plans up to age 26.
• There would be no more government subsidies to help you buy insurance.

• Basic health benefits we assume are always covered--including maternity coverage and mental health-- could now be denied if you buy your own insurance or get it through a small employer.
• Important preventive services like cancer screening and contraceptive services will no longer necessarily be covered--you could have to pay for them out of pocket unless your state passes a law saying otherwise.
• Vaccines for your kids were covered under the A.C.A., but before the A.C.A. many insurers required a copay and you now may have to pay for them again.
•  Well-baby and well-child exams were covered and now may not be.
•  You could now be charged a co-pay if you go to an emergency room out of network.
• There would be no more health insurance marketplaces, which allow consumers to see and compare insurance plans before they buy.
• There would be no more requirements that large employers offer employees health insurance.

And then of course we lose the expansion of Medicaid.

• The A.C.A made Medicare’s pharmaceutical benefit a lot more generous-- don’t be surprised now when you need to pay for your high price drugs.
• Medicare preventative care without copay? Gone.
• Medicare payment reforms would be gone including the whole new structure of Medicare Advantage.
• Essential funding that has expanded the solvency of the Medicare trust fund so that  Medicare continues to be available into the future would also be gone

• Loss of the Prevention and Public Health Fund, which supports community-based programs that tackle social determinants of health.
• Loss of the Community Health Center Fund, which provides about 70 percent of federal grant programs for these clinics that provide care to 24 million patients, as well as national health service corps scholarships for thousands of physicians, nurses, and dentists to deploy to the biggest rural and urban health professions shortage areas.
• Gone would be calorie labeling on restaurant menus in most localities.
• Gone would be mandatory break time for nursing mothers.
•  Lost would be the reauthorization and reform of the Indian Health Services Act.

• A pathway for the approval and sale of generic biologic drugs, which would save Americans billions on drug costs.
• More tools to help the government combat health care fraud.
• Training for new doctors.
• Non-discrimination provisions that protect people of all genders from discrimination in health care.

Take a step back absorb how much this decision affects.  Most of these reforms have nothing to do with the insurance-purchase mandate the judge opined was so central to the entire 2,000+ pages of the A.C.A. that nothing in those pages could function without it. But more importantly, Congress never said a thing about eliminating all of these provisions-- indeed, Congress failed more than 50 times in attempts to repeal them. Congress only eliminated the mandate penalty, leaving the rest of the law still standing. As we have explained, the legal test at issue turns entirely on what Congress intended.  The judge’s opinion effectively repeals the entire A.C.A. when Congress couldn’t and didn’t.
Of course, Friday’s decision will certainly be appealed and so the court’s ruling is not the final word. And the effects of the decision are most likely to be paused while any appeal is pending, so the devastating implications of the decision laid out here are not immediate, and hopefully will never come to pass.
  

[Cross-posted at https://takecareblog.com/]
Posted 2:58 PM by Abbe Gluck [link]

Texas v. U.S: Off the Wall and On the Wall in the Age of Trump

JB

Judge Reed O'Connor's opinion in Texas v. U.S. has declared all of Obamacare unconstitutional based on (in my own view) pretty dicey legal grounds. Commentators are trashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.

I have seen this movie before. (In fact, I had a minor supporting role.)

Assume that the commentators are right and the judge's arguments are not even close to being persuasive given existing legal precedents. Does that mean that the position is "off-the-wall?" Suppose it was off-the-wall six months ago, before the judge issued his final decision. What about now? Have the arguments against Obamacare moved from "off-the-wall" to "on-the-wall," as they did in NFIB v. Sebelius and King v. Burwell?

Read more »
Posted 2:05 PM by JB [link]

There is no "mandate." And oh, by the way, Judge O'Connor didn't enjoin enforcement of any provision of the ACA, let alone "strike down" Obamacare in its entirety.

Marty Lederman

All the many critics are absolutely correct that Judge O’Connor’s severability analysis in his Affordable Care Act opinion yesterday is indefensible.  By focusing so intently on the severability argument, however, many of those critics concede (or assume) far too much at the front end, which is, if anything, even less defensible.
Read more »
Posted 1:04 PM by Marty Lederman [link]

Happy Bill of Rights Day

Gerard N. Magliocca

Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:

“The genius of the Bill of Rights is that it limits its attention to truly important things and to things over which a must and limited government can exercise some actual control. Two centuries ago, just as now, politics tempted some to take flight from moderation and realism. Edmund Burke complained at the time of those who ‘are so taken up with their theories about the rights of man that they have totally forgotten his nature’

“The framers, however, were practical men.  They gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government. Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character . . .”





Posted 7:51 PM by Gerard N. Magliocca [link]

The Curative Power of Law and Political Economy

Guest Blogger

Posted 9:00 AM by Guest Blogger [link]

Brexit is Prohibition

Gerard N. Magliocca

I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.

Prohibition was a disaster, but Brexit shows that no constitutional system is immune from them.
Posted 11:58 AM by Gerard N. Magliocca [link] (115) comments

CFP--Conference on Constitutional History: Comparative Perspectives

Jason Mazzone

A reminder of the call for papers for the conference on Constitutional History: Comparative Perspectives in Chicago on April 29-30, 2019. Proposals submitted by December 15 will receive priority consideration. Full details are here.
Posted 9:44 AM by Jason Mazzone [link]

What’s Really Wrong with the Census

Guest Blogger

Read more »
Posted 6:45 PM by Guest Blogger [link]

Fiscal Policy after the Mid-term Elections

David Super

Posted 12:34 PM by David Super [link]

The Senate's Representational Imbalance (2019 edition)

Marty Lederman

Now that Cindy Hyde-Smith has, as expected, won the run-off election to serve the final two years of Thad Cochran's term as Senator from Mississippi (Cochran retired), we know that Republicans will have a 53-47 advantage in the 116th Congress beginning in January.

What percentage of the U.S. population will those 53 incoming GOP Senators represent, if we assume the Senators from a particular state represent the residents of that state?

Nineteen states, with a total of approximately 144,461,202 residents (based on 2018 estimates), will be represented by two Democratic Senators (if we count King and Sanders among them).

Twenty-two states, with approximately 130,126,870 residents, will be represented by two Republican Senators.

And the nine states with split delegations, i.e., with one Senator from each party--PA, OH, AZ, WI, CO, AL, WV, ME, MT (in order of population)--have a total of approximately 52,240,741 residents.

If we allocate the residents in those nine "split delegation" states evenly--if we assume, that is, the somewhat crude fiction that half of the residents are represented by Democratic Senators, and half by Republicans--then the 53 Republican Senators in the new Senate majority will represent only 47.8 percent of the population of the 50 states.  And that number doesn't even take account of the approximately 4.4 million residents of D.C. and the territories, who presumably would vote overwhelmingly for Democratic Senators, given the chance (although it's possible that the Puerto Rican electorate might, over time, choose some Senators who would caucus with Republicans).  If we accounted for them, the percentage of U.S. residents represented by the 53 GOP Senators would likely be closer to 46 percent.  And, importantly, it will be a remarkably unified majority, one that conforms in virtually every case to the wishes of the Majority Leader.

To be sure, this five to seven percent "representational imbalance" isn't a huge discrepancy in absolute terms--nowhere even close to predictions that by 2040 one-third of Americans might be represented by as many as 70 of the 100 Senators.  (I do not know how historically anomalous it is, either--i.e., in how many of the first 115 Congresses a unified majority of Senators represented less than half the nation.  If anyone knows of such calculations, please let me know.)  Nevertheless, because it moves the GOP from minority to majority status and because the 53 GOP Senators can be expected to march in lockstep with leadership (as will the vast majority of the 47 Democratic Senators), it makes all the practical difference in the world in terms of who controls the composition of the judiciary for the next two years (and perhaps beyond).  And that means, among other things, a continuation of the 50+ years of a Republican-appointed majority on the Supreme Court, despite the fact that a majority of Americans (and voters) have supported Democratic candidates for President and Senate in most recent elections, and the fact that the 47 Democratic Senators in the 116th Congress will represent states where a majority of Americans live.  (I discussed this judicial/political entrenchment phenomenon at greater length back in early October.)

On the broader question of whether the representational imbalance in the Senate is justifiable and/or lamentable, I highly recommend (i) this very interesting recent post by Mike Dorf in which he concludes that although "the Senate is a problem, . . . it is not a problem that systematically disfavors Democrats, except in the short run"; (ii) Richard Primus's response, in which he "push[es] back" on Mike's suggestion that the Senate might be "justified as part of the package deal that gives us our federal system"; (iii) Dorf's response to Primus, "A Tentative Burkean Defense of Something Like the Senate"; and (iv) Primus's sur-reply.
Posted 6:14 AM by Marty Lederman [link]

The Legal Shape of Resistance

David Pozen

Posted 8:38 AM by David Pozen [link]