The perverse incentives of "divided government"

Sandy Levinson

My latest on-line column for Al-Jazeera elaborates my argument that "opposition" parties have no incentive to collaborate with presidents on "signature" legislation for the simple reason that almost invariably it is the president (or his/her party) that will benefit if the legislation is in fact popular.  Thus I regard as absolutely fatuous the argument of Fouad Ajami in the Wall Street Journal (hyperlinked in the column) that the reason the Affordable Care Act is defective (which it certainly is) is because of Obama's refusal to "compromise" with Democrats.  The fact is there is no evidence at all that a single Republican was genuinely willing to work in good faith with the Administration.  Those who hinted at doing so, such as Sen. Grassley, were apparently told in no uncertain terms that their future as Republican leaders depended on getting with the McConnell program of bitter-end resistance..

Has this always been the case?  Arguably not, since David Mayhew and others have argued that much legislation was passed in the past during episodes of divided government.  I think there are problems with Mayhew's argument, principally involving how one evaluates the merits of such legislation (as against the kind of legislation that would have passed had the president's party been in control), but even if one accepts his argument, I think one can argue that things have changed in just the last decade or so (though I think that a seminal moment was Bill Kristol's memo in 1993 to Republicans telling them that whatever else they did, they had to make sure that Bill Clinton was denied the passage of any medical care legislation).

 
Posted 10:55 PM by Sandy Levinson [link] (66) comments

NPR Program on John Bingham

Gerard N. Magliocca

I did this hour-long interview about American Founding Son on "Your Weekly Constitutional," an NPR program that is based at James Madison's estate and airs in many stations across the South.
Posted 1:44 PM by Gerard N. Magliocca [link]

Hobby Lobby: Federal Agent

Joseph Fishkin

Micah Schwartzman, Richard Schragger, and Nelson Tebbe began an important conversation with their post on this blog about the contraceptive mandate and the Establishment Clause.  It’s important in part because it brings into the picture the people who are the key to understanding the constitutional stakes in Hobby Lobby and Conestoga Wood Specialties: the employees.

These cases are triangle-shaped.  Government, employers, and employees each have an important relationship with each of the other two.  Because of the design of the Affordable Care Act, all of these relationships are implicated in the litigation over the contraceptive mandate and religious exceptions to it.  However, only two corners of the triangle are parties to the litigation: the employers and the government.  Employees are not represented.  This makes it easy to overlook much of the real action.  I look forward very much to the rest of Micah, Rich & Nelson’s series.

My aim in this blog post is to make a pretty simple point.  Here it is: As large employers in a post-ACA world, Hobby Lobby and Conestoga Wood Specialties are acting partly on behalf of the federal government, with subsidies from the federal government (as well as extensive regulation), when they offer health insurance to their employees.  Large private employers have been enlisted, by law, as one part of an overall federal project of health insurance provision.  Their role is essential.  Hobby Lobby is the exclusive instrument through which the federal government provides the benefits of the ACA—federally subsidized, affordable insurance—to a set of individuals entitled to the benefits of the ACA (the company’s employees).  That is the key background fact against which one must measure the First Amendment implications—on both the Establishment side and the Free Exercise side—of the special exceptions being sought by large private, for-profit employers with religious owners.

On the face of it, it may seem odd to suggest that a private employer, going about its own business, offering a health plan to its own employees, could at the same time be acting partly on behalf of the federal government or as an instrument of the federal government.  Yet that is exactly what is going on, post-ACA.  To understand why, we need to understand how the ACA works and how it alters the basic setup of the American social welfare state.

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Posted 1:03 AM by Joseph Fishkin [link]

The Establishment Clause and the Contraception Mandate

Guest Blogger

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Posted 2:05 PM by Guest Blogger [link]

On the presidential pardon power

Sandy Levinson

I have a letter in today's NYTimes that is part of their "invitation to a dialogue" series.  I will reply in the Sunday Times to letter received today and tomorrow.  Understandably, the Times shortened my original submission, so it is perhaps worth pondering the following paragraph that did not make the final version:

Sins of omission, by failing to exercise mercy when it is called for, are just as serious as what might be thought to be President Clinton’s sin of commission in pardoning Marc Rich (or Ford’s pardon of Nixon).  The difference, of course, is that the latter was greeted by widespread public criticism and hostile editorials, as was the case when former Mississippi Governor Haley Barbour pardoned 215 convicted felons, including several murderers, as he left the governorship.  “Christianity teaches us forgiveness and second chances.” Barbour explained.  One doesn’t have to be Christian to see merit in Barbour’s argument.  

No doubt President Obama is far more likely to pardon the Thanksgiving turkey than to take seriously his constitutional right/duty to monitor the basic fairness of the federal criminal justice system.  One of the things that is noteworthy is that a number of conservative federal judges have been as vociferous in their dismay over the mindless mandatory minimums imposed by a fearful and callous Congress as have more liberal judges.  This is no longer, assuming it ever was, a partisan political issue.  (One of the most objectionable aspects of Mitt Romney, incidentally, is that he took pride that he had never exercised his gubernatorial power to pardon while governor of Massachusetts.  This is, I think, a dispositive argument about his genuine character.)

One other point:  I am uncertain whether Ford's pardoning of Nixon is really condemnable.  It may well have served the interests of the country.

UPDATE:  Tomorrow is slated to be the day on which President Obama will "pardon" at least one Thanksgiving turkey.  In the best of times, presidents should stop engaging in such a stupid rite.  But Obama himself should be absolutely ashamed--indeed, mortified--at participating in this ritual given his remarkable degree of heartlessness toward thousands of people serving unjustifiably long terms in federal prisons.  A fine piece in this afternoon's Washington Post includes facts and figures demonstrating how Obama has used his pardon power less than any other president in recent American history.  Many people are in prison serving excessive mandatory minimum sentences under a statute declared unconstitutional by the Supreme Court but, in its infinite wisdom, made non-retroactive.  They are truly victims of being in the wrong place at the wrong time.

I think it is interesting that no one who wrote into the Times as art of the "invitation to a dialogue"--the letters and my response will be in the forthcoming Sunday Times--took genuine issue with me.  Nor, for that matter, has anyone in the "comments" below, which have morphed into a discussion of the Nixon pardon.  Whatever may be said about that pardon--or Marc Rich's or Scooter Libbey's commutation--is really quite irrelevant with regard to the less famous and well-connected wretches languishing in federal prison.  (Obviously, there are even more in state prisons, but Obama can do nothing for them, unlike federal prisoners.)  Wouldn't it be wonderful if 100,000 Americans--the new minimum, I think, under the White House policy of accepting petitions from the general public--sent in a petition demanding that he exercise his constitutional prerogative--indeed, duty--to temper legalistic justice with mercy? 

FURTHER UPDATE:  Alas, Obama did indeed participate in the idiotic ritual.  It will be interesting to see if he displays any genuine mercy as we move toward what had been the traditional "pardoning season."




 



Posted 6:28 PM by Sandy Levinson [link] (21) comments

Charles Taylor on religious liberty

Andrew Koppelman

Most contemporary liberal political philosophers in this country are kindly disposed toward the idea of religious liberty. But ever since the Reagan era they have been anxious about the rise of the Religious Right, and correspondingly eager to contain the influence of religion over politics. Drawn to the notion that the state ought to be neutral with respect to any controversial conception of what constitutes a good life, they have spawned a number of theories that aim to recast what is politically salient about religion in neutral, nonreligious terms, such as “conscience” or “individual autonomy.” Unhappily, this move toward abstraction discards everything that is specifically valuable about religion, even as it threatens to deprive us of the legal and political tools we need to deal with the problems that religious diversity generates.

For many years, the Canadian philosopher Charles Taylor has been a leading voice for a more historically and ethically grounded approach to the complexities of religious practice in secular society. In his most recent writings, however, Taylor has started to sound a lot like the advocates of neutrality. In an essay titled “Why We Need a Radical Redefinition of Secularism,” he argues that “all spiritual families must be heard” in the process of social self-determination. And in Secularism and Freedom of Conscience, a 2011 book co-authored with Jocelyn Maclure, he writes that the democratic state must “be neutral in relation to the different worldviews and conceptions of the good—secular, spiritual, and religious—with which citizens identify.” Anything else, he insists, would make some into “second-class citizens.”

These claims can be read two ways. One of these takes them as a call for a negotiated common ground, working from whatever commitments citizens happen to have—religious or otherwise—toward an outcome that will honor all those diverse commitments while adjudicating the inevitable conflicts among them. In present U.S. law, for instance, accommodation is given to ritual peyote use in Native American religious ceremonies but not to recreational use of hallucinogens, and nobody gets permission to use heroin. The other view is that Taylor has joined cause with those theorists who claim that the state ought to be neutral with respect to any conception of the good. Which view of Taylor’s thinking is more accurate?

The rest of this post is in the current issue of Commonweal magazine, and is available here.

Posted 9:53 AM by Andrew Koppelman [link]

Huberfeld on the Medicaid Expansion

Andrew Koppelman

Posted 3:13 PM by Andrew Koppelman [link]

The Not-So Nuclear Option

Gerard N. Magliocca

The Senate today voted to change its rules and end the power of the minority to block a judge or an executive nominee through a non-traditional floor filibuster.  I applaud this change, as readers of the blog know that I am a critic of modern filibuster practice.  It is worth noting, though, that all this change does is bring us back to where we were about ten years ago.  Filibusters of lower federal court and executive nominees were basically unknown prior to the Bush 43 Administration.

I'll add another thought.  This change may influence the resolution of the Noel Canning case.  The recess appointments at issue in Noel Canning arose because President Obama's NLRB nominees were being filibustered.  Now that this is no longer possible, the Court might be more sympathetic to the argument that the recess appointment power should be construed narrowly.
Posted 1:14 PM by Gerard N. Magliocca [link] (48) comments

Lawyers Masquerading As Historians

Gerard N. Magliocca

I was watching a panel from last week's Federalist Society Conference on YouTube and was surprised to hear a quote of mine discussed.  The panel was on "Originalism and Textualism," and the quote comes from an article that I wrote a long time ago in which I said:  "Constitutional lawyers are paid to masquerade as historians."  This quote can be used to challenge the ability of lawyers to engage in originalism or their sincerity, and was labeled as "a cheap shot" by Randy Barnett.

I thought I'd take a moment to explain what I meant. To some extent, the quote was ironic, as it was the first line of an article that went on to discuss the history of the presidential veto power. But there is a more serious point.  Lawyers and historians have different tasks.  Lawyers are supposed to make choices about what should be done now.  Historians are supposed to describe what happened in the past.  When you mix the two, problems can arise.

A historian of the Founding era is no better at determining how we should interpret the Constitution than a lawyer.  Much more than history goes into that task. To be sure, history is a useful tool, and historians should step up to correct inaccurate information that lawyers are using.  But going further is, in my view, wrong.  That's why I don't sign "Amicus Briefs By Legal Historians." In theory, such a brief could just provide background information for a case, but usually it is taking a position in the litigation.  At that point, the historian is no longer being a historian.

On the legal side, you have a related pitfall.  Lawyers need to reach conclusions.  They cannot say (as an advocate or as a judge) that the judgment in a case is indeterminate.  Unfortunately, though, a lot of history is indeterminate.  This often leads lawyers into the "narrative fallacy" (in other words, you select those facts that make the past coherent and exclude the others) to in order to make an argument or justify a result.  

How do I deal with these issues in my work?  In books or articles, I try to avoid commenting on current disputes in the guise of history.  Now I've strayed at times, but when I have that's reinforced the point that I should not.  Blogging is more free-form, so I pay less attention to the distinction when I post, though I think that I still try to keep the history separate from my opinions.
Posted 12:28 PM by Gerard N. Magliocca [link] (13) comments

The latest demonstration of why constitutional structures matter

Sandy Levinson

No doubt many of us are following with train-wreck attention the goings-on in Toronto and its remarkable mayor Rob Ford.  I have no views on his general loutishness or flouting of what I assume to be Canadian drug laws.  At the very least, he is certainly calling into question the depth of modern  Canadian commitment to "peace, order, and good government" as the foundational virtues.

What interests me is that Toronto is stuck with him until the end of his term, for a very simple reason.  There is, apparently, no way of impeaching or recalling a drunken, bullying lout (or perhaps even someone who has committed a "high crime and misdemeanor").  The Council has apparently tried to strip him of as much power as possible, but he remains "da mayor" with whatever residnal power resides even after the stripping efforts.

Assume that Toronto responds to this by amending its City Charter (or goes to the Ontario Parliament for a new charter, if that's necessary).  Should impeachment and recall be part of any new charter?  And, if the former, should it be necessary to prove a "high crime and misdemeanor" or is "maladministration" enough.  And how much does anyone's answer depend not only on our view of Canadians, whom we might well view as sober enough not to use recall provisions recklessly, but also on our assessment of the particular office.  Should it be easier to get rid of a mayor than a governor, a governor than a President?

In any event, I am curious whether anyone believes that Toronto establishes a good model for future constitution drafters by having no way to get rid of Mr. Ford.  And, if you do think it is a good model, is that because you proudly identify with "Ford Nation" and wish that Rob Ford were mayor of your home town? 
Posted 5:00 PM by Sandy Levinson [link] (19) comments

The Ultimate Source of Constitutional Legitimacy

Gerard N. Magliocca

With an eye towards a major announcement coming from the UK tomorrow, I give you a profound discussion on originalism, legal fictions, and constitutional democracy.
Posted 1:57 PM by Gerard N. Magliocca [link] (7) comments

Why Scalia Should Have Voted to Overturn DOMA

Andrew Koppelman

Here.
Posted 3:17 PM by Andrew Koppelman [link]

Building Tier-five Law

Mark Graber

Posted 7:56 AM by Mark Graber [link] (12) comments

Online Symposia on The Electronic Silk Road and Talent Wants to be Free

Frank Pasquale

Readers may be interested in recent online symposia on Anupam Chander's The Electronic Silk Road, and Orly Lobel's Talent Wants to be Free. I think each book shows the value of engaged legal scholarship. Both authors grapple with some of the most difficult problems raised by rapid globalization in a sustained and focused way. (My review of Chander is here, and Lobel, here.) They both show that, as policymakers decide on the best ways to balance rights and responsibilities in the digital economy, legal scholars should enjoy just as much a "place at the table" as economists, business scholars, and other social scientists.
Posted 10:14 AM by Frank Pasquale [link]

Important New Report on the Future of Financial Regulation

Frank Pasquale

The Roosevelt Institute has released an important report on financial reform. Law professors Stephen Lubben, Jennifer Taub, and Saule Omarova each have important pieces. Wallace Turbeville (an adjunct professor at Maryland, where I teach) continues his essential work on derivatives regulation. There are a wide variety of academic perspectives on Wall Street, but I think this Roosevelt Institute report (as well as a predecessor volume) should be among the most lasting contributions. As the introduction states, the critical issue now is how to develop a financial sector that benefits "the real economy, promoting broad-based prosperity, useful innovation, and productive private and public investments." I'm glad to see such an august and insightful group of commenters weighing in.
Posted 8:24 PM by Frank Pasquale [link]