Balkinization  

Monday, August 21, 2017

The Lost Cause, Trumped

Joseph Fishkin

I can think of only one positive thing to say about the coming out party for white nationalists that all of us are now witnessing, and it is this: in their own uniquely nasty way, these people do seem to be inadvertently helping many Americans gain a clearer-eyed understanding of what the Civil War was about.

Growing up in Texas—even in liberal Austin, in the 1980s and 90s—I had more than a few conversations with people who argued one or another of the constellation of revisionist positions that hold that the Civil War itself, and the confederate iconography that lingers today, are about something other than a struggle to defend slavery and white supremacy. These arguments were wrong, but they were not necessarily disingenuous. Most people came by them honestly. Sometimes they learned them in school.  Sometimes they picked them up from the many conservative politicians in this part of the country for whom such propositions have been articles of faith. In 2010, when the Texas board of education, which wields notoriously outsized influence over the entire nation’s textbook market, adopted new social studies standards, one board member explained that slavery was a “side issue to the Civil War” (which was actually, of course he said, about “states’ rights”).  The standards the board adopted that year did not mention the Ku Klux Klan or Jim Crow. It is not terribly surprising that many students got through school without gaining any particular understanding of why exactly we have confederate monuments across the South, and in particular, why so many of them were built in the early twentieth century at Jim Crow’s birth and the Klan’s zenith.

And so, quite frankly I never expected that the confederate statues that line the main mall in the center of the university where I teach (UT Austin) would come down. But a few years ago, the ground underneath them began to shift.  It was, in significant part, members of the white nationalist fringe who inadvertently caused the shift. After the church massacre in Charleston in 2015, the president of UT Austin ordered the removal of the statute of Jefferson Davis that occupied an important perch in front of the iconic UT Tower. Many at the time, including a commission he had set up to study the question, had urged him to go further and also order the removal of the other four confederate statutes that framed the mall.  He didn’t.  But this week, in the wake of the white nationalist horror show in Charlottesville, he did.  This morning the statutes were gone.  (I write about these statutes, and an extremely problematic inscription on a fountain that now also seems to be gone, at the end of this essay.)

With every horrific yet implausible chant of “blood and soil” (implausible because it is such an obvious European import, like these marchers’ ancestors—do these people really want to return American soil to the people whose ancestors lived on it?), the white nationalist fringe does one useful thing, which is to make it just a little harder to deny the racist core of what the Confederacy was, and is, about.  And so, today I walked through our mall and its now-empty plinths with a mixture of surprise, relief, and joy. 

After the jump: photos!

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Tuesday, August 15, 2017

John Bingham on Racial Equality

Gerard N. Magliocca

Let's focus for a moment on an actual hero of the Civil War era--John Bingham.  Here's what the drafter of Section One of the Fourteenth Amendment said at a campaign rally in 1867:

“They undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy! . . . I thought that in the middle of the nineteenth century it had come to be pretty well known that this world of ours was not made for Caesar, but for man; that it belonged, at last only to the common Father of us all, and to all his creatures who worked well upon it. . . . 
It is a ‘white man’s government,’ is it? Why, the very first blood shed for the assertion of your independence and the establishment of your nationality, upon the field of Lexington, was the blood of a black citizen of Massachusetts. And when they came to the work, after the victory had been achieved, and the independence of the nation acknowledged, of organizing a constitutional government of the United States, in a majority of the States of the Union the black men voted with white men, and the man who denies it is simply ignorant of the history of his own country. . . . 
Your armies bore witness that 175,000 of the black population, made free by the proclamation of liberty, were in the army of the republic. When you consider that the majority of the black population were the slaves of rebels, and within their territory, unable to signify to the United States Government their unwillingness to serve it, the fact that as large a population of the black population as of the free whites rushed to the defense of your flag, speaks well for their patriotism. . . . 
But these Democrats are whining through the streets, ‘You propose to enfranchise the nigger, and disenfranchise the white man.’ That is the point where the difficulty is.  I think the black patriot is as much entitled to vote as Jeff Davis, who is waiting across the border, or any of his followers. The issue is upon us. One third of the whole population of the South are black freemen. They are friends of the Union; and if they are to be permitted to exercise the rights of freemen. Those States must have a republican government, but how can a State be republican in its government where the minority rule over the majority of the natural born citizens of the State?  . . . In South-Carolina the black population exceed in number the white population; and what sort of a republican government will that be, if the white minority, who are traitors, should rule over the majority, who are loyal men? . . . 
You have the power, because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic.  Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children? If you would not, you should not deal thus with them.” 

If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?

Marty Lederman

Mark Tushnet suggests that there's a very straightforward way of looking at Christie v. NCAA--namely, as what he calls a federal "preemption" case that can be resolved by ignoring New Jersey law and simply recognizing that the sports gambling in question is prohibited by federal law.  Mark's perspective on the case--what he himself describes as an "unbearably simple-minded" view--might well be right.  It's not clear, however, what should follow in the case if he is right.

The suits in question were brought by the NCAA and the major national professional sports leagues--MLB, the NFL, NBA and NHL--against New Jersey.  Note that the federal government is not a party.  The plaintiffs allege that it was unlawful for New Jersey not to have categorically prohibited sports gambling under state law--or, to be more specific, they allege that New Jersey has affirmatively and unlawfully "authorized" sports betting by "channeling" such wagering into established casinos and racetracks.  The "channeling" in question is effected, claim the plaintiffs, by the simple fact that those are the only locations in the State in which New Jersey law does not prohibit such gambling.  In other words, they complain that New Jersey, far from simply declining to prohibit gambling in the interest of its residents' liberty to wager, has in effect done the bidding of the casinos and race tracks by providing them an effective monopoly.  The state has thereby "authorized" sports betting in such locales, claim the plaintiffs, which allegedly violates a federal law (28 U.S.C. 3702(1)) that makes it "unlawful for . . . a governmental entity to . . . authorize" such wagering "by law."

The plaintiffs succeeded on this argument, thereby securing an injunction against New Jersey, prohibiting the State from "giving effect to" its own 2014 law.  As the plaintiffs' lawyer, Paul Clement, describes it, this injunction "thus requires the State to resurrect and maintain prohibitions on private conduct the State itself chose to repeal."

New Jersey's constitutional defense is that to the extent federal law does prohibit what the state has done, Congress is effectively "commandeering" the New Jersey legislature to criminalize certain conduct, in violation of the Court's so-called "Tenth Amendment" doctrine announced in New York v. United States and Printz v. United States.

Mark's understandable reaction to this suit about what New Jersey has or has not done is:  so what?  The plaintiffs don't really have grounds for complaining about whether or not New Jersey has prohibited the gambling in question, he suggests, because federal law independently prohibits that very same conduct.

Mark might be right about the impact of federal law.  Indeed, in its amicus brief at the cert. stage, the federal government took Mark's view:  The SG urged the Court not to grant cert. because "even if this Court granted review and agreed with petitioners that Section 3702(1) violates the Tenth Amendment, the sports-gambling schemes purportedly authorized by the 2014 Act would still be prohibited by Section 3702(2)."  Paul Clement, representing the NCAA and the sports leagues, argued likewise in his brief in opposition (see pages 33-34).  Unlike Section 3702(1), which regulates governmental entities, Section 3702(2) of the federal law makes it unlawful for a private party, such as the casinos and racetracks in question, to operate a sports betting scheme "pursuant to the law or compact of a governmental entity."

It is unclear--or disputed, anyway--whether the SG and Clement are correct about the scope of the federal prohibition.  In a supplemental filing at the cert. stage, Ted Olson, representing New Jersey, argued that section 3702(2) does not have prohibitory force of its own because the casinos and racetracks in question do not operate gambling schemes "pursuant to" New Jersey law.

I haven't studied the question, and so I don't (yet) have a strong view about whose interpretation of section 3702(2) is more compelling.

Let's assume for the sake of argument, however, that the SG, Paul and Mark are correct about section 3702(2) of the federal law--namely, that it directly prohibits the gambling in question, even though (as far as I know) the federal authorities have never taken any steps to directly enforce that federal law.  Why would that mean, as Mark's post appears to suggest, that the injunction concerning New Jersey law is unobjectionable because "New Jersey's repeal of its prior ban on sports betting is basically irrelevant"?

After all, if the federal government could itself, today, shut down those gambling operations because they violate federal law, what's Congress's possible justification for requiring New Jersey to do so, too?  It's certainly relevant, as a very practical matter, whether one's conduct is prohibited by two sovereigns rather than one--which is presumably why both the plaintiffs and the casinos/racetracks believe that so much is at stake in whether the injunction stands.  This is the way Ted Olson puts the point in his supplemental brief:
If the government is correct and Section 3702(2) prohibits New Jersey's casinos and racetracks from engaging in sports wagering regardless of whether New Jersey continues to prohibit that activity, then invalidation of Section 3702(1) finally would task the federal government with administering and enforcing its own proscription against sports wagering. The end of the federal government's conscription of the States' legislative apparatuses to impose that prohibition, and the restoration of an appropriate line of accountability for it to federal officials, would have immense “practical significance” to Petitioners, the people of the State of New Jersey, and to our system of federalism.
Why is that mistaken?*

(And conversely, I might add, if the SG/Clement/Tushnet reading of federal law is wrong, and Congress has not directly prohibited the sports gambling in question, why is it kosher or defensible for Congress to insist that New Jersey do so, whatever one's views of New York and Printz might be?  What would be Congress's justification, in that case, for not bringing federal resources to bear to prohibit the gambling, but instead shifting all of the burdens to the State to do its bidding?)

_________________
* Only one possible argument comes immediately to mind:  If federal law prohibits the conduct in question, and the intended and foreseeable impact of the selective state prohibition is to funnel gambling proceeds into the pockets of the casinos and racetracks, I suppose it's arguable that the State is, in effect, "aiding and abetting" the federal law violations by those casinos and racetracks, in a way that, perhaps ironically or counterintuitively, it wouldn't be if New Jersey did not ban sports gambling at all . . . and that Congress could logically, and perhaps constitutionally, choose to prohibit such aiding and abetting.  I'd need to think about this argument further if and when Clement and the SG invoke it.

Anticommandeering, Preemption, and the Common Law: The PASPA Case

Mark Tushnet

I'm afraid that I have an unbearably simple-minded view of Christie v. NCAA, New Jersey's challenge to the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). Here's a description of the statute. And here's the short version of the issue: New Jersey banned sports betting businesses.  Congress enacted a statute saying that sports betting was federally banned except in a handful of states where it was lawful in 1992. New Jersey repealed its ban in 2012. New Jersey says that the Third Circuit held that PASPA prohibited it from repealing its ban on sports betting, and that that holding makes PASPA unconstitutional because PASPA commandeers the state legislative process.

It seems to me, though, that there's a simpler (or, as I said, simple-minded) view of the situation. Congress has enacted a ban on sports betting (subject to the grandparenting clause). Engaging in sports betting, even where authorized by state law, is unlawful. New Jersey's repeal of its prior ban on sports betting is basically irrelevant. The repeal remits people to their background rights of property, contract, and tort. People in New Jersey are relying on their ordinary property rights when they run sports-betting businesses. Congress has simply preempted state property law on this issue. And preemption works that way all the time. It can't be that the anticommandeering doctrine makes all federal laws preempting state property (or contract or tort) rights unconstitutional.

[At last, a Balkinization post that isn't about Trump!]

Blackout

Alice Ristroph

On August 21, a total solar eclipse will arrive mid-morning on the coast of Oregon. The moon’s shadow will be about 70 miles wide, and it will race across the country faster than the speed of sound, exiting the eastern seaboard shortly before 3 p.m. local time. It has been dubbed the Great American Eclipse, and along most of its path, there live almost no black people.

Presumably, this is not explained by the implicit bias of the solar system. It is a matter of population density, and more specifically geographic variations in population density by race, for which the sun and the moon cannot be held responsible. Still, an eclipse chaser is always tempted to believe that the skies are relaying a message. At a moment of deep disagreement about the nation’s best path forward, here comes a giant round shadow, drawing a line either to cut the country in two or to unite it as one. Ancient peoples watched total eclipses with awe and often dread, seeing in the darkness omens of doom. The Great American Eclipse may or may not tell us anything about our future, but its peculiar path could remind us of something about our past—what it was we meant to be doing, and what we actually did along the way. And if it seems we need no reminding, consider this: We tend to backlight our history, and so run the risk of trying to recover a glory that never existed. When the light in August changes, watch carefully.


Monday, August 14, 2017

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

This is the title of my new draft paper, which is available here.  Here is the Abstract:

This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.

ACS Junior Scholars Public Law Workshop - call for papers

Joseph Fishkin

Last year, the American Constitution Society hosted its first-ever Junior Scholars Public Law Workshop.  It went so well that we are doing it again this year, at the 2018 AALS Annual Meeting in San Diego.  The deadline to submit a paper is October 18, 2017.  It's open to anyone who has been a full time law teacher for 10 years or less.

For more details click on the "Read more" (or follow this link):

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Sunday, August 13, 2017

Robert E. Lee Was a Horrible Racist

Gerard N. Magliocca

The myth of Robert E. Lee as the "Noble Confederate General" is not unlike the myth of Erwin Rommel as the "Noble Nazi General." After a war is over, there has to be some reconciliation between former enemies, and one way to do that is by picking someone on the losing side as a heroic warrior unsullied by what the war was actually about.

There is no doubt, though, that Lee was a despicable person. Set aside the fact (if you want) that he owned slaves and led the military effort (sometimes brilliantly) to save that evil system. Maybe he recanted after the war ended and became a better man.

Er . . . no.  Here is a relevant portion of his 1866 testimony to the Joint Committee on Reconstruction, which wrote the Fourteenth Amendment:

Question:  What is your opinion about its being an advantage to Virginia to keep them there at all. Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States? 
Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me.
. . . 
Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? 
Answer. I think it is. 
Question. And do you not think it is peculiarly adapted to the quality of labor which would flow into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? 
Answer: I do.
To paraphrase our current President, Lee was an evil loser.

Defining Racism Downwards

Mark Graber

Southern racial moderates during the 1930s vehemently opposed northern and judicial intervention into the trial of the Scottsboro Boys.  The South, the sane voices of the former Confederacy insisted, should determine the legal processes for determining the guilt and appropriate sentence for persons of color accused of crimes against white persons.  These processes did not necessarily include legal representation and certainly did not include African-Americans as either grand or petit jurors, but they were legal processes. Southern community leaders were celebrated as racial moderates because they insisted that persons of color be legally executed only after being tried and sentenced to death by some “legal” process.  They repeatedly denounced the Klan and such extra-legal processes for dealing with alleged crime as lynching.

President Trump, the Klan, the alt-right, and the Republican Party won a stunning rhetorical victory yesterday when the American media and a great many Americans defined racism downwards to 1930 standards.  Republicans who tolerate or support police brutality in African-American communities, horribly inadequate representation for criminal defendants of color (including lawyers who fall asleep at trial), substantial underrepresentation of African-Americans on grand and petit juries, and criminal laws and criminal law enforcement that has resulted in the imprisonment of a stunning high percentage of African-American men became racial moderates because they denounced the Klan and overt expressions of white supremacy.  President Trump’s effort to establish the contemporary American center as the place between those who celebrate white supremacy and those who protest white supremacy, an effort reminiscent of those northern Democrats who in the 1850s condemned abolitionists and secessionists with equal scorn, failed.  Media reports suggest contemporary racial moderates are those Republicans who vigorously condemn white supremacy, with equal vigor condemn any race conscious policy that attempts to improve the status of persons of color in the United States and neglect, tolerate or support racist policies that do not overtly announce their white supremacist foundations.  A racial moderate may gut the Voting Rights Act as long as they do not announce they are doing so to promote the supremacy of the white race.

The events in Charlottesville provide another demonstration of how Trump derangement syndrome on the left is providing the foundations for permanent Republican rule from the far right.  By celebrating any member of the far right who denounces President Trump and the alt-right, Trump derangement syndrome further serves to normalize the far right in the name of not normalizing the alt-right.  White supremacists may have lost a few Confederate monuments yesterday, but they continue to enjoy great success in their efforts to move Americans back to a modified version of 1930 racial politics when the Klan represented the right, everyone who insisted on greater racial equal was a racial agitator on the left, and the comfortable middle consisted of a racial status quo in which whites enjoyed a grossly disproportionate share of the benefits of American life while persons of color experienced as grossly a disproportionate share of the burdens.

Monday, August 07, 2017

Are we really a Union?

Sandy Levinson

As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews).  Our latest addresses the extent to which the United States was a "nation" in 1787.  The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade).  As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such. 

Sunday, July 30, 2017

Is the Republican Effort to Destroy the ACA Dead?

David Super

     No.  That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”.  This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

     Procedurally, the particular amendment the Senate was considering late Thursday night is dead.  When a majority leader wants to hold onto the possibility of a revote, he or (someday) she switches to the winning side so as to be able to move for reconsideration of the vote.  Senator McConnell did not do that, so absent a motion from one of the 51 senators that opposed the “skinny repeal”, that vote is final.  But the vote was not on the underlying bill, which is still the House-passed American Health Care Act (AHCA).  As a result, the Majority Leader can bring that bill back up at any time.  He could even bring up an amendment substantially identical to the one that was defeated if he thought he had the votes.  All he did after the vote was return the bill to the Senate calendar, where it is available for action at any time. 

     In addition, much of the impact of the Republican health care bills – although not of the “skinny repeal” that lost 51-49 – was the savage cutting of Medicaid.  The House Budget Committee has reported out a budget resolution for Fiscal Year 2018 that would require congressional committees to make deep cuts in anti-poverty programs to pay for tax cuts.  If the AHCA fails, the budget committees can easily add its proposed Medicaid cuts to the budget resolution and try to pass them again as part of a tax cut bill.  That legislation, unlike AHCA, is likely to have powerful corporate support. 

     The procedural point at which the direct assault on the ACA will die is when the House and Senate agree on a budget resolution for Fiscal Year 2018 without the Senate having first passed a version of the anti-ACA reconciliation bill (AHCA or a substitute).  At that point, the anti-ACA reconciliation instruction will have been superseded and the bill will no longer enjoy reconciliation protection against filibusters.  A concurrent budget resolution for 2018 is a pre-requisite for the Republicans’ obtaining reconciliation protection for their tax cut bill.  On the other hand, as long as they have no agreement about what they want to pass on taxes, they have little reason to finalize the budget resolution and close off their options on health care.

     Politically, the vote late Thursday night was extraordinarily contingent, with stunning blunders by both the Administration and the Republican House leadership.  For ACA supporters, it was far, far better than a loss, but those declaring the battle won are viewing what happened with remarkably rose-colored glasses.  First, 49 senators have now clearly signaled that they will vote for pretty much anything.  Yes, a few peeled off on the votes on preliminary amendments that everyone knew would fail anyway (and on which Sen. McConnell made no effort to enforce party discipline).  But when the chips were down, 49 voted for “a pig in a poke”.  We no longer have plausible hopes that Sens. Portman (OH) and Capito (WV) would refrain from savaging the ACA because of the consequences for the opioid epidemic or the vast numbers of people newly ensured people in their states.  The supposed influence of anti-repeal Republican governors in Ohio and Nevada failed to sway Sens. Portman and Heller (NV).  (To be fair, Sen. Heller did vote against both plans that would explicitly cut Medicaid so his vote might be in play on a broader repeal bill.)  And the supposed libertarian principles of Sen. Paul (KY) quickly crumbled.  Even the storied influence of the health care industry failed to keep Republicans from voting for a bill that would have been financially disastrous for it.

     Second, of the three Republicans who did vote “no” – all of whom must remain opposed for the legislation to stall unless Sen. Heller replaces one of them – only Sen. Collins (ME) seems solid in her opposition.  Earlier in the week, Sen. McCain (AZ) voted for a “repeal and replace” bill that violated all the principles he espoused:  it was drafted in secret with no hearings or committee mark-ups, it was entirely partisan, and it would have increased dramatically the ranks of the uninsured.  He had earlier been one of three senators demanding that the House commit to not passing the “skinny repeal” bill and sending it directly to the President.  When Speaker Paul Ryan released a coy statement that made no such assurances – and House Majority Leader McCarthy told his Members they might need to postpone their recess to cast a quick vote on health care – Sen. McCain had little trouble smelling a rat.  That hardly means he will oppose a bill that devastates the ACA but comes without procedural shenanigans. 

     As for Sen. Murkowski (AK), she would have humiliated herself had she voted for the bill two days after media reports of Interior Secretary Zinke’s crude threats to her.  But she has not historically been much of a moderate or dissenter.  She is far more engaged with muscling through environmentally deleterious development projects.  Although the ACA’s loss would be devastating to the expensive health care infrastructure, one can imagine her responding to less thuggish overtures.

     Finally, Speaker Ryan’s refusal to promise not to pass the “skinny repeal” bill as-is, even when that promise appeared crucial to the bill’s chances in the Senate, strongly suggests that this is just what he plans to do with any bill that passes the Senate.  Thus, if any bill does get through the Senate, the ACA is probably doomed. 

     Majority Leader McConnell’s declaration that he is moving on after last week’s defeat does not spell the political death of the ACA repeal effort.  Remember, Speaker Ryan said the same thing after the AHCA fell apart repeatedly in the House.  The repeal effort will only die politically when an important Republican sponsors legislation that seeks to repair the ACA.  Even a feeble proposal will compare very favorably with proposals to liquidate the ACA to pay for tax cuts.  As such, the appearance of such a proposal with Republican sponsorship will make bills like AHCA impossible to defend.

     Practically, the ACA’s operation will continue to suffer as long as Congress and the Administration raise doubts about its survival and management.  Some insurers have attributed much of their announced rate increases to uncertainty coming from Washington.  Insurers are unlikely to invest the up-front costs to enter unserved or underserved markets if they believe they may have only a year or two to recoup those costs.  And the prospect of delays and difficulties receiving payments can discourage any business.

     A good example is the President’s oft-repeated threat to cut off reimbursement to insurers for the ACA’s mandatory cost-sharing subsidies for low-income people.  If he follows through on that threat, insurers will promptly sue for their money in the Court of Federal Claims.  And they will surely win because 42 U.S.C. § 18071(c)(1) states:

An issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions.

Pursuant to 28 U.S.C. § 2517, these judgments would be paid out of the permanent uncapped appropriation for judgments against the United States, 31 U.S.C. § 1304.  (Thus, even if the House of Representatives were ultimately to prevail in its lawsuit alleging that no appropriation supports these payments, the financial outcome would be unchanged.)  But having to go through the delay and expense of litigation is naturally unattractive to insurers, some of whom are raising their premiums or limiting their market participation as a result. 

     The practical threat to the ACA will end when Congress, and particularly the Administration, comes to feel invested in the law’s success.  That may well not occur unless and until some bipartisan legislation passes to address some of the ACA’s actual shortcomings, allowing the Administration to claim that it is implementing a new law of its design rather than that of its predecessor. 

Saturday, July 29, 2017

Obamacare As Superstatute

Abbe Gluck

               I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory--their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn's paradigm example of the Civil Rights Act (which beautifully fits the theory) fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)

               But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.

              The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in  Administration.  It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that  we just saw; but also four years' worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges  to discrete aspects of the law (e.g., Hobby Lobby).

            But what is most interesting to me about the ACA’s recent story for purposes of superstatute theory is the normative transformation that the statute seems to have wrought. That will be Obama’s biggest legacy on health care, regardless of what happens to the ACA itself; whether it gets amended, partially amended, repealed, or just tweaked and given a different name. That stuff is politics. I’m talking about our fundamental and “gut” understanding of what a health care system should be and what the government's role in it should look like.

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Wednesday, July 26, 2017

The Hypocrisy of the "Skinny" Repeal: The Republicans Themselves Said It Would be Disastrous

Abbe Gluck

With two strikes thus far on more substantial Obamacare repeal efforts, the Senate seems headed for the so-called "skinny" repeal option, which it appears would repeal the individual insurance-purchase mandate, along with the employer mandate and the medical device tax, and leave everything else in place.

This repeal is hypocrisy of the highest order.  For starters, the repeal was supposed to fix what Trump likes to call the "Obamacare disaster."  What exactly is that disaster? If it's Medicaid, this bill isn't going to touch it. (And it's not Medicaid: It has been documented that the Medicaid expansion (whether you like that program or not)is working quite well. For additional proof, just look at all the GOP resistance to cutting it and the number of red states that have expanded their programs). The "disaster" is the insurance markets--premiums that are too high, not enough competition on the exchanges.  That "disaster" as I have detailed elsewhere, was a tragedy mostly of the Republican party's own making.   Legislation and litigation by the Republican controlled Congress sowed uncertainty into the insurance markets and shut off critical insurance stabilization funds that the ACA as drafted provided.

To be sure, the ACA isn't flawless. The amounts set to subsidize individual purchase of insurance were set too low originally (which is one reason premiums feel too high for many). But the Congress never fixed that either, and it sure isn't doing so now.

Instead, the skinny repeal would exacerbate the very problem the Republicans claim they are repealing the ACA to address. Health experts, republican governors, insurers, hospitals--you name it--agree that repealing the mandate will cause premiums to rise even further and insurance markets to descend into even more fatal instability.  Why?  You can't make insurance more generous without giving something back.  The ACA gives something to the American people at the insurance industry's expense: it changes the way the industry does business by requiring insurers to take all comers at essentially equal rates regardless of health risk. In return, it gave the insurers more customers and an expanded, healthier, risk pool.  Taking away the mandate without repealing the generosity puts the insurance industry in the position of having to find some way to fund this generosity or risk collapse. 

Of course, everyone  (read: voters) likes the generosity--no one wants to be turned away from health care because they have cancer or some other condition.  The Republicans are unwilling to take the direct heat for taking those benefits away from the American people, so they are going to further sabotage the insurance markets and hope the American people are sufficiently ignorant that they will blame it on Obama instead.

But don't take my word for it. If there are any doubts about what effect the skinny repeal will have, consider this statement from the Republican amicus brief filed in the Supreme Court in the 2012 (unsuccessful) challenge to the individual mandate. The brief argued the ACA could not survive without the mandate--that millions of Americans would lose insurance and access to care and that insurance premiums would rise dramatically. Twenty-seven of those Senators are still in the Senate. In their own words:

"The individual mandate is at the heart of the PPACA, and the remainder of the statute necessarily depends on its inclusion because without the mandate, the statute’s reforms cannot work as intended. Indeed, the proponents of the PPACA knew at the time Congress considered the legislation that without the mandate both the number of uninsured and the price of premiums would skyrocket. In short, without the mandate, Congress’ attempted solution to the twin problems of health care coverage and costs  disappears." Br. of U.S. Senators at 10.

(That's what the Congressional Budget Office said today, too. It projected the skinny repeal would cause premiums to rise approximately 20%  and 16 million people to lose insurance by 2026.)

To make matters worse, to satisfy Senate requirements concerning the amount of money the repealer must save, some have suspected the skinny repeal will also need to include a provision gutting the ACA's public health and prevention fund, and possibly also the community health centers fund, raiding that money to pay for the havoc the bill will wreak on the insurance markets.   Cutting public health and prevention money, throwing millions off the insurance rolls, and raising premiums--at the very same time Republican senators themselves have clamored for more funds to address the national opioid crisis?  At the very same time they claim to be rescuing America from a health policy disaster?

It's worse than hypocrisy. It's irresponsible.

Tuesday, July 25, 2017

How Does This Work? The Senate and Health Care Reconciliation

David Super

     Now that the Senate, defying many pundits’ expectations, has voted to begin debate on a reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it may be useful to review the procedural rules and tactics likely to shape this debate. 

     First, and most obviously, a bill considered under reconciliation rules is immune from filibuster.  Instead, the Congressional Budget Act limits debate to twenty hours, equally divided between supporters and opponents.  Thus, Republicans do not need sixty votes to invoke cloture; they only need fifty votes plus Vice President Pence to break ties. 

     Second, the scope of permissible amendments is quite limited.  Considerable attention has focused on the Byrd Rule, which prohibit provisions with no fiscal effect or whose fiscal impact is merely incidental to their non-budgetary policy purposes.  The Byrd Rule also could cause problems for amendments that have a clear fiscal impact but that change the savings projected from the underlying bill and possibly those that have the effect of taking money from one committee’s jurisdiction and placing it in that of another.  These rules were written on the assumption that bills being debated would be reported out of the various relevant authorizing committees; how they fit with the extraordinary path Majority Leader McConnell has chosen is less clear. 

     Also significant are the Senate’s germaneness rules for reconciliation legislation.  A full treatment of germaneness in the reconciliation context would glaze over eyes faster than a CLE course on parking law, but suffice it to say that the ability to add entirely new material to the bill is limited.  Motions to strike, on the other hand, are liberally permitted.  That means that no senators can excuse their vote for a bill containing a troubling provision by claiming that they had no way to get that provision removed.

     Perhaps most important is the timing of amendments.  Although senators are free to offer amendments at any time, few truly significant amendments appear until the very last moment.  That is true in an ordinary year, and that is emphatically true this year with the Majority Leader placing a premium on stealth.  Once the time for debate has expired, the Senate holds one roll-call vote after another until all amendments have been addressed or withdrawn.

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Trump as a Different Type of Failure

Guest Blogger

Calvin TerBeek

After the shock of President Trump’s election, some political scientists and legal scholars turned to Stephen Skowronek’s theory of political time to understand Trump’s place in presidential history. Political scientist Julia Azari, arguing that Trump might best be understood as a “disjunctive,” or failed, president, detailed how to think about Trump as the last gasps of the Regan Revolution and movement conservatism. Corey Robin, a political theorist who has written a popular (if whiggish) history of conservatism, penned a well-circulated n+1 essay arguing that Trump is most akin to Jimmy Carter in the political time model. That is, Carter is our last disjunctive president; the New Deal Coalition, a political regime ushered in by the “reconstructive” presidency of FDR, finally fell apart under Carter’s watch. (In Skowronek’s political time model, Regan was the last reconstructive president whose victory in 1980 marked the triumph of movement conservatism). And in this venue, a few days after Trump’s electoral college victory Jack Balkin wrote a sophisticated analysis of Trump and the politics of disjunction.

Carter, and before him Herbert Hoover, are salient examples of failed (disjunctive) presidencies. Disjunctive presidents, according to Skowronek, have the poor fortune of coming to power when the warrants for presidential action and authority are at their lowest ebb. These presidents come to be seen “as central parts of the governing problem.” Because they are saddled in this way, disjunctive presidents tend to engage in a managerial dialect—Skowronek thinks it no accident that Hoover and Carter were engineers. Carter told the American public there were “no easy answers” to the problems of the day (e.g., the failure of Keynesianism, stagflation, a globalizing economy), but imagined he could solve the issues with managerial acumen. Indeed, Carter so concerned himself with the minutiae of governance that he issued an edict limiting the number of ceremonial pens used for signing ceremonies. Similarly, Hoover, as Skowronek notes, was concerned with finding “appropriate administrative techniques” to combat the Great Depression. Jimmy Carter, somewhat humorously, was tagged with the sobriquet “Jimmy Hoover” because both were seen as ineffectual engineers not up to the presidential task—not leaders, but mere managers, and poor ones at that.

More than that, and perhaps more than Skowronek realized, disjunctive presidents in many ways prefigure the coming regime. Consider Carter’s fiscal conservatism, support for deregulation, his personal pro-life stance and evangelicalism, desire to reform AFDC (welfare), his southern origins, and his support for reducing the individual income tax during the 1980 campaign. For his part, Hoover prefigured FDR in that he took steps toward government intervention in the market after the Great Depression. In addition, Hoover’s technocratic bent prefigured the consolidation of liberalism, the administrative state, and technocratic expertise that congealed during the New Deal and World War II. In other words, inherent in a disjunctive presidency is being caught betwixt and between the seemingly stale ideational solutions of the failed regime and the political framework that will structure politics in the coming regime.
Turn now to Trump. The similarities between (say) Carter and Trump are largely superficial. In some sense, Trump is movement conservatism’s version of a “managerial” technocrat: the businessman who can solve government’s problems by imbuing it with the private sector’s sensibilities (in fact, it is telling that three of the past four GOP presidential nominees have been (variously successful) businessmen before turning to politics). Like Carter, Trump is a political “outsider,” but rather plainly he did not suffer from the initial lack of name recognition (“Jimmy Who?”) that marked Carter’s national ascent. The inability, thus far, of Republicans to achieve any significant legislative goals despite unified control is perhaps reminiscent of the full employment paper tiger legislation of 1978 (Humphrey-Hawkins) and labor’s stinging defeat that same year despite Democratic control of the House and the Senate.

But these surface analogues aside, Trump’s young presidency seems better understood as the distillation of movement conservatism—the ideology of the Reagan Regime taken to its logical extreme rather than, like Hoover and Carter, prefiguring a putative reconstruction. That is, if Trump is a disjunctive president he is operating in a manner deeply inconsistent with how one would expect. This has important implications for how we understand the American presidency in historical context.

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Due Process of Lawmaking and the Obamacare Repeal

Abbe Gluck

                In 1976, former Oregon Supreme Court Justice Hans Linde published a provocative article--Due Process of Lawmaking--which suggested, among other things, that legislation that was the product of lack of deliberation or process could be constitutionally invalid. Today, the U.S. Senate is moving to a vote on a mystery Obamacare repeal the contents of which no one-- not even the Senators being asked to vote--knows.    

                The Republicans excoriated the Democrats in 2010 for passing the ACA without deliberation and using an unorthodox legislative process. They were only partially right. The ACA was passed after two years of extensive hearings and research by a combined five congressional committees.  The deliberative aspect of the statute was possibly unprecedented.  By contrast, the  current Senate has not held a single hearing on health reform. It has now received two sets of budget scores that show their proposals will have devastating effects for more than 22 million Americans who will be forced to go without medical care, and they cannot agree on a replacement.
                So what will they do instead? Instead of having the hard debate about what a health care system really is supposed to do for its citizens  (this is the debate about the tension between solidarity and "every man for himself" that we have seen underlying some of the principled Republican resistance to earlier versions of the repealer), the Republicans are going to pass a bill whose content they don’t know and, if they cannot agree on such a bill, they are going to simply repeal the core components of the ACA without a replacement, throwing the insurance markets that they claim they are working to save from the “Obamacare disaster”  into even greater disarray. (For my previous documentation of how it was largely the Republican sabotage of the law, not the ACA itself, that caused the instability, please see here.)

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No Recess Appointments?

Gerard N. Magliocca

Mao Zedong used to write poems to express displeasure with colleagues who were about to be purged. The President uses tweets. In the case of the Attorney General, though, there is a problem. How can the President get a new person confirmed without making all sorts of commitments to the Senate about the Russia investigation and other matters?

The answer is that he could wait until the Senate is in recess to fire the Attorney General and then make a friendly recess appointment who would not need Senate confirmation. But this is only an option if the Senate chooses to go into recess. Under the Supreme Court's decision in Noel Canning, the Senate can block recess appointments by holding pro forma sessions while in recess.

I think that the Senate Majority Leader should be asked whether the Senate will hold such sessions during the August "recess." If his answer is no, then he is giving his tacit approval to the Attorney General's replacement at that time by someone who not be vetted by the Senate.


Monday, July 24, 2017

Death and the War Power

Mary L. Dudziak

Some time ago, I began thinking about how war death matters to the history of war politics and war power through musings on this blog. Responses to those posts -- even in the comments(!) -- were helpful and thought provoking. It has taken me a while to figure out the pieces of the resulting argument and how they fit together, but this inquiry is now the centerpiece of my current book project.

Today I've posted my first publicly available paper developing the argument that the distance of American civilians from the carnage of their wars matters to how we think about war powers, particularly the atrophy of political restraints. Here's the abstract:

Death and the War Power

In the vast literature on American war powers, attention is rarely paid to the product of war – the dead human body – and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress and courts are in the foreground. Killing in war is thereby a background phenomenon – an aspect of the social context within which the war powers are exercised. This Essay puts death at the center of the analysis. Drawing upon the insights of important recent historical works on death, I argue that the dead body has a political life. The political history of American war death recasts an important problem in the history of American war powers: the atrophy of political restraints on presidential power.

Using historian Drew Gilpin Faust’s idea of a “republic of suffering” in the Civil War as a point of departure, the Essay argues that the culture of American war changed when American wars became only foreign wars. The principal character of American civilians’ relationship to war death in the 20th century was distance from the carnage. Distance accomplished two things: first, a “republic” framed in relation to war death was lost; and second, the U.S. government could exert control over what civilians at home could perceive. Massive mobilization during World War II might appear to be a challenge to the argument that distance from the battlefield matters, so the Essay examines the American civilian experience with war’s violence during that war. Using censored and uncensored World War II casualty photographs, I show the way the very view of war death was managed by the U.S. government for the purpose of maintaining domestic mobilization. Civilians therefore engaged a curated view of death meant to enhance their support for the war effort.

The change over time in the civilian experience with war is not recognized in the literature about war and American law. Instead, legal scholars tend to use the Civil War as a more important historical example than Cold War conflicts, even though the Cold War era bears more resemblance to the present context (militarily and in the impact on U.S. civilians). Meanwhile, cultural distance from war death has increased, helping to produce the profound apathy that characterizes contemporary American war politics. This apathy enables the current legal structure of war authorization: Congress fails to act, and presidents rely on new interpretations of outdated authorizations, or their own constitutional power. Ultimately, I argue, a crucial and unexamined factor in the atrophy of political restraints on presidential power to use military force is the distance between American civilians and the carnage their wars have produced.

Thursday, July 20, 2017

Pardons Are For The Guilty

Gerard N. Magliocca

Tomorrow the Trump du jour will be whether the President might pardon his aides, his family members, or even himself. I want to make one observation about this; a quote from the Supreme Court's 1915 opinion in Burdick v. United States, which addressed the pardon power:

"This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession."

Gerald Ford, the story goes, would carry this quote in his pocket and pull it out as a justification when he was asked about why he pardoned Richard Nixon.

We'll see if "All of This President's Men" are willing to, in effect, confess guilt.

Tuesday, July 18, 2017

Fault Lines in the Constitution

Sandy Levinson

My wife and I have co-authored a book, directed primarily at 10-18 year olds, titled Fault Lines in the Constitution:  The Framers, Their Fights, and the Flaws that Affect Us Today.  It focuses very much on structural features of the Constitution, though rights appear in the context of chapters on habeas corpus and the broader problem of emergency powers.  The book will be published on September 1 by Peachtreec Publishers.  Cynthia and I will talk about the book at the National Book Festival in Washington on September 2.  

One of the central issues raised by the book, both explicitly and implicitly, involves civic education.  What should youngsters be learning about the Constitution?  Readers of Balkinization will not be surprised to learn that we believe that students need to learn far more about the structural aspects of the Constitution and, of course, to learn how crucial these aspects are.  My own hope is that student readers will ultimately argue as vigorously with one another about the presidential veto power or the allocation of voting power in the Senate as they do about the implications of the rights provisions of the Constitution.The general topic of civic education will be the topic of a major conference at the University of Texas on February 16-17.  I am organizing a panel on constitutional law casebooks and their implicit pedagogicalthursts with an all-star cast of casebook editors. There will also be a panel specifically on Fault Lines.  But most of the panels are being organized by my daughter Meira Levinson, who teaches at the Harvard Graduate School of Education and has written extensively on civic education; they will address some of the general problem of civic education in contentious societies and times like our own.  As we get close to the time, I will certainly set out the complete program. 

As part of our efforts to promote the book, we are posting columns on a blog site every couple of weeks of so, The most recent discusses the shooting at the Republican practice for the congressional baseball game several weeks ago and the potential implications had it turned into a genuine massacre of dozens of senators or representatives.  The Constitution is quite terrible with regard to "continuity in government," something we are all too confident is rarely brought up in those few civics courses that continue to be taught.  Indeed, it is interesting to note the consequences even of John McCain's illness, for his inability to vote would have doomed the bill with the loss of two Republican votes, given that the vote would then have been 50-49, whereas if McCain had been there, and voted yes to proceed with the debate, then the vote would have been 50-50, with Pence being able to break the tie. 



Wednesday, July 12, 2017

The Definition of "Emolument" in English Language and Legal Dictionaries, 1523-1806

John Mikhail

I have posted a new paper to SSRN on the historical meaning of "emolument."  It expands on some remarks I gave at a conference on Historical Semantics and Legal Interpretation at the University of Chicago, organized by Alison LaCroix and Jason Merchant.  The abstract of the paper is given below, followed by several tables and figures that summarize the paper’s main findings.  Scroll down to see for yourself why the Trump Justice Department’s narrow definition of “emolument” in CREW v. Trump cannot withstand scrutiny.

In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”

Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.

Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading.

The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning.

Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”

To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
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Monday, July 10, 2017

It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"

Priscilla Smith

It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.

We’ll see about that. Maybe they’ll add back in coverage for preexisting conditions, reduce by a million or two the number of people who will lose health care. We’ll find out. What I doubt will change is the way the bill guts health care provided for women. First, they will undoubtedly mess with the preventive services package, gutting the required coverage for contraception or creating a refusal clause you could drive a truck through. Think women shouldn’t have sex unless they would welcome a pregnancy? No problem. Sign here. How about prenatal and delivery services for those women who get pregnant? Is “maternity” care still on the chopping block? We’ll see.

One thing you can be sure of though is that the new version of the healthcare bill will “defund” Planned Parenthood. The Republicans claim they are “defunding” Planned Parenthood because they don’t want to support Planned Parenthood’s abortion care. Of course, the federal government doesn’t fund abortions, or even Planned Parenthood in any case. They cover non-abortion services for women on insurance programs like Medicaid and in block grants like Title X, and Planned Parenthood is an eligible provider of preventive services. In fact, Planned Parenthood is one of the best providers around of prenatal care, preventive health services, cancer screenings, vaccines, and primary care for kids. In many areas of the country, it’s the only provider of those services. Blah Blah Blah.

You’ve heard it all before – at least I hope you have. The main message we hear is that Planned Parenthood is great health care, vital for many women in the country. Your daughter, sister, wife, mother, cousin have probably gone there if you haven’t gone yourself. There are not six degrees of separation from you and Planned Parenthood. You are closer to PP than you are to Kevin Bacon that’s for sure. It’s a great message; I have nothing against it; it’s true; it probably tests well in focus groups, etc.

But one thing you don’t hear about is that making Planned Parenthood or any otherwise eligible medical provider ineligible to provide covered health care services in a federal program because they provide constitutionally-protected abortions using their own non-government funds is, you guessed it, unconstitutional.

I don’t mean that I think it is unconstitutional or that current case law should be interpreted as saying it is unconstitutional. No. The claim that defunding Planned Parenthood is unconstitutional is far from off-the-wall, because the Supreme Court has already said that it is unconstitutional. In 1986, the Supreme Court summarily affirmed a Court of Appeals decision that held unconstitutional an Arizona law that “defunded” Planned Parenthood because it provided abortions with its own private funds. Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986), aff’g mem., 789 F.2d 1348, 1350 (9th Cir. 1986). In Babbitt, the Supreme Court held that a state cannot withhold family planning funds from an organization that uses its own non-state funds to perform abortions.

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Thursday, July 06, 2017

Gunner Gorsuch

Gerard N. Magliocca

Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.

Is this a fair characterization? Sort of. I think Greenhouse is being too harsh when she calls Justice Gorsuch the President's judicial "avatar." (Though that may have been a title selected by the editor rather than by her.) And I think we can cut Gorsuch some slack--he's new on the job.  Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years. Still, so far I do find the new Justice's prose rather grating.

Here is a small example. In his dissent in Pavan v. Smith, Justice Gorsuch says twice that the Court's summary reversal of the Arkansas Supreme Court was inappropriate because the state court reached its decision in good faith. Early on he says that the opinion below "did not in any way seek to defy but rather earnestly engage Obergefell." Then at the end he says that the Arkansas Supreme Court should not reversed summarily "for seeking faithfully to apply, not evade, this Court's mandates."

With respect, these statements are preposterous. Justice Gorsuch has no idea if the Arkansas Supreme Court was "earnestly" or "faithfully" trying to apply Obergefell. What I assume he meant was that the Supreme Court should presume earnestness or faithfulness and thus not use summary reversal as the method of review of a lower court judgment. These, though, are two very different concepts.

Furthermore, a little digging shows that the trial judge in Pavan, who was reversed by the Arkansas Supreme Court, was not so confident in the earnestness and faithfulness of those Justices and said as much. The State Supreme Court then admonished him in their opinion for criticizing them.

My point is that Gorsuch's conclusion was reasonable in saying the case did not warrant summary reversal and should be full briefed and argued. His way of explaining that--pretty imprecise.

Wednesday, July 05, 2017

"For a Generation"?

Mark Tushnet

According to Paul Booth in the American Prospect, "The Republican power stranglehold is tightening. The Supreme Court is theirs, for a generation." This displays a lack of political imagination. Suppose Democrats regain control of the Presidency and Congress after the 2020 elections. (Bear with me on that assumption.) One item on their legislative agenda might be expanding the Supreme Court to eleven (or more). It's worth having a discussion about whether that's a good idea.

I simply note two arguments about this suggestion I've heard that aren't good ones. (1) "Don't give the Republicans any ideas while they still control Congress and the Presidency." They already know about the strategy of manipulating court size for political reasons -- they tried it in North Carolina. It didn't work (or hasn't worked yet), but saying that legislation can change the size of appellate courts isn't telling Republicans anything they don't know.

(2) "That would set off a cycle of tit-for-tat retaliation once Republicans are in a position to expand the Court's size, as they inevitably will be." I have an article forthcoming in the Pepperdine Law Review explaining why this game-theoretical claim probably isn't a good one (in condensed form: this isn't an iterated game with the same players interacting over time; and succeeding episodes in which court-expansion might become an issue aren't necessarily part of the game that I'm suggesting might be played in 2021).

A good argument would be that trying to expand the Court's size would produce a bloody political battle in which Democratic success is hardly assured, and both success and failure are likely to impose real political costs on Democrats who propose expanding the Court's size. Maybe -- but (also maybe) the argument that they stole Merrick Garland's seat and all we're doing is undoing that theft would be politically effective.

[The Pepperdine article's tentative title is "Constitutional Conventions," and it's obviously of a piece with my earlier article on "Constitutional Hardball."]

Tuesday, July 04, 2017

Complicity: Internal and External View, or, "Well, Mussolini Made the Trains Run on Time"

Mark Tushnet

This is a very tentative stab at elaborating some thoughts that have been rattling around in my mind for a while. The occasion for the attempt is Charles Blow's column in the Times, in which he writes, "Everything that springs from [Trump], every person who supports him, every staffer who shields him, every legislator who defends him, is an offense. Every partisan who uses him — against all he or she has ever claimed to champion — to advance a political agenda and, in so doing, places party over country, is an offense."

One of the things that has sprung from Trump is Neil Gorsuch, whose appointment he claims as one of his (few) achievements so far. Many on the right who purport to oppose Trump-ism generally apparently approve of Gorsuch's appointment. I've thought for a while (and noted it on Facebook) that this struck me as resembling the nominal opponents of Mussolini who are said to said, "Well at least he made the trains run on time." (Apparently he didn't, but that's beside the point.) The phrase is used, I think, to criticize people who, though seeming to distance themselves from the parts of Mussolini's program of which they disapproved, were actually complicit in his entire program.

In Masterpiece Cakes and similar cases, religious (and other) conservatives seem to take the position that -- at least within extremely broad limits -- a person's claim that taking some action would make him her her complicit in a moral evil, has to be taken as conclusive for some constitutional or statutory purposes. (The constitutional part of that involves "hybrid" claims under Smith; the statutory part involves RFRA-type statutes that do more than re-state pre-Smith law.) The complicity claim can be overridden for compelling reasons, but not otherwise. This is what I think of as an internal complicity claim.

The Mussolini "argument" involves what I think of as an external complicity claim. The person being criticized expressly does not think of himself or herself as being complicit with Trump generally, but (not to put a fine point on it) I do. I'm pretty sure that there have to be some limits to external complicity arguments, but I'm not sure what they would be. One candidate would be something like this: Gorsuch's appointment is a happy by-product of an otherwise dreadful event. But, at least as far as I've been able to think this through, the appointment isn't an accidental by-product; it flows from the powers conferred on Trump by his election. So, to get the purported by-product you have to get the whole package.

It's also pretty clear to me that external complicity could be offset by equivalent actions rejecting the loathsome parts of the Trump program. And, in the present context, maybe the people I have in mind are doing no more than expressing approval of the Gorsuch nomination and are elsewhere offsetting that by expressing disapproval of other parts of Trump-ism. At this point in my thinking, that leads me to think that the problem of external complicity imposes an obligation to take offsetting actions -- and, in particular, overrides the usually correct view that bloggers and Facebook posters have no duty to address matters they choose not to address. That is, it is usually true that a fully adequate response to the question, "You've posted on Masterpiece Cakes; why haven't you posted on [fill in the blank]?," is "Because I didn't want to." My current view is that someone who posts approvingly about the Gorsuch nomination, including an approving post about a Gorsuch opinion (the program wants to autocorrect that to "Grouch"!), incurs a duty to offset that post with something critical of some (other) aspect of Trump-ism.

But all that might be entirely wrong. Maybe the only coherent concept of external complicity is that one can be complicit only in the substantively loathsome aspects of Trump-ism, of which the Grouch appointment is not (by assumption) one. Then I wonder about the status of arguments laying out the best legal case for the Trump travel ban, motivated by anything other than the Mill-ian desire to ensure that the ban's opponents will be in a position to counter those arguments.

Sex and the Constitution

Andrew Koppelman

The Supreme Court has held that the Constitution protects most pornography, abortion rights, and same-sex marriage. That would have astonished the framers, and it would have astonished almost all Americans 100 years ago. How did it happen?

Geoffrey Stone’s Sex and the Constitution is, for the most part, a breezy and fast read. It is packed with entertaining stories and revealing details. It chronicles a major shift in the tectonic plates of constitutional law. It is also important for a second reason: it is a remarkably clear articulation of a very common, crude view of the appropriate relation between politics and religion.

Thus begins my review of the book, just published by The New Rambler Review, here.

How Could Religious Liberty Be a Human Right?

Andrew Koppelman

A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class. 

I develop this argument in a forthcoming article in the International Journal of Constitutional Law, now available on SSRN, here.

Friday, June 30, 2017

Carl Schmitt in Contemporary U.S. Legal Theory

Mark Tushnet

No, not in any explicit form. But there's a truly dreadful paper circulating that (without citing Schmitt) structures its discussion of judges around the distinction between friends and enemies. Now, Schmitt was a really smart guy (though a Nazi), but the friend-enemy distinction that's at the heart of his account of politics is probably the most problematic idea he had (even if there is something to it). Of course all of us sometimes think about politics in friend-enemy terms, though generally, I think, as a metaphor rather than as an analytic construct. The paper seems to argue that judges should think of their colleagues as friends and enemies -- which doesn't seem to me altogether, say, desirable (nor, despite the authors' claims about descriptive accuracy, descriptively accurate either.)

[I should note that the paper's dreadfulness lies not in its use of the "friend-enemy" distinction but rather in its amateurish (in the most pejorative sense possible) "reliance" on formal philosophy. It brings to mind Martha Nussbaum's takedown of lawyers attempting to do philosophy. I could go on about the awfulness of the "philosophy" in the paper, but, frankly, doing so isn't worth my time or yours.]

Thursday, June 29, 2017

Some Legal Realism About Legal Theory

David Pozen



Jeremy Kessler and David Pozen

The University of Chicago Law Review has published a response by Charles Barzun to our article Working Themselves Impure: A Life Cycle Theory of Legal Theories. We are grateful to Professor Barzun for his thoughtful engagement with the article. We do not think he has “misunderstood [our] central claims and motivations,” as his author’s footnote anticipates. But we do wish to highlight a few points of agreement and disagreement, because we think they speak to an important divide in contemporary legal theory.

First, agreement. Barzun characterizes our article’s descriptive claims “as plausible and probably correct.” Given that these descriptive claims are the centerpiece of the article, it is heartening that someone otherwise critical of our approach appears to accept its empirical findings. Working Themselves Impure argues that the major prescriptive public law theories of the past forty years have evolved in a manner that undermines (or “impurifies”) their foundational normative commitments. Through historical case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, the article identifies a common pattern of theoretical change over time—a six-stage “life cycle” that each of the theories has undergone:

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