Thursday, March 30, 2017

Why Professor Marcus's arguments don't convince me

Sandy Levinson

There is much to agree with in David Marcus’s post, especially about the wide-open questions presented with regard to the actual conduct of an “Article V Convention.”  When Larry Lessig and I taught a seminar on “Article V Conventions” at the Harvard Law School three years ago, I developed the view, at least half-seriously, that Article V was purposely written as a Pandora’s box that would dissuade anyone from every actually supporting a new constitutional convention.  It is, one might say, the revenge of the Federalists who despised the very idea of a second convention and reluctantly acquiesced to the letter, but not the spirit, of that possibility.  In any event, I agree that Article V provides not a hint of a clue as to how delegates are chose, what the voting rules are, and the possibility of limitation.  As David well notes, this is not the same as saying that there is not a well-organized group of conservative law professors who are absolutely confident that there is a dispositive “original understanding” that will supply answers to these questions, including, for example, the proposition that state legislatures will simply pick the delegates and that each state will have a single vote in the subsequent convention (which, in addition, can be limited to a specific agenda set out in the states’ petitions that a condition precedent for the convention’s being called).  I disagree strongly with the last of these propositions; with regard to the first two, I am confident that an attempt by the Koch Brothers and their friends to steamroller a convention in which, for example, Wyoming would have the same single vote as California (which, perhaps, would emulate Rhode Island in 1787 by refusing to show for such a politically illegitimate gathering) would generate the widespread contempt it would deserve. 

But Professor Marcus’s comments, however sound, do not at all lessen my strong support for a new constitutional convention.  The reason is simple:  I think we are on the brink of civil war, and I think that a major contributor to our dysfunctionality is a 1787 Constitution that, however (perhaps) defensible at the time, is a clear and present danger to us today.  We are afflicted today by an utter failure of political “leaders” and leading academics to offer any serious discussion of the (in)adequacy of the Constitution.  The default position is a reflexive cult of the Framers or, as in Marcus’s post, a sheer fear of what a new convention might bring.  I am not sure whether he agrees that it is a “broken” Constitution, but he does seem to adopt the view that the devil we know is better than an alternative devil we might clearly get through the ALEC-proposed convention.  Perhaps that is true, but, as already suggested, I am less pessimistic about the actual consequences of even that kind of convention.  I cannot imagine that its proposed amendments would in fact gain the support of the constitutionally-required three-quarters of the states (which means, further, the support of at least 75 separate legislative houses in the same 38 states, assuming that one of them is Nebraska).   

It is crucial that opponents of the ALEC agenda truly engage with those calling for a new constitutional convention instead of engaging in reflexive denunciation.  I was happy, in a debate at the University of Texas Law School, to offer one cheer for Texas Governor Greg Abbott, who has endorsed a new convention and offered his ambitious nine-point “Texas plan” to reform our flawed document.  Not surprisingly, I strongly disagree with almost all of his specific proposals, but that does not entail that one reject the very possibility that we need constitutional change.  To put it mildly, there are lots of things the American people should be talking about these days.  In no particular order, consider only the following:

        * Whatever one thinks of the merits of Judge Neil Gorsuch, is there any good reason to accept the high probability that the 49-year-old Gorsuch, if confirmed, could easily serve (and therefore help to shape the law, whatever his disingenuous professions of judicial modesty) until 2050?  

        * Given the clear demonstration to one and all that Donald Trump is, in addition to being a raving narcissistic and possible sociopath, is stunningly ignorant about basic issues of public policy and totally unable to make “deals” with his own party in Congress, let alone the majority of the country that is properly appalled by him, why can’t we get simply get rid of him through a congressional vote of no confidence, requiring neither lawyerly mumbo-mumbo about what constitutes a “high crime or misdemeanor” or what many would probably view as psychiatric mumbo-jumbo about the extent of his personality disorders by way of deciding whether Mr. Trump is equipped to fulfil the duties of the President?  We wouldn’t even have to junk presidentialism; it would be enough to eliminate the rigidity of the fixed term even if we might agree that it made sense in 1787.  The point is that it disserves us greatly today.

         * The very indeterminacy of how to conduct a new “Article V Convention” suggests that it would be both necessary and proper to fill in the blanks, as it were, to clarify a number of the ground rules.  The one thing we can be absolutely certain of is that no new convention would be composed of persons with the stature, to name the most obvious example, of George Washington.      

I could, of course, go on and on, as I have in (so far) two widely ignored books.  But the principal point is that I really do believe the future of the country is at stake and that rallying around our “good old Constitution” is part of the disease rather than the cure. 

The Misguided Article V Convention

Guest Blogger

David Marcus

Since the 1970s, conservatives have vastly outspent and out-organized progressives in their efforts to control state-level politics. These efforts have produced impressive fruit:  Republicans now enjoy majorities in 66 of 99 legislative chambers nationwide, and Republican governors preside in 33 states.

As any student of redistricting knows, state-level dominance may have profound national implications. The party that controls state institutions has various levers to pull to project power nationwide. 

One of these levers has never been pulled before, but it is about to be.  If conservative state legislatures have their way, a convention will assemble in the near future to propose amendments to the U.S. Constitution that would greatly hobble the federal government’s power.

Article V provides two methods of amendment.  The first method resulted in all 27 amendments to the Constitution. Two-thirds majorities in both houses of Congress vote to propose an amendment, and three-fourths of the states ratify it.  The second method is a response to the possibility that Congress might block amendments that threaten its institutional interests.  If two-thirds of the state legislatures apply for a convention, Congress must call one.  The convention then may propose amendments to the states for ratification. 

A number of conservative groups, including the American Legislative Exchange Council and Koch Brothers-funded entities, hope to trigger the second, convention method for the first time in the history of the United States.  The various proposals differ in their particulars, but they all center on one goal – to curtail federal power dramatically.  The most narrowly tailored would require a balanced federal budget each year, while effectively disabling Congress from increasing tax revenue to cover any shortfall.  Although terrible policy, by one count at least 28 of the necessary 34 states have already voted in favor of it.

A broader proposal not only would impose a balanced budget amendment.  It would also restore Lochner era limits on Congress’s Commerce Clause power, and would require the sunset of all federal tax laws, to be re-enacted only by a super-majority vote.  The amendments this proposal contemplates presage an end to the modern American state.

Of course, no amendment can become constitutional law until three-fourths of the states ratify it.  Perhaps for this reason, most progressives have ignored these efforts to rewrite the Constitution. They may rest secure in the knowledge that only thirteen states would have to say no to send a proposed amendment to constitutional oblivion. In fact, some of the very few progressive lawyers and scholars that are following these Article V developments actually favor calling a convention. They hope that it might generate proposals to undo Citizens United or abolish the Electoral College.

To my mind, progressive indifference to or support for a convention is a serious mistake.  Because the convention method has never been triggered, no one knows the rules for it beyond what Article V’s skeletal text provides.  For instance, how similar must state applications for the convention be to count toward the 34 state threshold?  How would delegates be selected?  How would votes at the convention be apportioned?  What voting rule would govern the convention’s proceedings?  

Conservative groups already have invested time and sizable resources to skew the answers to these critical questions to ensure right-wing outcomes and block progressive countermoves.  Consider two important examples:

The Convention’s Agenda.  Until recently, state-led efforts to trigger Article V have failed because of conservative opposition.  Groups like the John Birch Society and the Eagle Forum have feared a “runaway” convention that would propose amendments not only to remove limits on government power, but also to change the rules to ensure easy ratification.  Responding to these concerns, state legislatures have passed resolutions that purport to impose strict limits on convention delegates.  The Arizona Legislature, for instance, recently passed a resolution that would condition its application for a convention on a convention agenda limited to the reactionary proposals described above.  The legislature would also enjoy the power to recall and punish delegates who pursued anything – to wit, a Citizens United amendment – inconsistent with these proposals. 

Delegate Apportionment and Voting.  If delegates were apportioned according to population and directly elected, progressives might have reason to support resolutions calling for a convention.  But conservatives argue that each state should get a single vote at the convention, with delegates selected by the state legislatures.  They believe that the power to amend the Constitution through the convention method is a power “retained by the pre-existing sovereign States,” U.S. Term Limits v. Thornton, 514 U.S. 779, 800 (1995), and one not altered by any subsequent constitutional change.  Delegates would act as agents of the states, with each state a co-equal sovereign regardless of population size.  This extreme mal-apportionment would dramatically skew voting at the convention to favor conservative states.

A progressive lawyer might respond, “so what?”  ALEC doesn’t get to write the rules for the convention, so who cares if its members want to limit the convention’s agenda to the federalism proposals or apportion votes on a one-state, one-vote basis?

Here is a reason to care:  conservative groups have a years-long head start in at least three ways that portend trouble for a progressive constitutional agenda. 

First, they have developed sets of proposed rules to govern every aspect of a convention.  ALEC and its allies can offer starting points for convention governance.  From the get-go, progressives will be rebutting presumptions, not setting them.

Second, conservative groups have spent considerable time researching and developing legal arguments to support their proposed rules for convention governance, couching most of what they devise in originalist terms.  For a set of legal issues utterly bereft of precedential guidance, historical sources about eighteenth century meanings will factor importantly when a court must decide challenges to methods for delegate selection or the like.  Progressives have no such body of research to draw upon, and as far as I know, have given no thought to the sorts of arguments they would need to make to rebut what conservatives have already crafted.

Finally, conservative groups already have planned litigation strategies.  They are miles ahead of progressives in their preparation for the lawsuits that will surely erupt once a convention call looms.  I recently testified against an Article V resolution at an Arizona Senate committee meeting.  After the hearing, a proponent described to me how his group planned to litigate several questions involving convention voting rules.  I was struck by the strategy’s sophistication, as well as by the ways the strategy might trap unwitting progressives into taking positions on upstream issues (e.g., whether states can enter into a compact to bind themselves to support only a convention that calls for a balanced budget) that could have serious implications for downstream issues (e.g., what voting rule should govern at the convention). 

There’s always the three-fourths ratification rule.  Even if the convention assembles as ALEC and its allies would prefer, and even if its delegates vote for a balanced budget amendment, surely thirteen progressive states could stand as a bulwark against this draconian constitutional change, right? 

I’m not so sure.  For forty years, conservative groups have honed their powers to dominate state-level politics.  They have effectively mobilized voters in elections for obscure state offices that would decide an amendment’s fate.  How much time and how many millions of dollars would the Koch Brothers or other like-minded conservatives make available to get the constitutional amendments they prefer?  Could progressive groups match their fundraising or organizing efforts, even in states that have to date remained governed by Democrats?  The last four decades give no reason to think so.

Some progressive proposals for amending our Constitution have great merit to them.  But any assessment of the wisdom of an Article V convention must take our political terrain as it is, not as progressives might wish it to be.  With the states so dominated by conservatives, these progressive proposals have never had less of a chance of success.  The best thing progressive lawyers and scholars can do now is to advocate against a convention, and to prepare to play defense once the 34-state threshold gets crossed.  This unprecedented constitutional moment will arrive very soon.

David Marcus is Professor of Law at the University of Arizona Rogers College of Law. You can reach him by e-mail at dmarcus at

Wednesday, March 29, 2017

Papers from the Illinois-Bologna Conference on Comparative Constitutional History

Jason Mazzone

As many readers know, the University of Illinois and the University of Bologna sponsor an annual conference on Constitutional History: Comparative Perspectives. Last year's conference was held in Chicago, with a keynote speech by the incomparable Rosalie Abella of the Supreme Court of Canada. The papers from that conference are now published in the Illinois Law Review and available at this link. These papers represent an extraordinarily rich set of perspectives on issues of constitutional history by scholars from around the world.

This year, the conference will return to Bologna in November. I will post further details and the call for papers soon.

Law Professor Amicus Brief in the Mississippi FADA Case

Nelson Tebbe

On Monday, a Fifth Circuit panel will hear Barber v. Bryant, a challenge to Mississippi’s H.B. 1523. At root, that law prohibits the government from taking “discriminatory action” against religious actors that hold any of three enumerated religious or moral beliefs: a) that “[m]arriage is or should be recognized as the union of one man and one woman;” b) that “[s]exual relations are properly reserved to such a marriage;” or c) that “male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The Mississippi law contains provisions concerning employment discrimination, public accommodations, adoption services, and health care, among other areas. And it defines “discriminatory action” broadly. Among other things, the state many not “[i]mpose, levy or assess a monetary fine, fee, penalty or injunction.” This language could cover most remedies for civil rights violations. Moreover, the protected actors—“persons” and “religious organizations”—are defined expansively. For example, the term “person” explicitly includes for-profit corporations.

This is case is important not only in itself, but also because the Mississippi law resembles the federal “First Amendment Defense Act” or FADA. Although that measure has not yet been enacted, Senators have announced plans to introduce FADA, and President Trump has pledged to sign it. There is a similar provision in Trump’s draft executive order on religious freedom, as Ira Lupu and Bob Tuttle explained yesterday. So the Fifth Circuit’s decision in the case could set a consequential precedent.

An amicus brief has been filed on behalf of law professors who specialize in religious freedom law. We argue that H.B. 1523 violates the Establishment Clause for four reasons, which we summarize this way: “Taken together, HB 1523’s unusual features result in four distinct constitutional violations: it (1) has a religious purpose, (2) endorses the Enumerated Beliefs, (3) discriminates on the basis of belief and denomination, and (4) inflicts significant harm on third parties.”

The brief’s primary author is Joshua Matz, and it has been signed by Caroline Corbin, Ira Lupu, Micah Schwartzman, Richard Schragger, Elizabeth Sepper, Robert Tuttle, and me.

Monday, March 27, 2017

Give the “Trespass” Test (and Judge Gorsuch) a Chance

Guest Blogger

Kiel Brennan-Marquez and Andrew Tutt

In 2012, when the Supreme Court held in United States v. Jones that police may not engage in prolonged GPS surveillance of a car on public streets without a warrant, many scoffed. Not at the outcome, which was widely applauded, but at the reasoning: the majority opinion, written by Justice Antonin Scalia, hinged on the fact that when the police installed the GPS device on Jones’ car, they committed an act of “trespass.”  Scalia’s logic was proudly originalist:  Trespassing to obtain incriminating information was forbidden when the Constitution was ratified; hence, it is forbidden today.  By resolving the case that way, the Court sidestepped the privacy questions raised by surveillance technology like GPS and—as Justice Alito’s concurrence put it, voicing skepticism shared by many observers—“attache[d] great significance to something that most would view as relatively minor.” 

Fast forward five years, and Jones  has once again surfaced in the public conversation about privacy and surveillance—this time, because of Judge Neil Gorsuch’s confirmation hearing. Gorsuch, himself an originalist, has made no secret of his support for the Jones holding. In response to questioning from Senator Orrin Hatch last Tuesday, Judge Gorsuch opined that "attaching something to somebody else's property would be considered a search,” and “that if that's a trespass and a search 200 years ago, it has to be today.” In sum, argued Judge Gorsuch, “the technology changes, but the principles don’t.”

This proposition—that even as the world surrounding law changes, the core principles of law stay fixed—is central to originalist reasoning. We have no ambition here to resolve grand debates about the merits and demerits of originalism writ large. What we do wish to point out, however, is that a commitment to fixed principles of law, though often associated with efforts to limit the scope of fundamental rights, can also operate in the service of fundamental rights. 

Jones itself underscores the point. As we recently argued in the pages of the Harvard Civil Rights-Civil Liberties Law Review, the “trespass” principle in Jones is best understood as an “offensiveness” test. Did the police employ a fundamentally offensive investigative method to collect evidence? If so, that method should meet with Fourth Amendment scrutiny—and require a warrant. One example, as in Jones, are investigative methods that require the police to physically intrude on private property. But the category is not so limited. Another example (we argue in the article) are investigative methods that involve intentional deception by law enforcement—such as United States v. Phua, a recent case in which the FBI cut off the internet to the defendant’s hotel room, and gained “consensual” entry by having agents pretend to be cable technicians answering a service call. 

This test for offensiveness, it turns out, lines up with 18th-century expectations about the appropriate boundaries of state power.  The Founders, too, worried about law enforcement officials behaving in ways that offend a person’s “dignitary interest” in the “inviolability” of his or her possessions.  

To see what we mean, one need only look to United States v. Ackerman, a recent 10th Circuit opinion written by none other than Judge Gorsuch. As relevant here, the question in Ackerman was whether a warrant is required for law enforcement to open an email that has been flagged by an internet service provider (“ISP”) as likely to contain child pornography. The government argued that the answer should be no—because, among other reasons, people have no reasonable expectation of privacy in emails they have already shared with an ISP. 

Rather than indulge that argument, Judge Gorsuch opted to apply the Jones test, which, he thought, “pretty clearly” forbids the “warrantless opening and examination of . . . private correspondence.” In reaching this conclusion, Judge Gorsuch analogized the opening of an email to the opening of a private letter, both of which “qualify as exactly the type of trespass [] that the framers sought to prevent when they adopted the Fourth Amendment.” To be sure, whether opening an email amounts to a literal trespass (akin, say, to tampering with a parked car) is not self-evident; it’s a thorny and interesting question.  But Judge Gorsuch sidestepped that question by pointing out that in the 18th century, the common law went to great lengths to protect individual dignity in the face of state power.  That simple principle was the both the beginning and the end of the inquiry. 

Cases like Ackerman complicate the idea, common in some media coverage of the confirmation process, that a judge’s penchant for constraining his legal reasoning to the application of very old principles tends to stunt the recognition of new rights. In some cases, the use of very old principles can have the opposite effect. They can help judges abstract away from the technological details and focus on what actually matters: whether the state has exceeded the bounds of its legitimate authority. In some domains, originalists do better—or at least, just as well—with this question as their progressive counterparts.

Does this mean that the principles of constitutional law laid down at the Founding are sufficient to contend with all the legal controversies we face today? No. Nor does it mean progressives should embrace all of Judge Gorsuch’s views simply because he, like Justice Scalia before him, tends to converge with liberal Justices on matters of law enforcement and criminal justice. But it does mean that progressives should not lose sight of the good that can come of applying very old principles of law—or of the notably careful way that Judge Gorsuch, in certain domains, has carried out that enterprise.  

Kiel Brennan-Marquez is a postdoctoral research fellow at NYU Law School and an affiliated fellow at ISP. You can reach him by e-mail at

Andrew Tutt is an Attorney-Adviser at the Office of Legal Counsel at U.S. Department of Justice, and was until recently a Visiting Fellow at the Yale Information Society Project. You can reach him by e-mail at The views expressed here are his alone, and do not necessarily reflect the views of the Department of Justice or the Office of Legal Counsel.

Friday, March 24, 2017

Disjunctive Politics in Action

Gerard N. Magliocca

If you were wondering what Jack and others meant by saying that Donald Trump could well be a "disjunctive" president, now you know.  The President and his party could not move one of their main legislative priorities through even one House of Congress. Is this the result of poor leadership? Perhaps, but the deeper problem is that the Republican coalition is badly divided on many issues. The election masked those divisions to some extent, but now they are front and center.

I want to make another point. The death of separation of powers when the White House and Congress are controlled by the same party has been exaggerated. Party polarization does mean that members of Congress often put party above their institutional authority. On the other hand, the same polarization means that a party need a high degree of internal unity to enact legislation. This means that any split in the majority party can be fatal. This does not mean that the President cannot get anything done, but the practical structural barriers to his agenda are significant.

Is the GOP ACA Repealer Unconstitutional on Federalism Grounds?

Abbe Gluck

            Ironically, the GOP proposal to repeal the ACA in the name of returning authority over health care to the states has some potentially serious constitutional issues on federalism grounds. Here are some preliminary thoughts on the matter, with the caveat that conclusions may change as we get more details.

                The most obvious potential federalism problem in the bill  is the so-called “Buffalo Bribe,” an amendment introduced earlier this week in an effort to eek out a few more GOP votes for the bill from upstate New York Republicans. That amendment intrudes on one of the most traditional state functions of all-- the internal revenue raising and taxing provisions of a state. It provides that New York can no longer ask counties to pay a share of its Medicaid bill, as New York has done for more than fifty years pursuant to state law.  Instead, the bill provides that the state alone has to cut the full check. (The county share is currently a little over  $ 2 billion.)

                This amendment is likely unconstitutional.  The protection from federal interference of the internal functions of a state governments is one of the bedrocks of state sovereignty protected by the limitations on Congress’s powers in Article I of the Constitution and the reservation of power to the states in the Tenth Amendment.    Even if one could argue that this is an exercise of the federal spending power under Article I, for Congress to legally use that power, the conditions on a state’s use of federal funding have to be tied to a reasonable federal purpose.  Governor Cuomo has made clear he will most likely have to raise taxes steeply to cover the gap the bill would cause (which also means that the upstate taxpayers who Reps. Faso and Collins, the sponsors, are trying to protect are not even going to benefit).  It is hard to see a reasonable federal purpose here other than garnering more GOP votes for the struggling repeal bill.

                If, on the other hand, Governor Cuomo decides not to raise the money, and to close hospitals and make other dramatic cuts to other programs New York State instead (which seems to be what Faso and Collins want), then we may be getting into the realm of a different kind of constitutional problem, namely unconstitutional coercion. It would violate the Spending Clause  and the Tenth Amendment’s protection of state sovereignty if the amendment is a “Godfather offer” - an offer the state can’t refuse.  Of course, the irony here is that it is the Republicans who are responsible for the expansion of this same coercion doctrine that makes this kind of argument credible. It’s the argument they used to successfully attack the ACA’s original Medicaid expansion in the constitutional challenge they filed almost exactly seven years ago, NFIB v. Sebelius.

What’s more, it is my understanding that other states also have similar requirements that split Medicaid costs with localities. If that’s the case, the constitutional problems with the Buffalo Bribe are potentially even more serious, because on what rationale does it make sense to penalize only New York for this arrangement?  This kind of arbitrary discrimination against New York also makes clearer the absence of a rational federal purpose for the amendment.
And here's a different way to put it:  Faso and Collins are trying to use federal law to change state law in a way they wish they could, but can't get through in Albany.  If they want New York to change its state law on how Medicaid checks get written, they should go through New York government.

                This amendment may not be the only part of the repeal bill that raises constitutional problems.  States are still investigating the effects of the more generally proposed Medicaid amendments, and time will tell if any legal issues arise.  But just last night, the GOP offered a few additional amendments,  in an effort to squeeze out the last few votes.  One of those amendments appears to require states to provide a definition of the “essential health benefits” that covered insurance plans must include.  This amendment appears to be an intra-GOP compromise: Conservatives wanted EHBs eliminated entirely from the ACA, moderates didn’t.  Returning “power” to define federal requirements to the states is page 1 in the playbook of “federalism” compromises.

                The EHB provision may be a drafting error.  It does not make clear what the states get in return for defining the EHBs, whether they have a choice to do so, or what happens if they don’t.  EHBs can be extremely controversial as a political matter (just look at the nasty headlines yesterday that resulted when Congressman Pat Roberts quipped about cutting mammography coverage), and states may not be thrilled about this new obligation.   Is it an order from the federal government? If so, it could be another unconstitutional effort to commandeer the states to do the federal government’s bidding.  If so, this too would violate the Tenth Amendment.

                So far, the AHCA is not shaping up to the federalism friendly legislation it has promised.  Instead, the GOP is clearly more concerned about getting a repeal--any repeal--through, than about getting it right. More as more develops.

Thursday, March 23, 2017

Why the Democrats are in a win-win situation by filibusetering

Sandy Levinson

Let me say at the outset that I strongly support filibustering the nomination of Judge Gorsuch to join the Supreme Court.  Part of the reason is that I regard his appointment as filling a "stolen seat."  Part of it is that I thought his "answers" were remarkably non-enlightening.  No one who is a serious originalist can possibly give as much primacy to precedent as he was pretending to do.  And "pretending" is the operative word, since it is inconceivable that he won't vote to reverse a number of important cases.  After all, his endorsement of Harlan's dissent in Plessy is a dog whistle for invalidating any and all affirmative action programs in the name of "color-blindness."  And, given the awful reality of lifetime tenure, I don't support putting a 49-year-old ultra right-winger on the Court.  Finally, there is the matter of the legitimacy of Donald Trump as president, not with regard only to his being a sociopath or to the operation of the idiotic electoral college, but with regard to the increasing likelihood that his minions were actively working with Russia to throw the election, in part because Trump himself is deeply in hock to Russian oligarchs (given that no self-respecting American bank would lend any money to such a con-man who so obviously does not believe in paying his debts). 

But this is really beside the point,  After all, many "thoughtful people" are saying that the filibuster would be a mistake because, gasp, it might induce the GOP simply to eliminate it for  Supreme Court appointments.  My response:  Bring it on!  The true disgrace is if Gorsuch is confirmed without a filibuster.  If he is confirmed via the repeal of the filibuster, that's just fine.  But one should not so quick to assume that there will be fifty-one votes to eliminate the filibuster.

There are two reasons Republicans might in fact be reluctant to eliminate the filibuster (and, therefore, to sacrifice Gorsuch and, possibly, other replacement nominees).  One is a principled belief that the filibuster is a good idea.  The other, far more important in this context, is the justified fear that Ginsburg and Breyer (and perhaps Kennedy as well) will live on until 2020.  This would mean that the Democrat elected in 2020, when the electorate expresses its justified repugnance against a GOP that collaborated with a sociopath and proved unable to govern (begin only with the present fiasco on medical care, to be followed shortly by many others).  If the filibuster still survives, that President Franken will be stymied by Republicans [added:  and Democrats might be reluctant to pay the price of eliminating the filibuster if Republicans have in fact maintained it last a genuine cost to themselves].  If it has been eliminated (by the Republicans themselves in their eagerness to get young Gorsuch on the Court), then Franken plus 51 Democrats int he Senate can place, say, Pam Karlan and others on the Court to replace Ginsburg, Breyer, Kennedy, for starters.  Getting rid of the filibuster, for Republicans, requires a high confidence in the demise of Ginsburg and/or Breyer and the voluntary resignation of Kennedy.  I don't know about you, but I'm not sure I'd be comfortable making that bet.  And, of course, only three Republican senators have to agree, for whatever reason, in order to keep the filibuster.

I'm not really interested in hearing any encomia to Judge Gorsuch.  What I'm interested in is whether the Gorsuch-admirers on this list are comfortable with eliminating the filibuster even if it increases the likelihood of a liberal akeover of the Court if Ginsburg, Breyer, and Kennedy last it out.

Monday, March 20, 2017

Gorsuch/Garland: Is the Supreme Court a “Majoritarian” Institution?

Rick Pildes

           The fact that it is Judge Gorsuch, rather than Judge Garland, for whom confirmation hearings are now underway prompts a return to the question of whether the Supreme Court is capable of doing little more than reflecting the preferences of political majorities.  
           Over the last decade, it became fashionable (first in the academy, then among journalists) to press the view that Supreme Court decisions cannot and do not stray far from the policy preferences of political majorities.  My friend and colleague Barry Friedman’s one-volume history of the Court, The Will of the People (2009), played a major role in re-invigorating this line of commentary about the Court.
           If you think the Gorsuch/Garland difference is likely to be a significant one for Court decisions, what does that suggest about where “the majoritarian thesis” goes awry?  Here, I want to suggest at least two places, which the current context helps illuminate.  The first is the role of historical contingency, in both politics and Court vacancies. 
The most likely mechanism through which the Court might be expected to reflect the views of political majorities is through the appointments process.  But since we do not have a structure through which Supreme Court vacancies occur at regularly recurring intervals, there is a great deal of randomness about how many appointments, if any, any particular President gets to make.  President Nixon, for example, made four appointments between 1969-1972, which shaped the Court for decades.  Yet there are Presidents in the modern era who have served one term without being able to make any appointments at all.  Jimmy Carter had none, and George W. Bush had none in his first four years.  Donald Trump, of course, entered office with a vacant seat awaiting him.  And since Justices are appointed younger and serve much longer these days, there is a great deal of luck involved as to whether even two-term Presidents can re-shape the Court in their image.  Up until 1970, a two-term President appointed nearly 5 Justices on average, or a majority of the Court; but since then, that figure has dropped to 2.7 Justices, on average.
 Politics and elections themselves, of course, are also highly contingent, as this fall’s election also should remind us.  Donald Trump won an electoral majority, but not a popular majority.  Even assuming a Justice he appoints reflects the substantive preferences of his electoral constituency, what does that tell us about whether that Justice’s positions reflect “the majority’s preferences”?  Beyond that, if the Democrats had found their way to a different candidate, would the outcome of the election have been the same?  Who knows?  And had Justice Scalia died three months earlier (or six) so that President Obama had filled the seat, matters would be very different for that reason as well.  The point is that when the country is so closely and sharply divided, small differences in politics and elections can be highly consequential, yet have enormous consequences for Court appointments.
The second reason to be skeptical about the idea that the Court is highly constrained to do little more than reflect the preferences of political majorities is that on many issues, the very idea of “the majority” is so nebulous as to make this claim hard to give content to.  Most of the “majoritarian” claims about the Court never tell us what majority the Court is supposedly reflecting.  Is it the political majorities in Congress, which in theory have power to respond to Court decisions (if government is not itself divided)?  Or is it the “popular majority” as reflected in something like national public-opinion surveys?  Indeed, a lot of recent political science research suggests that our political bodies do not even reflect the view of popular majorities. 
On some issues, people’s views are unsettled, fluid, and highly responsive to the way political elites – including the Court in its decisions – frame the issues.  So “the majority” sometimes follows the actions of public institutions, including the Court, rather than constrains or determines those actions. And because the country is so intensely, yet closely, divided on other issues, there simply is not any dominant majority by which the Court could be constrained.  The Court can make decisions in either direction and find support from some large, strong faction of the public who likes the outcomes.         
         In the wake of Citizens United, I wrote an article raising some of these challenges, which was titled Is the Supreme Court a “Majoritarian” Institution?  Justin Driver has written good critiques along similar lines.  Campaign finance is a good test of the claim that the Court is destined to do little more than reflect the views of “popular majorities.”  Do the Court’s campaign finance decisions, which strike down legislation enacted by national or state majorities, do that?  I don’t put a lot of stock in public-opinion polls, though it seems the “majoritarian thesis” requires us to do that; but those polls purportedly show large majorities that reject these decisions (that does not make these decisions right or wrong, as a legal matter, of course).  It’s not necessary, though, to go even that far.  The country might be deeply divided on campaign finance without a clear majority one way or the other.  The Court has a lot of room for freedom of action in this area, as in many others, regardless of what “public opinion” might be.
            Yes, it is true that Court decisions are inevitably affected by broad shifts in culture over time.  If there are clear majorities, sustained over long enough periods of time, the Court will come to reflect a dominant political sensibility of an era.  If you look at the Supreme Court from a 10,000 foot altitude, perhaps that is all you will see.  But historical contingency affects the Court, as it does all other institutions, and the current confirmation process provides a dramatic reminder of that.

Saturday, March 18, 2017

The Tragedy of the Medicaid Expansion (Part III)

Stephen Griffin

As far as I can tell, legal treatises and casebook chapters on federalism do not discuss race and my colleagues interested in critical race theory tell me not much is said in that literature about federalism.  That seems a shame, for they are surely connected in American constitutional history.  There are reasons, of course, relating to the nature of the Supreme Court’s federalism jurisprudence, with its somewhat narrow doctrines of “commandeering” and so on.  But it is still unfortunate because it did not prepare constitutional scholars for what I have described in my earlier two posts as the sectional and racial aftermath of Sebelius as well as voting rights cases such as Shelby County.  The rationales the Court advanced in these cases crossed an important line – in fact, a color line – and so opened the door to a racial past that many had thought closed.  As Joseph Fishkin points out with respect to Shelby County, the legacies of the Civil War and Reconstruction are still with us when the Court uses doctrines such as the “equal dignity” of states.  Once again, race and federalism are connected.

With respect to health care, Paul Starr provides a reminder of the sectional reality that existed prior to the ACA in his book Remedy and Reaction: “The United States developed out of radically different social systems in the South and the North, and while the South invoked states’ rights in defending slavery and later Jim Crow, federal intervention was crucial in efforts to achieve equality from the Emancipation Proclamation to the civil rights movement.  Even now, in economic and social policy, states in the South (and Southwest) show the influence of their traditions.  Compared with the rest of the country, they continue to provide the least support for the living standards, including the health care, of their low-income population.  In Louisiana, for example, unemployed parents have had to earn less than $2,400 (11 percent of the federal poverty line) to qualify for Medicaid.  In practice, therefore, turning health policy entirely over to the states means denying access to medical care and insurance protection for millions of the poor and near-poor in the South and Southwest.”  This was a telling preview of the impact of the Medicaid opt-out created by Sebelius.

For now, note Starr’s reference to the “traditions” of the South.  Those traditions became newly relevant when Chief Justice Roberts created the option for states to reject the Medicaid expansion.  This led to the tragedy of every southern state save Arkansas rejecting the expansion (Louisiana adopted the expansion in 2016).  This outcome was surely connected with the South’s history.
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Monday, March 13, 2017

A Modest Revision of the Accepted Wisdom About the Nondelegation Doctrine

Mark Tushnet

Cass Sunstein's quip that the nondelegation doctrine had one good year -- 1935, the year of Panama Refining and Schechter -- is not quite right. Carter v. Carter Coal, decided in 1936, held the Bituminous Coal Act unconstitutional on two separate grounds, one of which was a violation of the nondelegation doctrine, understood as a requirement of due process rather than as flowing from ideas about the separation of pwoers. (Schechter also relied on two grounds for invalidating the National Industrial Recovery Act.)

Justice Sutherland's treatment of nondelegation in Carter v. Carter Coal is more pointed about the "class legislation" nature of the delegation than Schechter:

"The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. The record shows that the conditions of competition differ among the various localities. In some, coal dealers compete among themselves. In other localities, they also compete with the mechanical production of electrical energy and of natural gas. Some coal producers favor the Code; others oppose it, and the record clearly indicates that this diversity of view arises from their conflicting and even antagonistic interests. The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental function, since, in the very nature of things, one person may not be entrusted with the power to regulate the business of another, and especially of a competitor."

Sutherland calls this a violation of the due process clause, but, in addition to using the phrase "legislative delegation in its most obnoxious form," he introduces the discussion by saying that the statute "delegates the power to fix maximum hours of labor to a part of the producers and the miners," and he cites the pages in Schechter relying on the nondelegation doctrine.

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