Whose Immigration Law Is it?

Guest Blogger

For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).

Shalev Roisman

Adam Cox and Cristina Rodríguez have written a monumental book in The President and Immigration Law.  The book combines a rich historical account, a descriptive institutional account, and a novel and insightful analytic framework that diagnoses the current state of affairs, normatively assesses it, and plots a way forward.  I could not recommend it more highly. 

Below I provide a brief summary of the book and then ask two questions about whether the book undersells the President in some ways and oversells her in others.

The thrust of the book is geared at countering what Cox and Rodríguez label the “The Conventional Wisdom” in immigration law, which is the notion that Congress—not the President—has primary control over immigration policy. [5] As Cox and Rodríguez show, this conventional story does not accurately describe American immigration policy since the Founding.  To the contrary, for almost the first hundred years of the country, federal immigration policy was shaped primarily by the President using his foreign affairs powers.  And, while Congress has systematically regulated the immigration space since then, the President’s role has remained central. 

How so is one of Cox and Rodríguez’s primary insights. Because half the noncitizen population in the United States—approximately 11 million people—is present unlawfully, perhaps the chief question of immigration policymaking today is not who is here lawfully, but who should be prioritized for removal. [8] The decisions about whom to focus enforcement efforts on thus become as important as what the laws are.  This “shadow system” results from what they call “de facto delegation”—Congress has implicitly delegated broad power over immigration to the President by virtue of this vast enforcement discretion. [105]

Given the breadth of the President’s power, Cox and Rodríguez argue the system is better conceptualized as one with two principals, rather than the standard principal-agent framework thought to govern congressional-executive relations in immigration. [193, 207-10]. They defend the normative desirability of such a two principal framework and argue that the President ought not look to Congress to guide enforcement discretion. Congress, they argue, has not said anything coherent about enforcement priorities and it shouldn’t try to, in any event, because enforcement decisions are better made by the President. [200-01, 207-210].

Cox and Rodríguez conclude with concrete prescriptions, focusing primarily on ending the “shadow system, and replacing the system of de facto delegation with one of de jure delegation that gives the President explicit powers to admit people legally—a fix that would remedy the current imbalance in immigration law, whereby the President has power to remove but not to admit. [244-45]

Presidential Immigration Federalism

Guest Blogger

The Cycles of Constitutional Time and the 2020 Election

JB

This morning Professor Donna Lyons from Trinity College Dublin interviewed me about my new book, The Cycles of Constitutional Time, and how the book's argument helps us to understand the consequences of the 2020 election.

What is the Presidency?

Guest Blogger

Daphna Renan

What is the presidency in American public law? Current debates tend to focus on the constitutional powers of the presidential office and the authority of Congress to restrict them. In The President and Immigration Law, Professors Adam Cox and Cristina Rodríguez argue that, if the goal is to understand and assess presidential power in its contemporary form, we are looking in the wrong place. Presidential power results from the mass of statutory authorities—some broad and substantial, some textually specific or seemingly inconsequential—developed over time. But if this power derives from the interbranch process that underlies legislation, it is distinctively presidential in practice. Presidents do not merely apply legal authorities when they enforce statutes. Presidents reinvent these statutory schemes in “their own lights” (p. 8). Conforming immigration enforcement to the principle of legislative supremacy, the authors tell us, “would not just repudiate a few initiatives of recent administrations”; rather, it would “call into question the legality of decades of executive branch policymaking that has shaped the very nature of the American polity” (p. 202). Presidential power thus emerges from the discretion that presidents create in the interstices of complex statutory regimes.

The book’s central argument is framed in connection to U.S. immigration law—and the descriptive account it presents in that context is nuanced and illuminating. But its conceptual apparatus is more far-reaching still. The modern presidency draws power not from some founding-era conception of a royal prerogative but from the crevices of cumulative—at times, contradictory—statutory material. There is nothing inherent or immutable about this presidency. Nor anything “original” about its design. Instead, it is the product of layers of contingent political battles and provisional settlements. These legal understandings have a foothold in the myriad provisions of the U.S. Code. But they are reinvented over time by the executive branch itself, in ways that have enabled the presidency to implement, rethink, and reimagine the substantive goals of the state.

Balkinization Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law

JB

We have assembled a terrific group of commentators, including Pratheepan Gulasekaram (Santa Clara), Aziz Huq (Chicago), Peter Markowitz (Cardozo), Daphna Renan (Harvard), Shalev Roisman (Arizona), Bijal Shah (Arizona State), Peter Shane (Ohio State), and Robert Tsai (B.U.).

At the conclusion, Adam and Cristina will respond to the commentators.

Covid, masks, and the freedom to drive drunk

Andrew Koppelman

Does freedom mean the right to refuse to wear a mask during the Covid pandemic?  Many Americans think so.  It is Donald Trump’s most important legacy.  Here’s one implication that is too little noticed:  if that is what freedom means, then we owe drunk drivers an apology.

 I explain in a new column at The Hill, here.

Section Two of the Fourteenth Amendment and Presidential Electors

Gerard N. Magliocca

To build upon my prior post about the constitutional doubts that exist about the authority of a state legislature to appoint presidential electors after the election was held in a manner inconsistent with the popular vote in that state, consider Section Two of Fourteenth Amendment:

[W]hen the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being  and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

The most sensible reading of this provision is that a state legislature that usurps the popular vote for presidential electors in a state forfeits the state's right to representation in the House of Representatives and (arguably) in the Electoral College itself except for the two votes each state gets for its two Senators. Such a state legislature would be denying the right to vote to everyone in the state by treating the election as a non-binding beauty contest when the people voted on the assumption that their vote was binding.

Granted, you could say that Section Two permits a state legislature to appoint presidential electors after the election in defiance of the people--the state must just accept the representation penalty. Maybe, but the penalty is severe. More broadly, the point is that state legislatures do not have plenary authority over the appointment of presidential electors after the election is held. Either they face a harsh penalty or other independent constitutional provisions should be read as prohibiting such an action entirely. States test these constitutional limits at their peril.

The Fulton v. City of Philadelphia Oral Argument: Interracial Marriage as a Constitutional Lodestar— or Third Rail?—in Reasoning about Religiously-Motivated Discrimination

Linda McClain

I agree with Professor Kyle C. Velte’s insightful post on this blog, “Reclaiming the Race Analogy in Fulton v. City of Philadelphia” (Friday, November 13), in which she insists on the appropriateness of the analogy between religious opposition to interracial marriage and—more broadly—to racial integration and present-day religious opposition to same-sex marriage and—more broadly—to providing goods and services to same-sex couples.  Reflecting on the recent oral argument before the U.S. Supreme Court in Fulton, Velte suggests that how some Justices view the aptness of the race discrimination/sexual orientation analogy may shape their approach to the case.  Professor Velte’s post draws on arguments in an amicus brief that she authored, submitted in Fulton on behalf of respondents and joined by several legal scholars (including me). The brief urges the Court that civil rights-era precedents such as Newman v. Piggie Park Enterprises (1968) are relevant to present-day controversies over claims to religious exemptions to antidiscrimination laws and cautioned against arguments—advanced earlier in Masterpiece Cakeshop v. Colorado Civil Rights Commission—that any analogy to Piggie Park was inapt because yesterday’s religious segregationist was obviously a bigot, with “fringe” beliefs, while today’s religious believers in traditional marriage are sincere, with decent and honorable beliefs.  As Professor Velte argues in her post (and as I have elaborated in Who’s the Bigot?), this supposed disanalogy sets the stage for a further argument: if business owners (like Jack Phillips) or religious social service agencies (like Catholic Social Services, in Fulton) who sincerely object to same-sex marriage are denied exemptions from state or local antidiscrimination laws, they are being branded and treated as bigots argument. In this post, I offer additional analysis of the prominent role played by the race analogy in the Fulton oral argument.

To be sure, no one used the express rhetoric of bigotry in the Fulton oral argument.  However, the idea that Catholic Social Services (CSS) was being branded as a bigot because Philadelphia would not allow it to continue its contract as a foster care agency (FCA) unless it agreed to comply with the Fair Practices Ordinance and certify same-sex couples for foster care placements was implicit in remarks by Deputy Assistant Attorney General Hashim Mooppan (U.S. Department of Justice), who appeared as amicus curiae in support of CSS and the other petitioners. Justice Alito’s questioning and statements also implied such a charge. Similarly, although Piggie Park did not make an appearance, several justices raised the race analogy in the form of questions about religious objections to interracial marriage. Counsel for the parties and the various justices sharply disagreed about the force of this analogy. For Mooppan and for Lori Windham, counsel for petitioners, as well as for some of the conservative justices, Loving v. Virginia seemed less of a constitutional lodestar and more akin to a third rail on the subway: to be avoided as so inapt as to be incendiary and dangerous.  For the City’s attorneys and some of the liberal justices, the example of interracial marriage featured as a fixed point, or lodestar, that should guide reasoning about government’s compelling interest in ending discrimination on grounds other than race. In effect, this dual approach reprised Obergefell v. Hodges (2015): Loving was a constitutional lodestar in Justice Kennedy’s majority opinion holding that same-sex couples had a fundamental right to marry, while the dissenters argued that Loving in no way supported such a holding and that such reasoning from race would vilify sincere religious believers in traditional (man-woman) marriage as bigots.

In the Fulton oral argument, several justices raised the interracial marriage hypothetical, pondering how to draw lines concerning what sorts of religious beliefs might receive exemptions from the City of Philadelphia’s nondiscrimination law (the Fair Practices Ordinance) if the Court reversed the Third Circuit and upheld CSS’s free exercise claim. Further, some wondered how religious objections to interracial marriage would fare if the Court abandoned Employment Division v. Smith, as CSS has urged it to do, and adopted a stricter form of scrutiny for any law that burdened the free exercise of religion.

The U.S. Constitution and the problem of Constituent Power

Sandy Levinson

 I just finished teaching a reading course (by Zoom) at the Harvard Law School on "Reforming the U.S. Constitution:  Is it Desirable?  Is it Possible?"  Although we (the roughly ten students and myself) did not agree on exactly what reforms might be desirable, there was general agreement that at least some might well be.  Indeed, I assigned materials across the ideological spectrum, including the so-called "Texas Plan" put forth by Texas Governor Greg Abbott that advocates nine important structural changes--one of them similar to that advocated by Georgetown Law Professor Randy Barnett that would allow state legislatures to nullify federal legislation--and Lloyd Cutler's article from 1980, "To Form A Government," that advocated a number of changes to strengthen what he thought was a unduly weak presidency.  The final reading was an excellent new book, MAKING A NEW AMERICAN CONSTITUTION, by George William Van Cleve, currently a visiting scholar at Georgetown and the author of previous excellent books on American constitutional history.  The book was self-published and is available on Amazon, but it clearly would have been published by a first-rate academic press had Van Cleve been willing to wait what probably would have been up to a year for the publication process to work.  Given the tenor of the times, his decision to self-publish is readily understandable, for his book in fact is a public service.  (Full disclosure:  I was happy to write an enthusiastic Foreword to the book, and Balkinization regular Mark Graber also contributed a strong blurb, as did University of Virginia history professor emeritus Peter Onuf.

In some ways, the book can be compared to the Declaration of Independence.  That is, much of consists of the equivalent of a "long train of abuses," or, perhaps more accurately, a "bill of particulars" with regard to the disconnect between the nature of the challenges facing us today as a society and the capacity of the existing Constitution to provide any hope for needed changes.  Obviously, Van Cleve and I share a lot of concerns about the extent to which the 1787 Constitution constructs an excess of veto points that rig the political system in favor of maintaining the status quo.  (Recall that I remain upset with Bernie Sanders for posturing as a "revolutionary" without once ever informing his younger supporters that significant constitutional reform is a predicate condition to achieving the reforms that he advocated.)  Van Cleve does a far better job than I have done of amassing evidence of the challenges we face, especially with regard to the consequences of economic inequality and the great advantages enjoyed by the well-off (nowhere better illustrated, of course, than in the current pandemic, where the contrast between the haves and have-nots is stunning, especially if the former are willing, unlike Donald J. Trump, to follow even minimal guidelines like wearing masks and maintaining social distance).

Reclaiming the Race Analogy in Fulton v. City of Philadelphia

Guest Blogger

Kyle C. Velte

The Supreme Court held oral argument last week in Fulton v. City of Philadelphia, a case asking whether a taxpayer-funded foster care agency may turn away same-sex couples who wish to be foster parents because of the agency’s sincere religious objection to certifying same-sex couples. A Philadelphia ordinance—the Fair Practices Ordinance—and the contract that a family foster care agency such as CSS must sign with the city prohibit such agencies from discriminating against these same-sex couples. But CSS is asking the Court to find that the First Amendment’s free exercise and free speech clauses require the city to grant it an exemption from complying.

The oral argument showed that some of the Justices may believe the case turns on the extent to which an analogy to race discrimination is appropriate in religious exemption cases involving sexual orientation discrimination. Justice Barrett articulated the widespread consensus that the Court would soundly reject a claim for a religious exemption to discriminate based on race (“I think we would agree that there’s really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption.”). Yet today’s exemptions seekers, as well as some of the justices, bristle at the comparison to the Supreme Court’s 1968 decision in Newman v. Piggie Park Enterprises, which referred to a restaurant owner’s claim for a religious exemption to a law prohibiting race discrimination as “patently frivolous,” even in an era in which the Court applied a form of “heightened scrutiny” to Free Exercise claims.

Those seeking exemptions from sexual orientation non-discrimination laws today contend that litigants in the 1960s who opposed interracial marriage or racial integration on religious grounds were bigoted racists, while their own claims are based on honorable religious beliefs. After setting up this dichotomy, today’s exemption seekers argue that the race analogy must fail. Otherwise, they contend, they will be improperly and inaccurately branded as bigots.

Many opponents of the race analogy rely on dicta from Obergefell—that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here”—to support this normative objection to the race analogy. During the Fulton oral argument, Justice Alito referred to this Obergefell passage to support his own opposition to the race analogy: “Didn’t the Court in Obergefell say exactly that? Didn’t the Court say that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the Court say the same thing about interracial marriage?” Moreover, Counselor to the Solicitor General Mooppan suggested that the Loving v. Virginia Court would “never” have suggested that there were “honorable and respectable reasons” for opposing interracial marriage, like the Obergefell Court suggested was acceptable vis-à-vis same-sex marriage.

This is incorrect as a matter of historical fact: Significant segments of mainstream society of the 1960s considered religious objections to racial integration decent and honorable.  Many legal scholars, including most recently Linda McClain in her book, Who’s the Bigot? Learning from Conflicts Over Marriage and Civil Rights Law,[1] and me in a forthcoming article,[2] have noted that in the 1960s, opponents of the Civil Rights Act of 1964 (“CRA”) made religiously grounded arguments similar to the arguments of today’s exemption seekers. Importantly, these religious beliefs were sincere and mainstream.[3] This history stands in contrast to the understanding of Justice Alito and SG Counselor Mooppan at the Fulton oral argument.

State Legislatures and Presidential Electors

Gerard N. Magliocca

There is a notion floating around in some media reports that state legislatures in the closest states of the presidential elections have the power to, in effect, overturn the will of the people in those states or decide that the reported results were somehow fraudulent and should not be recognized. This is incorrect.

First, there is language in Chiafalo v. Washington that casts doubt upon the constitutionality of such an act. In that case about state authority over presidential electors, the Court stated at a couple of points that the idea of state legislatures naming electors directly was an obsolete relic.

Second, Chiafalo relied heavily on longstanding practice as a gloss on a state's power to appoint electors. And there is no precedent for a state legislature to appoint electors after a state's presidential election was held. The examples where legislatures directly appointed electors (early in our history) all occurred in the absence of a presidential election in that state. Even in the disputed elections of 1876 and 2000, no state legislature countermanded the state's election authorities and ordered a different result. 

Third, even if you think that the state legislative does have that sort of retrospective power, the Court in Chiafalo made clear that a state's authority to name presidential electors is subject to review by the courts. Thus, an equal protection claim arguing that a state legislature appointment decision lacked a rational basis would be justiciable. The legislature would then have to produce actual evidence of irregularities or fraud to support its decision.

What Georgia voters need to know

Andrew Koppelman

Trump's voters cared about the economy more than they cared about anything else. That's why, in the upcoming Georgia Senate runoffs, they should vote for Democrats.

I explain in a new piece at The Hill, here.

Trump v. New York

Gerard N. Magliocca

Let's look ahead to the argument in Trump v. New York, which is scheduled for November 30th. Trump challenges the President's request to the Secretary of Commerce for two tabulations of each state's population for the next congressional reapportionment. One figure is the total population of each state (excluding Indians not taxed) as defined by Section Two of the Fourteenth Amendment. The other is the same figure reduced by the estimated number of people who are here illegally. The President is required by law to report a population figure to Congress prior to January 20th, and he could choose to use either figure if the challenge in Trump is rejected.

There is a strong argument that the plaintiffs in Trump lack standing. But if the Court chooses to reach the merits, there are several problems with the Government's position that I want to discuss briefly.

1. There is no count of people here illegally. There is only a guess. The census did not, of course, ask people about citizenship because the Government lost that case in the Supreme Court. Nor did the census ask about other aspects of legal status. Whatever discretion the President has in determining each state's population should extend only to actual counts. Making those determinations based on guesses is the very definition of arbitrary, especially given the constitutional language about enumeration in the census.

2. Assuming that the President's discretion in determining population figures does includes guesses, the Government provides no limiting principle for that discretion. The arguments advanced in the Acting Solicitor General's brief could easily justify the exclusion of lawful permanent residents, for example.

3. The principal case upon which the Government relies, Franklin v. Massachusetts, cuts against their position. Franklin held that the President's discretion in determining state population totals could be exercised to be more inclusive by counting military personnel overseas as living in their home states. The Court emphasized the "broad connotations" of counting people for the population figures. None of this is consistent with the President's exercise of discretion to exclude a broad swath of people from the counts for the first time.

4. There is no textual support for the Government's position. And there is nothing in the original public meaning to support their arguments. Meanwhile, there is a longstanding practice of counting people here illegally in the population figures for reapportionment. 

I look forward to seeing briefing from the challengers, as they have not yet submitted their materials.

Two important acknowledgements in the ACA case

Marty Lederman

As my fellow amicus Mike Dorf explains, it appears likely the Supreme Court will rule for California and the House of Representatives in California v. Texas either by holding that no plaintiff has suffered an article III injury or by holding that even if there's a plaintiff with standing and even if the amended Section 5000A is unconstitutional, that provision is severable from the remainder of the Affordable Care Act.

Either of those holdings would be correct.  As Mike and I have argued, however, if the Court finds that at least one plaintiff has standing, the easiest and most straightforward way to resolve the case would be for the Court simply to hold that the 2017 Congress did what it intended to do and what everyone inside and outside Congress understood it to have done--namely, to eliminate any coercive force of Section 5000A rather than to enact an "individual mandate" to purchase ACA-compliant health insurance.

I've already written more than enough about this argument on Balkinization and in our amicus brief.  Here, I'd simply like to flag two important concessions about Section 5000A that occurred during Tuesday's oral argument.

Richard Nixon on the 1960 Election

Gerard N. Magliocca

One of the curiosities in my library at home is a first edition of Richard Nixon's book Six Crises. In that memoir, Nixon discussed the 1960 presidential campaign and the allegations of voter fraud by Democrats. He then explained why he decided not to demand a recount (on page 413):

If I were to demand a recount, the organization of the new Administration and the orderly transfer of responsibility from the old to the new might be delayed for months. The situation within the entire Federal Government would be chaotic. Those in the old Administration would not know how to act--or with what clear powers and responsibilities--and those being appointed by [John F.] Kennedy to positions in the new Administration would have the same difficulty making any plans.

Then too, the bitterness that would be engendered by such a maneuver on my part would, in my opinion, have done incalculable and lasting damage throughout the country. And finally, I could think of no worse example for nations abroad, who for the first time were trying to put free electoral procedures into effect, than that of the United States wrangling over the results of our presidential election, and even suggesting that the presidency itself could be stolen by thievery at the ballot box, It is difficult enough to get defeated candidates in some of the newly independent countries to abide by the verdict of the electorate. If we could not continue to set a good example in this respect in the United States, I could see that there would be open-season for shooting at the validity of free elections throughout the world.

Consequently, I made the decision not to support the contest and recount charges. I know that this greatly disappointed many of my best friends and most ardent supporters--but I could see for myself no other responsible course of action.

Before (and Before and Before) Severability

Neil Siegel

Given all of the focus on severability in Texas v. California, it's worth bearing in mind how much the Supreme Court would have to get wrong in order to reach the issue of severability.

1. Standing is a real stretch. If people have it because they feel coerced even though they aren't, then standing is not the important constitutional principle that we thought it was, as Jonathan Adler ably explains. 

2. Even if there is standing, Congress does not require an enumerated power to force no one to do anything, as Marty Lederman and I have separately explained.

3. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything, the "mandate" remains better understood as a condition attached to a tax for purposes of Congress's taxing power. As explained in my analysis with Robert Cooter of the Taxing Clause -- which the Chief Justice's opinion in NFIB v. Sebelius tracks almost entirely -- exactions fall within the scope of Congress's taxing authority if but only if they are non-coercive, meaning that individuals subject to the exaction have a reasonable financial choice to reject what the government wants them to do and to pay the exaction instead.  Reducing the payment for going without health insurance from around $700 (in NFIB) to $0 (now) makes it less coercive and therefore still a tax.  In other words, what matters most for purposes of the Taxing Clause is whether an exaction is coercive, not whether it raises revenue.  With non-$0 exactions, taxes raise revenue just because they are non-coercive.  The two run together.  With $0 exactions, taxes do not raise revenue even though they are not coercive.  But the reason such exactions do not raise revenue is that they are $0, not that they are coercive and therefore outside the scope of the taxing power.

4. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything and (3) the taxing power no longer supports the "mandate," the rest of the statute is severable --and obviously so -- for the reasons explained by many others.

Would the 2017 Congress have thought that its zeroing out of the Section 5000A payment would cause anyone to purchase unwanted insurance?

Marty Lederman

With apologies to readers who have no desire to get so far down into the weeds ...

Yes, Jason, of course I realize that the Court will probably not reach the severability question unless it first finds that the amended Section 5000A imposes a mandate to purchase insurance and that such a mandate is unconstitutional.  Which is one reason I've argued that the Court should simply hold that 5000A doesn't mandate insurance maintenance and be done with it.  (It might be possible for the Court to reach the severability question without resolving the 5000A question (the avoidance canon and all that), but I agree that the most likely sequence is that the Court will consider 5000A first.)

It does not follow, however, that the 2017 Congress would have assumed that Section 5000A would coerce or even induce anyone to purchase unwanted insurance.  Every member of that Congress--especially the Republicans who sponsored and approved the zeroing out of the Shared Responsibility Payment--realized, as did everyone else, that five Justices of the Court had just concluded that Congress lacks the constitutional authority to enact a mandate to maintain insurance.  Therefore even if some consumers would -- unreasonably -- read Section 5000A to mandate purchase of insurance, it'd be absurd for any of them to actually purchase insurance based upon that reading -- just as no one feels compelled to comply with the dozens/hundreds of statutes that remain "on the books" today after the Court has declared them to be unconstitutional.

All of which is to say that, whatever one's views might be on the best reading of Section 5000A, no one in 2017 could reasonably have believed that the amendment would cause anyone to purchase insurance--and no one in Congress did think that.  And yet Congress retained all the rest of the ACA, anyway--a fact that, as Abbe argued, is sufficient to find that the rest is severable.

A further note on severability and the ACA

Jason Mazzone

I appreciate Marty’s comments on my earlier post about severability and the ACA. I don’t find Marty's analysis persuasive, however, because he mixes merits with severability. In discussing congressional intent, the central inquiry in most approaches to severability, Marty reasons that no reasonable person would understand the ACA after 2017 to impose an insurance mandate. He says also that anybody who thought it did would know that, under what Marty calls the “de facto holding” of NFIB v Sebelius, such a mandate would be an unconstitutional command. For reasons Vik Amar, Evan Caminker and I have explained here, NFIB did not hold that Congress lacks power to command the purchase of insurance and the Court has not in any other case decided the question either. But we can set that issue aside for present purposes. 

What matters for this short response is that the Court will only get to severability if (in addition to determining the plaintiffs have established injury and the other elements of standing) it finds that there is no saving construction and that the amended ACA can only be understood to command the purchase of insurance in violation of the Constitution. In other words, the severability discussion requires assuming the Court has rejected Marty’s reading of the amended statute—that is, assuming that the Court has found that not only would reasonable people understand the statute to require (unconstitutionally) the purchase of insurance but that there is no reasonable construction that it does not. That is the reading that must be assumed if we are to discuss severability. And the question then becomes: would Congress want the rest of the ACA to survive if its command to purchase insurance (again, that is how the amended ACA must be read for severability to be triggered) were held unconstitutional? What Congress did in 2017 doesn’t answer that question.

(Vik, Evan and I have written about some other aspects of California v. Texas that we think the parties and amici overlook or get wrong here, here, and here. We have two more installments in our series coming soon.)

Gluck v. Mazzone on ACA Severability

Marty Lederman

In a pair of posts earlier today, Abbe Gluck and Jason Mazzone discuss the question of whether the remainder of the Affordable Care Act is "severable" from Section 5000A in the event the Supreme Court declares that Section 5000A is unconstitutional by virtue of a 2017 amendment to that provision.

As I understand him, Jason agrees with Abbe on all of the textual and structural arguments she offers for severability in the second half of her post.  So do I.  And therefore in some sense their dispute is much ado about nothing:  There's consensus among us, and virtually every other serious observer, that the "finding" enacted by the 2010 Congress in 42 U.S.C. 18091(2)(I), which remains in the Act after the 2017 amendment--stating that “[t]he [minimum coverage] requirement [in Section 5000A] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold”--would not require invalidation of the entire Act, or even of the "guaranteed issue" and "community rating" provisions of the Act (the so-called "preexisting conditions protections"), upon a finding that Section 5000A is unconstitutional.

Even so, Jason takes issue with another argument for severability that Abbe flags earlier in her post--namely, that there's no need for the Court to intuit, or assume, what the 2017 Congress would have, or must have, intended with respect to the enforceability of the rest of the ACA if Section 5000A no longer induces individuals to purchase ACA-complaint health insurance--no need to closely parse the text and context of Section 18091(2)(I)--because we already know what the 2017 Congress thought:  It understood, says Abbe, that Section 5000A would no longer coerce anyone to buy insurance, and it nonetheless decided to leave the rest of the Act intact, assuming and knowing full well that all those other provisions would remain operative and enforceable even while Section 5000A was rendered a dead letter.

Jason's retort, if I understand him correctly, is:  Not so fast.  Even if the 2017 Congress deliberately repealed the only means by which the government could enforce Section 5000A's so-called "mandate" to maintain insurance, the Court has to accept (for purposes of severability analysis) the predicate of the plaintiffs' argument, which is that the 2017 Congress assumed the amended Section 5000A would, in fact, cause some or many people to purchase insurance they otherwise wouldn't purchase:  We have to assume, according to Jason, that the 2017 Congress "was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry)"--even in the absence of any enforcement mechanism--to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended."

That's not right.  There's no basis for thinking, or even assuming, that the 2017 Congress thought anyone would feel compelled to purchase insurance by virtue of the 2017 amendment to Section 5000A.

For one thing, no reasonable person would read the amended Section 5000A to create even a statutory "requirement," or "obligation"--a "mandate"--to purchase insurance.  As I've explained in this space countless times and elaborate in my amicus brief with Mike Dorf, the only reasonable reading of the 2017 Amendment--the reading that the President, every member of Congress, every media source, and the entire public have understood from December 2017 to the present day--is that the 2017 Congress and Donald Trump did not enact a "mandate" to maintain insurance; to the contrary, the whole point of that amendment was to eliminate any coercive effect of Section 5000A by offering individuals a lawful choice between purchasing insurance and doing nothing.  (And as Mike and I argue in our brief, that simple holding is enough to resolve the case, without the need even to reach the question of severability.)  There's simply no reason at all to think that the 2017 Congress believed that anyone (no reasonable person, anyway) would purchase unwanted insurance because of a "sense of legal obligation" engendered by the 2017 statutory amendment.

But even if there were some such unreasonable people out there (such as, perhaps, the individual plaintiffs in the case) who mistakenly read the amended Section 5000A to require them to purchase insurance, those people--like the plaintiffs themselves--would also know that such a mandate would be unconstitutional per the views of a majority of the Court in NFIB v. Sebelius.  Indeed, everyone in the case, from the plaintiffs to the federal government to the Justices to the petitioners, agrees that if Section 5000A were a mandate it would be unconstitutional under the de facto holding of NFIB.  Therefore no one would reasonably conclude that they had a legal obligation to purchase insurance for that independent reason (i.e., because Congress lacked any power to require such an obligation), even if they mistakenly concluded had tried to do (or had inadvertently done) just that in its 2017 amendment to Section 5000A.

Either way, it wouldn't be reasonable for anyone to purchase insurance because of a perceived legal obligation to do so resulting from the 2017 amendment: either the statute wouldn't require it (which is correct) or, even if it does, the statute was then outside Congress's authority to enact.  As it happens, and not surprisingly, that's what everyone in Congress reasonably believed, too, about what individuals would do in the wake of the 2017 amendment.  And yet that 2017 Congress, knowing that the amended Act wouldn't cause any reasonable people to purchase insurance, nevertheless chose to retain the pre-existing conditions provisions of the ACA--and the rest of the Act, too.  Abbe is therefore right that that's an independent and sufficient reason to find severability, even without resort to the additional slam-dunk arguments she offers in the bulk of her post.

_______________

P.S.  That said, I think Abbe herself modestly contributes to the misunderstanding by repeating certain common mischaracterizations of what the NFIB Court and the 2017 Congress did.  

She writes, for example, that the Court in NFIB "upheld the mandate as constitutional under Congress’ taxing power because it was enforced by a tax penalty."  But that's not right.  As Mike and I explain, the Court upheld Section 5000A under Congress' taxing power because it concluded that that provision was best read not to contain a mandate, let alone a mandate enforced by a "penalty."  To the contrary, the Court found that the "shared responsibility payment" was a tax rather than a penalty for disregarding a "mandate," and that payment of that tax was one of two options that Congress had made legally available to individuals.

Abbe also writes that "it’s possible the Court will decide the entire case by simply holding the mandate is still a tax, even though its penalty has been dialed back to zero for now (it can always be increased)."  But the "mandate" was never a "tax."  What the Court held was that because the personal responsibility payment was a tax option, there was no mandate at all.  Nor did Congress "dial back" "its penalty" to zero, because, again, there wasn't any penalty--merely a tax.  Finally the 2017 Congress did, indeed, zero out the payment amount, but that doesn't mean that option in Subsection 5000A(b)--pay $0--is "still a tax."  Obviously, it's not a tax--it's an option to do nothing.  And therefore it's not the taxing power that affords Congress the authority to tell people to "do nothing."  Yet, as Mike and I explain, it is well within Congress' authority both to repeal or reduce a tax, and to offer people a lawful choice between maintaining insurance and doing nothing.

Mitch McConnell might not endanger the planet

Andrew Koppelman

 Mitch McConnell, who will almost certainly remain as Senate Majority Leader, is now at the peak of his power.  No longer constrained by the need to defer to Donald Trump, he is the new de facto head of the Republican Party.  He will block any legislation that would help the Democrats keep the presidency.  How can Biden work with someone like that?  

Climate change is the direst threat that the human race has faced in centuries.  Biden’s plans to address it are in big trouble.  But he might still be able to accomplish a lot, as long as Republicans think he won’t get much political credit for it.

 I explain in a new piece at The Hill, here.

Severability in California v. Texas: Significance of What Congress Did in 2017?

Jason Mazzone

In her recent interesting post on severability in California v. Texas, Professor Gluck writes that "the fact that the 2017 Congress left the rest of the ACA standing gives us the strongest evidence possible that Congress intended the statute to survive" if the insurance mandate (now without a potential tax penalty) were found unconstitutional. The ACA defenders make a similar point in their briefs. It can't be right. 

We certainly know that in 2017 when Congress eliminated the potential tax penalty it must have wanted to preserve the other provisions of the ACA because that is what Congress actually did. But we can't also say that Congress in 2017 would have wanted those other provisions to survive if the amended (to reduce the potential tax penalty to zero) mandate provision were invalidated. As Vik Amar, Evan Caminker and I recently wrote on this issue:

The ACA’s defenders argue that the obvious and compelling indication of congressional preference is what Congress actually did in 2017. We agree that 2017, rather than 2010, is the proper focus of the inquiry into congressional intent. It was, after all, the 2017 Congress that (under the challengers’ theory) introduced the constitutional infirmity; we think it proper to ask what the Congress at the time the constitutional flaw arose would have wanted the rest of the Act to look like had it foreseen that courts would determine that zeroing-out of the tax penalty made the insurance requirement constitutionally invalid. . . . And when we look at what Congress did in 2017, we see that it left in place every other provision of the ACA. For the ACA’s defenders, that would seem to end the matter.

But this is too quick. The challengers’ severability theory, which must be engaged on its own terms, is essentially that Congress, after eliminating the tax penalty, was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry) to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended. Whether that theory is plausible—as a matter of the post-amendment statutory text or as a matter of reasonable factual economic expectation by Congress—is another matter . . . . But the ACA’s defenders must confront the theory head-on. They cannot avoid the challengers’ argument, which says that invalidating the requirement undermines Congress’s 2017 actual intent, simply by observing that Congress could have repealed, but did not repeal, the entire ACA when it acted three years ago.

The Affordable Care Act Does Not Have An Inseverability Clause

Abbe Gluck

There are a lot of troubling things about California v. Texas, the existential challenge to the Affordable Care Act (ACA) coming to the Supreme Court next week. At the highest level, as I have explained elsewhere in a bipartisan amicus brief, the ACA’s opponents are asking the Court to overrule the democratically expressed decision of Congress—after 70 failed attempts to repeal the ACA—to let the ACA stand without an enforceable insurance-purchase mandate.  At a more detailed level, the ACA’s opponents attempt to mislead the Court, and the public, into believing that Congress somehow inserted an express direction in the law to strike down the entire 2,000- page ACA if the mandate is ruled unconstitutional.  The ACA has no such “inseverability clause.” The language the opponents cite is language Congress used for an entirely different purpose—to explain why the mandate was a permissible exercise of Congress’s commerce power, and those arguments were rejected by the Court in 2012.  The language has nothing to do with inseverability and in fact, is completely different from the words Congress consistently uses throughout the U.S. Code when it actually directs courts to render statutes inseverable.

The Barrett hearings made “severability” a household name, as far as legal doctrines go. Severability is a settled doctrine of statutory interpretation that guides courts in deciding what to do with the rest of a statute when one provision is invalidated. As reaffirmed in two different Supreme Court opinions last term—one by Chief Justice Roberts and one by Justice Kavanaugh—the doctrine mandates a “strong presumption” in favor of severing—that is, excising only the offensive provision—and letting the rest of the statute stand unless Congress expressly indicates otherwise.  Both Justices analogized the rule to a “scalpel rather than a bulldozer,” emphasizing the Court’s “decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.”

Applied faithfully to the ACA, the severability doctrine clearly dictates that, should the Court invalidate the mandate, the rest of the ACA—which, remember, includes not only pre-existing conditions protections, but also the Medicaid expansion; the new Medicare drug benefits; the insurance subsidies that benefit families making up to some $100,000 a year; the prohibition on annual and lifetime caps and copays for preventative care and the allowance for young adults to stay on parents’ plans for everyone (not just those on government programs); the public health provisions; the generic biologic provisions; and so much more—all survives.

Thoughts on the Fulton Oral Argument

Marty Lederman

Early yesterday I published a long post here in which I tried to identify the various arguments that are salient in the Fulton case--and those that shouldn't be.  The fascinating and wide-ranging oral argument in the case yesterday raised virtually all of the issues I discussed.  

As I suspected, the Justices didn't seem too interested in whether they should overrule Employment Division v. Smith, because the outcome in this case doesn't turn on that question, in either direction.

Many of the Justices appeared to be troubled by Philadelphia's refusal to contract with Catholic Social Services (CSS) to be a Family Foster Care Agency (FCA) unless CSS agrees not to discriminate against same-sex couples when it certifies whether particular applicants are qualified to be foster parents for children in the City's custody.  As far as I could tell, however, the Justices were anything but settled about how to situate those concerns within the Court's Free Exercise doctrines--indeed, they expressed deep uncertainty about just which of those doctrines is, and is not, pertinent to the case.

So I thought I'd offer a few additional thoughts here on the major themes of the oral argument.  So as not to make this post overly long, I'll assume familiarity with my post from yesterday, where I discuss some of these matters in greater detail.

The Reagan Regime Lives On

Gerard N. Magliocca

While the result of the election is unclear, one thing is clear: We are still in the Reagan Regime. The Reagan Revolution has nine lives. Some conservatives thought that Bush 41 was the killer. Others blamed the compassionate conservatism of Bush 43. I thought initially that the 2008 election was the end. Or the run-up to 2016. Or maybe this year. No dice. The GOP will (absent some incredible results in Georgia) control the Senate in the next Congress and probably in the one other that. And there's the newly beefed-up Roberts Court. 

To be fair to Jack, his terrific new book does not say that 2020 would be the transition point. We might, though, need to rethink when that transition will come. President Trump's increased strength in Florida and Texas suggests the possibility that the Reagan coalition can be reconstituted organically. Perhaps the pandemic is the only thing that prevented the President's reelection.

Put another way, Larry Hogan was not far off the mark in voting for Ronald Reagan, if you take that as a prediction of the actual winner.

The Margin of Litigation, the Margin of Error, and the Margin of Organizing

Joseph Fishkin

A few thoughts on President Biden's likely margin — too small to please Democrats, for sure, but I think, large enough to fall outside the "margin of litigation," which is very good news for the country — here in a blog post at TPM Cafe.  

What Fulton v. Philadelphia Is--and Isn't--About

Marty Lederman

Later this morning, the Supreme Court will hear argument in the most significant Religion Clause case of the Term, Fulton v. City of Philadelphia, No. 19-123.  The principal question in the case is whether the City of Philadelphia may insist that a city contractor involved in helping the City with its foster care program must comply with a term of the contract that forbids discriminating against prospective foster-care parents on the basis of their sexual orientation, where the contractor has a religious objection to dealing with same-sex couples.  

Many public descriptions of the case, and of the questions it presents, have been misleading or confused.  In this post, I’ll try to clarify what the case is, and is not, about.

Regime Change: My Essay on The Cycles of Constitutional Time in WaPo

JB

 In today's Washington Post, I have an essay about why we are on the verge of a fundamental shift in American politics. The argument is based on my new book, The Cycles of Constitutional Time.  Here is the opening:

Things look increasingly bad for American democracy. But beneath today’s political despair and confusion are powerful undercurrents of change. Historically, U.S. politics has been characterized by the rise and fall of dominant coalitions, by long cycles of polarization and depolarization and by episodes of political decay followed by periods of reform and renewal. These cycles of constitutional time offer us lessons for understanding our current condition — and a bit of hope.

American politics seems especially fraught today because we are nearing the end of the Republican Party’s long political dominance, and the old order is fighting change with every last ounce of its strength. Even so, demographic shifts and changes in public opinion seem to herald a new regime with a new dominant coalition and a new dominant party, most likely the Democrats.

That is not the only problem. The United States has been suffering from a long period of mounting political polarization, and for the past several decades our constitutional system has decayed into an oligarchical and corrupt politics with growing inequalities of wealth. But we have also faced this dangerous combination before — in the first Gilded Age at the end of the 19th century. That period ultimately gave way to the reforms of the Progressive Era. We are now in our second Gilded Age, and increasing disgust with inequality, corruption and oligarchy in our time has already begun to produce mobilizations for political reform, akin to the first decades of the 20th century.

If the Challengers Prevail on the Merits in California v. Texas, What Remedy? And What Happens to the Rest of the ACA?

Jason Mazzone

Let's say that in California v. Texas the Supreme Court holds that zeroing out of the potential tax penalty for failure to maintain the Affordable Care Act's specified health insurance coverage rendered unconstitutional the part of the Act providing that individuals “shall” maintain insurance coverage. What next? Over at Justia today Vik Amar, Evan Caminker and I provide our own take on available remedies and our own analysis of severability and how it should apply in California v. Texas. Our approach makes several key points that we think should inform the Court's remedial analysis but that have not been made in any of the briefs in the case.  

SCOTUS and the State Courts in Election Cases

Jason Mazzone

Following up on my earlier joint post today on the election cases (and now writing by myself), I want to flag the compelling essay Akhil Amar, Vik Amar and Neil Katyal published yesterday in The New York Times under the title "The Supreme Court Should Not Muck Around in State Election Laws." The essay carefully draws some important lines between federal courts and federal law on one hand and state courts and state law on the other and concludes: "One Bush v. Gore is enough." Over at National Review, Ed Whalen has a critical response. I reached out to Akhil for a comment. He said (with permission to print): 

Vik and I have been thinking about this specific issue for more than twenty years and Ed has not. Vik and I are scholars on this topic and Ed is not. Vik and I remain confident in our analysis. Readers must judge for themselves, of course, but as we see it, this is an easy case, once the issues are fully analyzed, as Vik shows in his brilliant Justia column (which also cites and hyperlinks to earlier academic writings by each of us, including my 2009 Dunwoody Lecture at the University of Florida on Bush v. Gore).

More on these issues in the coming days.

Supreme Court Decisions Last Night in the Pennsylvania and North Carolina Election Cases (with Vik Amar)

Jason Mazzone

I am writing this post with my colleague Vik Amar.

Last night the Supreme Court issued rulings in two election cases. We write in response to the statement issued by Justice Alito in the Pennsylvania case and the dissent by Justice Gorsuch in the North Carolina case. 

In the Pennsylvania case, the Court rejected a request by Pennsylvania Republicans to expedite (and consider before the election) their challenge to a ruling by the Pennsylvania Supreme Court requiring election officials to count mail-in ballots received within three days after Election Day. In a statement, Justice Alito (joined by Justices Thomas and Gorsuch) wrote that while “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution” and it would be “highly desirable” for the Court to review that decision before the election, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Nonetheless, Alito observed, the issue of timing “does not mean that the state court decision must escape our review” because the petition for certiorari remains pending, the state has agreed to segregate ballots received after 8 pm on Election Day, and, if needed, the Court can impose “a targeted remedy” after the election has occurred. 

We see at least two problems with Alito’s suggestion. 

Cloture Reform in the Senate and the Evolution of Norms

Gerard N. Magliocca

An assumption underlying many of the proposals for action in the next Congress is that the Senate will either abolish or significantly modify the filibuster. While I think that changing the filibuster is a good idea, I doubt that this will actually happen. Even if Democrats win control of the Senate, that does not mean that there will be a majority in favor of cloture reform. 

There is also a dynamic aspect to the prospects for cloture reform. Mitch McConnell is a smart guy. He will understand that the surest way to convince a majority to end the filibuster would be to use that tactic frequently. Thus, he will probably refrain from doing so except on legislation that is especially dicey for Democrats and force those issues to be the ones where Democrats must reform cloture. As a result, more legislation may get enacted because sixty votes will not always be required, but this will not include things like repealing the ratification deadline for the ERA, making the District of Columbia a state, or other stuff on the fantasy list. On those measures, getting rid of the filibuster and passing a bill will be terribly hard.

The irony is that we may therefore see a restoration of a norm of filibuster restraint. Not because of some gentlemanly agreement about fair play, but because the balance of political forces will create a new reality. A norms of restraint can be an unwritten rule of the game shared by the players for philosophical reasons. Or such a norm can be a rational response to some greater threat that looms if restraint is not exercised.

The same thought, of course, can apply to restraint in the exercise of judicial review. A judge could have a jurisprudential commitment to that idea. Or she can adopt that approach out of concern about the political ramifications of not exercising restraint. There are many examples where the Justices (or at least enough of them) decided to back down rather than risk the wrath of Congress even though those Justices lacked a deferential disposition. They were simply ceding ground for institutional self-preservation. 

Finally, these two tactical considerations (from Senate Republicans and from the Supreme Court) will be mutually reinforcing in the direction of restraint. Partisan anger directed at the Court puts the filibuster at greater risk. And partisan anger directed at Senate Republicans makes Supreme Court reform more likely. Both Senate Republicans and the Court will seek to avoid those outcomes by doing less in the even that President Trump is defeated.

Panel: The Jurisprudence of Justice Ginsburg

Mark Graber

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30.  Register here.  The event is open to the public; please join us for what should be a great conversation.  A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg.  Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

    Richard Albert (University of Texas)

    Deborah Dinner (Emory University)

    Scott Dodson (UC-Hastings)

    Atiba Ellis (Marquette University)

    Daniel Epps (Washington University--St. Louis)

    Abbe Gluck (Yale University)

    B. Jessie Hill (Case-Western Reserve University)

(Thanks to Howard Wasserman for the heads up)

How Likely is an Election Meltdown? The Importance of Down-Ballot Races

Stephen Griffin

Now that President Trump has gone there in terms of saying he hopes that counting ballots will stop on Election Day, I wanted to post a short note to raise the possibility that commentary on possible election meltdowns has been ignoring the significance, legal and otherwise, of down-ballot races.  There are many election meltdown scenarios, of course.  One that I've heard from students as I've been teaching an election law course this semester revolves around the possibility of the count being stopped somehow after Election Day.  Trump says that it should be done by the courts, although I'm not sure how that would happen.

But consider the legal impact, not only on voters who would not have their ballots counted (for what reason?) but on the literally thousands of candidates who are also on the ballot with Biden-Harris and Trump-Pence.  Of course, the entire House of Representatives is up for reelection, along with one-third of the Senate.  In addition, according to Ballotpedia, 86 of the 99 state legislative houses are also on the ballot, along with many state judge races and important ballot propositions.  Wouldn't it be important to those candidates to have a full and complete count of the vote?  Would they not have causes of action in federal court if there is any arbitraray stopping of the count contrary to law?  And if that is important, would it not be difficult to somehow stop the count for one federal race while keeping the count going for down-ballot races?  And if all of this seems ridiculous, have we not debunked one meltdown scenario?

I'm interested to hear otherwise (see email to the left), but it seems to me that the "stopping the count" scenario which Trump has just raised is one of the least likely.  The count is going to continue according to law in each state until it is done.  More is going to be needed to trigger the more dire meltdown scenarios (reviewed today by Tom Edsall in the NYT).

Does Harm Result When Religious Placement Agencies Close Their Doors? New Empirical Evidence from the Case of Boston Catholic Charities

Nelson Tebbe

By Netta Barak-Corren and Nelson Tebbe

On November 4, the Supreme Court of the United States will hear oral arguments in Fulton v. City of Philadelphia, an important case concerning child welfare in Philadelphia. A social welfare agency objects on religious grounds to Philadelphia’s rule requiring it to place foster children with LGBTQ parents. The agency says that if the Court rules for the city, it will close its doors and children will be harmed. We have uncovered new evidence undermining the agency’s empirical claim.   

Like other cities, Philadelphia contracts with private agencies to help it place foster children with families. One of these agencies, Catholic Social Services (CSS), is arguing that it has a constitutional right to refuse to place kids with same-sex couples, despite the city’s antidiscrimination rules. In Fulton, the Supreme Court will decide whether antidiscrimination rules like this one violate a religious organization’s right to free exercise.

All of the justices will rightly care deeply about how ruling one way or another will affect children. Knowing this, lawyers for CSS are arguing that ruling against the religious agency will cause harm. According to the Becket Fund, which represents CSS, the agency will never serve same-sex couples. If it loses in court, therefore, it will simply shut its doors. That will impact children, the lawyers argue, because it will mean fewer families available at a time when the number of foster kids is greater than the supply of homes. The Wall Street Journal editorial board has argued similarly that “[b]eyond the law, Philadelphia’s coercion hurts the city’s most vulnerable children and the families who want to care for them.”

On the other hand, Philadelphia and its lawyers are claiming exactly the opposite: that allowing the agency to exclude same-sex couples will negatively affect outcomes. Not only are same-sex couples better suited for LGBTQ children, they argue, but they also serve as foster parents at high rates and they are willing to take at-risk children. All children are better off if placement agencies refrain from systematic discrimination, on this view.

Not only does this issue of whether applying antidiscrimination causes harm matter for the Supreme Court case, but it also matters in a number of similar cases pending in lower courts. It also affects state legislatures. About eleven states have passed laws that exempt religious child placement agencies from antidiscrimination laws, and about five more are considering such laws. There too, officials will want to know how their decisions will affect children.

In all these debates, a few precedents loom large. In a handful of cities, religious agencies have actually closed rather than comply with equality laws. Often, these closings are thought to be obvious catastrophes: everyone loses when social service organizations are forced from the marketplace, it is assumed. For instance, CSS told the Supreme Court in one of its briefs that “In Boston, San Francisco, Buffalo, the District of Columbia and the State of Illinois, Catholic charities have already been forced out of foster care and adoption. Many agencies have been forced to close before litigation can run its course, and therefore protection for [CSS] here is of outsized public importance.” Lawyers affiliated with Becket have cited the same examples, cautioning courts not to rule against religious agencies. But Massachusetts and 22 other states have filed a brief arguing that the closings in Boston and elsewhere did not impact children negatively.

Who is right? We have set out to study what happened in other cities where religious agencies shut down. We have compiled a dataset of all the cities where agencies have closed their placement business rather than comply with antidiscrimination rules. Next, we are in the process of analyzing a national dataset of child outcomes to find evidence on whether the closings negatively impacted kids. Finally, we are interviewing child welfare professionals who have experience on the ground in each of these cities. 

While our research is ongoing, our preliminary findings unsettle any easy assumption that the closure of religious agencies harms vulnerable children. The evidence we have uncovered from Boston does not support the argument that closures of religious agencies generates negative effects. Although our results are not yet conclusive, they shift the burden of proof to those arguing that kids will be adversely affected if religious agencies close—and they suggest that it may not be easy to meet that burden.

Some (Old) Thoughts on the (Re)Emerging Article II Argument About Presidential Elections

Mark Tushnet

 Justice Kavanaugh, perhaps remembering his role in Bush v. Gore, re-ups Chief Justice Rehnquist's argument there (calling it "persuasive[]") that Article II places limits on the power of state courts to interpret state statutes specifying the rules for selecting presidential electors. The argument focuses on the text: Article II says that electors shall be chosen "in such manner as the Legislature ... shall direct."

Suppose a litigant says that the statutes so specifying are unclear in some way. For example, suppose the statute books contain more than the rules about choosing electors, but rules as well about the power of the Secretary of State to implement those rules (giving the Secretary of State some discretion in interpreting the rules). Or suppose the rules about choosing electors are -- or are said to be -- unclear. Or suppose a litigant contends that the statutory rules would violate the state constitution if interpreted in one rather than another way.

In each of these cases the state supreme court could say that the words of the statute govern no matter what. For example, the court might say that the statute defining the scope of the Secretary of State's authority doesn't apply to the rules for choosing electors. If so, no problem.

But what if the state supreme court says, "You know, you're right. The Secretary of States does have interpretive discretion here, and exercised it in a manner permissible under state law." Or, maybe easier to grasp, "We assume that our legislature doesn't enact statutes that are inconsistent with the state constitution, and for that reason we interpret the statute in a way that is linguistically permissible but somewhat strained." Do these actions by the state supreme court interpreting the legislature's enactments "violate" Article II be substituting rules devised by the courts for rules "direct[ed]" by the legislature?

It's hard to see why they would, in general. There are two wrinkles. First, we can imagine an "interpretation" of the statutory language that's so creative as to amount to a substitution of a court-devised rule of a legislature-prescribed one: The state supreme court might have stretched the statute's words beyond reasonable bounds. (That's what Republicans contended the Florida Supreme Court had done in Bush v. Gore. Notably, though, a majority of the Court didn't accept that construal of the state court's action.)

Second, on review in the U.S. Supreme Court, that court is almost certainly authorized to interpret the state statutes on its own, giving the state supreme court's interpretation of the statute the weight that the interpretation is due but not being bound by the state court's interpretation. s Chief Justice Rehnquist said, that's so because the U.S.Supreme Court has to be able to control state courts that deliberately evade the federal Constitution.

This second wrinkle is different from the first one. There the U.S. Supreme Court says that the state court's interpretation is (roughly speaking) completely unreasonable. Here the U.S. Supreme Court says that, though the state court's interpretation is reasonable, it's not the best one available (taking all the relevant state law materials into account). Which is to say, it's not the one that we think is best, notwithstanding what you thought.

The first wrinkle is pretty straight-forward. The second is pretty hazardous, because -- especially in light of time pressures -- the justices of the U.S. Supreme Court aren't likely to be able to get up to speed on all the relevant state law materials. So, it's probably best for the justices to be quite strongly deferential to the state supreme court -- which means that the second wrinkle probably should be pretty much the same as the first.

(I don't think you can escape this analysis by simply citing the Arizona districting commission case and saying that Article II's reference to "the legislature" refers to every action authorized by state law -- whether by the state supreme court of the Secretary of State -- that interprets the relevant statutes, because the whole problem lies in figuring out whether the interpretive action is authorized by state law.)

A Proposed Joint Resolution on Judicial Power

Mark Tushnet

Here's a thought in the event that there is a Biden appointed commission on court reform. What about a Joint Resolution on Judicial Power: "No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional."

Some accompanying commentary: As a Joint Resolution it has the force of law. I have little doubt that the current Supreme Court would hold it unconstitutional (even, perhaps, manifestly so -- which would raise a question sort of about self-reference) as an infringement on the judicial power not permitted by the powers to create lower federal courts and to regulate the jurisdiction of the Supreme Court, and, as applied to state courts, as not a proper means of ensuring the supremacy of federal law.

Why do it, then? Mostly as a signal to the courts about the view the political branches gave of their (that is, the courts and the political branches) respective powers. Political scientist Tom Clark and others have shown that such signals sometimes at least appear to affect the way the Supreme Court exercises its power of judicial review. (Incidentally, the formulation "manifestly unconstitutional" does the job well, but of course other formulations might do so.)

 One note: The proposed Resolution would be confined to the power to hold federal statutes unconstitutional. As Justice Holmes famously and correctly noted, the power to hold state statutes (and local ordinances) unconstitutional rests on a different footing. (And, just to make the obvious point, the proposed Resolution, had it always been in effect, wouldn't have any bearing on decisions dealing with state regulations of abortion or state-mandated racial segregation. [There would be an interpretive question about Bolling v. Sharpe, but the concern that underlies that question has been around since the decision itself.])

Another note: Think about the following scenario: A state enacts a statute that the Supreme Court holds unconstitutional without saying it is manifestly unconstitutional. Invoking one of its enumerated powers (for present purposes, which one is irrelevant), Congress enacts a statute expressly authorizing states to enact and enforce exactly the same statute as the one the Court held unconstitutional. Under the Resolution that federal statute would be constitutionally permissible -- and so would be state laws enacted pursuant to the authorization it gave them -- unless the courts concluded that such an exercise of the enumerated power was manifestly unconstitutional. I personally think that that is the right result in principle (even in connection with a slew of state enactments that I think the courts would and should find unconstitutional), but I suspect that others will vigorously disagree.

"Yes, Prime Minister" on the Biden Supreme Court Commission

Gerard N. Magliocca

Claire: (PM's Advisor): One more thing, Prime Minister. I do think that after the interview you need to announce some pretty impressive action to make it look as if you're serious.

. . .

Sir Humphrey Appleby: What about a Royal Commission?

The Prime Minister: That's more like it. It won't report for three years. And if we put the right people on it they won't agree about anything important. Right, a Royal Commission.

Narrative Hardball

Joseph Fishkin