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David Super

Posted 8:56 PM by David Super [link]

The Pluralist Model of Speech Regulation: Free Speech in the Algorithmic Society

JB

I have posted a draft of my latest article, Free Speech in the Algorithmic Society, on SSRN. It introduces the idea of a pluralist model of speech regulation that contrasts with the traditional dyadic model -- in which nation states regulate the speech of private citizens.

Here is the abstract:

Free Speech in the Algorithmic Society:
Big Data, Private Governance, and New School Speech Regulation

We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are information fiduciaries toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in algorithmic nuisance: they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate the speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society.

The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action.

As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.

The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the “law” in this case being the publicly stated norms and policies of the company.  Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.


Posted 11:55 AM by JB [link]

Foreign-Born Framers

John Mikhail

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Posted 2:34 PM by John Mikhail [link]

How to understand what is happening in American politics today: My lecture at Indiana on "The Recent Unpleasantness"

JB

On Wednesday I gave the Addison C. Harris Lecture at the University of Indiana Mauer School of Law in Bloomington on "The Recent Unpleasantness: How to Understand the Cycles of Constitutional Time."

This lecture discusses many of the themes and ideas about American constitutional development and American politics I've been developing in recent years. It explains why American politics has seemed so dysfunctional, how to understand the 2016 election and the Trump presidency, and the likely future for the United States.




Posted 6:26 PM by JB [link]

Will Congress fund the Census?

Sandy Levinson

The latest post that my wife Cynthia and I have put up on www.faultlinesintheconstitution.com concerns one of the few affirmative duties placed on Congress:  to make sure that an adequate census is conducted every ten years in order to assure the fair representation of the states, at least taken as a whole, in the House of Representation (with consequences, of course, for the  Electoral College).   Needless to say, in the 21st century, the census itself has become a matter of partisan dispute, and the Republican Congress seems averse to funding the 2020 Census, which must start its organization now.  And, just as needless to say, our administratively-challenged President seems uninterested in appointing a new Director to the Census, even though the modern census is crucial not only for purposes of representation but also for administering the modern welfare state that Steve Bannon wishes to deconstruct.  The devil is in the details, and the Census is a really important detail, in every respect.

I'm allowing comments, but a condition for commenting should be taking the five minutes to link to our blog and reading it.
Posted 10:05 PM by Sandy Levinson [link] (61) comments

Is Trump Finally Pivoting? Understanding the Deal with the Democrats

JB

President Trump struck a deal with Congressional Democrats to suspend the debt ceiling and pay for Harvey relief. Speaker Ryan, Senate Leader McConnell, and almost all of Trump's advisors wanted an 18 month debt ceiling suspension, which would expire after the 2018 elections. Instead, Trump ignored them and struck a deal with Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi.

Does this mean that Trump is finally going to pivot to the center and become a bipartisan deal maker? Is he is finally going to reveal himself as a pragmatic centrist or even a New York City liberal? Is he is going to start appointing centrist judges? Is he is going to stop dismantling as many Obama-era regulations as he can find?

No, no, no, and no.

Trump is a demagogue and an opportunist without any settled ideology other than a desire for self-promotion, wealth, and power. He sees that he has been losing about a percentage point in popularity each month, and is now down to about 37 or 38 percent approval ratings. He also sees that responding to natural disasters like Hurricane Harvey is widely popular. It makes him look as if he cares about people. It also gets him favorable press, which he craves, no matter what he says about fake news and the mainstream media being the enemy of the people. He also knows, or rather he suspects, that the Republicans will have difficulty passing a 18 month debt suspension on their own, because of problems with the Freedom Caucus and various showboating Senators.

The Democrats offer him a deal that may boost his approval ratings, gets him positive press, makes him unpredictable (which he likes), and pushes off difficult issues for three months. He also knows that more disaster relief requests will soon be popping up, and putting himself on the side of disaster relief is a winner.

So he takes the deal and stops the decline in his approval ratings. Maybe at the margins some of the attacks on him get less loud and strident. Maybe some Democrats are confused. Maybe some media commentators are awestruck and willing to give him a second look. Above all, striking this deal distracts attention from a very unpopular Republican policy agenda-- reducing entitlements and lowering taxes on the wealthy.

At the same time, Trump continues doing what he already has been doing-- dismantling regulations, appointing Federalist Society/Heritage Foundation-vetted judges, and throwing the occasional slab of red meat to his populist base, who continue to adore him.

What's not to like?

It's true that at some point Trump will have to decide whether to sign a legislative solution to DACA, which could alienate his base. But he also knows that it is very uncertain whether Congress can craft a compromise, pass it, and put it on his desk for his signature. If Congress can't pass a DACA fix that helps the Dreamers, fine. He blames Congress and his base is still mollified. If Congress can come up with a deal, he refuses to sign it unless it is combined with symbolic funding for his border wall, and then he sells the compromise to his base as a great deal: The Dreamer's are really "good immigrants," so we should let them stay, and the new border wall will keep the "bad immigrants" out.

Again, what's not to like?

The key thing to remember is that Trump doesn't really care about ideological purity. He does care about his personal popularity. He does care about his base, but they trust him, and are likely to interpret any deal he makes favorably as long as he tells them a story about how he is looking out for them. He can continue to make a few deals with Democrats while still doing pretty much what he has been doing for the first seven months of his presidency-- slash regulations, stock the courts with very conservative judges, and tweet outrageous things.

If Republicans don't like it, they have the tools to stop him-- even to remove him and replace him with Mike Pence. But they haven't used any of these tools, because they want his signature on a very big tax cut for their wealthy donor class, and frankly, they really like the deregulation and the judicial appointments.  On the other hand, if Congressional Republicans can't pass a big tax cut for their donors, Trump will seem far less useful to them than, say, Mike Pence, who would appoint exactly the same judges, and slash exactly the same regulations.

Then things could get quite complicated, with no certain endgame.


Posted 12:55 PM by JB [link]

The Debt Ceiling Charade

JB

Many Americans who don't understand the appropriations process misunderstand how the debt ceiling works. They assume that Congress passes a law that authorizes the Treasury to borrow up to a certain amount, and that when this amount is passed, Congress passes another law that authorizes the Treasury to borrow up to a certain larger amount, and so on. They assume, in other words that the debt ceiling is what gives the Treasury the power to borrow, and that without the debt ceiling, the Treasury couldn't borrow anything at all.

That's not how it works, and understanding the process shows why the debt ceiling is a charade. For most of the past four years, the debt ceiling statute has been suspended-- not legally in force. At certain moments, it reappears like a ghoul, only to be cast away once again by Congress, which suspends it for yet another amount of time.

When the debt ceiling is suspended, which is most of the time, the Treasury Department can borrow as much as it likes, as long as it does so to pay debts already appropriated by law (that is, legislation passed by Congress and signed by the President). When Congress passes a new suspension, it acknowledges of all of the debt issued during the period of the suspension, adds the amount to the ceiling, and the process repeats itself.

The whole idea of a debt ceiling that somehow constrains federal spending is a farce. It is a farce for two reasons.

First, the debt ceiling doesn't limit appropriations-- the amount of money that Congress agrees to spend by law. It only limits the ability to issue treasury bonds and notes. If the Treasury can borrow or obtain money to pay the nation's debts in other ways, the debt ceiling doesn't apply.

Second, the debt ceiling isn't actually a ceiling, because it has been suspended for most of the past four years. When it snaps back into operation, the Treasury uses "extraordinary measures" to pay the country's debts.

During the months when the debt ceiling is not suspended, its only purpose is to allow hostage taking by ambitious politicians who want to risk crashing the nation's economy in order to score political points. At all other times, the debt ceiling is of no legal effect because it is suspended by law, and the suspension acknowledges the legitimacy of all debt borrowed during the time of the last suspension.

Rinse and repeat.

This is no way to run a country's fiscal policy. It is a charade, a farce, and a disgrace.

So when politicians talk about "raising" the debt ceiling, they are not telling you the whole truth. Congress has found it much more convenient to suspend the debt ceiling-- that is make it legally ineffective--than to actually raise the ceiling to a specific amount.

When people talk about how important the debt ceiling is to the constitutional power to appropriate money, they are lying through their teeth.

All of which leads to the question: if Congress keeps suspending the debt ceiling, why shouldn't it just suspend the debt ceiling indefinitely, which, in effect, is to repeal it.

Want to know more?  Here are the details.
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Posted 6:42 PM by JB [link]

Repeal the Debt Ceiling. Now.

JB

Congress is once again facing the possibility of stumbling into an economic catastrophe if it fails to raise the debt ceiling by the end of this month.

The debt ceiling authorizes the Treasury Department to borrow money (primarily by selling government bonds) up to a specified amount, in order to pay for obligations the government has already incurred through its passage of laws and appropriations bills. Once the ceiling is reached, the country cannot sell bonds to pay off monies owed by the government.  Since March of 2017, the Treasury has been using "extraordinary measures"--various accounting gimmicks--to pay the nation's bills. But it will run out of tricks by the beginning of October.

Congress raises the debt ceiling either by raising the absolute amount or by suspending the operation of the debt ceiling for a specified time. We are currently operating under a temporary debt limit suspension of a previous debt limit created in 2011.

Raising the debt ceiling does not appropriate new money. Rather, it allows the government to pay money that Congress has already appropriated, (and it allows the Treasury to pay creditors interest for any new debt issued).

Failing to raise the debt ceiling will not stop Congress from spending more money. Rather, it will cause the government to default on its debts. This will precipitate an economic crisis felt not only in this country but around the world.

In past years, the debt ceiling has been breached accidentally overnight or for a few hours. Most people didn't notice it. In this case, the breach would be quite public. The markets will quickly react. If the default continues for more than a day or so, the stock market will take a nose dive. The world economy will be thrown into panic. Enormous amounts of wealth will be destroyed as markets tumble. Eventually Congress will have to give in and raise the debt ceiling. When it does, it will be more expensive to borrow, because the United States will have to pay higher interests rates for the same amount of borrowing. Congress will also have undermined America's economic leadership, and the role of U.S. Treasury bonds as a cornerstone of the world economy.

Thus, failing to raise the debt ceiling is sheer idiocy, an unforced error of epic proportions. One would think that no politician in his or her right mind would threaten to refuse to raise the debt ceiling.

But that would underestimate the stupidity and venality of contemporary politicians. In the summer of 2011, Republicans held the debt ceiling hostage, precipitating the Debt Ceiling crisis of 2011. They tried again in the fall of 2013, but President Obama refused to budge, and eventually Republicans caved.

Today politicians of both parties still think that they can use the debt ceiling as leverage to achieve any number of  policies.  The madness continues. (I note that today Nancy Pelosi and Chuck Schumer have floated a proposal to fund Hurricane Harvey aid and raise the debt ceiling for only three months in order to keep the pressure on Republicans.)

There is a simple way to stop this reckless hostage taking. Simply repeal the debt ceiling, and allow the Treasury Department to borrow what it needs to pay the nation's bills. If you want to limit the government spending, do it through the appropriations process, where these decisions should be made.

Let me repeat: Don't raise the debt ceiling. Get rid of it altogether.

The vast majority of nations in the world do not have a debt ceiling and they get along just fine without it. Neither Canada, nor Great Britain, nor Germany, nor France have it. In fact, at last count only six other countries in the world have something like it, and even those countries tend to define it in ways that prevent it from being used as a political football. In fact, our own debt ceiling statute, which dates back only to 1917, was regularly raised without much incident for many years. But in recent years, our politics has gone haywire. In particular, because of the intransigence and brinkmanship of the Tea Party and the Freedom Caucus, Congress has been plunged into needless political crises over the debt ceiling.

Keeping the debt ceiling in the hopes that it will stop the growth of government is a fool's errand. We have had a debt ceiling for a century now and it has not had the desired effect. Using the debt ceiling is simply not a sensible approach to fiscal policy. Rather, it creates a temptation for politicians to engage in hostage taking and an opportunity for economic disaster if they miscalculate.

If we repealed the debt ceiling, on the other hand, nothing would happen. It would simply mean that we wouldn't have a bunch of crazy politicians threatening to crash the world economy every few years in order to score political points. Conversely, because we have a debt ceiling, we face hostage taking on a regular basis.

Because of our current level of political polarization, the debt ceiling probably won't be abolished until one party controls the White House and both branches of government. That is the case presently. Unfortunately, a collection of fools and radicals in the Republican Party are the very culprits who have been trying to use the debt ceiling to hold the economy hostage for the past six years.

It would be an act of political courage for Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and President Donald Trump to push for repeal, especially since McConnell in particular was a leading hostage taker in the 2011 debt ceiling crisis. (He famously called the debt ceiling "a hostage that's worth ransoming.") And President Trump--who spent most of his adult life trying to get out of paying his debts--is not the first person we should look to for either wise economic policy or political courage.

But now that Republicans control the government, Ryan and McConnell understand that the debt ceiling is too dangerous to be toyed with.  We must hope that they will work with Democrats to raise or suspend the debt ceiling for as long as possible, and without unnerving the markets.  But in the long run, the correct policy is to repeal the debt ceiling once and for all.


Posted 9:31 AM by JB [link]

Presidential identity and neutral principles

Sandy Levinson

Mark Graber and have just put a new co-authored paper up on SSRN.  It will come out next year, suitably revised to take account of feedback,  in a symposium on presidential power to be published by the Chapman Law Review.  In it we argue that academic (and other) writing on executive power adopts the "neutral principles" approach so (in)famously posited by Herbert Wechsler some sixty years ago, when he used his analysis to explain why  Brown v. Board of Education was basically indefensible.  Wechsler's analysis was obtuse inasmuch as he resolutely refused to recognize that Jim Crow represented a subversion of the constitutional order, a "fraud on the Constitution,:  Footnote Four of Carolene Products can be read as arguing that the new "normal," after the New Deal, of maximum deference and "minimum rationality," should be suspended in special circumstances. We agree, and one of these circumstances is a basically dangerous president.   Most analysis of executive power, however, refers to an abstract, reified "president," and the assumption is that all presidents, from Washington to Trump, are equal.  If we'd allow Washington or Lincoln to do X, than Trump can do it, too.  Conversely, if we would limit Trump's power, we have to reconsider any similar actions by any of his predecessors.

We argue that this is basically foolish, that all presidents are not alike, not only in the challenges they face (e.g., civil wars or depressions), but, more importantly for present purposes, in the degree to which they can plausibly be described as "Publian" presidents in terms of their psychological disposition to be committed to achieving the public good (rather than some narrow partisan advantage or, even worse, some entirely self-serving benefit) coupled with their cognitive ability to think long and hard before making thoughtful decisions.  Donald Trump is the ultimate anti-publican president, even if one rejects the view that he is a sociopath.  We quote many conservatives who express their dismay about the President.  James Clapper, the former Director of National Intelligence, has notably described his presidency as a "nightmare" and admitted that he is truly fearful that Trump has access to the nuclear codes and that we have a system, according to Clapper, that places few hindrances to carrying out disastrous presidential orders with regard to the use of military force.

Reining in Donald Trump should count as a "compelling interest" that should lead judges to veer away from their usual posture of extreme deference to the executive and instead to ask tough questions regarding anything Trump might want to do.  E.g., what process did any executive order go through?  Does it represent some kind of genuine deliberation by a variety of relevant decision makers, or is the product of presidential whim or, of course, outright bigotry, as with the travel ban?  Courts need not say overtly that Trump is untrustworthy (which he clearly is); instead, they can simply engage in more searching scrutiny of what President Trump might order than they would of previous presidents.

We note that there are all sorts of areas of law and ordinary life where extraordinary circumstances lead to changes in doctrine and behavior.  As Marshall emphasizes in McCulloch, a Constitution that is designed to endure must "be adapted to the various crises of human affairs."  To do anything else is rank stupidity, turning the Constitution into a vaunted "suicide pact."  Well, the crisis is the Trup presidency, and executive powers doctrine, at least during this administration, must be adapted to recognize that reality.

As is usually the case, I will allow comments, but I would, if I could, limit comments to those who have in fact read the paper.  If you haven't, you should at least say so.
Posted 6:32 PM by Sandy Levinson [link] (65) comments

Scenes from a Disjunctive Presidency

JB

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Posted 10:31 AM by JB [link]

Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president

Sandy Levinson

This morning I posted a lament, at the Democracy Journal, that our Constitution does not include a procedure for firing a dangerous president via a vote of no confidence by Congress.  (Although I don't discuss it there, I'm also open to the project of a national recall election, but that is obviously more problematic than a congressional solution.)  Given that I have been a critic of the Constitution now for over a decade, I am often ask what my number one criticism is (given that I have so many).  Inevitably the answer shifts, depending on the great issues of the moment.  But right now, at least, I have little hesitation saying that the main defect is that we are confined to talking about impeachment and invocation of the 25th Amendment, each of which presents specific difficulties, and that we have no way of putting pressure on our ostensible representatives to vote no-confidence in a scoundrel.  Perhaps the biggest advantage of such a procedure would be that lawyers would be only minimally involved, unlike impeachment, where we are guaranteed to have shouting arguments about lots of basically irrelevant issues, including original intent and the original meaning, public or otherwise, of "high crimes and misdemeanors."

If one wants to read a demonstration of what can go wrong when academic pettifoggers get involved in discussing how to get rid of our dangerous President, just read Jonathan Turley's piece in the Washington Post.  He apparently believes that the possibility of firing a president via no-confidence procedures would be fundamentally dangerous to our political system.  No doubt there are costs, but he seems to presuppose that Donald Trump is not a clear and present danger to our constitutional order.  He also makes the preposterous assertion that the framers, when drafting the Constitution, were aware of what would become the modern parliamentary process.  They were barely cognizant of what was going on in Great Britain at the time, but Parliament then was nothing like the Parliament that would develop in the 19th and 20th century.  Perhaps there are winning arguments against my proposal, but reliance on the wisdom of the Framers is not one of them.  Their major emphasis in the Federalist, after all, was learning "the lessons of experience," not engaging in religious adherence to what all of them realized was a flawed document.

I'm not really interested in another debate about whether Trump is an awful man and an awful president.  If you like him, OK.  The only thing I'm interested in reading about is whether we would really be worse off if we could fire, by a 2/3 vote of Congress, a president who did lose such public support as to make the firing politically viable.
Posted 7:09 PM by Sandy Levinson [link] (87) comments

The Lost Cause, Trumped

Joseph Fishkin

I can think of only one positive thing to say about the coming out party for white nationalists that all of us are now witnessing, and it is this: in their own uniquely nasty way, these people do seem to be inadvertently helping many Americans gain a clearer-eyed understanding of what the Civil War was about.
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Posted 10:14 PM by Joseph Fishkin [link]

John Bingham on Racial Equality

Gerard N. Magliocca

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

“They undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy! . . . I thought that in the middle of the nineteenth century it had come to be pretty well known that this world of ours was not made for Caesar, but for man; that it belonged, at last only to the common Father of us all, and to all his creatures who worked well upon it. . . . 

It is a ‘white man’s government,’ is it? Why, the very first blood shed for the assertion of your independence and the establishment of your nationality, upon the field of Lexington, was the blood of a black citizen of Massachusetts. And when they came to the work, after the victory had been achieved, and the independence of the nation acknowledged, of organizing a constitutional government of the United States, in a majority of the States of the Union the black men voted with white men, and the man who denies it is simply ignorant of the history of his own country. . . . 

Your armies bore witness that 175,000 of the black population, made free by the proclamation of liberty, were in the army of the republic. When you consider that the majority of the black population were the slaves of rebels, and within their territory, unable to signify to the United States Government their unwillingness to serve it, the fact that as large a population of the black population as of the free whites rushed to the defense of your flag, speaks well for their patriotism. . . . 

But these Democrats are whining through the streets, ‘You propose to enfranchise the nigger, and disenfranchise the white man.’ That is the point where the difficulty is.  I think the black patriot is as much entitled to vote as Jeff Davis, who is waiting across the border, or any of his followers. The issue is upon us. One third of the whole population of the South are black freemen. They are friends of the Union; and if they are to be permitted to exercise the rights of freemen. Those States must have a republican government, but how can a State be republican in its government where the minority rule over the majority of the natural born citizens of the State?  . . . In South-Carolina the black population exceed in number the white population; and what sort of a republican government will that be, if the white minority, who are traitors, should rule over the majority, who are loyal men? . . . 

You have the power, because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic.  Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children? If you would not, you should not deal thus with them.” 

Posted 9:26 PM by Gerard N. Magliocca [link] (126) comments

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

Marty Lederman

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

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

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

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

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

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

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

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

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

After all, if the federal government could itself, today, shut down those gambling operations because they violate federal law, what's Congress's possible justification for requiring New Jersey to do so, too?  It's certainly relevant, as a very practical matter, whether one's conduct is prohibited by two sovereigns rather than one--which is presumably why both the plaintiffs and the casinos/racetracks believe that so much is at stake in whether the injunction stands.  This is the way Ted Olson puts the point in his supplemental brief:

If the government is correct and Section 3702(2) prohibits New Jersey's casinos and racetracks from engaging in sports wagering regardless of whether New Jersey continues to prohibit that activity, then invalidation of Section 3702(1) finally would task the federal government with administering and enforcing its own proscription against sports wagering. The end of the federal government's conscription of the States' legislative apparatuses to impose that prohibition, and the restoration of an appropriate line of accountability for it to federal officials, would have immense “practical significance” to Petitioners, the people of the State of New Jersey, and to our system of federalism.

Why is that mistaken?*

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

_________________
* Only one possible argument comes immediately to mind:  If federal law prohibits the conduct in question, and the intended and foreseeable impact of the selective state prohibition is to funnel gambling proceeds into the pockets of the casinos and racetracks, I suppose it's arguable that the State is, in effect, "aiding and abetting" the federal law violations by those casinos and racetracks, in a way that, perhaps ironically or counterintuitively, it wouldn't be if New Jersey did not ban sports gambling at all . . . and that Congress could logically, and perhaps constitutionally, choose to prohibit such aiding and abetting.  I'd need to think about this argument further if and when Clement and the SG invoke it.
Posted 5:32 PM by Marty Lederman [link]

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

Mark Tushnet

Posted 11:35 AM by Mark Tushnet [link]

Blackout

Alice Ristroph

Posted 5:09 AM by Alice Ristroph [link]

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

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

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

Posted 1:22 PM by Gerard N. Magliocca [link] (22) comments

ACS Junior Scholars Public Law Workshop - call for papers

Joseph Fishkin

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

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

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Posted 11:16 AM by Joseph Fishkin [link]

Robert E. Lee Was a Horrible Racist

Gerard N. Magliocca

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

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

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

Question:  What is your opinion about its being an advantage to Virginia to keep them there at all. Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States? 

Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me.
. . . 

Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? 

Answer. I think it is. 

Question. And do you not think it is peculiarly adapted to the quality of labor which would flow into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? 

Answer: I do.

To paraphrase our current President, Lee was an evil loser.
Posted 9:13 PM by Gerard N. Magliocca [link] (123) comments

Defining Racism Downwards

Mark Graber

Posted 9:57 AM by Mark Graber [link]

Are we really a Union?

Sandy Levinson

As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews).  Our latest addresses the extent to which the United States was a "nation" in 1787.  The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade).  As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such. 
Posted 4:49 PM by Sandy Levinson [link]

Is the Republican Effort to Destroy the ACA Dead?

David Super

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














Posted 11:17 PM by David Super [link]

Obamacare As Superstatute

Abbe Gluck

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

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

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

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

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Posted 10:18 AM by Abbe Gluck [link]

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

Abbe Gluck

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

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

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

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

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

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

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

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

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

It's worse than hypocrisy. It's irresponsible.
Posted 11:14 PM by Abbe Gluck [link]

How Does This Work? The Senate and Health Care Reconciliation

David Super

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

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




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Posted 11:36 PM by David Super [link]