Friday, January 18, 2019

Herrera v. Wyoming: A Cautionary Encounter with Careless Repudiation

Guest Blogger

Daniel B. Rice and Jack Boeglin

The law of repudiating precedent is hopelessly muddled.  The Supreme Court often simply overrules decisions whose reasoning it chooses to disavow.  But it sometimes stops just short of doing so—repudiating the principle underlying a case without explicitly overruling the case itself.  When those enfeebled decisions are invoked in later litigation, how should the Court understand their residual force?  Have they been “effectively” overruled, overruled sub silentio, or perhaps limited to their facts?  And is there any difference between these formulations?

The absence of a shared analytical framework for answering these questions was on full display at last week’s argument in Herrera v. Wyoming.  The petitioner in Herrera, a member of the Crow Tribe, contended that Wyoming’s admission to the Union did not extinguish the Tribe’s right to hunt on unoccupied lands within the state, a right previously guaranteed by treaty.  In response, the State of Wyoming argued—as it had successfully below—that the dispute was squarely governed by the Court’s decision in Ward v. Race Horse (1896).

The Justices labored to understand the lingering import of Race Horse, which held that a tribe’s treaty-derived right to hunt on unoccupied lands terminates when the relevant territory is admitted to the Union as a state.  Race Horse, however, ran into trouble almost right out of the gate.  As the Court noted in Minnesota v. Mille Lacs Band of Chippewa Indians (1999), Race Horse “rested on a false premise” that had been “consistently rejected” in later cases dating back nearly a century.  The Justices underscored the magnitude of this doctrinal shift during oral argument in Herrera: “I don’t see how you can get more opposite,” remarked Justice Breyer; Justice Kagan agreed, claiming that “all the reasoning [of Race Horse] is repudiated.” 

But the Court has never expressly overruled Race Horse.  Even in Mille Lacs, which thoroughly and systematically discredited that decision’s rationale, the Court failed to utter the magic words necessary to overrule the case, instead leaving its fate for another day.  Justice Breyer offered a guarded defense of this stepwise approach:

Possibly they should have added . . . the words “Race Horse is overruled,” but the Court didn’t.  I can understand that. . . . There are a lot of things to do every day, and you have to write your opinions and you start putting in a word like ‘overruled’ and some of your colleagues might think: Don’t do it, you don’t know what you’re getting, et cetera.  All we have to decide for this case is that Race Horse doesn’t bind us, okay?

Alas, the moment of reckoning has arrived, alongside the many questions left unresolved by Mille Lacs.  Which case governs HerreraRace Horse or Mille Lacs?  If Race Horse has not been overruled, but instead limited to its facts, what are those “facts”?  And do the circumstances of Herrera fall within that limited exception?  The facts of Race Horse and Herrera are strikingly similar, though not identical; they involve different tribes, different lands, and different treaties.  But the relevant treaty language in the two cases is exactly the same. 

Seizing on that similarity, three Justices—led by Justice Kavanaugh—expressed skepticism that the Court could draw any sensible distinctions between the two cases; for those Justices, ruling in the Tribe’s favor would likely require overruling Race Horse.  And indeed, both Herrera and the United States (as amicus) have urged the Court to do just that: put Race Horse out to pasture once and for all.

The Court is now left with three options (assuming that no ancillary issues derail a merits determination).  It can do what its precedents have long prefigured—overrule Race Horse and clarify that a state’s admission to the Union never impliedly terminates tribal treaty rights.  It can confine Race Horse to its precise facts, for reasons that no Justice expressed at argument, and determine whether Herrera falls within that narrow factual exception.  Or it can continue punting on Race Horse’s fate, identifying trivial factual distinctions between it and Herrera, thereby leaving Race Horse almost entirely stripped of precedential content, yet “somehow technically alive.” 

It didn’t have to be this way.  The Herrera conundrum resulted from a regrettable inattention to one of the most important features of stare decisis: how to discard unwanted precedent.  In a forthcoming article in the Virginia Law Review entitled “Confining Cases to Their Facts,” we aim to supply the analytical rigor missing from courts’ treatment of disfavored precedents.  We start by highlighting the distinction that featured so prominently in Herrera—that between the repudiation of a legal principle and the overruling of specific decisions decided in reliance upon it.

When a court repudiates a principle, it disavows the reasoning of an earlier case and indicates that it is no longer to be treated as good law in new contexts.  Doing so leaves a repudiating court with one of three alternatives:

(1)   Explicitly overrule decisions decided in reliance on the repudiated principle.
(2)   Explicitly preserve the holdings of cases that employ the repudiated principle.  This coupling of repudiation and preservation renders an earlier decision “confined to its facts.”
(3)   Postpone the question of whether to overrule or confine imperiled decisions until required to do so by a case whose facts cannot be distinguished.  (This is, regrettably, how Mille Lac dealt with Race Horse.)

Option 3 should never be employed, Justice Breyer’s tepid endorsement notwithstanding.  Cases left ravaged by the repudiation of a principle must eventually be either overruled or confined.  And as we develop at length in our article, only the protection of reliance interests can ever plausibly justify a decision to confine.  If no compelling, articulable reliance interests are at stake, the repudiation of a principle should trigger an immediate overruling.  It is, frankly, irresponsible to inflict lasting uncertainty on the legal system when confining will never be a live option.  To borrow Justice Breyer’s phrasing, absent weighty reliance interests, you do “know what you’re getting” when repudiating a principle—an all-but-guaranteed overruling at some point in the future.

We hope that the Court will learn from its latest troubles and use Herrera as an opportunity to underscore the centrality of repudiation to our system of stare decisis.  It is not the eventual choice between overruling and confining that unmakes a precedent, but the prior act of repudiation.  This shift in focus would not only save courts from awkward predicaments; it would also expose the unsoundness of tests that accord talismanic significance to the presence of an “overruling.”  Courts have routinely evaded the formal requirements of stare decisis—e.g., the Supreme Court’s “special justification” doctrine and the federal courts of appeals’ en banc rule—by simply confining cases to their facts, rather than overruling them outright.  These sorts of workarounds should not be tolerated moving forward.

By focusing on the consequences of repudiation at the moment of repudiation, the Court can forestall significant mischief and needless confusion, while at the same time modeling responsible precedential practices for the federal and state judiciaries.  After all, shouldn’t the Court be at its most principled when it most significantly departs from precedent?

Daniel B. Rice ( is an associate at the Institute for Constitutional Advocacy and Protection at the Georgetown Law Center and Jack Boeglin ( is an associate in the London office of Covington and Burling LLP. This post expresses only the views of its authors, and not those of their respective institutions.

Thursday, January 17, 2019

The ERA on the Brink

Gerard N. Magliocca

Earlier this week the Virginia Senate voted to ratify the Equal Rights Amendment. If the Virginia House of Delegates follows suit (which is by no means certain), then Virginia will become the 38th state to ratify the ERA if the rescission votes of five of those 38 states are disregarded. As a result, a yes vote by the Virginia House will lead to a formal petition to the Archivist of the United States for recognition of the ERA as the Twenty-Eighth Amendment. Stay tuned.

Saturday, January 12, 2019

A Solution to the Shutdown from Nicholas Biddle

Mark Graber

Nicholas Biddle during the first Jackson administration devised what he thought was the perfect plan for ensuring Congress rechartered the Second National Bank of the United States, which he directed.  Although the Bank’s charter was not due to expire until 1836, Biddle asked his Congressional supporters to seek a recharter in 1832.  Biddle and his political allies were confident that Jackson would not dare to make the bank an issue in the forthcoming presidential election.  If Jackson vetoed the bill, they thought, a proponent of the bank would certainly become the next president of the United States.  This was not a big success.  Jackson did veto the bank bill and then rode that veto to an overwhelming victory in the 1832 presidential election.

Biddle’s strategy provides the foundation for a fair compromise between Democrats and Republicans that could resolve the contemporary government shutdown.  Congress should agree on a bill that allocates funding for Trump's proposed wall between the United States and Mexico, but attach two conditions to that funding.  First, no money can be spent until after inauguration day 2021.  Second, any spending on the wall after inauguration day 2021 is entirely discretionary.  If the president does not believe the wall good policy, the president need not spend a cent.  The end result will be to make the 2020 presidential election analogous to the 1832 presidential election.  By passing the Nicholas Biddle Barrier Law, Congress will make the next presidential election a referendum on whether we should build a wall to keep out illegal immigrants.  

Trump can hardly claim necessity to build a wall today, given that two years have already passed since his first promise to build that barrier.  Besides if delay is the issue, Congress can always throw in a few more dollars to spend up the process after 2021.  And as was the case with the bank veto, certainly a president with a mandate is in far better position to build or not build a wall than a president performing a solo

I suspect every Democrat running for President will be happy to campaign on a platform opposing spending any of the funds set aside for the wall.  I suspect a great many Republicans, particularly in competitive states or districts, will blanch at the idea of making the 2020 election a referendum on the wall.  The Biddle compromise will thus force crucial Republicans either to acknowledge publicly that they oppose the wall or force them to run on an issue likely to benefit Democrats in the present electoral cycle.

Wednesday, January 09, 2019

Why Progressives Should Support Pay-As-You-Go Budgeting Rules

David Super

Responding to the opposition that some House Democrats, the Economic Policy Institute, Paul Krugman, and others have expressed to pay-as-you-go budgeting rules, I recently published an op-ed arguing that those rules are essential to pursuing the progressive legislative agenda.

Pay-go will not only allow major progressive initiatives but may well be crucial to their enactment.  By themselves, neither a major social initiative, such as Medicare-for-All or universal child care subsidies, nor a major increase in taxes on the affluent and wealthy corporations, is likely to pass.  Worries about the effects on the deficit -- founded or otherwise -- will likely tip the balance against progressive social initiatives in a closely-divided political environment.  And without a clear set of winners -- beyond the general values of fiscal probity -- progressive revenue legislation will have too many powerful opponents and not enough committed supporters.  Married together, as was done in the Affordable Care Act, social initiatives and revenue increases have a far better chance.

In practice, the main effect of pay-go has been to weed out low-priority proposals to manipulate tax rules or target spending for this or that well-funded interest.  Members seeking campaign funds from those interests, and Members from states and districts where those interests have facilities, duly introduce the requested legislation to show their concern.  The inability to find a politically viable offset, however, provides a convenient excuse for the Member when the leadership declines to bring the rent-seeking legislation to the floor.  Without pay-go, the Member will have no excuse not to demand action on the bill and other Members will risk embarrassing that Member if they vote it down.

If progressives do not embrace and sell pay-as-you-go as the proper measure of fiscal responsibility, other, much worse, metrics will take its place, such as the gross cost of an initiative.  Many of the Affordable Care Act's subsequent problems can be traced to unwise decisions to try to hold its gross costs below $1 trillion (regardless of the offsets that made it a net deficit-reducer).  Had more of its implementation costs been covered with permanent appropriations, Republicans could not have starved it in the appropriations process.  The Act's heavy reliance on Medicaid expansion also sought to save federal costs -- with disastrous results after NFIB v. Sebelius.

And if progressives disregard fiscal discipline completely, eventually they will give their opponents an opening for one of the spasms of radical deficit reduction that are billed as "shared sacrifice" but that invariably hit low- and moderate-income people disproportionately hard.  Those budget-cutting frenzies tend to occur around downturns and hence hinder economic recovery.  Those are the true vehicles of austerian economics that progressives should seek to avert.   Pay-as-you-go can help with that.

Tuesday, January 08, 2019

Unpacking the "Transgender in the Military" Cases

Marty Lederman

As many Balkinization readers may know, a few weeks ago the Solicitor General filed petitions for certiorari “before judgment” with the Supreme Court in three cases (Nos. 18-676, 677, 678) challenging then-Secretary of Defense Mattis’s new policy regarding transgender service-members.  In each of the cases a district court preliminarily enjoined DOD from implementing the new policy.  On Friday, however, a D.C. Circuit panel in one of the cases (consisting of Judges Griffith, Wilkins and Williams) held that the district court should have dissolved its injunction, issued in 2017, because of a subsequent change in circumstances—namely, Secretary Mattis’s revised policy, which he promulgated in February 2018.  The court of appeals concluded that the District Court’s refusal to reconsider its injunction was based upon “an erroneous finding that the [2018] Mattis Plan was the equivalent of [the earlier] blanket ban on transgender service.”  The panel explained:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”  The court of appeals also strongly hinted, without conclusively holding, that the new Mattis plan is likely to survive Fifth Amendment scrutiny in light of the deference that courts ordinarily accord military judgments.

The “universal” injunctions in two California cases remain in effect, however (a Ninth Circuit panel has already heard argument in one of the cases, Karnoski, and its decision is pending).  The Supreme Court is scheduled to discuss the SG's cert.-before-judgment petitions in those cases at its conference this Friday.

What's the government's justification for such a rush, which would circumvent the ordinary course of litigation in the lower courts?  DOJ argues that the Obama-era transgender policy that the trial court injunctions have left in place, which former Secretary Ash Carter promulgated in 2016, poses a grave risk to “military effectiveness and lethality”—that the armed services must be permitted to exclude more transgender service-members now in order to be “in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  These are therefore the sorts of rare cases of high exigency, the petitions insist, that require the Court's immediate resolution.  By way of analogy the government cites the landmark precedents of the Steel Seizure Case, the Nixon tapes case, and the Dames & Moore case challenging President Carter’s freeze of Iranian assets during the hostage crisis.

I’d be surprised if the Supreme Court grants the petitions before judgment—in part because the Chief Justice appears committed to making this a relatively low-drama Term; and in part because Friday’s D.C. Circuit decision demonstrates that the fate of the Mattis policy in the lower courts is anything but certain; but more importantly because it’s simply implausible that the immediate exclusion of a handful of transitioned transgender service-members from entering the military, and/or preventing a small number of current service-members from beginning transition, is necessary to enable the armed forces to “fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  The Court might (or might not) ultimately defer to Secretary Mattis’s judgment when it adjudicates the merits, but I doubt it'll be eager to credit—to give credence to—such obvious hyperbole.

It’s more likely the Court will simply grant cert. in the regular course, and hear the case next Term, with a decision in 2020.  If I'm right about that, then the most pressing question for now is what the status quo will be for the next 15 months or so:  Will the Carter policy remain in place, or will the Mattis policy supersede it, with a chance for a revision of the Carter policy if the Court concludes that the Mattis policy is unconstitutional?  In addition to his petitions, the SG has filed motions with the Court to stay the district court injunctions.  "[W]hat is of paramount importance," the SG argues, "is permitting the Secretary of Defense to implement the policy that, in his judgment after consultation with experts, best serves the military’s interests" between now and the time the Court resolves the merits.

I’d be somewhat surprised if there are five votes on the Court to stay the injunctions (unless it's part of a compromise among the Justices that pushes the merits determination to next Term):  Implementation of the Carter policy has not caused the sky to fall or grievously impacted military readiness.  Indeed, because the Mattis policy by its terms would not effect transgender people already in the military who have been diagnosed with gender dysphoria, the principal immediate impact of the injunctions is simply to allow a handful of people who have already successfully transitioned to the gender with which they identify to “access” into (i.e., to join) the armed forces.  The idea that that the addition of this small number of transitioned individuals–a tiny percentage of the transgender persons in the armed forces–would profoundly affect military readiness and effectiveness simply isn’t plausible, even if the Court pays great deference to the Secretary of Defense.

Whether I’m right about that or not, however, the impending stay motions, rather than the petitions before judgment, are probably where the real action is this when the Court meets on Friday.

* * * *

A couple of things about the government’s recent filings are especially noteworthy.  Although of course the Solicitor General emphasizes what he describes as the profound differences between the Carter and Mattis policies—he is requesting extraordinary relief to quash the former, after all—he stresses that in two important respects the Carter and Mattis policies are similar to one another.

First, the SG argues that, under both policies, current service-members diagnosed with gender dysphoria who have not yet fully transitioned to their experienced gender, as well as transgender service-members without such a diagnosis, must continue to “serve in their biological sex” rather than “in their preferred sex.”  (These are the government’s unfortunate formulations.  What the government means by them is that although such service-members can serve as "openly" transgender in the sense that they can identify as such, they must abide by the grooming, uniform and use-of-facilities rules for the sex they were assigned at birth.)

Second, the SG argues that therefore both policies, Carter’s and Mattis’s, discriminate primarily on the basis of whether an individual suffers from gender dysphoria or has transitioned rather than on whether the person is transgender.  Here’s the key, striking passage from page 7 of the government's petition in Trump v. Karnoski, No. 18-676:
Like the Carter policy, the Mattis policy holds that “transgender persons should not be disqualified from service solely on account of their transgender status” [citing the Mattis policy at page 149a of the petition].  And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender dysphoria) and related treatment (gender transition).  Id. at 207a-208a.  Under the Mattis policy—as under the Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in their biological sex, whereas individuals with a history of gender dysphoria would be presumptively disqualified from service.  Ibid.  The two policies differ in their exceptions to that disqualification.
The D.C. Circuit panel decision last Friday in effect agreed with this latter contention:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military,” the panel explained, “the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”

The idea that the Trump/Mattis policy doesn't discriminate on the basis of transgender status might be a bit startling to those who haven’t been carefully following the developments in the cases.  After all, in his initial memorandum (see pp. 99a-100a of the Karnoski petition), President Trump directed Secretary Mattis “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.”  Yet it’s true, at least as a formal matter, that the Mattis policy (see pp. 207a-208a of the Karnoski petition) does not make distinctions based upon transgender status, as such, let alone implement a transgender "ban"—which is why, after receiving Secretary Mattis’s proposal, President Trump revoked his previous order that would have required such discrimination (see pp. 210a-211a).

That (nominal) about-face in the government’s formal ground of distinction is no accident.  The principal reason DOD and DOJ made the move—in effect, to argue that DOD has not in fact implemented the "transgender ban" that President Trump ordered but has instead "merely" altered the ramifications of distinctions drawn by the Obama Administration—is not merely to try to get some mileage out of the notion that “Obama did it, too,” but also to argue that if the existing Carter policy is not subject to heightened scrutiny under the so-called equal protection component of the Fifth Amendment, then the Mattis policy shouldn’t be subject to such heightened scrutiny, either, given that it’s predicated on similar grounds of discrimination (albeit resulting in far harsher consequences).

In a detailed post over at Just Security, I try to unpack and clarify the differences between the Mattis and Carter policies in order to understand just what’s at stake in these challenges and to explain why the Mattis policy ought to be constitutionally suspect notwithstanding the fact that it's no longer a transgender ban.  Here's a slightly amended version of the conclusion of that post:

If, as appears to be the case, DOD’s principal rationale is based upon an alleged concern about allowing transgender women to share certain facilities with other women, and even if it would be justifiable to impose certain limited restrictions on such facility access, that wouldn't begin to explain why it’d be reasonable for DOD also to prohibit transgender service-members from adhering to the uniform and grooming standards of their experienced gender; for prohibiting those same valuable service-members from engaging in the process of, e.g., social and medical transitioning; and, most dramatically, for categorically prohibiting fully transitioned individuals from joining the armed services at all.  As DOJ emphasizes in its latest filings, even the Mattis policy would permit nontransitioned persons to serve “openly” as transgender.  If that’s the case, then what would possibly justify preventing those same persons from dressing and grooming themselves in accord with their experienced, and self-proclaimed, gender, or justify a categorical exclusion of very valuable and skilled transitioned persons from joining the armed forces?  Because such limitations are grossly disproportionate to the alleged problems, they'd appear to be motivated by nothing more than simple, gratuitous cruelty.  If that’s right, then the Mattis retention limitations ought to be constitutionally dubious no matter what degree of scrutiny the Court ultimately applies, and regardless of the degree of deference it affords to reasonable military judgments.

Monday, January 07, 2019

National Emergencies, Then and Now

Guest Blogger

John Fabian Witt

As most readers of this blog will have seen, President Trump said on Friday that he was considering declaring a national emergency to build a wall on the southern border, despite congressional refusal to fund such a wall.  On Sunday, the White House chief of staff confirmed the story, telling CNN’s Jake Tapper that the administration is well along in the planning stages of using presidential emergency powers to accomplish what Congress will not allow.  Today, Trump’s emergency proposal is the lead story in the news. 

Some critics, including my colleague Bruce Ackerman, have leapt too quickly to the conclusion that such a move would be lawless and might even subject wall-builders to criminal prosecution.  Others have claimed that it would be tantamount to tyrannical rule by decree and cited the Supreme Court’s 1953 decision reversing Harry Truman’s unilateral wartime takeover of the steel industry.  

The truth is that the White House’s emergency gambit reveals the full extent of Congress’s dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point.  (Liza summarizes the statutes in a recent article at The Atlantic.)  The upshot?  Declaring a national emergency to build the president’s ridiculous wall would be a national embarrassment.  It ought to be unlawful, too.  But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be.  The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds). 

I’ll leave the analysis of these heretofore obscure statutes to others, since readers here are better positioned to do it than I am.  But as it happens I have a book out this spring from Yale Press on a theory of emergency power, based on a lost manuscript by political theorist, jurist, and Lincoln Administration insider Francis Lieber.  Historian Will Smiley and I found the manuscript in the National Archives and Yale Press is publishing an annotated edition of it, along with a long introduction by Will and me.  Not surprisingly, I think a bit of history from what is still the U.S.’s biggest constitutional emergency may help us see what has happened. 

Read more »

Thursday, December 27, 2018


Joseph Fishkin

For those attending the AALS conference in New Orleans next week, amid many other events the American Constitution Society has two, both on Thursday, January 3rd (flyer here):
  • A workshop on The Possibility & Potential of SCOTUS Reform, co-sponsored with the Society of American Law Teachers (SALT), from 6:00-7:15 in the 3rd Floor-Parish room at the Hilton New Orleans-Riverside, with Erwin Chemerinsky*, Daniel Epps, Ruben Garcia, and Kate Shaw.
  • A reception, with featured speaker Bill Marshall, from 7:30-9:00, in the Riverside Building-Quarterdeck C of the same hotel.
Hope to see many of you there.

*late addition, replacing Alan Morrison who won't be able to attend

Saturday, December 22, 2018

The Nondelegation Doctrine -- Correcting a Common Error

Mark Tushnet

I just read yet another article asserting that the Supreme Court invoked the nondelegation doctrine to hold a federal statute unconstitutional only twice, in Panama Refining v. Ryan and Schechter Poultry. (Cass Sunstein's formulation, that the doctrine had one -- and only one -- good year, 1935, is a clever version of the assertion.)

It's not true. Carter v. Carter Coal Co., decided in 1936, held the Bituminous Coal Conservation Act unconstitutional on several grounds, one of which was the nondelegation doctrine.

Here's the language: "That subdivision delegates the power to fix maximum hours of labor to a part of the producers and the miners.... The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form.... The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question. Schechter...."

Can He Do That? Of Appropriations, Walls and Shutdowns

David Super

     The beginning of a partial government shutdown of uncertain duration seems an appropriate time to sort through the mechanics of shutdowns as well as to evaluate some of the claims about appropriations law that have been appearing in the media for the past week or so. 

The Scope of the Shutdown

     First, it is important to note that this shutdown affects only part of the federal government, albeit a large part.  Before the election, Congress passed, and the President signed, five of the seven annual appropriations bills required to fund the government.  These included the huge bills for the Defense Department and for the Departments of Labor, Health and Human Services, and Education as well as those for Military Construction, Veterans’ Affairs, energy and water projects, and the legislative branch. 

     In addition, some government activities operate under multi-year or permanent appropriations.  Old-Age, Survivors, and Disability Insurance, better known as Social Security, has its own permanent appropriation as do many State Department functions involving passports.  Section 110 of the continuing appropriations resolutions that have funded the government since October 1 provides funding for other entitlement programs to continue through January.  Moreover, where a provision of federal law gives someone a legal right to a payment – as, for example, the National School Lunch Act does for certain child care providers – any eligible entity that is not paid due to a lapse in appropriations can sue in the Court of Federal Claims and receive a judgment that would be paid out of a fund that has a permanent, uncapped appropriation.  That process would be extremely disruptive, but payments would be assured. 

     As a result, the principal effect of the partial shutdown is on the operation of government programs in the affected agencies that are funded through annual appropriations.  This famously includes national parks but more generally covers many routine operations of the Departments of Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior, Justice, State, Transportation, and Treasury as well as agencies such NASA and the Legal Services Corporation.  The shutdown easily could have been considerably smaller:  four of the seven remaining appropriations bills were essentially finished several weeks ago, but with the White House sending mixed signals about its appetite for a shutdown congressional Republicans declined to pass them.  Since the summer, however, it has been clear that the appropriations bill for Commerce, Justice, Science and related agencies would be held to the end, ensuring that any government shutdown would affect funds for Special Counsel Robert Mueller’s investigation. 

“Essential” and “Non-essential” Government Employees

     Much has been written about the distinction between “essential” and “non-essential” employees.  This springs from the interaction between two sections of the Anti-Deficiency Act.  The Act is the most important statute Congress has passed to enforce the Appropriations Clause of the Constitution.  Officials violating the Act’s core prohibitions face up to two years in prison.  Federal employees who take great comfort in the sweeping immunities the courts have granted them from personal liability nonetheless react very skittishly to potential exposure under the Anti-Deficiency Act.

     The Act’s primary section prohibits “[a]n officer or employee of the United States Government” from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation [or] involve[ing the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law”.  

     One of several sections that seeks to prevent evasion of the main prohibition dictates that “[a]n officer or employee of the United States Government … may not accept voluntary services for [the] government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”  Thus, no official may obligate the government to pay for any federal workers during a lapse in appropriations, but those federal employees essential to “the safety of human life or the protection of property” may volunteer.  In practice, these employees are effectively compelled to “volunteer”. 

     Mindful of officials’ tendency to stretch definitions to avoid difficult choices, this section goes on to warn that “the term ‘emergencies involving the safety of human life or the protection of property’ does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”  Although Administration officials may feel tempted to assuage public ire by keeping popular sites and functions open, in doing so they expose themselves to prosecution under the Anti-Deficiency Act.  Anticipating what functions will prove essential to protect human life or property can be difficult:  if the current unease in the markets turns into something worse, we may rue having furloughed economists at the Treasury Department. 

     Historically, once a shutdown ends Congress has appropriated funds to pay the “volunteers” for their services as well as to make up the lost paychecks of furloughed federal employees.  This Administration has been unfriendly to federal workers in many respects, but with many of those affected at Homeland Security and other agencies being disproportionately aligned with the President’s agenda, it is difficult to believe that he will block payments to them.  Far less fortunate are government contractors, who typically are not made whole for money they lose during shutdowns. 

Shifting Money to the Wall from Other Accounts

     For a time, it appeared that a shutdown might be averted because the President believed he could put together the money for the border wall from other appropriations accounts.  Senator Schumer insisted that that, too, would require congressional approval, which would not be forthcoming.  The President soured on the idea and decided on a shutdown after all. 

     The reality is somewhere in between President Trump’s initial optimism and Senator Schumer’s adamant denial.  In truth, administrations have been scrounging money for unfunded projects from other accounts for a very long time. 

     One prominent example was the Obama Administration’s implementation of the Affordable Care Act after Republicans captured the House in the 2010 election.  Although the Act contained its own appropriations for some aspects of implementation, others depended on annual appropriations that House Republicans were determined not to provide.  President Obama could not sit by and watch his signature legislation be strangled for lack of appropriations, and House Republicans were leery of taking the blame for doing so.  A tacit compromise emerged under which appropriations acts would provide no money explicitly for the ACA but everyone involved knew that the Administration would shift money from other accounts to fund the bare minimum needed to implement the parts of the ACA that lacked permanent appropriations.  The amounts the appropriators allowed to be transferred were far less than what was needed for robust implementation, but it was enough that the ever-cautious Obama Administration elected not to take the conflict public. 

     Indeed, something vaguely similar has already been happening with funding for the border wall.  Congressional Democrats, and some Republicans, have refused to provide any funds explicitly for building the wall.  But they have appropriated some money for loosely defined border security efforts.  The Administration can claim that it is diverting these funds to make preparations for building the wall while Democrats can insist that the funds carry provisos against actual wall construction. 

     How much latitude an administration has to shift funds from one activity to another depends on the language of the appropriations act providing the money, the permanent statute authorizing the activity in question, and sometimes the law setting out the powers of the officials in question.  Some statutes explicitly authorize transfers of funds.  For example, the Gramm-Rudman-Hollings Act that provides for some budget sequestrations allows the president to shift funds within Pentagon accounts for various purposes, including the protection of military salary accounts, by cutting other functions more deeply.  Other statutes define allowable activities so broadly that the Administration has considerable flexibility without formally shifting funds at all.

     On the other hand, when Congress becomes skeptical of flexibility, often after perceived administration abuses, it has sharply limited discretion to reprogram appropriated funds.  For example, after the disastrous response to Hurricane Katrina showed that the Federal Emergency Management Administration (FEMA) had been stripped bare to serve other priorities, Congress imposed strict limits of diversion of FEMA’s resources.  Congress commonly prohibits transfers to activities for which it has denied funding or to activities it has designated as being of lower priority.  Identifying all restrictions on reprogramming appropriated funds is exceedingly difficult for anyone not well-versed in a particular program.  Even appropriations acts from decades earlier may restrict how all subsequent appropriations may be spent. 

     Here again, the Anti-Deficiency Act plays a key role.  For example, “[a]n agency in existence for more than one year may not use amounts otherwise available for obligation to pay its expenses without a specific appropriation or specific authorization by law.”  Quite apart from any policy preferences they may have concerning the border wall, federal employees who participate in spending federal funds without clear authority from an appropriation subject themselves to criminal penalties.  To be sure, this Administration is unlikely to bring charges against any officials carrying out the President’s orders, and the President could try to pardon those involved.  Most civil servants, however, strongly prefer to avoid committing serious crimes even if they are likely to escape punishment.  They may balk at dubious legal theories in this context far more than they do when contemplating rule-making or other executive acts. 

     It will be interesting to see if President Trump adds the Anti-Deficiency Act to his list of legal difficulties.  One cannot help but remember other figures who avoided many high-profile legal perils only to succumb to charges for similarly prosaic violations. 

A Different Border Wall: Judgments of Legal Quality in Texas v. United States

Neil Siegel

In his December 15 post on Texas v. United States ("Off the Wall and on the Wall in the Age of Trump"), Jack Balkin brings to bear the historicist sensibility that partially informs his magnificent 2011 book, Living Originalism. In the post, he opines that Judge Evan O'Connor invalidated all of the Affordable Care Act (ACA) "on (in [Balkin's] own view) pretty dicey legal grounds." But Balkin moves quickly from the perspective of the individual participant in the constitutional system to the perspective of the historicist appreciator of how the system functions. He explains why the arguments accepted by Judge O'Connor are already "on the wall," albeit "barely." In addition, Balkin in effect lays out a road map that, if followed by the right groups of people -- especially a unified Republican Party and conservative intellectuals who work on the arguments -- will rapidly place those arguments firmly on the wall. Most significantly, Balkin writes that "judgments of legal quality and social influence mutually shape each other," but his post focuses almost entirely on how social influence shapes judgments of legal quality, and not the other way around. 

My own view -- and I would bet that Balkin actually agrees with me, although he did not emphasize this point -- is that judgments of legal quality and the character trait of intellectual integrity are a significant part of the reason why conservative intellectuals and many professional Republicans are far from unified on the merits of this particular challenge to the constitutionality of the ACA. 


1. One could reject most or all of modern Article III standing doctrine and try to reground it in a new, substantially more permissive understanding of Article III. But until such an attempt succeeds, it is legally untenable for Judge O'Connor to have concluded that two obviously ideological plaintiffs in Texas have Article III standing because they feel coerced by a "mandate" that will require them to make a shared responsibility payment of $0 if they remain uninsured -- a "mandate" that gives Americans the lawful choice between complying and making the shared responsibility payment. See Nicholas Bagley's incisive analysis.

2. As Marty Lederman and I have separately explained, it is legally untenable for Judge O'Connor to have held that Congress requires an enumerated power to impose no material or expressive consequences on anyone.

3. And as a bipartisan group of experts on severability made clear, it is legally untenable for Judge O'Connor to have concluded in effect that Congress in 2017 accomplished through the reconciliation process what congressional opponents of the ACA lacked the votes to accomplish using the ordinary legislative process -- that is, repeal the entire statute merely by zeroing out the shared responsibility payment and leaving the rest of the ACA in place.

 C'mon, man.

Thursday, December 20, 2018

Three Short and Sweet Possible Legislative Responses to Texas v. United States

Richard Primus

Nick Bagley and I have a short piece in The Atlantic offering the incoming House of Representatives three strategies for super-simple legislation that would end the litigation in Texas v. United States and preserve the ACA.  One would raise the penalty for not carrying insurance from nothing to one dollar; one would clarify that the mandate is severable; one would just repeal the mandate, which, given the absence of a penalty, now hangs atavistically around the ACA like a human appendix, doing nothing useful but threatening to blow up the whole system if attacked from the outside.  We also offer brief thoughts on why it's worth the House's time to adopt one of these fixes even though the Senate's leadership is less keen on the ACA.  The piece is here.

Wednesday, December 19, 2018

Institute for Justice Podcast on the 14th Amendment

Gerard N. Magliocca

The Institute for Justice has released a podcast to mark the 150th anniversary of the Fourteenth Amendment. You can find the link here. I am one of the participants, along with Kurt Lash and others.

Tuesday, December 18, 2018

Texas v. U.S.: Congress's Inherent Power to Require No One to Do Anything

Neil Siegel

While the constitutionality of the Affordable Care Act's minimum coverage provision (the "individual mandate") and shared responsibility payment were pending before the U.S. Supreme Court, Robert Cooter of UC Berkeley Law School and I developed a theory of Congress's taxing power that anticipated, and may have influenced, the Court's taxing power analysis in NFIB v. Sebelius.  (Several commentators, including Neal Katyal, Randy Barnett, and Jeffrey Rosen, noticed close similarities in the analysis, citations, and rhetoric between our article and the majority opinion of Chief Justice Roberts.)  According to our theory, the difference between a permissible tax and an impermissible penalty for purposes of the Taxing Clause turns on the likely effects of a federal exaction on human behavior.  Whereas a tax characteristically dampens the conduct subject to the tax and thereby raises revenue, a penalty prevents the conduct subject to the penalty and thereby does not raise revenue.

Read more »

Monday, December 17, 2018

All the Things You Don’t Realize Are in the ACA and Now Could Vanish

Abbe Gluck

As most people know by now, on Friday night, a federal judge in Texas relied on a flimsy legal argument to declare the entire Affordable Care Act unconstitutional.  The opinion works a violation of separation of powers and misapplies settled law. For more on the merits, please see my op-ed with Jonathan Adler (who opposed the A.C.A. in both previous Supreme Court challenges, so that should tell you something about the weakness of this opinion). 

Here, I want to make crystal clear the jaw-dropping human consequences of the decision.

The A.C.A. is long--2,000+ pages long.  And by now many people probably have forgotten what it was like to get insured before the A.C.A, or mistakenly think the A.C.A. only helps poor people. The A.C.A. does so much more.  It’s time to remember all the things the law adds, so we know what is now potentially lost and so the appellate courts, the public and Congress understand what’s at stake.

You probably remember the A.C.A. has a lot of insurance reforms. But you may not realize that you benefit from many of these provisions even if you get coverage through your employer and even if you don’t get your plan on the A.C.A. insurance markets.

Thanks to the decision, gone would be the following insurance protections, and many more:

  • Health insurers could deny or cancel coverage for people with pre-existing conditions in most markets.
  • You could now be charged money for insurance more based on your health, gender and occupation.
  • There would be no more prohibition on lifetime limits on health care spending. (Before the A.C.A. those limits meant insurance only took you so far if you had a very serious health condition.)
  •  There would be no more out of pocket maximum.
  • There would be no more coverage of young adults on parents’ plans up to age 26.
  • There would be no more government subsidies to help you buy insurance.

Here are some other A.C.A. insurance benefits you may now take for granted and not realize whence they came:
  • Basic health benefits we assume are always covered--including maternity coverage and mental health-- could now be denied if you buy your own insurance or get it through a small employer.
  • Important preventive services like cancer screening and contraceptive services will no longer necessarily be covered--you could have to pay for them out of pocket unless your state passes a law saying otherwise.
  • Vaccines for your kids were covered under the A.C.A., but before the A.C.A. many insurers required a copay and you now may have to pay for them again.
  •  Well-baby and well-child exams were covered and now may not be.
  •  You could now be charged a co-pay if you go to an emergency room out of network.
  • There would be no more health insurance marketplaces, which allow consumers to see and compare insurance plans before they buy.
  • There would be no more requirements that large employers offer employees health insurance.

And then of course we lose the expansion of Medicaid.

Medicaid has already covered some 15 million extra Americans.  Even those who had Medicaid before the A.C.A would lose the advantages of the simplifications brought by the ACA (those simplifications have increased Medicaid enrollments even in states that have not expanded coverage). In total, roughly 20 million fewer people are estimated to lose access to care, including the care Medicaid provides to treat the opioid epidemic. Children in foster care also would lose the additional coverage the A.C.A. extended for them as they transition into adulthood.

Don’t forget Medicare.
  • The A.C.A made Medicare’s pharmaceutical benefit a lot more generous-- don’t be surprised now when you need to pay for your high price drugs.
  • Medicare preventative care without copay? Gone.
  • Medicare payment reforms would be gone including the whole new structure of Medicare Advantage.
  • Essential funding that has expanded the solvency of the Medicare trust fund so that  Medicare continues to be available into the future would also be gone

The A.C.A. also offered advances in public health, which will now be lost, including:
  • Loss of the Prevention and Public Health Fund, which supports community-based programs that tackle social determinants of health.
  • Loss of the Community Health Center Fund, which provides about 70 percent of federal grant programs for these clinics that provide care to 24 million patients, as well as national health service corps scholarships for thousands of physicians, nurses, and dentists to deploy to the biggest rural and urban health professions shortage areas.
  • Gone would be calorie labeling on restaurant menus in most localities.
  • Gone would be mandatory break time for nursing mothers.
  •  Lost would be the reauthorization and reform of the Indian Health Services Act.

Other good government reforms that make healthcare affordable and accessible would be gone too, including:
  • A pathway for the approval and sale of generic biologic drugs, which would save Americans billions on drug costs.
  • More tools to help the government combat health care fraud.
  • Training for new doctors.
  • Non-discrimination provisions that protect people of all genders from discrimination in health care.
Take a step back absorb how much this decision affects.  Most of these reforms have nothing to do with the insurance-purchase mandate the judge opined was so central to the entire 2,000+ pages of the A.C.A. that nothing in those pages could function without it. But more importantly, Congress never said a thing about eliminating all of these provisions-- indeed, Congress failed more than 50 times in attempts to repeal them. Congress only eliminated the mandate penalty, leaving the rest of the law still standing. As we have explained, the legal test at issue turns entirely on what Congress intended.  The judge’s opinion effectively repeals the entire A.C.A. when Congress couldn’t and didn’t.

The A.C.A. affects all Americans, not just those with lower incomes.  Most of us have employer coverage and have also benefited from the law.  Most of us, with some luck, will be on Medicare and would benefit from the A.C.A’s payment reforms and expanded drug coverage.  Many of us will need the biologic drugs, or the mental health services, maternity converge or cancer screening or vaccines that the A.C.A. makes accessible. 

Of course, Friday’s decision will certainly be appealed and so the court’s ruling is not the final word. And the effects of the decision are most likely to be paused while any appeal is pending, so the devastating implications of the decision laid out here are not immediate, and hopefully will never come to pass.
But as Adler and I wrote, an opinion with these kinds of vast human consequences based on anything other than rock-solid legal ground is not just irresponsible; it is contrary to the rule of law.

[Cross-posted at]

Saturday, December 15, 2018

Texas v. U.S: Off the Wall and On the Wall in the Age of Trump


Judge Reed O'Connor's opinion in Texas v. U.S. has declared all of Obamacare unconstitutional based on (in my own view) pretty dicey legal grounds. Commentators are trashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.

I have seen this movie before. (In fact, I had a minor supporting role.)

Assume that the commentators are right and the judge's arguments are not even close to being persuasive given existing legal precedents. Does that mean that the position is "off-the-wall?" Suppose it was off-the-wall six months ago, before the judge issued his final decision. What about now? Have the arguments against Obamacare moved from "off-the-wall" to "on-the-wall," as they did in NFIB v. Sebelius and King v. Burwell?

Read more »

There is no "mandate." And oh, by the way, Judge O'Connor didn't enjoin enforcement of any provision of the ACA, let alone "strike down" Obamacare in its entirety.

Marty Lederman

All the many critics are absolutely correct that Judge O’Connor’s severability analysis in his Affordable Care Act opinion yesterday is indefensible.  By focusing so intently on the severability argument, however, many of those critics concede (or assume) far too much at the front end, which is, if anything, even less defensible.

The linchpin of O’Connor’s judgment—the part that triggers his severability analysis in the first place—is his conclusion that once the Affordable Care Act’s “shared responsibility payment” is reduced to zero on January 1 (the result of an amendment Congress enacted in December 2017), what will remain of 26 U.S.C. § 5000A is a “mandate” for individuals to “maintain minimum essential [health insurance] coverage.”  Because Congress lacks any power to mandate, or require, individuals to purchase or maintain insurance, reasons Judge O’Connor, the “mandate” will become unconstitutional in a couple of weeks.  And having decided that, O’Connor then further "reasons" that the “mandate” isn’t severable from any of the other myriad of provisions of the ACA, and thus that the entire kit and kaboodle will be inoperative on January 1.

The word “mandate” or the phrase “individual mandate” appears no fewer than 245 times in Judge O’Connor’s decision.  On top of that, he uses “requirement” and “obligation” as synonyms for “mandate” another 45 or so times.  That’s close to 300 references in a single 55-page opinion.

But the ACA doesn’t contain any mandate, or legal requirement, for anyone to maintain health insurance.  What § 5000A contains, instead, is a choice.  As originally enacted—that is to say, under the ACA in effect today (i.e., before January 2019)—that choice for most individuals is either to maintain health insurance (subsection 5000A(a)) or to make the prescribed “shared responsibility payment,” which has been the greater of 2.5% of household income or $695 (subsection 5000A(b)).  As Chief Justice Roberts put the point in NFIB v. Sebelius, "[t]hose subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes.  The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax."

As of January 1, the second of those two lawful choices will become even less onerous—paying "zero" will be an option that satisfies the law, just as paying the greater of 2.5% of household income or $695 to the IRS did until now.

Read more »

Friday, December 14, 2018

Happy Bill of Rights Day

Gerard N. Magliocca

Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:

“The genius of the Bill of Rights is that it limits its attention to truly important things and to things over which a must and limited government can exercise some actual control. Two centuries ago, just as now, politics tempted some to take flight from moderation and realism. Edmund Burke complained at the time of those who ‘are so taken up with their theories about the rights of man that they have totally forgotten his nature’

“The framers, however, were practical men.  They gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government. Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character . . .”

Tuesday, December 11, 2018

The Curative Power of Law and Political Economy

Guest Blogger

Amy Kapczynski

Ask not for whom the First Amendment tolls: It tolls for you.  Or so I argue in an essay just published at the Columbia Law Review online.  It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy” -- a boring title for a vital and urgent problem.  Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives over the webs of commodity exchange upon which our lives depend?  The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.

The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history.  This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly.  (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers.  Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency.  But the respect and support the FDA commands have made legislative assaults challenging.  Perhaps that is why industry – and industry funded groups – have invested in the use of the courts to attack its power.

What does that attack look like?  The cases are astonishing.  Some suggest that drug companies have a free speech right to market drugs for unproven uses.  These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work.  Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing.  New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products.   E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.

The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether.  I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.

How did this happen?  Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic. 

How we might we best respond to this new and rather ghoulish First Amendment?  There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay.  Importantly, though, these cases should also cause us to rethink our needs for public infrastructure.  If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level.  New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment.  The parallels to Medicare For All – spurred on by attacks to the ACA – are easy to see.

The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute.  If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.”  People often ask me for work describing how to “do LPE.”  These two pieces provide possible examples.

Crossposted at Law and Political Economy

Amy Kapczynski is Professor of Law at Yale Law School. You can reach her by e-mail at amy.kapczynski at

Monday, December 10, 2018

Brexit is Prohibition

Gerard N. Magliocca

I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.

Prohibition was a disaster, but Brexit shows that no constitutional system is immune from them.

Wednesday, December 05, 2018

CFP--Conference on Constitutional History: Comparative Perspectives

Jason Mazzone

A reminder of the call for papers for the conference on Constitutional History: Comparative Perspectives in Chicago on April 29-30, 2019. Proposals submitted by December 15 will receive priority consideration. Full details are here.

Tuesday, December 04, 2018

What’s Really Wrong with the Census

Guest Blogger

Susan Rose-Ackerman and Lena Riemer

The 2020 Census questionnaire is before the federal courts. Commerce Secretary Wilbur Ross ordered the Bureau of the Census to include a question on citizenship status that is subject to judicial challenge. In the first case to reach the trial stage, the US Southern District Court in New York has completed oral hearings. Its holding is expected to generate appeals, and, indeed, the Supreme Court has already agreed to hear one challenge. The cases are occurring within a tight time frame—the final text of the questionnaire must be settled by early summer. At issue is the claim that the head count will be inaccurate.

The decennial census is one of the Constitution’s few substantive mandates (Art. 1, sec. 2, Clause 3). The count is of “persons”, not adults or citizens or voters. Accuracy is the underlying goal of the census requirement because each state’s representation in the House and in the Electoral Collate depends on the accuracy of the census—as does the distribution of federal funds under many programs.[1] In the twenty-first century accuracy requires modern statistical techniques, including sampling and adequate pre-testing of questions. 

In the service of accuracy, statistical theory and practice have developed massively since 1868 when Section 2 of the Fourteenth Amendment removed the 3/5 weight on slaves in the original text and required a count of “whole persons”. Applying the “original’ understanding of statistics in 1789 or even after the Civil War is inconsistent with the original and present-day goal of an accurate count.
The Census Act accepts the value of sampling and states that the Bureau “shall” use sampling everywhere other than for the purposes of reapportionment.[2] The Supreme Court in 1999 read the statute as disallowing sampling for the census but did not reach the constitutional issue.[3] In 2002 the Court permitted a technique called “hot induction” to estimate missing census data because it did not involve a survey.[4] Thus, the case law suggests that the Supreme Court is not hostile to statistics per se, but has, so far, not reached the constitutional issue. Justice Stevens’ dissent in 1999, however, comes close:

Since it is perfectly clear that the use of sampling will make the census more accurate than an admittedly futile attempt to count every individual by personal inspection, interview, or written interrogatory, the proposed [sampling] method is a legitimate means of making the “actual enumeration” that the Constitution commands.

Sampling techniques are sophisticated and widely used in business, academic, and government applications. The Census Bureau uses statistical sampling to estimate key measures such as the unemployment rate, which has been based on sampling since 1937.[5] Sometimes sampling is a cost-saving measure, but in other contexts it is more accurate than counting one-by-one. Yet, direct counts have a certain intuitive appeal. You point to a small pile of apples and ask your friend how many apples are in the pile. Your friend guesses “eight”. You count the apples and discover that there are actually nine. Clearly, the count is more accurate than your friend’s guess. But the superiority of a direct count evaporates as the number counted increases and if the subjects have minds of their own. People are not apples. If you take a census of human beings, their personal characteristics may affect their answers and their willingness to participate. Some may refuse to participate. This refusal could arise from a concern for personal privacy or from an unwillingness to reveal negative information.

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Wednesday, November 28, 2018

Fiscal Policy after the Mid-term Elections

David Super

      The mid-term elections changed many things in Washington.  The full implications will not be apparent until the major players – the House and Senate Republican Caucuses, the House and Senate Democratic Caucuses, and the President – settle on their agendas.  We can anticipate a bit more about fiscal policy, however, because existing substantive and procedural rules dictate much of the agenda without regard to the wishes of the partisan actors.  This is the second of two posts about the mid-term elections’ procedural implications. 

     The first impacts are being felt already, even before the new Congress convenes.  Well in advance of the election, Congress passed and the President signed five of the twelve appropriations bills that together fund the vast majority of government functions.  In a striking departure from prior practice, Democrats insisted on moving bills containing their priorities, particularly the bill funding the Departments of Labor, Health and Human Services, and Education, apace with Republican priorities, such as the Department of Defense.  This changes the stakes in a potential government shutdown. 

     Of the seven appropriations bills remaining to be passed those for Agriculture and for the Departments of Transportation and Housing and Urban Development have been agreed to privately and are not controversial.  The bill for the Interior Department has been controversial because of non-financial riders that have been attached to it, largely on environmental matters.  The bill for Financial Services and General Government has been stuck due to battles over raises for federal workers and some attempted Republican budget gimmickry.  With the election over, the disputes on these bills seem likely to resolve quickly. 

     That leaves the bills for Homeland Security (controversial because of the President’s proposed border wall and other immigration-related matters), for Commerce, Justice, and Science (controversial because it contains funding for Robert Mueller’s investigation), and for the Department of State and Foreign Operations (long controversial for many Russia-related reasons and now perhaps because of concerns about Saudi Arabia and our role supporting the slaughter in Yemen). 

     The President lately has seemed to signal that he does not expect to get much funding for wall.  His removal of Attorney General Sessions gives the President more direct leverage on the Mueller investigation, potentially removing that issue from the appropriations struggle.  If these matters get resolved, Congress likely can avoid a partial government shutdown.  The continuing resolution that is funding the agencies under these seven bills expires December 7, and appropriators likely will need an extra week to finish up, but unless the President suddenly reverses course appropriations for the current fiscal year should be completed by the middle of December.  House Republicans are especially eager to finish and leave town because, as the beginning of the new Congress approaches, departing Members begin to have to give up their office space to their newly-elected replacements, making the logistics of being in session progressively more uncomfortable.  The fact that the remaining bills cover a mix of Democratic and Republican priorities also has made a partial shutdown less attractive.

     In the new year, Congress is likely to face four sets of important fiscal issues. 

     First, Congress will have to address the nagging problem of sequestration.  Under the budget legislation congressional Republicans forced President Obama to sign as the price for raising the debt limit, discretionary appropriations – appropriations for everything other than “direct spending” programs such as Social Security and Medicare – are capped at levels far below historical spending.  Most experts across the political spectrum believe that the federal government cannot operate at the sequestration level without either a serious degradation in services that the public expects or a fundamental reduction in the federal government’s role. 

     For the past several years, Congress’s solution has been to enact two-year deals that raise the statutory caps on discretionary spending and offset the costs through cuts in entitlements, often permanent ones.  With half of the cap increases going to military spending, Democrats have found these deals distasteful.  But with the political difficulty of denying the Defense Department what it desires – either through the regular appropriations process or through “emergency” supplemental appropriations – tying these defense increases to domestic ones has seemed the most that could be achieved.  After Republicans diverted much of the money from the first of these two-year deals into their own priorities, Democrats have taken to pre-negotiating, sometimes in considerable detail, how domestic discretionary funding will be allocated before agreeing to cap adjustment legislation. 

     Without an increase in the discretionary caps, Congress will have to cut appropriations $300 billion below the level required to continue current government operations, with the reduction theoretically divided about equally between defense and non-defense accounts.  No one believes that appropriations bills with cuts of that magnitude could pass Congress.  Yet if Congress does not enact legislation adjusting the caps, the failure to make those cuts legislatively will result in a new sequester – across-the-board budget cut – to make up the difference.

     Second, Congress will have the regular appropriations process.  Some of the higher-level issues may be resolved by deals made in connection with the cap adjustment legislation.  Some significant challenges will remain.  Among these is funding the decennial census.  Historically, the Census Bureau has received steady increases in funding leading up to census years to allow it to prepare.  For the most part, that has not been happening.  Without a dramatic infusion of funding, having insufficient enumerators could lead to a significant undercount, skewed heavily toward low-income people. 

     The politics of appropriations riders also will change.  In recent years, most appropriations riders considered in conference committees have come from House Republicans, and most have been rejected as incapable of getting fifty votes in the Senate.  With Democrats now able and motivated to propose numerous riders of their own to constrain the Administration, it is unclear whether conference committees will continue to insist on “clean” bills or whether the two parties will trade riders with one another.

     Third, Congress will need to raise the debt limit.  With control of Congress now divided, and with polls suggesting that the electorate is well-aware of the 2017 tax law’s role in increasing the deficit, Republicans seem to have little prospect of blaming Democrats successfully for a crisis over failure to raise the limit.  Democrats have generally supported clean increases to the debt limit and appear to have little leverage to extract more.  Indeed, now that House Republicans are in the minority and feel insulated from blame, they seem likely to vote “no” en masse to force as many vulnerable Democrats as possible to vote for the increase. 

     Finally, despite losing the House, Republicans are likely to try to put tax cuts back on the agenda.  They have been agitating for technical corrections to the hastily-drafted December 2017 tax bill.  Democrats, of course, have been seeking technical corrections to the hastily-drafted Affordable Care Act for eight years now, with Republicans refusing to address even the smallest glitches.  Whether a “technicals for technicals” deal is possible likely will depend on the fiscal impact of each proposed package as well as on whether Democrats believe the Administration will faithfully carry out any health care technical amendments. 

     Republicans also will propose legislation to make the “middle class” portions of the 2017 tax bill permanent.  (To comply with budget process rules forbidding budget reconciliation legislation from increasing the deficit in years beyond the current budget resolution, the tax bill sunset some of its more politically popular provisions after 2025.  This has caused my Tax students great consternation.)  Although technically the Senate may not originate revenue legislation, Senate Republicans likely will seize on any revenue-related bill coming over from the House, no matter how trivial, and amend it to make the 2017 cuts permanent.  (This prospect could cause the House to withhold action on routine matters to avoid presenting the Senate with a tax vehicle:  it can be surprising how many seemingly unrelated matters have an incidental revenue aspect.)  House Republicans also may try to pressure vulnerable Democrats into signing a discharge petition to bring tax legislation to the floor. 

     If Republicans succeed in extending the 2017 tax cuts, the pressure for deep cuts in domestic spending will intensify.  Although the 2017 law heavily favored the affluent, its total cost was so great that even extending its “middle class” provisions would create a huge additional hole in the budget – all the more so given the capacious definitions of “middle class” that arise in tax debates.  Similarly, politically attractive proposals to uncap deductibility for state and local taxes would be both costly and quite regressive.  With no politically plausible path toward reducing the deficit with increased revenues, and with Republicans returning to attacks on the deficit in record time after enacting an unfunded $1.9 trillion tax cut, any further reduction in revenues is likely to lead to a roughly dollar-for-dollar reduction in spending, the great majority of which will be domestic.  Democrats could propose making the “middle class” provisions permanent in exchange for offsetting changes to the corporate and upper-income tax cuts that have failed to generate the promised increase in investment, but Republicans seem unlikely to agree.  

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