Wednesday, March 29, 2017

Papers from the Illinois-Bologna Conference on Comparative Constitutional History

Jason Mazzone

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

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

Law Professor Amicus Brief in the Mississippi FADA Case

Nelson Tebbe

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

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

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

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

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

Monday, March 27, 2017

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

Guest Blogger

Kiel Brennan-Marquez and Andrew Tutt

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

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

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

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

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

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

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

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

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

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

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

Friday, March 24, 2017

Disjunctive Politics in Action

Gerard N. Magliocca

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

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

Is the GOP ACA Repealer Unconstitutional on Federalism Grounds?

Abbe Gluck

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

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

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

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

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

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

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

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

Thursday, March 23, 2017

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

Sandy Levinson

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

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

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

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

Monday, March 20, 2017

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

Rick Pildes

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

Saturday, March 18, 2017

The Tragedy of the Medicaid Expansion (Part III)

Stephen Griffin

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

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

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

Monday, March 13, 2017

A Modest Revision of the Accepted Wisdom About the Nondelegation Doctrine

Mark Tushnet

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

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

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

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

CBO report is here: 24 million Americans predicted to lose coverage by 2026 under GOP ACA replacement

Abbe Gluck

Here is the report. Fourteen million of the 24 million would feel this loss by 2018, conveniently in time for the midterm elections.  Savings to the federal budget, largely because of the Medicaid cuts and the cuts in other subsidies for individuals buying insurance, are projected to be $337 billion over the 10 year period.  

This is not a surprise; the replacement bill from the start was viewed as a tax break for the upper class that harms the least fortunate in the process.   The GOP has more work to do to justify this as a "health care" bill. 

As I noted last week (here and here), the GOP already began the process of trying to preemptively discredit the nonpartisan CBO (currently headed by a Republican) in advance of this report.

Next I predict there will be an effort to delay the Medicaid cuts til 2020, conveniently timed for... you know what.  Several  Republican governors took to the media over the weekend to speak out against the bill.  The Senate should help these governors hold the GOP House members accountable for these numbers.

More as more develops...

Saturday, March 11, 2017

The Crises of -- What Is That Economic System, Anyway?

Mark Tushnet

On Friday David Brooks’s column identified three “crises” of contemporary U.S. society, which, he argued, needed to be addressed more urgently than matters like health care and, in general, the size of the national government. They are crises of opportunity, solidarity, and authority. I’m generally not a fan of Brooks’s work, which is too often fatuous and pompous (all this apart from his notorious reliance on “facts” that prove not to be so). This column, though, seemed to me basically right – but radically (so to speak) incomplete.

The first gap is the most important – a failure to connect the dots, as Sandy Levinson is wont to say. What, one might ask, is the source/cause of these three crises? The answer is The Economic System That Must Not Be Named: capitalism.

A related gap – Brooks doesn’t identify any national level (or any other level) policies that might address those crises, because he can’t and still maintain his belief that he’s a true conservative. There might in fact be no such policies, although I suspect that a massive government jobs program could do a lot to address the first two crises, and maybe the third. Of course, Brooks can’t support such a program. But then his criticism of President Obama for mistakenly pursuing health care reform rather than using his political capital to address the three crises seems a bit churlish.

Finally, though this is more contestable, my view is that the crisis of authority results in large part from a concerted campaign by Brooks’s erstwhile allies in the Republican Party to undermine such sources of authority as science and technocratic expertise. One might respond that the phrase “Question Authority” is associated with the left, and that much of the political action in the 1960s and 1970s consisted of efforts by the left to undermine existing authority. Here I think it might be worth distinguishing between liberals associated with the Democratic Party, who – I think – are entirely comfortable with authority, and the dirty effing hippies who really did question authority (and still do), but who are not now, and may not have ever been, a significant force in U.S. politics. (They are – we are – my peeps, though. On this question, I can’t recommend strongly enough Tom Stoppard’s “Rock 'n' Roll,” which places the conflict between the dirty effing hippies and the sedate Marxist left at its heart, and “shows” that the hippies were right.)

[Provoked by an e-mail exchange with Mike Seidman]

Friday, March 10, 2017

Rushing the ACA Repeal through the House without a Budget Score, and More

Abbe Gluck

The GOP Obamacare repeal this week raced through the two House committees with oversight at breakneck pace-- with essentially a one-day committee markup, with not a single change to the bill emerging from the markup.  The GOP for years has been saying they could do health care better than the Democrats, and yet when given their chance they have shown themselves more eager to do something quick than to do something well considered. Is this really what they have been waiting this long to do?

Perhaps the greatest evidence of the current jam-it-through strategy is the fact the House Republicans allowed the committees to vote the bill out without the Congressional Budget Score--that is, without knowing its effect on the federal budget and the broader market.  For a bill of this magnitude, not getting the score before the vote was highly unorthodox .
In King v. Burwell, the 2015 ACA challenge, Chief Justice Roberts said a lot of things right. But he did make one crucial mistake: implying the ACA was not deliberated. The ACA wasn’t properly cleaned up, but it was excessively deliberated. Tthe ACA went through countless hours of markup, amendment and change. And it was scored before the main drafting committees (Senate HELP and Finance) voted on it, so that the committee members accountable for their votes, as well as the American people, would know the implications of the bill being sent to the full body.

The GOP has not made itself similarly accountable, and now, together with White House Press Secretary Sean Spicer, GOP representatives have taken to the media to discredit CBO--which has been a nonpartisan, respected congressional institution for decades and is led now by a Republican--presumably laying the groundwork for a budget score of the repeal that they won't like (because it will reveal how many millions will be harmed by the repeal with no countervailing economic benefit for the country) .  It's yet another chapter in the Administration's effort to discredit any outside source that could provide a check- -with actual facts--on the Administration's claims and agenda. First it was the media, now it's CBO.
I develop these arguments further here, in the LA Times, with  Dean Sherry Glied. Here is an excerpt, please link the link for the full op-ed.:
Someone who believes he’s lost weight isn’t afraid to step on a scale. Why, then, won’t Republicans let the Congressional Budget Office provide a cost estimate, or score, for their Affordable Care Act replacement?
Early reviews of the proposed legislation reveal that it would harm low-income populations — and the states left holding the bag for those populations — as well as likely further destabilize insurance markets. It would radically change the healthcare system. But neither Congress nor the American public knows the exact implications.

Republican sidelining of the CBO is especially galling since the party likes to sell itself as the one that cares about dollars, cents and deficits. In fact, Republicans passed a rules package last month that required the CBO to more carefully document how legislation affects the deficit. At the same time, they specifically exempted ACA repeal from that requirement. They want us to have faith in their repeal without even having the CBO complete its standard analysis.

Republicans claim they want to repeal the ACA because it has been an economic “disaster.” All right, then — on what measure would their bill count as an improvement? The number of people covered? No one has suggested that the Republican proposal would preserve coverage for all of the 20 million Americans who got insurance under the ACA, never mind the millions more who could still benefit from it. If the advantage is an economic one, the CBO should be allowed to do the books.


Wednesday, March 08, 2017

Trump's phony libertarianism

Andrew Koppelman

Republicans are friendly to business and suspicious of regulations. They want minimal government as a matter of principle. But there is another group that wants to shrink government: professional criminals who hate cops. They want no interference when they hurt people.

President Trump's recent executive order, titled "Reducing Regulation and Controlling Regulatory Cost," speaks the language of the principled libertarians, but its beneficiaries are likely to be the thugs.

I elaborate in a new piece on, here.

Affirmative Action for Conservatives II

Mark Tushnet

Is the typical conservative crud (in public law) systematically worse than the typical liberal crud? My sense, though, subject to revision in light of reactions, is, “Yes, because of choices that the authors have made.” Some of what follows is overstated to make my points, but not, I hope, so much as to distort the account of what I’ve observed.

First, if we bundle three generic articles we get the modal entry-level conservative article. The generic titles are: (1) “The Original Public Understanding of Article ---, Section ---, Clause ---“; (2) “A New Epicycle on Original Public Understanding Originalism”; and (3) “Why Justice Scalia Was Right In [case name] [doctrinal position].” On the merits of those articles (the comparison with the modal liberal crud comes later): B-o-r-r-r-i-n-g. The odds that any of these articles will be interesting are quite slim. With version (1), either there’s a lot of scholarship on Article ---, Section ---, Clause ---, or there isn’t. If there is, the odds that the author is saying something new and interesting are vanishingly small. If there isn’t, well, there’s probably a good reason why – like, who cares about Article ---, Section ---, Clause ---. The problems with version (2) are obvious: tweaks can be important within an established paradigm, but tweaking originalism isn’t likely to demonstrate the author’s ability to do scholarship even well behind the leading edge. And, with version (3), Justice Scalia’s explanation for his position is likely to be better than the author’s – or, put another way, why bother to read this article when I can read Justice Scalia’s presentation itself?

Of course, what I’ve just done is non-comparative. The comparison with liberal crud is that liberal crud extends across a wider range of topics – or so it seems to me. It might have some data about police practices that’s new to me, even if the data ends up “informing” a quite pedestrian normative analysis. Or, it might tout public benefit corporations as the solution for all that ails us; qua solution, the article’s likely to be boring, but at least I’ll know something about public benefit corporations that I didn’t know before. (A confession: I stop reading articles when they get to the “policy prescription” section. Really, I do.) So, roughly, liberal crud is marginally more interesting, because marginally more informative, than conservative crud. (Mentors for conservative entry-level prospects might do well to guide them away from the modal topics and into other areas – an analysis of police-citizen interactions from the point of view of a police officer, for example.)

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Affirmative Action for Conservatives I

Mark Tushnet

This is a belated reaction to the letters from several conservative legal academics to the AALS dealing with diversity along political lines. I’m going to do two posts in quick succession, and they ought to be read together. This first post goes through a number of qualifications that, I think, are required for one to think reasonably clearly about the issues. The second makes some comments on the issue of political diversity in the field I know best, public law scholarship.

The first and probably most important point is that we always have to keep Sturgeon’s Law in mind: “Ninety percent of everything is crud.” So, the question at issue is something like this: How much more likely is it that a liberal who produces crud will get a job in the legal academy than a conservative who produces crud? That framing is important because, first, it’s the correct question, and second, because it helps avoid unproductive discussions that begin with an assertion that “Conservative X did really good work but couldn’t get a job, while liberal Y wrote something quite pedestrian and did get a job,” and then continue by focusing on whether X’s work is actually as good as is claimed, and Y’s as pedestrian. We ought to frame the discussion on the assumption that we’re comparing two candidates who work is cruddy, because – per Sturgeon’s Law – that quite likely to be true.

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Monday, March 06, 2017

US v. Me: The Real Fight in American Health Care that this Debate, like all the Earlier Ones, Won't Resolve

Abbe Gluck

The GOP ACA “replacement” draft is expected today. Chances are it will look much more like Obamacare than people might expect.  It also isn’t going to answer the biggest question in health policy-- a question every Congress that has attempted health care reform from FDR’s to Trump’s has steadfastedly avoided.  What is a health care system for?

If two people are dying from the same disease, and require the same operation to survive, and one can pay and one cannot, is it OK for the poor person to die? This is the central question in health policy-- the tension between “social solidarity” and “personal responsibility” (terms popularized in this context by Wendy Mariner of Boston University), and it poses a particular problem for American politics, because it sets up  a debate between our American capitalist ethos and our norms of equality that we all share to some extent (even the Republican plans keep Medicaid and the ACA’s generous insurance reforms, and Trump himself has repeatedly claimed no one is going to lose their care), but that raise entrenched concerns about socialism.

Our collective unwillingness to confront this question also has resulted in a American health care system that is a hodgepodge of layered programs that mix public and private regulation and that does everything in its power to hide the government’s role in health policy. We do this-- Obamacare did this, and the current GOP plan is expected to do this, too--by running our much of our national health policy and federal assistance through insurance regulation and tax policy, so it seems private and so remains palatable to our capitalist ethos. But make no mistake: the government is helping most of us. Not just the poor and the elderly: anyone who gets their health insurance from work is getting a “handout” too.

For a lot more, please see my piece out today on Vox’s The Big Idea section.

Who Should Decide Whether the President is Crazy?

Gerard N. Magliocca

Section Four of the Twenty-Fifth Amendment states, in part:

Whenever the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The decision to lodge part of of Section Four's "involuntary suspension" power in a majority of the Cabinet was a mistake.  For one thing, the President can fire Cabinet Secretaries who might be considering such a suspension and thereby block a removal. (Some members of the Cabinet also strike me as rather poor choices for such a substantial decision.) Since Congress can change the Cabinet requirement through a simple statute, they should do so under an Administration where that is not a live question. Perhaps that responsibility should be given to Congress, or some members of Congress, or a group including the Chief Justice of the United States.

This is not the only problem with the Twenty-Fifth Amendment, but I'm sure we will soon see a deluge of law review articles tackling the subject.

Saturday, March 04, 2017

The Tragedy of the Medicaid Expansion (Part II)

Stephen Griffin

In Part I, I described the impact of the Court’s creation of a Medicaid expansion option for state governments as “sectional” and related to race.  As an introduction to both aspects, consider a 2015 report by the Kaiser Family Foundation.  It described the impact of the coverage gap created once a state refuses the Medicaid expansion.  As I recounted in Part I, it is the gap with respect to adults who Congress expected would be covered by the Medicaid expansion yet do not earn enough to qualify for the alternative of receiving subsidies to purchase insurance on the exchanges.  The Kaiser report stated: “Uninsured Black adults are more than twice as likely as White and Hispanic uninsured adults to fall into the coverage gap. Nearly one-quarter (24%) of uninsured Black adults fall into the coverage gap, compared to 11% of White uninsured adults and 7% of Hispanic uninsured adults. This reflects the fact that a large share of uninsured Black adults resides in the southern region of the country where most states have not adopted the expansion.”  The South, in other words.

Consider an example.  Governing Magazine tells the story of Deadra Malloy, who moved from New York to South Carolina prior to the passage of the ACA although she was HIV-positive.  She wasn’t aware that she had crossed a sectional border from a state and region with generous Medicaid benefits to a region with no benefits.  After going without her expensive medication for a year, she ended up in the emergency room with pneumonia.  The article summarizes: “None of the nine deep Southern states with the highest rates of new HIV/AIDS diagnoses—Alabama, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Texas—has opted to expand Medicaid under the Affordable Care Act. Those states also have the highest fatality rates from HIV in the country, according to the Southern AIDS Coalition.”  As I noted in my first post, Louisiana has since accepted the Medicaid expansion.

The tragedy of the Medicaid expansion is that this southern failure after Sebelius was both predictable and very unfortunate in terms of its impact on health outcomes for all the poor in southern states, but especially for racial minorities.  The topic of Medicaid eligibility has its complexities and I am not a health law expert.  But as I said at the outset, I think this issue is relatively neglected by constitutional law scholars so it is worth taking on, despite the risk of making (hopefully minor) mistakes.  There are also, I believe, some important lessons to be learned about the policy consequences of the Court’s federalism doctrines.  For those interested in checking my claims (those not documented by links), I will attach a short bibliography to the last post.

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