Balkinization

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Blame Chadha

BDS and Masterpiece Cakeshop

Resisting Gloss's liquidation

Medicare for All: A Time for Honesty

Would the Pain-Capable Unborn Children Protection Act Be Constitutional?

Are we in an unrecognized constitutional crisis?

Regulating Social Media -- my talk at the University of Virginia

Hardball, Again

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Thursday, February 14, 2019

Blame Chadha

Gerard N. Magliocca

With the President on the brink of declaring a national emergency, let us briefly review how we got here. In the National Emergencies Act of 1976, Congress provided that such a declaration could be rendered null and void by a joint resolution of Congress. Subsequently, the statute was amended to say that such a resolution must be signed by the President or enacted after a congressional override. That makes a BIG difference. If the original standard were in place, there is a good chance that the President would not be doing this now and, if he did, would be repudiated by Congress.

Why was the provision amended? Because the Court's decision in INS v. Chadha declared that Congress could not delegate its authority subject to withdrawal by anything other than the full procedure set forth in the Presentment Clause. Indeed, Justice White's dissent in Chadha specifically discussed the National Emergencies Act in arguing that the Court was making a mistake by using a formal interpretation of Article One, Section Seven to sweep away all legislative veto procedures (not just the one-House version at issue in Chadha) including those that addressed national security. Now the chickens are coming home to roost.

Posted 10:09 PM by Gerard N. Magliocca [link] (32) comments

Tuesday, February 12, 2019

BDS and Masterpiece Cakeshop

Andrew Koppelman

How is a same-sex wedding like an Israeli West Bank settlement? Discrimination based on either is not protected by the First Amendment.

Laws in 26 states provide that the state will not contract with companies that refuse to do business with those who invest in Israel. In three states, the American Civil Liberties Union has sued to enjoin these laws, claiming that boycotts are protected by the First Amendment. The argument has gotten some traction: two courts were persuaded, and free speech considerations persuaded many US Senators to vote against an anti-BDS bill.

However, less than two years ago, in Masterpiece Cakeshop v. Colorado, the ACLU argued that “the First Amendment’s free speech clause does not authorize a business to engage in discrimination prohibited by a regulation of conduct that incidentally affects expression.” The ACLU was right then. There’s no way to shoehorn discrimination – and firms that participate in BDS are undoubtedly discriminating – into the First Amendment.

Eugene Kontorovich has a piece (paywalled, alas) in today’s Wall Street Journal arguing that the ACLU’s position in its lawsuits is inconsistent with its prior arguments that free speech does not protect discrimination. He doesn’t mention Masterpiece Cakeshop, but the inconsistency is particularly apparent there.

Advocacy of boycotts is undoubtedly protected speech. So is advocacy of discrimination. But a state remains free to refuse to do business with those who discriminate. Kontorovich writes: “the act of boycotting Israelis does not in itself express any particular political viewpoint. Companies may boycott Israel to curry favor with Arab states or out of mere anti-Semitism. They may hope to avoid harassment from the BDS movement or simply cave in to pressure from Palestinian groups. Airbnb, the most prominent U.S. company to announce an Israel-related boycott, says its decision was entirely apolitical and that it opposes boycotts of Israel.”

The BDS movement is right that Israel’s West Bank settlements are illegal and, as a policy matter, insane (though many BDS proponents are curiously oblivious to the genocidal ambitions of much of the Palestinian leadership). For that matter, I think that it ought to have been possible to make some accommodation for conservative Christians who don’t want to facilitate same-sex weddings. But it’s a mistake to try to translate either of these policy judgments into free speech arguments. Doing that threatens to gut all of antidiscrimination law, and is potentially anarchic in its implications, since disobeying the law often sends a message. Conduct often has semantic significance. But conduct that sometimes has semantic significance isn’t speech. That was true in the case of the Colorado baker. It’s true here as well.

Posted 7:29 AM by Andrew Koppelman [link]

Monday, February 11, 2019

Resisting Gloss's liquidation

Neil Siegel

In recent years, legal scholars have become increasingly attentive to the constitutional role played by historical governmental practice in discerning the Constitution's separation of powers. Theories of “historical gloss” in particular have highlighted the role of historical practice and attempted to situate it within constitutional theory. The U.S. Supreme Court, in recent decisions, has also emphasized such practice. Although it is easier to accommodate a role for post-Founding practice within non-originalist approaches to constitutional interpretation, some originalist scholars, most recently Will Baude, have also sought to take account of at least some of that practice, under the label “Madisonian liquidation.”

It is important to understand the originalist turn to historical practice. Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,” originalist efforts to claim a greater role for historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of strict originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.

In a new article, my Duke colleague Curt Bradley and I explain the originalist turn to practice, describe the historical gloss approach, compare gloss with both the narrow and broader accounts of Madisonian liquidation respectively developed by Caleb Nelson and Baude, and suggest that the differences between gloss and liquidation concerning the proper role of historical practice in constitutional interpretation render liquidation less normatively attractive and less descriptively accurate than gloss. We also question the extent to which the accounts of liquidation offered by Nelson and Baude can properly be attributed to James Madison.

Here is the abstract:

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to this post-Founding governmental practice in discerning the Constitution’s separation of powers. Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation. Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation. In this Article, we first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether, insofar as there are differences, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

Posted 10:35 AM by Neil Siegel [link]

Medicare for All: A Time for Honesty

Guest Blogger

E. Kent Yucel

I would like to give some additional perspective on the widely-touted Medicare for All (MFA) movement, which seems almost to have become a litmus test for being considered a competitive Democratic presidential candidate. Unfortunately, MFA, as it is used in the parlance of most advocates as well as the Democratic presidential candidates, skips over several important issues. These issues cut to the heart of whether or not MFA is a feasible approach to achieving universal health insurance in the United States. I want to emphasize that I make these points as a medical professional who is committed to the moral and public health importance of achieving universal health coverage. However, it is important to avoid heartbreak and backlash in the future (see, “if you like your health care plan, you can keep it”) in these discussions to be honest about the costs and benefits of plans under discussion. There are three fundamental issues with how Medicare operates and how MFA would impact the health care system.

Medicare is not a single payer system. As anyone who has had the least involvement with the medical care of someone over 65 knows, Medicare only pays 80% of allowable charges. That may have been sufficient in 1966 but medical technology advances and medical cost inflation over the last half-century, has made even 20% of many hospitalizations an unaffordable expense. Limits to Medicare are also quite extensive, including dentistry, eyeglasses, hearing aids, long-term services, and even limited days in the hospital. This includes the notorious, three-day inpatient stay requirement for rehabilitative services. As hospitals put increased effort into shortening inpatient stays, increasing numbers of patients are falling into this gap and being faced with having to pay for rehabilitative care on their own. Therefore, in order to avoid medical bankruptcy, non-indigent people who can afford it, should and many do purchase third-party insurance packages of various kinds. Indigent patients who qualify may also Medicaid to fill in these gaps; however, as in any system requiring individual initiative and payment, many individuals fall through the cracks and are still at risk of medical bankruptcy. This is a far cry for the “single-payer” model many progressives dream of.

Medicare payments are not sufficient to support the medical care system we have. Private health insurance pays substantially more for the same services than Medicare (often double or even more), and the difference is even more stark for Medicaid. It is an open secret that this difference accounts for the entirety of hospital operating margins, which pays for maintenance of the physical plant, equipment upgrades, and salary increases for employees. While overhead is somewhat higher in the private sector than the public sector, one should not assume that receipts from private health insurance go only to shareholder dividends or management salaries. Instead, much of the extra money that comes from private insurance is used to support different services, such as monitoring quality and assessing the need for care, which may have independent value.

In any case the difference in overhead between public and private institutions (say, 10%) is far exceeded by the difference in payment rates between private health insurance and Medicare (80-100% or even more). All of this additional payment from private health insurance is now going into medical care delivery. It is not too strong a statement to say that removing it would result in the collapse of the medical care delivery system in the US. That is not to say that our current medical care system is ideal or could not be improved, but removing private sector health insurance payments would cause a severe shakeout in terms of participants in and services delivered by the system. Marginal hospitals (many in underserved areas) would go bankrupt, technology purchases would be delayed, resulting in queues and rationing, and the quality of the workforce would decline. Advocates who claim the savings from MFA need to be honest about the changes in the medical care system that would result. Not all of these changes are necessarily bad but there will be major changes.

Who pays? At the current time, despite an effort to shift some of this burden to individuals, companies pay the bulk of the premiums for the private insurance sector. Medicare, on the other hand, is a hybrid government and individual system. A shift to MFA without figuring out a way to maintain these corporate payments into the system would result in a massive cost shift to individuals through taxes and co-pays. It is not true that this cost shift would equal aggregate individual insurance payments now. It could equal aggregate individual plus corporate insurance payments, but that is a different thing. In an ideal world, these payments could go to individuals through salary increases (decreased by the beneficial tax treatment of insurance premiums). But the influence of the corporate sector on the political system and the history of the last forty years of increasing returns on capital and decreasing relationship between worker productivity and salary make it unlikely and certainly not easy to maintain this cost burden sharing. It is much more likely that companies will simply pocket the insurance savings and leave the citizens’ health care needs to the government (i.e., taxpayers).

If progressives want to win the battle for universal health care through MFA, they will need to deal honestly with these three issues: gaps in Medicare coverage, insufficient Medicare payment rates, and maintaining the current burden sharing for health premiums between companies and individuals. A better strategy is to work through the Affordable Care Act, which for all its limitations, has been successful in reducing the uninsured rate. First, of course, to repair the damage done by two years of Republican rule, and then to deal honestly with the issue of “sticker shock” for ACA plans, through a combination of increased subsidies and further efforts to “bend the cost curve.” Fortunately, there is $1 trillion dollars over ten years that could be made available for subsidies by simply repealing the Trump administration tax cuts. Reforms introduced by the ACA have already shown some progress in cost control but there are certainly more gains to be made through a variety of value-based payment initiatives. Given the increasingly positive assessment of the ACA by the public, such a gradualist approach is both more likely to be successful politically as well as less traumatic for the sector, allowing it to incrementally adapt to economic incentives rather than going through a traumatic “all or none” transtion. In the end, our health system would like more like those in continental Europe, such as Germany or Switzerland, which are based on private insurance, than single payer systems like Canada or the United Kingdom. The former systems have been just as—or even more—successful in delivering high quality universal health care as the latter.

E. Kent Yucel is Chair of Radiology at Tufts Medical School in Boston MA. You can reach him by email at kyucel@tuftsmedicalcenter.org

Posted 8:00 AM by Guest Blogger [link]

Thursday, February 07, 2019

Would the Pain-Capable Unborn Children Protection Act Be Constitutional?

Gerard N. Magliocca

In November, a Federal District Court in Michigan held the Prohibition of Female Genital Mutilation Act of 1995 unconstitutional. The Court reasoned, in essence, that the Supreme Court's decisions in Lopez and Morrison meant that this sort of local activity could not be regulated by Congress pursuant to the Commerce Clause or any other enumerated power. This was true even though the case involved a prosecution of doctors who were paid to do the procedure by a family. While states were free to ban the practice, the federal government could not.

My question is simple: If this opinion is correct, then would it not follow that a federal statute prohibiting a third trimester abortion under certain circumstances would also be invalid? I doubt that Congress can produce findings that third-trimester abortions have a demonstrable effect on interstate commerce any greater than female genital mutilation does.

One response to this, of course, is that perhaps the District Court erred in holding that the FGM statute is unconstitutional. I've having a hard time, though, understanding how the two examples can be distinguished.

Posted 11:20 AM by Gerard N. Magliocca [link] (29) comments

Monday, February 04, 2019

Are we in an unrecognized constitutional crisis?

Sandy Levinson

The term "constitutional crisis" is much bandied around these days. Jack and I wrote an article about a decade ago offering some quite stringent conditions for a genuine "constitutional crisis" to exist, and he has argued that its use during the Trump presidency has been misleading. He and I might slightly disagree on the main point, for I do believe that the failure of the Constitution to provide an alternative to the clearly inefficacious mechanisms of the Impeachment Clause and the 25th Amendment to get rid of a president in whom we deservedly have no confidence at all in matters of war and peace, life and death, or, for that matter, keeping the country together in some semblance of "domestic tranquility," may serve as evidence why the Constitution itself is the crisis at present.

But I don't want to rehearse those arguments once again. Instead, I am intrigued by piece in the Washington Post describing the increasing concern, including on the part of Republican senators themselves, about the abject failure of the remarkably lackadaisical and insouciant Trump to name candidates for offices subject to the "advice and consent" of the Senate. Instead, he appears to prefer that "acting" officials remain in place. The Post story suggests that Trump actually prefers such officials because they are more "responsive" to his dictatorial will. "It gives me more flexibility," Trump is quoted as saying.

Given the almost certain willingness of the GOP in the Senate to rubber-stamp Trump's appointments, including the announcement today nominating the egregious (though reportedly extremely hard-working) former lobbyist David Bernhardt, to continue gutting the Interior Department, perhaps one shouldn't really care, for example, that the current Secretary of Defense is merely "acting," as is, until William Barr is confirmed, the equally egregious Matthew Whitaker as Attorney General. One certainly can't seriously the proposition that the Senate will truly attempt to assert its genuine independence from the Executive when both are controlled by the same Party. But is this near-indifference, save for a few inside-the-Beltway cogniscenti, to the actual implementation of the Senate's role in confirming high-level appointments just another piece of evidence that we must realize that our constitutional order is increasingly dominated by a President (and not simply the institution of "the presidency") who can freely ignore what had been thought to have been basic precepts of that order?

There is so much more to be worried about, with regard to the disaster that is Donald Trump, that this particular feature may indeed be relatively unimportant and thus unworthy of being classified even as a minor "crisis." But even if we reject that label, is it not a breach of the Constitution, just another indication that Madison was correct in describing constitutions as basically creating only "parchment barriers" that could easily be breached by those with sufficient energy to do so?

Posted 4:27 PM by Sandy Levinson [link] (60) comments

Sunday, February 03, 2019

Regulating Social Media -- my talk at the University of Virginia

Here is a talk I gave on January 25th, 2019, at a conference on the Internet and Democracy at the University of Virginia. The subject is how to regulate social media. The title U. Va gave the talk-- "How should the law approach social media abuses"-- was not chosen by me.

I discuss different models for social media regulation, arguing against treating social media as public fora and in favor of antitrust/competition law and information fiduciary approaches. I also argue that social media companies have to take on public responsibilities in the digital public sphere, something that they won't do until their business models change.

The appropriate way to change their business models, however, is through antitrust, privacy, and consumer protection regulation, rather than through directly attempting to regulate social media companies' editorial and curational practices. We should also distinguish between social media companies and basic internet services (e.g., broadband companies, and the DNS system) which require different kinds of regulation.

The speech runs around 50 minutes including questions from the audience. A noted First Amendment scholar, Professor Leslie Kendrick, gives a very generous introduction.

Posted 1:05 PM by JB [link]

Friday, February 01, 2019

Hardball, Again

David Pozen

Joseph Fishkin and David Pozen

Last spring, an eon ago in political time, we published an essay in the Columbia Law Review titled “Asymmetric Constitutional Hardball.” The central claim of the essay is that over the past twenty-five years or so, an asymmetry has arisen between the two major parties in their propensity to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Democrats and Republicans both do this. But, the essay argues, Republicans lately do it more. The essay is a deep dive into the potential causes and consequences of this asymmetry.

The Columbia Law Review is now publishing two responses to our essay, by David Bernstein and Jed Shugerman. They come at us from opposite directions. In “Constitutional Hardball Yes, Asymmetric Not So Much,” Bernstein argues (among other things) that there is no asymmetry. Once one appreciates that Democrats bear as much responsibility as Republicans do for recent government shutdowns, and once one considers the unique lawlessness of the Obama Administration, the perception of partisan imbalance disappears. In “Constitutional Hardball vs. Beanball,” Shugerman argues (among other things) that the asymmetry is even starker than our essay suggests. Once one appreciates the fundamentally antidemocratic character of certain hardball tactics—the “beanball” kinds—used mainly by Republicans, the partisan imbalance turns out to be nothing short of terrifying.

We have just posted a draft of our reply to both Bernstein and Shugerman: “Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda.” In a nutshell, we try to show why Bernstein’s whole approach represents a step backward for the study of constitutional hardball whereas Shugerman’s represents a step forward. Our reply also briefly discusses some political events from the past several months, at both the federal and state levels, that tend to reinforce and illustrate the asymmetry thesis.

Posted 5:28 PM by David Pozen [link]

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