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

Shamleless self-promotion

A Wealth Tax is Constitutional

Understanding the President’s Budget Proposal

Republicans['] Own Constitutional Discourse

Two Theories of Politics: Zero-Sum vs. Self-Reinforcing Change

"Over the Top" Reaction to a Conservative Speaker at Yale Law School?

Just A Few Blogs

ACS Weblog
Alas, a Blog
Althouse
Arts and Letters Daily
Atrios (Eschaton)
Bad Attitudes
Bill of Health
Buzzflash.com
Buzz Machine
Cato at Liberty
Juan Cole (Informed Comment)
Concurring Opinions
The Constitution in 2020
Corrente
Crooked Timber
Daily Howler
Daily Kos
Dana Boyd
Brad DeLong
Digby (Hullabaloo)
Discriminations
Daniel Drezner
Kevin Drum (Mother Jones)
Electrolite
En Banc
Eunomia (Daniel Larison)
Fafblog
Michael Froomkin (Discourse.net)
GovLab (Beth Noveck)
Rick Hasen (Election Law)
History News Network
How Appealing
Ignatz (Sam Heldman)
The Importance of (Ernie Miller)
Infolaw
Instapundit
International Economic Law and Policy Blog
IntLawGrrls
Jacob Levy
Jesus' General
Jurisdynamics
The Kitchen Cabinet
Mark Kleiman
Law Blog Central
Larry Lessig
Lawyers, Guns and Money
Liberal Oasis
Brian Leiter's Law School Reports
The Leiter Reports
Marginal Revolution
Megan McArdle
Memeorandum
Metafilter
Mirror of Justice
The New Republic
Newseum
No More Mister Nice Blog
Brendan Nyhan
Opinio Juris
Orcinus
The Originalism Blog
Pandagon
Passport (Foreign Policy)
Overcoming Bias
Political Animal (Washington Monthly)
Political Theory Daily Review
Political Wire (Taegan Goddard)
The Poor Man
Virginia Postrel
Prawfsblawg
Public Reason
Jonathan Rauch
Raw Story
Redstate
ReligiousLeftLaw.com
Reporters Committee For Freedom of the Press
Reproductive Rights Blog
Rothman's Roadmap to the Right of Publicity
SCOTUS Blog
Seeing the Forest
Clay Shirky
The Shifted Librarian
The Situationist
Larry Solum (Legal Theory)
Andrew Sullivan
Talking Points Memo
Talk Left
Tapped
Tbogg
TechPresident
The Paper Chase (Jurist)
Tom Paine
Tom Tomorrow (This Modern World)
Eve Tushnet
Uggabugga
University of Chicago Law School Faculty Blog
Unqualified Offerings
The Volokh Conspiracy
War and Piece (Laura Rozen)
Wampum
Oliver Willis
Wonkette
Written Description
Matthew Yglesias
Yin

Your Choice of Feeds
1. XML powered by

2. Atom Feed

3.

4. RSS 2.0

Wednesday, March 13, 2019

Shamleless self-promotion

Sandy Levinson

I have recently published two short pieces on our present constitutional situation. One is part of a symposium in the Newark Star-Ledger, where five scholars were asked to suggest possible reforms in our constitutional order. I suggested that the exclusive reliance of the national constitution on representative government should be complemented by processes allowing some direct democracy. A second is part of a Cato Institute symposium built around an excellent essay by Gene Healy arguing that we should take impeachment much more seriously than we do as a way of disciplining presidents. I argue that Healy should complement his emphasis on the Impeachment Clause by advocating changing the Constitution to allow displacement of presidents by votes or no confidence in Congress or, indeed, recall elections as in Wisconsin or California. Nothing in these pieces should really surprise anyone familiar with my overall approach to things, though you should find some of the other essays of genuine interest.

Posted 2:18 PM by Sandy Levinson [link] (59) comments

A Wealth Tax is Constitutional

Guest Blogger

Calvin H. Johnson

The Constitution, Article I, section 9, clause 4, requires that a “direct tax” must be apportioned among the states by population. Elizabeth Warren has proposed an annual wealth tax, reaching the rate of 3% of wealth for those who have more than a $1 billion of wealth.

Warren’s wealth tax would be constitutional. The defining characteristic of a “direct tax,” according to the Founders, is that it is the kind of tax in which apportionment among the states by population would be appropriate and reasonable. If apportionment among the states by population is not appropriate and reasonable, the tax is not a direct tax.

The original meaning of “direct tax” was a tax directly on states, that is, requisitions. The term “direct tax” expanded, as language often expands, to include the kinds of state taxes that could be used to satisfy state requisitions. But if a tax could not be reasonably and appropriately apportioned among states by population, the tax does not sufficiently resemble a state requisition and so the tax is not direct. Thus, for example a tax on imports was not a direct tax because it could not be known in which state the goods would settle and which state should get credit in its quota under a requisition. Excises, duties and carriage taxes were once considered direct taxes because they were part of the system of requisitions upon the states, but they were excluded from the definition of “direct tax” once it was known that they did not have the necessary reasonable and appropriate apportionability.

Today, apportionment of a wealth tax by population is not reasonable or appropriate. Wealth per capita in poor Mississippi is just over half of wealth per capita in rich Maryland. Apportionment by population would mean that tax rates in Mississippi would have to be almost twice the rates in Maryland. The result has no policy justification, but would simply arise by necessity from the fact that Mississippi is such a poor state that is has so little tax base over which to spread its quota. Because apportionment would not be reasonable, a tax on wealth today would not be viewed as direct using the Framers’ original reasoning.

Posted 11:00 AM by Guest Blogger [link]

Understanding the President’s Budget Proposal

David Super

On Monday, March 11, President Trump released his proposal for the last meaningful budget of his first term. It will cover the period from October 1, 2019, until five weeks before the 2020 presidential election. To avoid either a pre-election government shutdown or embarrassing pre-election concessions, the President and Congress will almost certainly agree to a continuing resolution to cover the pre-election period, with the final 2021 budget’s contours determined by the election’s victors. This is, therefore, President Trump’s final opportunity to insert his priorities into law during this term.

The popular media has done a fair job of capturing the broad themes: large increases in defense spending, making upper-income 2017 tax cuts permanent, and a partial offset of those costs with dramatic cuts in programs assisting low- and moderate-income people. President Trump also manages, in one document, to breach all three parts of his campaign promise not to support cuts in Social Security, Medicare, and Medicaid. The purpose of this post is to provide a few specifics and to discuss what comes next, procedurally and politically.

The Congressional Budget Act makes the President’s submission of a budget proposal the de facto start of the annual budgeting process. It was due in early February, but the partial federal government shutdown made that impossible as budget proposals build on the current year’s budget, which was still unresolved. Historically, presidents’ budget proposals have been a mix of serious proposals for the more mundane “housekeeping” parts of the federal budget and aspirational proposals that the President knows Congress is unlikely to accept as-is. The mix between practical and ideological proposals has shifted over the years.

A few customary ground rules have applied to presidential budget proposals, although some of these norms are becoming quite frayed. The president’s budget proposal is typically the high water mark for his party’s initiatives: the opposing party cites the president’s budget much as trial lawyers cite party admissions to reject out of hand any proposals going farther. This practice has discouraged realistic presidential budget proposals. Thus, during the Clinton and Obama Administrations, congressional Democrats could expect no traction for social initiatives not in that year’s presidential budget proposal. President Trump has not felt bound by this tradition: his proposals for a border wall, for example, evolved repeatedly from last year’s budget proposal.

Presidents also express their aspirations for overall fiscal effects – the size of deficits or surpluses and the division of funds between defense and non-defense programs – in their budget. The seriousness of these aspirations can be assessed by the degree to which the budget depends on accounting gimmicks or proposals that obviously lack congressional support.

Since the Budget Control Act of 2011, presidential budgets also have had to take a position on whether they will adhere to the draconian caps on annual appropriations (“discretionary spending”) that that law and its subsequent sequestration imposed. No president or Congress since then has found a palatable way to operate the federal government within those funding constraints. As a result, Congress has passed and presidents have signed a series of bipartisan deals increasing those caps for two years at a time, offsetting part of the cost with cuts in domestic entitlement programs. The most recent such deal, signed by President Trump, expires at the end of the current fiscal year.

Even by the standards of recent presidential budgets, President Trump’s proposal is quite extreme. He does not propose new legislation raising the caps on discretionary spending, which would force Congress to write appropriations bills to fit within the “sequestration” limits. This would mean an 11% average cut in non-defense discretionary (NDD) spending in 2020 below the current year’s levels after adjusting for inflation. Because he proposes large increases for the Department of Homeland Security, which falls within the NDD category, the actual cut he would require from other programs would be even greater. The President’s budget assumes further reductions in NDD spending in future years: by 2021, it would be the smallest share of the economy since the Hoover Administration and over ten years it would drop 40% after adjusting for inflation. Apparently recognizing that these cuts are politically untenable, the Administration is claiming that they are much smaller than they are.

Although President Trump’s budget purports also to apply the comparably severe caps on defense spending, it evades the effect of those caps with a giant accounting gimmick. It transfers substantial amounts of regular Pentagon spending into a special category, Overseas Contingency Operations (OCO), that is exempt from the caps. OCO was intended to pay the special costs of the wars in Afghanistan and Iraq on an emergency basis. The Pentagon has long reclassified parts of its regular operating budget as OCO, but President Trump’s converts this stream of extra Pentagon funding into a raging torrent: defense spending designated as OCO would jump from $69 billion to $165 billion in a single year. This obliterates the Budget Control Act’s commitment to have defense and non-defense spending subject to parallel constraints. Both Mick Mulvaney, the President’s Chief of Staff and former budget director, and former House Speaker Paul Ryan harshly criticized much more moderate abuses of the OCO device when they were in Congress.

Even the President’s proposals for non-defense discretionary spending do not appear designed to be taken seriously. For example, he would cut $5 billion from the National Instituted of Health, which enjoy broad bipartisan support. He would terminate low-income energy assistance and the Community Services Block Grant, which funds the remnants of War on Poverty service programs. Even Republican Congresses have ignored deep cuts proposed for these programs in the past. He would slash the Job Corps and dislocated worker programs serving the very people for whom he claims his trade war is being fought. Few in Congress will want to be associated with those cuts.

Most of the President’s supposed domestic initiatives in the budget also are gimmicks. He boasts of a new fund of money for infrastructure but appears to cut transportation and housing funds by even more, resulting in a net reduction in federal infrastructure spending. He claims to be launching major efforts against the opioid epidemic and HIV, but he would deeply cut Medicaid – the primary source of treatment funding for many fighting addition and HIV infection – with the result that fewer total resources would be available.

Critics are no doubt correct that this budget proposal will be “dead on arrival” in Congress: almost all presidential budget proposals are. It nonetheless remains significant for several reasons. First, it provides a comprehensive statement of this Administration’s values and priorities. It makes the 2017 upper-income tax cuts permanent – at a cost of $275 billion in 2028 alone – at the same time it would impose 30% reductions in food stamps as well as deep cuts in Social Security Disability Insurance, Supplemental Security Income for the elderly and disabled, Medicaid, and family income support.

Second, the President’s proposal to replace the Affordable Care Act with an inadequately funded block grant – along with his proposed Medicare cuts – confirms that the Act has now become firmly entrenched. Republicans will continue to condemn the Act, but few will want to run on this proposal in the 2020 elections. Even if Republicans win, they will have no mandate to launch another effort to repeal the Act. The Act’s entrenchment has important broader implications for U.S. public law.

Finally, the budget proposal’s insistence on adhering to the sequestration spending caps, however disingenuous, suggests that the Administration will resist negotiating a new bipartisan agreement to raise those caps. Neither party’s appropriators are likely to want to vote for bills containing such draconian cuts. The House likely will pass a “deeming resolution” waiving points of order against considering bills over the caps. Senator McConnell likely will be reluctant to do the same so the Senate may be unable to bring appropriations bills to the floor. In any event, neither chamber probably can pass appropriations bills at the sequestration levels, and without such legislation appropriations above that will result in new automatic across-the-board budget cuts.

Postponing all the complex, contentious decisions that appropriations entail to the last minute will greatly increase the chance that a snag will trigger another federal government shutdown. That is already a significant likelihood because Democrats and some Republicans will want to insulate appropriations accounts from “emergency” transfers to build the President’s proposed border wall.

Posted 12:17 AM by David Super [link]

Tuesday, March 12, 2019

Republicans['] Own Constitutional Discourse

David Pozen

Julian Nyarko, Eric Talley, and I have just posted a new paper that uses computational methods to investigate the ideological and partisan structure of constitutional discourse on the floor of Congress (and secondarily in newspaper editorials). The headline finding is that constitutional discourse has grown much more polarized over the past four decades. In fact, it has polarized at least as rapidly as nonconstitutional discourse. How can computational methods show this? Relative to the early and mid-twentieth century, it has become substantially easier for an algorithmic classifier to predict, based solely on the semantic content of a constitutional utterance, whether a Republican/conservative or a Democrat/liberal is speaking.

There are a number of other intriguing findings in the paper, which we hope will open up a new set of research agendas for constitutional scholarship. Here, I will mention just one.

Although the paper focuses on aggregate trends in “constitutional polarization,” we consider in Part V whether some especially salient terms may be doing outsized work in differentiating the parties’ contemporary constitutional rhetorics. The figures below display word clouds associated with the utilization of terms in the broadest constitutional dictionary that we created (containing terms from the text of the Constitution as well as important constitutional concepts that are at least several decades old) for two eras: 1959 to 1976 and 1999 to 2016. The earlier era predates the recent surge in polarization of constitutional discourse; the later era captures the surge at its apex.

Figure A shows the fifty most distinctive terms regardless of party in congressional floor remarks from each era, with size scaled to its distinctiveness. “Distinctiveness” refers to the difference in the relative frequency with which a term is used across the two major parties. For instance, if Republicans use a term 10 times for every 10,000 words they speak, whereas Democrats use it 8 times, then the distinctiveness is (10/10,000) – (8/10,000) = 0.0002. In other words, these are the fifty constitutionally freighted terms that are most strongly “owned” by one particular party during the years in question.

Figure B replicates the analysis for the Obama presidency specifically, the last full presidency for which we have data. All terms in all word clouds are color-coded based on which party uses the term most frequently.

These results, I submit, are stunning. In the 1959–1976 period, Figure A shows, congressional Democrats had a far more distinctive and robust constitutional vocabulary than Republicans did. In the 1999–2016 period, the opposite was true—with the important exceptions that the terms “civil rights” and “voting rights” remained squarely in the Democratic fold.

Put (overly) simply, Democrats used to dominate constitutional discourse. Now Republicans do.

Posted 2:48 PM by David Pozen [link]

Monday, March 11, 2019

Two Theories of Politics: Zero-Sum vs. Self-Reinforcing Change

Frank Pasquale

The FT's Edward Luce recently judged that “America’s intellectual energy is now on the left.” With light comes heat, and there are vigorous debates among progressives on fundamental questions in tech, health, employment, energy, and finance policy. I am less concerned about the in-fighting than about the outdated theories of political change it sometimes presumes. A broad popular front united against Trumpist patrimonialism may fragment if too many within it are committed to too narrow an approach to policy. I’ll give two examples of this danger, while explaining a theory of political change to justify policy bricolage.

My first example is the recent pile-on by economists jostling to discredit Modern Monetary Theory (MMT). The core idea behind MMT is that government spending faces a flexible inflation constraint, not a hard-and-fast debt constraint. Sometimes government spending can spark demand-pull inflation: too much money chasing too few resources and goods. However, wise macroeconomic investment can reduce prices as well, or produce a mixture of raised and lowered prices. Think of the extraordinary decline in the price of software, computing capacity, and data storage over the past two decades. Investment paid dividends there—and can do so on a much larger scale. Moreover, as Cornell law professor Robert Hockett has argued, there are many ways to identify inflation early, and nip it in the bud, if government spending causes certain scarcities.
Read more »

Posted 11:38 AM by Frank Pasquale [link]

Friday, March 08, 2019

"Over the Top" Reaction to a Conservative Speaker at Yale Law School?

Mark Tushnet

I post this to provide some information relevant to current discussions of free speech controversies on campus. A member of the Federalist Society at Yale Law School wrote an on-line article about a recent episode there. (I'm going to quote from the article, with some interpolations, but not link to it.)

The author "and my friends" invited a lawyer from the Alliance Defense Fund to speak at the Law School. (This is an odd formulation. The Yale Law Federalist Society website indicates that it sponsored an event with a lawyer from the ADF on Feb. 26. This is relevant to something later in the article.) The author and his friends "sent out a school-wide email announcement of the event." The reaction was "over-the-top even by Yale standards."

What was the reaction? A large number of student groups organized a boycott of the event. "In addition to the boycott, some students said people who supported ADF’s position should no longer be admitted to the law school. One student emailed a list of the Federalist Society board members (publicly available information) so students would know whom to 'thank' for this event."

On the day of the event what happened? "Around 30 people attended. The boycotters decorated the front door with rainbow posters, but mostly stuck to protests and support groups in other rooms. The one disruption occurred near the end of the event, when three students walked in, rifled through empty pizza boxes, and left with a couple leftovers. On their way out, one of the protestors blew us a kiss and gave us the middle finger."

So, let me get this straight. A student group invited a speaker. Other students organized a boycott, which consisted of "protests and support groups in other rooms." That looks a lot like counter-speech to me, and there's no indication that the protests and support groups interfered with the ability of those attending the event to hear what the speaker had to say. One person who objected to the speaker's view distributed an e-mail with publicly available information about the event's sponsors, suggesting that the sponsors be sent snarky messages.

The event occurred, with a number amounting to about 5% of the Law School student body attending. There's no indication that the speaker's presentation was interrupted. The "disruption" consisted of students -- as they do pretty much after all lunch-time events at Harvard at least -- looking for a free meal by picking through the leftovers from the event and snarkily flipping the bird. Some students "said" (expressed the view) that supporters of the ADF's position shouldn't be admitted to the Law School. That sounds like an expression of a view about admissions policy, well within bounds for those without authority over admissions.

If this is "over-the-top even by Yale standards," things are pretty calm at Yale.

I look forward to finding out if this episode enters the canon of conservative stories about limitations of free speech on campus. The story was published in an on-line affiliate of RealClearPolitics, so there's some chance that it will.

Posted 12:55 AM by Mark Tushnet [link]

Older Posts

Home

Books by Balkinization Bloggers