Friday, January 18, 2019
Herrera v. Wyoming: A Cautionary Encounter with Careless Repudiation
Daniel B. Rice and Jack Boeglin
Thursday, January 17, 2019
The ERA on the Brink
Gerard N. Magliocca
Earlier this week the Virginia Senate voted to ratify the Equal Rights Amendment. If the Virginia House of Delegates follows suit (which is by no means certain), then Virginia will become the 38th state to ratify the ERA if the rescission votes of five of those 38 states are disregarded. As a result, a yes vote by the Virginia House will lead to a formal petition to the Archivist of the United States for recognition of the ERA as the Twenty-Eighth Amendment. Stay tuned.
Saturday, January 12, 2019
A Solution to the Shutdown from Nicholas Biddle
Wednesday, January 09, 2019
Why Progressives Should Support Pay-As-You-Go Budgeting Rules
Responding to the opposition that some House Democrats, the Economic Policy Institute, Paul Krugman, and others have expressed to pay-as-you-go budgeting rules, I recently published an op-ed arguing that those rules are essential to pursuing the progressive legislative agenda.
Tuesday, January 08, 2019
Unpacking the "Transgender in the Military" Cases
As many Balkinization readers may know, a few weeks ago the Solicitor General filed petitions for certiorari “before judgment” with the Supreme Court in three cases (Nos. 18-676, 677, 678) challenging then-Secretary of Defense Mattis’s new policy regarding transgender service-members. In each of the cases a district court preliminarily enjoined DOD from implementing the new policy. On Friday, however, a D.C. Circuit panel in one of the cases (consisting of Judges Griffith, Wilkins and Williams) held that the district court should have dissolved its injunction, issued in 2017, because of a subsequent change in circumstances—namely, Secretary Mattis’s revised policy, which he promulgated in February 2018. The court of appeals concluded that the District Court’s refusal to reconsider its injunction was based upon “an erroneous finding that the  Mattis Plan was the equivalent of [the earlier] blanket ban on transgender service.” The panel explained: “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.” The court of appeals also strongly hinted, without conclusively holding, that the new Mattis plan is likely to survive Fifth Amendment scrutiny in light of the deference that courts ordinarily accord military judgments.
Monday, January 07, 2019
National Emergencies, Then and Now
John Fabian Witt
Thursday, December 27, 2018
ACS @ AALS
For those attending the AALS conference in New Orleans next week, amid many other events the American Constitution Society has two, both on Thursday, January 3rd (flyer here):
Saturday, December 22, 2018
The Nondelegation Doctrine -- Correcting a Common Error
Can He Do That? Of Appropriations, Walls and Shutdowns
A Different Border Wall: Judgments of Legal Quality in Texas v. United States
In his December 15 post on Texas v. United States ("Off the Wall and on the Wall in the Age of Trump"), Jack Balkin brings to bear the historicist sensibility that partially informs his magnificent 2011 book, Living Originalism. In the post, he opines that Judge Evan O'Connor invalidated all of the Affordable Care Act (ACA) "on (in [Balkin's] own view) pretty dicey legal grounds." But Balkin moves quickly from the perspective of the individual participant in the constitutional system to the perspective of the historicist appreciator of how the system functions. He explains why the arguments accepted by Judge O'Connor are already "on the wall," albeit "barely." In addition, Balkin in effect lays out a road map that, if followed by the right groups of people -- especially a unified Republican Party and conservative intellectuals who work on the arguments -- will rapidly place those arguments firmly on the wall. Most significantly, Balkin writes that "judgments of legal quality and social influence mutually shape each other," but his post focuses almost entirely on how social influence shapes judgments of legal quality, and not the other way around.
Thursday, December 20, 2018
Three Short and Sweet Possible Legislative Responses to Texas v. United States
Nick Bagley and I have a short piece in The Atlantic offering the incoming House of Representatives three strategies for super-simple legislation that would end the litigation in Texas v. United States and preserve the ACA. One would raise the penalty for not carrying insurance from nothing to one dollar; one would clarify that the mandate is severable; one would just repeal the mandate, which, given the absence of a penalty, now hangs atavistically around the ACA like a human appendix, doing nothing useful but threatening to blow up the whole system if attacked from the outside. We also offer brief thoughts on why it's worth the House's time to adopt one of these fixes even though the Senate's leadership is less keen on the ACA. The piece is here.
Wednesday, December 19, 2018
Institute for Justice Podcast on the 14th Amendment
Gerard N. Magliocca
The Institute for Justice has released a podcast to mark the 150th anniversary of the Fourteenth Amendment. You can find the link here. https://ij.org/sc_long_podcast/the-fight-for-the-14th/ I am one of the participants, along with Kurt Lash and others.
Tuesday, December 18, 2018
Texas v. U.S.: Congress's Inherent Power to Require No One to Do Anything
While the constitutionality of the Affordable Care Act's minimum coverage provision (the "individual mandate") and shared responsibility payment were pending before the U.S. Supreme Court, Robert Cooter of UC Berkeley Law School and I developed a theory of Congress's taxing power that anticipated, and may have influenced, the Court's taxing power analysis in NFIB v. Sebelius. (Several commentators, including Neal Katyal, Randy Barnett, and Jeffrey Rosen, noticed close similarities in the analysis, citations, and rhetoric between our article and the majority opinion of Chief Justice Roberts.) According to our theory, the difference between a permissible tax and an impermissible penalty for purposes of the Taxing Clause turns on the likely effects of a federal exaction on human behavior. Whereas a tax characteristically dampens the conduct subject to the tax and thereby raises revenue, a penalty prevents the conduct subject to the penalty and thereby does not raise revenue.
Monday, December 17, 2018
All the Things You Don’t Realize Are in the ACA and Now Could Vanish
Saturday, December 15, 2018
Texas v. U.S: Off the Wall and On the Wall in the Age of Trump
Judge Reed O'Connor's opinion in Texas v. U.S. has declared all of Obamacare unconstitutional based on (in my own view) pretty dicey legal grounds. Commentators are trashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.
There is no "mandate." And oh, by the way, Judge O'Connor didn't enjoin enforcement of any provision of the ACA, let alone "strike down" Obamacare in its entirety.
the many critics are absolutely correct that Judge O’Connor’s severability analysis in his Affordable Care Act opinion yesterday is indefensible.
By focusing so intently on the severability argument, however, many of those critics concede (or assume) far too much at the front end, which is, if anything, even less defensible.
Friday, December 14, 2018
Happy Bill of Rights Day
Gerard N. Magliocca
Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:
Tuesday, December 11, 2018
The Curative Power of Law and Political Economy
Monday, December 10, 2018
Brexit is Prohibition
Gerard N. Magliocca
I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.
Wednesday, December 05, 2018
CFP--Conference on Constitutional History: Comparative Perspectives
A reminder of the call for papers for the conference on Constitutional History: Comparative Perspectives in Chicago on April 29-30, 2019. Proposals submitted by December 15 will receive priority consideration. Full details are here.
Tuesday, December 04, 2018
What’s Really Wrong with the Census
Wednesday, November 28, 2018
Fiscal Policy after the Mid-term Elections