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 Rahmansabeel.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
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 aretrashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.
I have seen this movie before. (In fact, I had a minor supporting role.)
Assume that the commentators are right and the judge's arguments are not even close to being persuasive given existing legal precedents. Does that mean that the position is "off-the-wall?" Suppose it was off-the-wall six months ago, before the judge issued his final decision. What about now? Have the arguments against Obamacare moved from "off-the-wall" to "on-the-wall," as they did in NFIB v. Sebelius and King v. Burwell?
There is no "mandate." Oh, and 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.
linchpin of O’Connor’s judgment—the part that triggers his severability
analysis in the first place—is his conclusion that once the Affordable Care Act’s
“shared responsibility payment” is reduced to zero on January 1 (the result of
an amendment Congress enacted in December 2017), what will remain of 26 U.S.C. §
5000A is a “mandate” for individuals to “maintain minimum essential [health
insurance] coverage.”Because Congress
lacks any power to mandate, or require, individuals to purchase or maintain insurance,
reasons Judge O’Connor, the “mandate” will become unconstitutional in a couple
of weeks.And having decided that, O’Connor then further "reasons" that the “mandate” isn’t severable from any of the
other myriad of provisions of the ACA, and thus that the entire kit and kaboodle will be inoperative
on January 1.
“mandate” or the phrase “individual mandate” appears no fewer than 245 times in
Judge O’Connor’s decision.On top of
that, he uses “requirement” and “obligation” as synonyms for “mandate” another 45
or so times.That’s close to 300
references in a single 55-page opinion.
the ACA doesn’t contain any mandate, or legal requirement, for anyone to maintain health
insurance.What § 5000A contains,
instead, is a choice.As originally enacted—that is to say, under the ACA in effect today
(i.e., before January 2019)—that choice for most individuals is either to maintain health insurance
(subsection 5000A(a)) or to make the
prescribed “shared responsibility payment,” which has been the greater of 2.5%
of household income or $695 (subsection 5000A(b)).As of January 1, the second of those two
choices will become even less onerous—paying "zero" will be an option that
satisfies the law, just as paying the greater of 2.5% of household income or
$695 once did the same.
Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:
“The genius of the Bill of Rights is that it limits its attention to truly important things and to things over which a must and limited government can exercise some actual control. Two centuries ago, just as now, politics tempted some to take flight from moderation and realism. Edmund Burke complained at the time of those who ‘are so taken up with their theories about the rights of man that they have totally forgotten his nature’
“The framers, however, were practical men. They gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government. Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character . . .”
Ask not for whom the First Amendment tolls: It tolls for you. Or so I argue in an essay just published at the Columbia Law Review online. It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy” -- a boring title for a vital and urgent problem. Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might democratic prerogatives over the webs of commodity exchange upon which our lives depend? The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.
The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history. This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly. (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers. Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency. But the respect and support the FDA commands have made legislative assaults challenging. Perhaps that is why industry – and industry funded groups – have invested in the use of the courts to attack its power.
What does that attack look like? The cases are astonishing. Some suggest that drug companies have a free speech right to market drugs for unproven uses. These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work. Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing. New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products. E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.
The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether. I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.
How did this happen? Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic.
How we might we best respond to this new and rather ghoulish First Amendment? There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay. Importantly, though, these cases should also cause us to rethink our needs for public infrastructure. If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level. New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment. The parallels to Medicare For All – spurred on by attacks to the ACA – are easy to see.
The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute. If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.” People often ask me for work describing how to “do LPE.” These two pieces provide possible examples.
Crossposted at Law and Political Economy
Amy Kapczynski is Professor of Law at Yale Law School. You can reach her by e-mail at amy.kapczynski at yale.edu
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.
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. Posted
by Jason Mazzone [link]
Tuesday, December 04, 2018
What’s Really Wrong with the Census
Susan Rose-Ackerman and Lena Riemer
The 2020 Census questionnaire is before the federal courts. Commerce Secretary Wilbur Ross ordered the Bureau of the Census to include a question on citizenship status that is subject to judicial challenge. In the first case to reach the trial stage, the US Southern District Court in New York has completed oral hearings. Its holding is expected to generate appeals, and, indeed, the Supreme Court has already agreed to hear one challenge. The cases are occurring within a tight time frame—the final text of the questionnaire must be settled by early summer. At issue is the claim that the head count will be inaccurate.
The decennial census is one of the Constitution’s few substantive mandates (Art. 1, sec. 2, Clause 3). The count is of “persons”, not adults or citizens or voters. Accuracy is the underlying goal of the census requirement because each state’s representation in the House and in the Electoral Collate depends on the accuracy of the census—as does the distribution of federal funds under many programs. In the twenty-first century accuracy requires modern statistical techniques, including sampling and adequate pre-testing of questions.
In the service of accuracy, statistical theory and practice have developed massively since 1868 when Section 2 of the Fourteenth Amendment removed the 3/5 weight on slaves in the original text and required a count of “whole persons”. Applying the “original’ understanding of statistics in 1789 or even after the Civil War is inconsistent with the original and present-day goal of an accurate count.
The Census Act accepts the value of sampling and states that the Bureau “shall” use sampling everywhere other than for the purposes of reapportionment. The Supreme Court in 1999 read the statute as disallowing sampling for the census but did not reach the constitutional issue. In 2002 the Court permitted a technique called “hot induction” to estimate missing census data because it did not involve a survey. Thus, the case law suggests that the Supreme Court is not hostile to statistics per se, but has, so far, not reached the constitutional issue. Justice Stevens’ dissent in 1999, however, comes close:
Since it is perfectly clear that the use of sampling will make the census more accurate than an admittedly futile attempt to count every individual by personal inspection, interview, or written interrogatory, the proposed [sampling] method is a legitimate means of making the “actual enumeration” that the Constitution commands.
Sampling techniques are sophisticated and widely used in business, academic, and government applications. The Census Bureau uses statistical sampling to estimate key measures such as the unemployment rate, which has been based on sampling since 1937. Sometimes sampling is a cost-saving measure, but in other contexts it is more accurate than counting one-by-one. Yet, direct counts have a certain intuitive appeal. You point to a small pile of apples and ask your friend how many apples are in the pile. Your friend guesses “eight”. You count the apples and discover that there are actually nine. Clearly, the count is more accurate than your friend’s guess. But the superiority of a direct count evaporates as the number counted increases and if the subjects have minds of their own. People are not apples. If you take a census of human beings, their personal characteristics may affect their answers and their willingness to participate. Some may refuse to participate. This refusal could arise from a concern for personal privacy or from an unwillingness to reveal negative information.
elections changed many things in Washington.The full implications will not be apparent until the major players – the
House and Senate Republican Caucuses, the House and Senate Democratic Caucuses,
and the President – settle on their agendas.We can anticipate a bit more about fiscal policy, however, because
existing substantive and procedural rules dictate much of the agenda without
regard to the wishes of the partisan actors.This is the second of two posts
about the mid-term elections’ procedural implications.
The first impacts are
being felt already, even before the new Congress convenes.Well in advance of the election, Congress
passed and the President signed five of the twelve appropriations bills that
together fund the vast majority of government functions.In a striking departure from prior practice, Democrats
insisted on moving bills containing their priorities, particularly the bill
funding the Departments of Labor, Health and Human Services, and Education,
apace with Republican priorities, such as the Department of Defense.This changes the stakes in a potential
Of the seven appropriations
bills remaining to be passed those for Agriculture and for the Departments of Transportation
and Housing and Urban Development have been agreed to privately and are not
controversial.The bill for the Interior
Department has been controversial because of non-financial riders that have
been attached to it, largely on environmental matters.The bill for Financial Services and General
Government has been stuck due to battles over raises for federal workers and some
attempted Republican budget gimmickry.With the election over, the disputes on these bills seem likely to
That leaves the
bills for Homeland Security (controversial because of the President’s proposed
border wall and other immigration-related matters), for Commerce, Justice, and
Science (controversial because it contains funding for Robert Mueller’s
investigation), and for the Department of State and Foreign Operations (long controversial
for many Russia-related reasons and now perhaps because of concerns about Saudi
Arabia and our role supporting the slaughter
lately has seemed to signal
that he does not expect to get much funding for wall.His removal of Attorney General Sessions
gives the President more direct leverage on the Mueller investigation,
potentially removing that issue from the appropriations struggle.If these matters get resolved, Congress
likely can avoid a partial government shutdown.The continuing resolution that is funding the agencies under these seven
bills expires December 7, and appropriators likely will need an extra week to finish
up, but unless the President suddenly reverses course appropriations for the
current fiscal year should be completed by the middle of December.House Republicans are especially eager to
finish and leave town because, as the beginning of the new Congress approaches,
departing Members begin to have to give up their office space to their newly-elected
replacements, making the logistics of being in session progressively more
uncomfortable.The fact that the
remaining bills cover a mix of Democratic and Republican priorities also has
made a partial shutdown less attractive.
In the new year,
Congress is likely to face four sets of important fiscal issues.
will have to address the nagging problem of sequestration.Under the budget legislation congressional
Republicans forced President Obama to sign as the price for raising the debt
limit, discretionary appropriations – appropriations for everything other than “direct
spending” programs such as Social Security and Medicare – are capped at levels
far below historical spending.Most
experts across the political spectrum believe that the federal government
cannot operate at the sequestration level without either a serious degradation
in services that the public expects or a fundamental reduction in the federal
For the past
several years, Congress’s solution has been to enact two-year deals that raise
the statutory caps on discretionary spending and offset the costs through cuts
in entitlements, often permanent ones.With half of the cap increases going to military spending, Democrats
have found these deals distasteful.But
with the political difficulty of denying the Defense Department what it desires
– either through the regular appropriations process or through “emergency”
supplemental appropriations – tying these defense increases to domestic ones
has seemed the most that could be achieved.After Republicans diverted much of the money from the first of these two-year
deals into their own priorities, Democrats have taken to pre-negotiating,
sometimes in considerable detail, how domestic discretionary funding will be
allocated before agreeing to cap adjustment legislation.
increase in the discretionary caps, Congress will have to cut appropriations
$300 billion below the level required to continue current government
operations, with the reduction theoretically divided about equally between defense
and non-defense accounts.No one
believes that appropriations bills with cuts of that magnitude could pass
Congress.Yet if Congress does not enact
legislation adjusting the caps, the failure to make those cuts legislatively
will result in a new sequester – across-the-board budget cut – to make up the
will have the regular appropriations process.Some of the higher-level issues may be resolved by deals made in
connection with the cap adjustment legislation.Some significant challenges will remain.Among these is funding the decennial census.Historically, the Census Bureau has received
steady increases in funding leading up to census years to allow it to
prepare.For the most part, that has not
been happening.Without a dramatic infusion
of funding, having insufficient enumerators could lead to a significant undercount,
skewed heavily toward low-income people.
The politics of
appropriations riders also will change. In
recent years, most appropriations riders considered in conference committees
have come from House Republicans, and most have been rejected as incapable of
getting fifty votes in the Senate.With
Democrats now able and motivated to propose numerous riders of their own to
constrain the Administration, it is unclear whether conference committees will
continue to insist on “clean” bills or whether the two parties will trade
riders with one another.
will need to raise the debt limit.With
control of Congress now divided, and with polls suggesting that the electorate
is well-aware of the 2017 tax law’s role in increasing the deficit, Republicans
seem to have little prospect of blaming Democrats successfully for a crisis
over failure to raise the limit.Democrats have generally supported clean increases to the debt limit and
appear to have little leverage to extract more.Indeed, now that House Republicans are in the minority and feel insulated
from blame, they seem likely to vote “no” en
masse to force as many vulnerable Democrats as possible to vote for the
losing the House, Republicans are likely to try to put tax cuts back on the
agenda.They have been agitating for technical
corrections to the hastily-drafted December 2017 tax bill.Democrats, of course, have been seeking
technical corrections to the hastily-drafted Affordable Care Act for eight
years now, with Republicans refusing to address even the smallest
glitches.Whether a “technicals for technicals”
deal is possible likely will depend on the fiscal impact of each proposed package
as well as on whether Democrats believe the Administration will faithfully
carry out any health care technical amendments.
Republicans also will
propose legislation to make the “middle class” portions of the 2017 tax bill
permanent.(To comply with budget process
rules forbidding budget reconciliation legislation from increasing the deficit
in years beyond the current budget resolution, the tax bill sunset some of its
more politically popular provisions after 2025.This has caused my Tax students great consternation.)Although technically the Senate may not
originate revenue legislation, Senate Republicans likely will seize on any
revenue-related bill coming over from the House, no matter how trivial, and amend
it to make the 2017 cuts permanent.(This prospect could cause the House to withhold action on routine
matters to avoid presenting the Senate with a tax vehicle:it can be surprising how many seemingly
unrelated matters have an incidental revenue aspect.)House Republicans also may try to pressure
vulnerable Democrats into signing a discharge petition to bring tax legislation
to the floor.
succeed in extending the 2017 tax cuts, the pressure for deep cuts in domestic
spending will intensify.Although the
2017 law heavily favored the affluent, its total cost was so great that even
extending its “middle class” provisions would create
a huge additional hole in the budget – all the more so given the capacious
definitions of “middle class” that arise in tax debates.Similarly, politically attractive proposals
to uncap deductibility for state and local taxes would be both costly
and quiteregressive.With no politically plausible path toward reducing
the deficit with increased revenues, and with Republicans returning to attacks
on the deficit
in record time after enacting an unfunded $1.9
trillion tax cut, any further
reduction in revenues is likely to lead to a roughly dollar-for-dollar
reduction in spending, the great majority of which will be domestic.Democrats could propose making the “middle
class” provisions permanent in exchange for offsetting changes to the corporate
and upper-income tax cuts that have failed
to generate the promised increase in investment, but Republicans seem unlikely
The Senate's Representational Imbalance (2019 edition)
Now that Cindy Hyde-Smith has, as expected, won the run-off election to serve the final two years of Thad Cochran's term as Senator from Mississippi (Cochran retired), we know that Republicans will have a 53-47 advantage in the 116th Congress beginning in January.
What percentage of the U.S. population will those 53 incoming GOP Senators represent, if we assume the Senators from a particular state represent the residents of that state?
Nineteen states, with a total of approximately 144,461,202 residents (based on 2018 estimates), will be represented by two Democratic Senators (if we count King and Sanders among them).
Twenty-two states, with approximately 130,126,870 residents, will be represented by two Republican Senators.
And the nine states with split delegations, i.e., with one Senator from each party--PA, OH, AZ, WI, CO, AL, WV, ME, MT (in order of population)--have a total of approximately 52,240,741 residents.
If we allocate the residents in those nine "split delegation" states evenly--if we assume, that is, the somewhat crude fiction that half of the residents are represented by Democratic Senators, and half by Republicans--then the 53 Republican Senators in the new Senate majority will represent only 47.8 percent of the population of the 50 states. And that number doesn't even take account of the approximately 4.4 million residents of D.C. and the territories, who presumably would vote overwhelmingly for Democratic Senators, given the chance (although it's possible that the Puerto Rican electorate might, over time, choose some Senators who would caucus with Republicans). If we accounted for them, the percentage of U.S. residents represented by the 53 GOP Senators would likely be closer to 46 percent. And, importantly, it will be a remarkably unified majority, one that conforms in virtually every case to the wishes of the Majority Leader.
To be sure, this five to seven percent "representational imbalance" isn't a huge discrepancy in absolute terms--nowhere even close to predictions that by 2040 one-third of Americans might be represented by as many as 70 of the 100 Senators. (I do not know how historically anomalous it is, either--i.e., in how many of the first 115 Congresses a unified majority of Senators represented less than half the nation. If anyone knows of such calculations, please let me know.) Nevertheless, because it moves the GOP from minority to majority status and because the 53 GOP Senators can be expected to march in lockstep with leadership (as will the vast majority of the 47 Democratic Senators), it makes all the practical difference in the world in terms of who controls the composition of the judiciary for the next two years (and perhaps beyond). And that means, among other things, a continuation of the 50+ years of a Republican-appointed majority on the Supreme Court, despite the fact that a majority of Americans (and voters) have supported Democratic candidates for President and Senate in most recent elections, and the fact that the 47 Democratic Senators in the 116th Congress will represent states where a majority of Americans live. (I discussed this judicial/political entrenchment phenomenon at greater length back in early October.)
On the broader question of whether the representational imbalance in the Senate is justifiable and/or lamentable, I highly recommend (i) this very interesting recent post by Mike Dorf in which he concludes that although "the Senate is a problem, . . . it is not a problem that systematically disfavors Democrats, except in the short run"; (ii) Richard Primus's response, in which he "push[es] back" on Mike's suggestion that the Senate might be "justified as part of the package deal that gives us our federal system"; (iii) Dorf's response to Primus, "A Tentative Burkean Defense of Something Like the Senate"; and (iv) Primus's sur-reply. Posted
by Marty Lederman [link]
Tuesday, November 27, 2018
The Legal Shape of Resistance
The past two years
have witnessed a remarkable burst of NGO activity on the left, as new groups
established after the 2016 election have joined forces with longstanding civil
liberties and civil rights organizations to resist President Trump.
Constitutional scholars have followed (and, in some cases, participated in)
many of these initiatives with keen interest. To understand the larger
phenomenon, however, the most relevant body of law is not constitutional law
but nonprofit tax law. How exactly is the “resistance” being structured,
subsidized, and constrained by the Internal Revenue Code?
Curious about this
question, I began to look into the legal shape of resistance efforts and found evidence of an intriguing pattern: prominent left-leaning nonprofits,
both young and old, seem to be increasingly forsaking the 501(c)(3) “public charity”
form in favor of the 501(c)(4) “social welfare” category, which comes with
fewer fiscal privileges but greater freedom to engage in openly political work.
This trend deserves close attention. It signals the possible emergence and
institutionalization of a new model of liberal activism for an age of
disenchantment with the Supreme Court—a new legal liberalism, if you will, less
focused on litigation and more tightly tied to electoral politics and the
For readers interested
in these issues, I have just published a short piece in the Atlantic discussing
(as the Atlantic editors titled it) “The
Tax-Code Shift That’s Changing Liberal Activism.” I hope to have much more
to share in the coming years on the historical development of the nonprofit
sector and its relationship to constitutional law, politics, and culture.
Well before the
recent election, activists and pundits were hard at work shaping expectations
for what would change in light of anticipated Republican losses.Many of these predictions reflect
considerable naivete about the operations of Congress.Although many questions remain open, it seems
useful to review what we know to this point. This is the first of two posts; the second
will focus specifically on budgetary issues.
First, as to
leadership.The Senate is unlikely to
see meaningful changes at the top:Majority Leader McConnell led his caucus to larger-than-expected
gains.Democrats’ losses seem hard to
attribute to Minority Leader Schumer, and having won his position by
acclamation just two years ago he has no obvious challenger.House Majority Leader McCarthy was easily
elected minority leader after having worked tirelessly, and reasonably
successfully, to minimize his party’s losses.He also had the President’s support, which insulated him against the
conservative critics who denied him the speakership previously.To prevail, he only needed a majority of the
are another story.Rep. Pelosi was one
of the most skilled and effective speakers of modern times; if anything, she
demonstrated even more acumen as minority leader.Her ability to force Republicans into
difficult votes while often shielding her own Members has a lot to do with
Democrats’ reconquest of the House.She
also shrewdly leveraged situations when the Republican Caucus was split to
extract substantial policy concessions from the Speakers Boehner and Ryan in
exchange for the necessary Democratic votes.The minority leader risks blowing up a deal of this kind if she dances a
jig upon its completion, but her successes in defanging the devices Republicans
had used to leverage cuts in domestic programs – the debt limit, sequestration,
the need to adjust Medicare physicians’ reimbursement rates, etc. – merit a
Republicans have, however,
succeeded in making her a lightning rod and frequently tried to tie Democratic
candidates to her.Her path to the
speakership is considerably more difficult than Rep. McCarthy’s path to
becoming minority leader was because she not only needs to win a majority of
the Democratic Caucus – which she likely will secure in the next two weeks –
but also to have 218 Members vote for her to be speaker on the first day of the
new Congress.That would require several
Democrats who pledged not to vote for her to reverse their positions.She is a superb vote-counter, and if she does
not have those votes will withdraw on her own.If she does step down, the rest of the House Democratic leadership,
which currently has regional and factional balance, may be upended.For example, if Democrats choose a more
moderate candidate for speaker, progressive members may demand that one of
their own become majority leader rather than retaining Minority Whip
Hoyer.Sorting this out could take quite
may claim that their modest gains entitle them to shift the partisan balance in
committees’ membership, presumably to create an 11-to-9 Republican advantage on
the typical committee.Democrats in
theory could filibuster the organizing resolution that sets up Senate
committees at the start of the new Congress but likely would only do so if the
Republicans overreach sufficiently that the Democrats feel confident that the
public will not blame them for obstructionism.During the George W. Bush administration, Republicans (relying on Vice
President Cheney’s tie-breaking vote) insisted upon a one-seat advantage on all
committees when the Senate was evenly divided between the parties, and
Democrats acquiesced.In the current
situation, one can imagine negotiations leading to two-seat Republican
majorities on more powerful committees and one-seat majorities on others.
Republican majority still would allow Democrats to block legislation or
nominations if they can stay together and persuade one Republican.It does mean, however, that Democratic
amendments to legislation will fail in committee unless they can attract two
crossovers, which seems unlikely given the near-total disappearance of
Republican moderates.A two-seat
majority also would allow Republicans to advance legislation when one of their Senators
is ill or otherwise absent.
historically provide the majority party considerably larger margins than their
overall numbers would dictate.Nonetheless, because of the ideological range of the caucus, some
committees may prove unreliable for the leadership’s priorities.And with relatively tenuous control of the
House and many new Members from Republican-leaning districts, Democrats cannot
even consider passing over more conservative Members who are in line to chair
activists have rejoiced that Democrats will have a voice in policy for the
first time under President Trump.This
is incorrect:the threat of a filibuster
required all legislation apart from budget reconciliation bills to be
negotiated with Senate Democrats, and fractures in the House Republican Caucus often
gave House Democrats leverage on important legislation such as appropriations
and legislation raising the debt limit.Democrats’
taking over the House should, however, prevent Republicans from threatening to
resort to budget reconciliation.That,
in turn, will strengthen the hand of Senate Democrats despite their somewhat
diminished numbers by forcing all legislation to go through the regular order.
Democratic leadership may have considerable difficulty controlling the
floor.Although control of the gavel and
committee supermajorities initially may succeed in bottling up problematic
legislation, Republicans amended House rules to facilitate petitions
discharging committees from the further consideration of particular bills.If a majority of representatives signs a discharge
petition for a particular bill or resolution, the leadership must bring it
before the House promptly.Republican
seem likely to exert strong pressure on vulnerable Democrats to sign discharge
petitions on politically seductive legislation, including bills to further harm
the environment and to intensify pressure for budget cuts by extending or
expanding the 2017 tax cuts.
One result of a
Democratic House majority that activists most eagerly anticipate, and that
Republicans most fear, is the ability to subpoena executive branch witnesses to
investigate what the Administration has been doing.This process is not nearly as simple as many
seem to believe.
Rule XI(m) of the
House’s standing rules allow committees and subcommittees to issue subpoenas,
either by a majority vote or through committee rules delegating the subpoena power
to the chair.One might hope that the
issuance of such a subpoena would be decisive, but the current Administration may
not be inclined to comply routinely,
The Senate has a
allowing its legal counsel to bring a civil contempt action in federal district
court to compel compliance with its subpoenas.The House, unfortunately, lacks such a statute (and certainly is
unlikely to obtain one under this Administration).
Administration official (or anyone else) ignore a subpoena, the House may pass
a resolution asserting that that individual is in contempt of Congress and
referring her or him to the appropriate U.S. attorney for prosecution.Jefferson’s
Manual § 299 at 143-44 (2017).The
first such case against a sitting executive branch official involved EPA Administrator
Anne Gorsuch in 1982.
however, controls the Justice Department, and his appointees can decline to
take action against those ignoring House subpoenas.The President has repeatedly asserted that
the Department of Justice should act to further the current Administration’s
policy; it therefore remains to be seen whether this aspect of the Department’s
role will survive.The House
occasionally has passed resolutions authorizing the Sergeant at Arms or other
officers of the House to retain counsel to assert the interests of the House, Jefferson’s
Manual § 291b at 135 (2017), and in theory it may direct its Sergeant at
Arms to detain any recalcitrant witness.Jefferson’s
Manual § 297, at 140 (2017).When
compared with the resources of the Administration, however, these seem rather
Should the Administration
both refuse to comply with a lawful subpoena and direct the Justice Department
to take no action to enforce the House’s subpoena, the House in theory could
commence impeachment proceedings against the official refusing to comply,
against the attorney general, or against the President.The minimal prospects of obtaining the
required two-thirds majority in the Senate to convict – indeed, with no
assurances that Senator McConnell would even convene an impeachment trial at
all – this is a rather limited threat.
limitations may be part of Democratic leaders’ motivation in insisting that
House committees limit and coordinate their oversight efforts.If subpoenas may only be effectively
enforceable in the court of public opinion, Democrats will want to avoid the
perception that they are overreaching.
deterrent to blatant disregard for the House’s subpoenas is the possibility
that an individual doing so could be prosecuted under the next Administration
should the President not be re-elected.Although
prosecutions under the statute
for contempt of court carry
a one-year statute of limitations, contempt of Congress is criminalized under a
and thus would appear to fall under the general
five-year federal statute of limitations.Of course, any Administration official refusing to comply with a House
subpoena facing that prospect could hope that the President would pardon her or
him before leaving office.
Last week, at the Federalist Society Lawyers Convention in
Washington DC, I was on a panel
for Fair Admission v. Harvard, in which it is alleged that Harvard has
been discriminating against Asian-Americans.Here are my remarks:
The affirmative action controversy is tediously familiar.It’s a ubiquitous part of American life.(I’m a beneficiary of affirmative action
myself, since I’m the token liberal on this panel.)For many years, American conservatives have
proposed to interpret all civil rights laws, including Title VI of the Civil
Rights Act of 1964, to prohibit it.
It’s a commonplace of semantics that the exact same action
can have different meanings in different contexts.Students
for Fair Admission v. Harvard presents itself as a blow against racial
tribalism.In context, though, this is
likely to make that tribalism worse.
I begin by wishing a plague on both your houses – the
opponents of affirmative action, but also its defenders.Start with the opponents.
When Chief Justice Roberts writes that “The way to stop
discrimination on the basis of race is to stop discriminating on the basis of
race,” he claims that the essence of racism is classification.Roberts implies, as Alan Freeman put it
decades ago, "that Black Americans can be without jobs, have their
children in all-black, poorly funded schools, have no opportunities for decent
housing, and have very little political power, without any violation of
antidiscrimination law."To this
one might add mass incarceration, with its devastating effect on families and
communities – something that conservatives, who care about intermediate
associations and the values of local communities, ought to be more concerned
about.On Roberts’s account, if black
people think that these disadvantages stamp them with a badge of inferiority,
that is solely because they choose to put that construction upon it.
Aggregate racial effects matter.A large class of Americans remains
disadvantaged because their ancestors were slaves.To that extent, we still haven’t defeated the
Confederacy.Opponents of affirmative
action commonly say that we can achieve a comparable level of racial diversity
without using racial classifications.But note that they concede that it is ok to say that.Evidently they’re not indifferent to
But one can say all this without defending affirmative
action, which doesn’t remedy the worst injuries of racism. It benefits the most
privileged minority applicants.It
helped create a large black middle class, which is a great accomplishment, but
it doesn’t address the most damaging consequences of slavery and segregation.It’s racial justice on the cheap.
It creates the illusion of equality.Justice O’Connor’s opinion in Grutter v.
Bollinger is quite transparent about this:“In order to cultivate a set of leaders with legitimacy in the eyes of
the citizenry, it is necessary that the path to leadership be visibly open to
talented and qualified individuals of every race and ethnicity.”The entering class of Harvard is to be
selected, as Robert Delahunty once put it,
on the same principle as “models in a United Colors of Benetton advertisement.”The obsession with appearances also drives
the demand for obfuscation, as when the Court allows race to be a plus factor
but bans quotas, even though these are functional equivalents.And it also stokes racial resentment: for every
black student admitted, there are 100 white ones who know, to a moral
certainty, that they would have gotten that slot.
The left shouldn’t settle for this.It should demand a lot more.I would cheerfully jettison affirmative
action in favor of measures that would actually improve the condition of the
worst off people in American society, black and white.Maybe Congress could do it, in a grand
bargain that clarifies the Civil Rights Act while at the same time taking more
concrete measures against racial subordination.I have no illusions that that will happen.The proposal that is on the table is to
abolish affirmative action and replace it with nothing at all.
One doesn’t need to love affirmative action to worry about Students for Fair Admissions v. Harvard.I won’t try to adjudicate the merits of the
lawsuit, since the expert statisticians are in deep disagreement.If Harvard does discriminate against
Asian-Americans, that’s nasty.Discrimination
against an ethnic minority is exactly what the law aims to prohibit.On the other hand, it’s confused to say that
Asians have any special stake in eliminating affirmative action for
African-Americans.Even if you set aside
a quota for that group, that says nothing about what you do with the remaining
Everyone understands that this litigation aims to beat a
path to the Supreme Court, and to persuade the Court to discard the decades-old
understanding of Title VI in favor of an absolute bar on any consideration of
race.The consequence would be a
significant reduction in the number of black students at many universities.This private litigation may be the opening
wedge of more lawsuits to come.The
Trump administration is preparing
to redirect resources of the Justice Department’s civil rights division
toward investigating and suing universities over affirmative action admissions
policies deemed to discriminate against white applicants.
What will it mean for a Republican Justice Department to
start investigating colleges for telltale signs that there are too many African-Americans?It would fit very neatly into a dangerous
narrative.Only 27 percent of
Republicans think that black people experience a lot of discrimination today,
but 43 percent think
that there is a lot of discrimination against white people. (In the past few years, the percentage of
Republicans who believe that Muslims, LGBT people and Jews face discrimination
has likewise dropped.)
This litigation promotes a narrative in
which incompetent and undeserving black people are taking desirable spots from
Chief Justice Roberts writes:
Government action dividing us by
race is inherently suspect because such classifications promote “notions of
racial inferiority and lead to a politics of racial hostility,” “reinforce
the belief, held by too many for too much of our history, that individuals
should be judged by the color of their skin,” and “endorse race-based
reasoning and the conception of a Nation divided into racial blocs, thus
contributing to an escalation of racial hostility and conflict.
Not a word about subordination: racism divides groups that
he imagines to be otherwise equal.The
problem is thinking of ourselves in tribal terms.
But stipulate that he’s right, and look at what this
litigation does – again, to the extent that its goal is the elimination of all
racial classifications.It is widely
understood, by left and right, to be an effort to enlist Asian-Americans to
form a bloc with whites, to resist the claims of blacks.It promotes
the politics of racial hostility.