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

The Senate Has Subpoena Power

The Search for an Egalitarian First Amendment

Interpretive Pluralism and Ipse Dixit Judgments

Justice Kennedy's Retirement Decision

Our Civic Religion

Crisis in the Archives

Of "Magic Bullets" and a Constitutional Convention

Abandon all hope: Why I persist

The Paradox of Liberal Fascination with an Article V Convention

Masterpiece Cakeshop, again

A Federal District Judge Seems Determined to Strike Down the Affordable Care Act

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Thursday, September 20, 2018

The Senate Has Subpoena Power

Gerard N. Magliocca

I am confused about the discussion surrounding the process for assessing the sexual assault allegation against Judge Kavanaugh. The issue is being framed as whether Dr. Blasley will accept the Senate Judiciary Committee's invitation to testify on Monday, as if they are throwing a birthday party. The Committee can compel witnesses to appear, subject to contempt sanctions. If the Committee is actually interested in getting to the bottom of this, then subpoenas should go out to Dr. Blasley, Judge Kavanaugh, and any other relevant witnesses.

But I am not convinced that the Senate wants to know. Senate Republicans certainly don't want to know. Senate Democrats, given the way Senator Feinstein handled the accusation, ditto.

Posted 1:45 PM by Gerard N. Magliocca [link] (43) comments

Monday, September 17, 2018

The Search for an Egalitarian First Amendment

David Pozen

There has been a lot of talk in recent years about the “weaponization,” “Lochnerization,” and “hijacking” of the First Amendment for deregulatory, reactionary ends. This past spring, the Columbia Law Review, together with the Knight First Amendment Institute at Columbia University, convened a symposium to take stock of these developments. Jeremy Kessler and I were honored to be involved in the event and to be asked by the law review to write an introductory essay for the forthcoming symposium issue. Our essay, “The Search for an Egalitarian First Amendment,” examines the historical origins and contemporary causes of the First Amendment’s inegalitarian turn, and it offers a critical roadmap to potential responses. We have just posted a draft online. Here is the abstract:

Over the past decade, the Roberts Court has handed down a series of decisions that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments. Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today?

After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century “progressive” model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of “informational capitalism” and the “information state.” First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots.

To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, among other factors, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs, concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

Posted 1:59 PM by David Pozen [link]

Interpretive Pluralism and Ipse Dixit Judgments

Guest Blogger

Jeremy Telman

In my previous post, I stated that I had found, like many others, that the John Marshall Court was pluralist in its approach to constitutional interpretation. In this post, I explore the consequences of that pluralism. It is possible to be pluralist and yet still embrace a hierarchy of interpretive modalities. On my reading, the Marshall Court’s pluralism was non-hierarchical. No interpretive modality operated as a trump card. The Marshall Court’s pluralism, I have argued, results in what I will call second-order ipse dixit (“because I say so”) judgments.

We think of ipse dixit judgments as devoid of all reasoning. Second-order ipse dixit judgments are not without justification, but they are decisions made at a crossroad where the arguments in favor of one path or another are equally valid. The judge decides simply by choosing one of two equally viable options. Second-order ipse dixit judgements assert the correctness of the chosen path and ignore the alternative or waive it away with incredulity. Marshall used formulations like “[i]t is a proposition too plain to be contested,” “. . . an absurdity too gross to be insisted on,” or “. . . too apparent for controversy. . .” to describe the very matters that he was deciding.

Posted 9:19 AM by Guest Blogger [link]

Sunday, September 16, 2018

Justice Kennedy's Retirement Decision

Gerard N. Magliocca

I want to raise one point in light of the new allegation against Judge Kavanaugh. Justice Kennedy has already retired. He could have chosen to make his retirement contingent on the confirmation of his successor, as other Justices have. Since he did not, the Court again faces the prospect of an extended period with only 8 Justices, depending on the outcome of the midterm elections. Whether that is good or bad depends on your point of view, I suppose.

Posted 7:21 PM by Gerard N. Magliocca [link] (133) comments

Thursday, September 13, 2018

Our Civic Religion

Gerard N. Magliocca

In this age of polarization (exemplified by Judge Kavanaugh's confirmation hearings) is there any constitutional issue that could unite the NAACP Legal Defense Fund, the ACLU, the Chamber of Commerce, the Pacific Legal Foundation, Judicial Watch, the Brennan Center, and the Constitutional Accountability Center (among others)?

The answer is yes. These groups have all filed amicus briefs asking the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment. Timbs v. Indiana presents that issue in the next Term in the context of aggressive state and local civil forfeitures of property involved in crimes. This forfeiture power is subject to (and regularly produces) rampant abuse but is largely insulated from the scrutiny of the federal courts. I certainly think that the Excessive Fines Clause should be incorporated and I think there is a good chance that a broad coalition on the Court will agree.

There is another point lurking being the widespread support for incorporation in Timbs. The Bill of Rights remains a powerful unifying force in America. Despite our disagreements about what those provisions mean, almost everyone attempts to ground their constitutional arguments in what the Bill of Rights contains or omits.

Posted 9:52 PM by Gerard N. Magliocca [link] (100) comments

Crisis in the Archives

David Pozen

Critics of the executive branch’s information control practices tend to focus on the here and now. They argue that overclassification of national security–related documents undermines democratic self-rule. They inveigh against delays and denials in the implementation of the Freedom of Information Act. They condemn regulations that “incorporate by reference” materials developed by industry groups. They worry about the growing use of black box algorithms, criminal leak investigations, and secret waivers for former lobbyists turned political appointees. All of these critiques raise important issues, even if they sometimes understate the transparency that exists—U.S. administrative agencies “are some of the most extensively monitored government actors in the world”—or overstate the benefits of sunlight.

One of the executive’s most worrisome information control practices has received relatively little attention, perhaps because it requires taking a longer view. Over the last several decades, as Matthew Connelly explains in a new essay on “State Secrecy, Archival Negligence, and the End of History as We Know It,”[*] our national archives have been quietly falling apart. FOIA backlogs look like a Starbucks queue compared to the 700,000 cubic feet of records at the National Archives and Records Administration’s research facility in Maryland that were unprocessed as of 2013. The Public Interest Declassification Board recently estimated that it would take a year’s work by two million declassifiers to review the amount of data that a single intelligence agency now produces in eighteen months.

The U.S. government’s entire system for organizing, conserving, and revealing the record of its activities, Connelly maintains, is on the verge of collapse; a “digital dark age” awaits us on the other side. His is less a story about excessive information control than a story about the absence of information control. Archivists simply have not been able to cope with the flood they face. The negative consequences extend far beyond the professional study of history, as Democrats learned last month when NARA announced that it was incapable of reviewing and releasing all of Brett Kavanaugh’s papers before the Senate votes on his nomination to the Supreme Court.

How did this crisis in the archives develop, and what might be done to mitigate it? Woefully inadequate appropriations and “dubious management decisions” bear some of the blame, according to Connelly. When the ratio of spending on the classification and protection of national security secrets to spending on their declassification exceeds 99 to 1, the historical record is bound to suffer. But the deeper cause of the crisis, Connelly suggests, lies in the exponential growth of government records, particularly electronic records. In a world where the State Department generates two billion emails each year—all of which need to be screened for sensitive personal and policy details prior to disclosure through any official process—the traditional tools of archiving cannot possibly keep up.

Maybe the tools ought to be updated for the age of “big data,” then. Connelly has collaborated extensively with data scientists on the problems he highlights, and he argues that sophisticated use of computational methods, from topic modeling to traffic analysis to predictive coding, could go a long way toward rationalizing records management and accelerating declassification. If these techniques were to be combined with bigger budgets for archivists and greater will to curb classification, NARA might one day make good on its aspiration to ensure “continuing access to the essential documentation of the rights of American citizens and the actions of their Government.” There is something intuitively appealing about this vision: Digital technologies got us into this mess, and now they ought to help get us out of it. Connelly’s diagnosis of information overload and political neglect is so stark, however, that one wonders whether any such reforms will prove adequate to the challenge.

Three response pieces recast this challenge in a somewhat different light. The Archivist of the United States, David Ferriero, emphasizes steps NARA is taking to digitize its holdings, enhance public access to them, and enforce government recordkeeping requirements. Ferriero does not dispute that “the country would be well served” by greater funding for the agency he leads, but he suggests that progress is being made even within severe budgetary constraints.

Elizabeth Goitein largely endorses Connelly’s reform proposals but urges that they be pushed further in the area of national security information. Drawing on extensive research and advocacy she has done as co-director of the Brennan Center for Justice’s Liberty and National Security Program, Goitein offers a suite of specific recommendations, from tightening the substantive criteria for classification to requiring federal agencies to spend certain amounts on declassification to subjecting officials who engage in serious overclassification to mandatory penalties.

Finally, Kirsten Weld raises critical questions about Connelly’s characterization of the problem and urges that his reform proposals be pushed much further. Weld points out that the records maintained by NARA represent just a “slice” of U.S. history, albeit an important one, and that the government’s management of that slice has always been bound up with larger political struggles. The true source of the crisis at NARA, Weld submits, is not the rise of electronic records or the politicization of transparency but “the dismantling of the postwar welfare state and the concomitant ascendance of neoliberal governance.” To address the crisis, accordingly, technical fixes are bound to be insufficient. Nothing short of “a sea change in the federal government’s priorities” and “a massive reinvestment in the public sphere” will do.

A crisis in the national archives, all of the authors agree, is a crisis in American democracy. It is certainly not the only one we face, and it may not be the most acute, but preserving a record of our collective history arguably has a kind of epistemic priority. As we fight for our democratic future, these essays remind us to fight for the institutions that help us understand how we arrived at the perilous present.

[*] Connelly’s paper is being published, along with three response pieces, as the sixth installment in a series I am editing for the Knight First Amendment Institute at Columbia University.

Posted 1:17 PM by David Pozen [link]

Of "Magic Bullets" and a Constitutional Convention

Mark Tushnet

I feel compelled to weigh in on the Super-Levinson discussion, in part because in the next few weeks I expect to be writing a short chapter about the possibility of holding a constitutional convention.

I think that how one frames the discussion is really important. So, for example, Super writes about an "Article V" convention, and contrasts "magic bullet" thinking with "the hard work of organizing, persuading, and compromising," which he limits to "the electoral process." Why, though, limit it that way? Why not think about advocacy of a constitutional convention (note that I've eliminated the "article V") as a component of a long-term strategy of organizing, persuading, and compromising? If one sees it that way -- which I believe to be the correct way -- the real question is about the relative merits of doing the hard work in support of substantive policies to be adopted through legislation ("the electoral process") and doing the hard work in support of a constitutional convention. Now, there may be reasons to prefer the former to the latter, but that those advocating for a constitutional convention are relying on a magic bullet isn't one of them.

The "magic bullet" criticism, and the associated parade of horribles that always takes place, imagine what would happen were a constitutional convention to be convened tomorrow -- that is, under the political circumstances now prevailing. But no one who advocates for such a convention imagines that that's going to happen. One thought associated with such advocacy is that it -- that is, the advocacy -- can change the relevant politics.

Arguing about the possibility of malign foreign influence might, for example, generate proposals to constrain such influence -- and not merely for the (as yet not convened) convention but for contemporary legislation. And discussing the risks that a convention might pose to treasured constitutional rights might promote a real conversation about whether we --progressives -- have fetishized the First Amendment to the point where we don't have real resources to combat its weaponization, to use Justice Kagan's valuable term. Now, maybe we haven't fetishized it, and maybe we do have the resources to combat weaponization. But, in my view, it would be quite helpful to have such a conversation -- I haven't seen one provoked by my former colleague David Cole's truly inane defense of fetishization --, and maybe advocating for a constitutional convention would do so. (But maybe not.)

Further, advocating for a constitutional convention can put on the table policy proposals that are quite utopian given existing constitutional arrangements -- most obviously, the equal representation of the states in the Senate, but probably also revision of our entire constitutional approach to campaign finance (not merely Citizens United, itself not an important decision and in my view well-supported by existing constitutional doctrine -- which is the real problem, not the result in Citizens United). It's simply not responsive to an argument for apportioning the Senate on a population basis through a constitutional convention that the existing Constitution says we can't do that. Again, maybe equal apportionment is a good idea, or population-based apportionment a bad one (but something other than equal representation might be better than either), but we can't have a conversation about that ifthe idea is ruled out of bounds from the beginning.

The Senate example leads me to my final and in my view most important point. Maybe Super's objections to an Article V convention are well-taken. But -- in thinking about the hard work of generating political support for a constitutional convention -- why do we have to confine ourselves to an Article V convention? Why not a "Citizens' -- or Peoples' -- Convention," "convened" outside the bounds of Article V? Some creative NGO could support a number of "Peoples' Assemblies" in states around the country, a handful every year, in which ordinary people would get together and talk about constitutional fundamentals and translate them into proposals for constitutional design.

Do that -- or/and use other innovative methods of provoking discussions of fundamentals -- often enough, and widely enough, and, again, the political context might change. Some politicians might see gain to be had by figuring out how to translate one or more proposals into ordinary legislation (the 18-year-Supreme Court term example -- though for the record, as a supporter of proposals to take back the stolen Garland seat I don't want to fixate on a multiple of the number nine). Enough politicians might come on board for some specific constitutional amendment that garners lots of support in these Assemblies. And so on.

But, in the end, I actually want to hold open the possibility of a completely or largely extra-legal process of constitutional amendment (something like Philadelphia in 1787), as to which the only criterion is success: Could a Peoples' Convention get a new government up and running -- and obeyed -- without going through Article V? That's an empirical not conceptual question. My only point is that saying that the process would be extra-legal is both accurate and irrelevant.

And, finally, nothing about the arguments I've sketched here relies on a magic bullet. Indeed, they are predicated upon the proposition that advocates for a constitutional convention know that the hard work of politics -- "organizing, persuading, and compromising" -- lies ahead. And, again, that implies that the real argument against the political project of convening a constitutional convention is that we're likely to get more out of the hard work done with respect to ordinary legislation and perhaps ordinary constitutional amendment than out of the hard work done with respect to a constitutional convention. I'll conclude with the modest observation that it's not obvious to me that that argument -- were it to be made openly and in detail -- is correct.

Posted 1:43 AM by Mark Tushnet [link]

Wednesday, September 12, 2018

Abandon all hope: Why I persist

Sandy Levinson

David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention. I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity. I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.

First, I think it's fair to say that we agree that the 1787 Constitution was (indefensibly?) undemocratic in terms of the structures it established, the Senate being the most obvious example, but Article V probably being most telling, when all is said and done. The fact that it serves to make constitutional amendment, especially about anything truly controversial, basically impossible means not only that we continue to be trapped in what I have sometimes called the "iron cage" of a radically defective Constitution, but also that we as a polity have seemingly lost any capacity to engage in serious "reflection and choice" (see Federalist 1) about how we are to be governed.

As I read David's posting, he is saying that political progressives should renounce the very idea of an "Article V Convention" for a variety of reasons, some of them very good. When Larry Lessig and I co-taught a seminar at Harvard about four years ago on what such a convention might look like, I concluded that the Framers purposely constructed in Article V the equivalent of a Pandora's box, precisely because Article V gives not a clue as to how such a convention would actually proceed. E.g., who exactly selects the delegates; how many would there be; what voting rules would be adopted; what, if any limits, are there with regard to the issues that a convention might consider. (David, like most opponents, offers a parade of horribles by which a convention would in essence repeal the First Amendment. Both Larry and I are considerably more sanguine, because the very supermajoritarian of the ratification process assures, as a practical matter, that few if any truly radical measures, including repeal of the Bill of Rights, would actually be ratified. But the fear of a "runaway convention" has a great deal of purchase on people who should really know better, unless they are even more despondent about their fellow citizens than I am and believe that Donald Trump has the support not only of less than 2/5 of the American public, but in fact truly represents the overwhelming number of contemporary Americans. There is literally no reason to believe this.) A basic problem of the contemporary Left is that it has fundamentally lost any faith in what used to be called "the people." Thus the attraction to technocrats (as Obama turned out to be in spite of a quite different campaign in 2008, which led me to support him over Hillary Clinton).

David's advice is to win elections and create a critical mass in favor of what might be called "ordinary amendment," i.e. proposed by 2/3 of each house of Congress. (He also makes the altogether correct point that Citizens United could be revised with the replacement of one of the Republican conservatives by a moderate Democrat.) But if one believes, as I do, that the House is fatally affected by the fact that everyone is elected in single-member districts (with, most of the time, a first-past-the-post electoral process), then, as a matter of brute fact, that can be changed only by a constitutional convention for the simple reason that it is literally inconceivable that members of the House, who benefit from the status quo, would vote to repeal the 1842 Act requiring single-member districts. (The paradox, of course, is that as a matter of legal fact, a constitutional amendment is not in the least required; it is simply that Congress will never agree to pass the required legislation.) If, as I personally wish were the case, we were like many American states (and foreign countries, in including some possibility for direct democracy via initiative and referendum, then there would in fact be a good alternative. But, as Madison proudly proclaimed in Federalist 63, the Constitution was designed to put "the people" into a permanent coma, capable of acting only through "representatives."

As someone who currently believes that the single worst feature of our radically defective Constitution is the lack of any no-confidence process to fire a President who has (justifiably) lost public confidence, I presume that a constitutional amendment would be necessary to supplement the obviously inefficacious Impeachment Clause and 25th Amendment. (As I've argued previously, the worst thing about the Impeachment Clause is that it's basically been captured by lawyers who seem interested only in arcane disputes about what counts as a "high crime and misdemeanor" as against a far more necessary discussion of the "fitness" of someone to have the immense power given the President. It is true that Congress could propose such an amendment, but one of the awful truths is that no one in the broad political elite, other than right-wing Republicans, is willing even to broach the reality that we have a defective Constitution.

There is increasing (and correct) agreement that life tenure for Supreme Court justices is an idea whose time should have gone. Ben Sasse gave a truly fine speech at the Kavanaugh hearings daring Democrats to support the end of life tenure. To their shame, none of the Democrats responded to his challenge. I'm in the minority of legal academics who believe that life tenure could in fact be modified with a statute authorizing new appointments once a justice has served 18 years, with the nine member Court to consist of the nine-most-recently-appointed members, while the displaced judge remains a member of the Court, who can sit if one of the nine has to recuse him or herself and can "visit" so-called "inferior" courts, which a number of retired justices have done.

We should learn to walk and chew gum at the same time. That is, it is absolutely essential that we do whatever we can to smash the GOP coalition in the House and Senate. Whatever doubts one might have about Democratic candidates pales in light of the collaboration of the GOP with a monumentally unfit and dangerous president. But we are absolutely kidding ourselves if we think that such a victory would in fact enable the passage (and signing by either Trump or Pence) of progressive legislation. I have told many people that if Hillary had won, most of us would be just as depressed today, though for slightly different reasons, because "we" would be looking forward to an electoral bloodbath in November, with Republican victories, and then an almost certain Republican victory in 2020 by a more politically competent Trumpista.

Progressies, including my friends in the American Constitution Society, are making a big mistake in refusing even to address the possibility that the Constitution is radically defective. If one doesn't believe that, then of course one ought to agree with David. If it ain't broke, then by definition it doesn't need fixing. But what if it is broken and constitutes its own danger to our collective future?

I hope that David will offer his own further reflections, either as a comment or in an independent posting.

Posted 10:27 PM by Sandy Levinson [link] (36) comments

The Paradox of Liberal Fascination with an Article V Convention

David Super

The drive to call a convention under Article V of the Constitution is being driven primarily by various groups positioning themselves on the Right. They say they seek to add a balanced budget amendment to the Constitution, to impose term limits, or more broadly to curtail federal power. Other groups on the Right have been deeply critical of these groups, wondering how one can claim to be a conservative and yet take such a cavalier approach toward opening up our Constitution.

But some groups on the Left are also seeking an Article V convention. They generally frame their efforts as trying to strengthen democracy. The most organized of them seeks to overturn Buckley v. Valeo and Citizens United. Occasionally progressives also call for an Article V convention to eliminate the Electoral College or to curtail the disproportionate power of small states through the U.S. Senate.

The notion of calling an Article V convention to improve democracy is deeply paradoxical. Far from being the salvation of democracy, an Article V convention is one of the least democratic features of our Constitution. Of all the means of achieving legal change in this country, it is one of the least affected by one-person-one-vote and perhaps the most vulnerable to the corrosive effects of corporate and foreign political money.

Consider first one-person-one-vote. In Federalist No. 22, Alexander Hamilton wrote that “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Our Constitution represents a mix of arrangements distributing political power by population and ones giving that depart from this “fundamental maxim” by giving smaller states weight equal to that of larger ones. The U.S. Supreme Court’s one-person-one-vote decisions of the 1960s made our country more democratic by requiring districts of equal size where population is the basis for representation.

Although the Electoral College gives smaller states power disproportionate to their populations, the effect is limited: over eighty percent of electoral votes are apportioned by population. Thus, although the winner of a thin plurality of the popular vote can lose the Electoral College – and did in 2000 and 2016 – a solid majority of the popular vote is all but assured of translating into the presidency.

Ordinary legislation requires a majority in the House of Representatives, whose seats are apportioned among the states by population, as well as the approval of a President elected on a basis that gives much more weight to the outcomes in more populous states. The traditional route for amending the Constitution through Article V requires that any proposed amendment garner two-thirds support in the House.

By contrast, one-person-one-vote plays very little role in amending the Constitution through an Article V convention. Two-thirds of the states must ask Congress to call such a convention, but in that process Wyoming’s request counts just as much as California’s. The Constitution does not tell us how votes will be allocated within a convention, but Article V proponents claiming to be on the Right are adamant that states will have equal votes, as they do in the Senate. Only the dreamiest of optimists would believe that population-weighted voting will prevail in a convention with thirty-three states having below-average populations and thus weakened by such a system. Even when it was much more liberal than it is today, the Supreme Court made clear that the process of amending the Constitution is a political question into which it will not intervene. And, assuming the convention adheres to Article V, the ratification process, too, will give equal weight to the decisions of each state, regardless of population.

Concerns about the corrosive influence of money are even greater in an Article V convention. As flawed as our campaign finance and lobbying laws are, we at least have some laws regulating money’s role in elections and legislatures’ deliberations. Because we have never had an Article V convention, many of those laws were not drafted with a thought to curbing corrupt efforts to influence the selection and decisions of delegates. A convention will be a one-time event, tempting many shadowy players to decide that the benefits of going all-out to capture such a convention are worth the risk that laws may be interpreted to proscribe their actions – especially because any interpretive ambiguities will allow them to argue lack of criminal intent. Even if Congress were inclined to try – which seems unlikely – regulating efforts to corrupt a one-time convention is vastly more difficult than regulating recurrent activity like political campaigns and lobbying. Should the Supreme Court find unconstitutional any attempts at regulating money’s role in influencing a convention, Congress would have no time to try again.

In Federalist No. 22, Hamilton also urged Americans to be ever-vigilant against “foreign corruption” of our democracy. If we hold an Article V convention, we can be sure that Vladimir Putin is not throwing away his shot. The problems with foreign financial and other intervention in an Article V convention would be orders of magnitude greater than anything we have experienced to date. If Putin was willing to devote substantial resources, and take considerable risks, to undermine confidence in western democracy with polarizing social media posts and dirty tricks, we can only imagine how eager he would be to insert divisive poison pills into the U.S. Constitution. Putin demonstrated his interest in constitutional questions with his intervention against the European Union in the Brexit referendum. As troubling as it is to think of our country being governed by a Siberian Candidate, that is far better than living permanently under a Siberian Constitution.

But potential foreign intervention is not limited to Russia. One can imagine China seeking amendments to the Constitution’s provisions on intellectual property or funneling money to domestic critics of the Federal Reserve to hobble U.S. monetary policy. Countries critical of us for allowing parodies of the Prophet Muhammad might seek modifications to the First Amendment to remove protection for perceived blasphemy. Multinational corporations already achieved many of their top priorities in December’s tax cut legislation, but they still could try to constitutionalize rules preventing the U.S. from reaching income artificially assigned to foreign tax havens.

Advocates of strengthening democracy through an Article V convention insist that this country’s problems are so severe that we must take the risk that a convention poses to civil rights and civil liberties. But arguing that reforming our current electoral process is an emergency implies that we should maximize the chances that it gets done. And an Article V convention is about the least likely means of achieving that.

Because Citizens United and other campaign finance decisions were the product of a closely divided Supreme Court, that Court can be changed by a series of presidential appointments over time. This necessitates winning the presidency and (these days) maintaining a majority in the U.S. Senate. Winning a majority in the Senate, obviously, requires carrying at least 25 states (or splitting two for every one short of 25 that is fully carried). Winning the presidency requires even less: President Obama won 26 states against Governor Romney. Had his close wins in Florida and Ohio gone the other way – leaving him with only a minority of the states – he still would have had a solid Electoral College majority.

By contrast, if a convention follows the ratification process under Article V, any change would require approval of thirty-eight state legislatures or state conventions. That means that just thirteen could block ratification. Yet in eighteen states, Hillary Clinton received less than 40% of the vote. Thus, not only would proponents of liberal constitutional change need to secure ratification from all states where she crossed the 40% mark – a group including states such as Mississippi, South Carolina, and Texas – they also would have to pick up five states that voted more than three-to-two against Senator Clinton. If any of the states where Senator Clinton reached 40% does not ratify, proponents would need even more deep-red states. Advocates of these measures claim to be non-partisan, but they have demonstrated little support even in many light-blue and purple states she won, much less in states where she was buried. Any reforms to weaken the Senate would require ratification by more than twenty states that are proportionately better-represented there than in the House.

Much of the rhetoric supporting an Article V convention from all of its advocates romanticizes the delegates as true representatives of The People whom we should expect to rescue us from the corrupt institutions of Washington. Yet nothing in the Constitution requires that delegates to an Article V convention be selected by states’ voters. Indeed, we have every reason to expect state legislators to appoint themselves to the prestigious, powerful and attention-getting role of convention delegates. (Even if a few states did allow voters to choose their delegates, state politicians have the campaigning skills, the name recognition, the organization, and the ability to raise funds quickly that will be necessary to win a delegate election called on short notice.) If you think you would like an assembly of ambitious state legislators from around the country, you should adore Congress: almost half of its Members are former state legislators. Those delegates hoping to leverage their positions to run for higher office will be particularly attentive to the wishes of potential donors to those campaigns.

If election reform is crucial, then avoiding the doomed Article V convention process is crucial, too. Put another way, the enormous risks of calling an Article V convention – including the possibility that it would entrench Citizens United in the Constitution’s text – must be compared with the extremely remote chance that a convention would accomplish anything positive.

Liberal enchantment with calling an Article V convention is the latest manifestation of an unfortunate preference for political get-rich-quick schemes over the hard work of organizing, persuading, and compromising through the electoral process. Just as Judge Kavanaugh’s nomination is awakening many people to the limited potential for overcoming hostile legislatures and executives through the courts, some are embracing an Article V convention as the new silver bullet. (Recurrent fascination with impeachment and the Twenty-Fifth Amendment – always detached from an appreciation of how many Republican votes either approach would require even if Democrats sweep November’s elections – is another manifestation of this magical thinking.) Unfortunately, our nation is in a very deep hole that we took a long time to dig. Just as law reform litigation was never going to render irrelevant the electorate’s choice of leaders disinterested in poverty, civil rights, civil liberties, and the environment, an Article V convention will not cure the very real pathologies of our democracy. Indeed, it is far more likely to make them worse.

Posted 4:48 PM by David Super [link]

Tuesday, September 11, 2018

Masterpiece Cakeshop, again

Andrew Koppelman

Jack Phillips, who recently won his Supreme Court case over whether he could refuse to bake a cake for a same-sex wedding, claims that Colorado is persecuting him, because its Civil Rights Commission has once again found that he is discriminating – this time against a transgender woman. He is suing the state, demanding an end to what he regards as its harassment. His legal claim ought to lose, but he has a legitimate grievance.

I explain in a new piece at the American Prospect, here.

Posted 8:27 PM by Andrew Koppelman [link]

A Federal District Judge Seems Determined to Strike Down the Affordable Care Act

Guest Blogger

Timothy Jost

To enter the Fort Worth Courtroom of Judge Reed O’Connor on September 5, 2018, was to leave the real world. The Affordable Care Act was once again on trial. At stake was access to health care for the 20 million Americans who have gained coverage through the ACA, affordable coverage for 133 million Americans with preexisting conditions, and preventive services coverage for 44 million Medicare beneficiaries.

But the devastating consequences of his potential decision in the case before him were of no interest to Judge O’Connor, who showed no sign of having read the amicus briefs filed by virtually every stakeholder in the American healthcare system—doctors, hospitals, insurers, patient groups, consumer organizations, small businesses, older Americans, as well as numerous health economists and public health experts--demonstrating those consequences. He also showed absolutely no interest in the announced intentions of the Senators who had voted for the amendment to the ACA that had provoked the lawsuit.

The case had been brought by Texas and Republican attorneys general and governors representing twenty states, and they went first in the oral arguments.

They contended that:

· the Supreme Court had held in 2012 that Congress could not constitutionally require people to have health insurance but upheld the ACA’s individual mandate as a tax;

· in 2017 Congress reduced the tax to zero for 2019;

· the mandate is thus now unconstitutional; and

· without the mandate, the entire ACA collapses.

An attorney representing two individual plaintiffs came next, asserting that his clients feel obliged to buy insurance because the law says they “shall,” do so, even though the Supreme Court held the mandate only required some uninsured people to pay a tax, and that tax is now 0.

An attorney representing the United States argued third. The Department of Justice had surprised everyone in June by agreeing with Texas that the mandate was unconstitutional and asserting that the ACA’s provisions that guaranteed access to affordable coverage for people with preexisting conditions had to be invalidated. But in the courtroom the DOJ seemed to be having second thoughts, begging the court not to eliminate preexisting condition protections immediately and not to rule on the case until after the 2019 open enrollment period ends (incidentally, after the midterm elections). The DOJ argued that an immediate injunction could “cause chaos in the insurance markets” and that adjusting to an insurance market without the mandate would be a “multiyear” process.

Finally, two attorneys from California, which along with 16 other Democratic states is defending the ACA, had their turn, contending that the mandate continues to be a valid tax, but more importantly, that the mandate is no longer in any way essential to the continued stability of that market. They pointed to strong evidence that the Senate did not intend to undermine any other provision of the ACA in zeroing out the mandate tax. California demonstrated that granting an injunction would have a devastating effect on millions of Americans and on America’s health care system, while refusing an injunction would not harm the plaintiffs in any way.

But none of this was of any interest to Judge O’Connor. Rather he questioned the attorneys for the next hour trying to elicit support for the plaintiffs’ arguments. Doesn’t the ACA still say people “shall” have coverage? Didn’t Congress by zeroing out the tax in 2017 remove the one justification the Supreme Court found for finding the mandate constitutional? Don’t the “findings” in the mandate section of the original ACA say that the mandate is “essential” to creating markets where preexisting conditions could be covered? (He ignored powerful evidence that the finding was wrong) Didn’t the 2017 Congress that adopted the Tax Cut bill leave those findings in place? (Judge O’Connor bizarrely suggested that Congress zeroed out the tax assuming that he would subsequently invalidate the ACA based on the tax cut bill.) Didn’t the dissent in the earlier Supreme Court case establish that once the mandate disappears, the whole ACA collapses? Can’t the court simply recite the magic formula proposed by the plaintiffs and make the ACA disappear?

In the near future Judge O’Connor will decide whether to invalidate the ACA or its preexisting condition protections. His decision will surely be appealed to the Fifth Circuit, perhaps the country’s most conservative federal appellate court. From there it may go the Supreme Court.

At some point, a court should ask the really important questions: are the plaintiffs really injured by a $0 tax? What devastating injuries would patients, providers, and states suffer if the ACA is invalidated? Did anyone in Congress intend to repeal the ACA when they voted to zero out the mandate tax? Should an unelected federal judge do what the elected representatives of the people have repeatedly refused to do? None of these questions interested Judge O’Connor in the least.

Timothy Jost is Emeritus Professor at Washington and Lee University School of Law. You can reach him by e-mail at jostt at wlu.edu

Posted 1:55 PM by Guest Blogger [link]

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