Herrera v. Wyoming: A Cautionary Encounter with Careless Repudiation

Guest Blogger

Daniel B. Rice and Jack Boeglin


Posted 1:08 PM by Guest Blogger [link]

The ERA on the Brink

Gerard N. Magliocca

Earlier this week the Virginia Senate voted to ratify the Equal Rights Amendment. If the Virginia House of Delegates follows suit (which is by no means certain), then Virginia will become the 38th state to ratify the ERA if the rescission votes of five of those 38 states are disregarded. As a result, a yes vote by the Virginia House will lead to a formal petition to the Archivist of the United States for recognition of the ERA as the Twenty-Eighth Amendment. Stay tuned.
Posted 12:39 PM by Gerard N. Magliocca [link]

A Solution to the Shutdown from Nicholas Biddle

Mark Graber

Posted 3:13 PM by Mark Graber [link]

Why Progressives Should Support Pay-As-You-Go Budgeting Rules

David Super

Responding to the opposition that some House Democrats, the Economic Policy Institute, Paul Krugman, and others have expressed to pay-as-you-go budgeting rules, I recently published an op-ed arguing that those rules are essential to pursuing the progressive legislative agenda.

Pay-go will not only allow major progressive initiatives but may well be crucial to their enactment.  By themselves, neither a major social initiative, such as Medicare-for-All or universal child care subsidies, nor a major increase in taxes on the affluent and wealthy corporations, is likely to pass.  Worries about the effects on the deficit -- founded or otherwise -- will likely tip the balance against progressive social initiatives in a closely-divided political environment.  And without a clear set of winners -- beyond the general values of fiscal probity -- progressive revenue legislation will have too many powerful opponents and not enough committed supporters.  Married together, as was done in the Affordable Care Act, social initiatives and revenue increases have a far better chance.

In practice, the main effect of pay-go has been to weed out low-priority proposals to manipulate tax rules or target spending for this or that well-funded interest.  Members seeking campaign funds from those interests, and Members from states and districts where those interests have facilities, duly introduce the requested legislation to show their concern.  The inability to find a politically viable offset, however, provides a convenient excuse for the Member when the leadership declines to bring the rent-seeking legislation to the floor.  Without pay-go, the Member will have no excuse not to demand action on the bill and other Members will risk embarrassing that Member if they vote it down.

If progressives do not embrace and sell pay-as-you-go as the proper measure of fiscal responsibility, other, much worse, metrics will take its place, such as the gross cost of an initiative.  Many of the Affordable Care Act's subsequent problems can be traced to unwise decisions to try to hold its gross costs below $1 trillion (regardless of the offsets that made it a net deficit-reducer).  Had more of its implementation costs been covered with permanent appropriations, Republicans could not have starved it in the appropriations process.  The Act's heavy reliance on Medicaid expansion also sought to save federal costs -- with disastrous results after NFIB v. Sebelius.

And if progressives disregard fiscal discipline completely, eventually they will give their opponents an opening for one of the spasms of radical deficit reduction that are billed as "shared sacrifice" but that invariably hit low- and moderate-income people disproportionately hard.  Those budget-cutting frenzies tend to occur around downturns and hence hinder economic recovery.  Those are the true vehicles of austerian economics that progressives should seek to avert.   Pay-as-you-go can help with that.
Posted 1:32 PM by David Super [link]

Unpacking the "Transgender in the Military" Cases

Marty Lederman

As many Balkinization readers may know, a few weeks ago the Solicitor General filed petitions for certiorari “before judgment” with the Supreme Court in three cases (Nos. 18-676, 677, 678) challenging then-Secretary of Defense Mattis’s new policy regarding transgender service-members.  In each of the cases a district court preliminarily enjoined DOD from implementing the new policy.  On Friday, however, a D.C. Circuit panel in one of the cases (consisting of Judges Griffith, Wilkins and Williams) held that the district court should have dissolved its injunction, issued in 2017, because of a subsequent change in circumstances—namely, Secretary Mattis’s revised policy, which he promulgated in February 2018.  The court of appeals concluded that the District Court’s refusal to reconsider its injunction was based upon “an erroneous finding that the [2018] Mattis Plan was the equivalent of [the earlier] blanket ban on transgender service.”  The panel explained:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”  The court of appeals also strongly hinted, without conclusively holding, that the new Mattis plan is likely to survive Fifth Amendment scrutiny in light of the deference that courts ordinarily accord military judgments.

The “universal” injunctions in two California cases remain in effect, however (a Ninth Circuit panel has already heard argument in one of the cases, Karnoski, and its decision is pending).  The Supreme Court is scheduled to discuss the SG's cert.-before-judgment petitions in those cases at its conference this Friday.

What's the government's justification for such a rush, which would circumvent the ordinary course of litigation in the lower courts?  DOJ argues that the Obama-era transgender policy that the trial court injunctions have left in place, which former Secretary Ash Carter promulgated in 2016, poses a grave risk to “military effectiveness and lethality”—that the armed services must be permitted to exclude more transgender service-members now in order to be “in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  These are therefore the sorts of rare cases of high exigency, the petitions insist, that require the Court's immediate resolution.  By way of analogy the government cites the landmark precedents of the Steel Seizure Case, the Nixon tapes case, and the Dames & Moore case challenging President Carter’s freeze of Iranian assets during the hostage crisis.

I’d be surprised if the Supreme Court grants the petitions before judgment—in part because the Chief Justice appears committed to making this a relatively low-drama Term; and in part because Friday’s D.C. Circuit decision demonstrates that the fate of the Mattis policy in the lower courts is anything but certain; but more importantly because it’s simply implausible that the immediate exclusion of a handful of transitioned transgender service-members from entering the military, and/or preventing a small number of current service-members from beginning transition, is necessary to enable the armed forces to “fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  The Court might (or might not) ultimately defer to Secretary Mattis’s judgment when it adjudicates the merits, but I doubt it'll be eager to credit—to give credence to—such obvious hyperbole.

It’s more likely the Court will simply grant cert. in the regular course, and hear the case next Term, with a decision in 2020.  If I'm right about that, then the most pressing question for now is what the status quo will be for the next 15 months or so:  Will the Carter policy remain in place, or will the Mattis policy supersede it, with a chance for a revision of the Carter policy if the Court concludes that the Mattis policy is unconstitutional?  In addition to his petitions, the SG has filed motions with the Court to stay the district court injunctions.  "[W]hat is of paramount importance," the SG argues, "is permitting the Secretary of Defense to implement the policy that, in his judgment after consultation with experts, best serves the military’s interests" between now and the time the Court resolves the merits.

I’d be somewhat surprised if there are five votes on the Court to stay the injunctions (unless it's part of a compromise among the Justices that pushes the merits determination to next Term):  Implementation of the Carter policy has not caused the sky to fall or grievously impacted military readiness.  Indeed, because the Mattis policy by its terms would not effect transgender people already in the military who have been diagnosed with gender dysphoria, the principal immediate impact of the injunctions is simply to allow a handful of people who have already successfully transitioned to the gender with which they identify to “access” into (i.e., to join) the armed forces.  The idea that that the addition of this small number of transitioned individuals–a tiny percentage of the transgender persons in the armed forces–would profoundly affect military readiness and effectiveness simply isn’t plausible, even if the Court pays great deference to the Secretary of Defense.

Whether I’m right about that or not, however, the impending stay motions, rather than the petitions before judgment, are probably where the real action is this when the Court meets on Friday.


A couple of things about the government’s recent filings are especially noteworthy.  Although of course the Solicitor General emphasizes what he describes as the profound differences between the Carter and Mattis policies—he is requesting extraordinary relief to quash the former, after all—he stresses that in two important respects the Carter and Mattis policies are similar to one another.

First, the SG argues that, under both policies, current service-members diagnosed with gender dysphoria who have not yet fully transitioned to their experienced gender, as well as transgender service-members without such a diagnosis, must continue to “serve in their biological sex” rather than “in their preferred sex.”  (These are the government’s unfortunate formulations.  What the government means by them is that although such service-members can serve as "openly" transgender in the sense that they can identify as such, they must abide by the grooming, uniform and use-of-facilities rules for the sex they were assigned at birth.)

Second, the SG argues that therefore both policies, Carter’s and Mattis’s, discriminate primarily on the basis of whether an individual suffers from gender dysphoria or has transitioned rather than on whether the person is transgender.  Here’s the key, striking passage from page 7 of the government's petition in Trump v. Karnoski, No. 18-676:

Like the Carter policy, the Mattis policy holds that “transgender persons should not be disqualified from service solely on account of their transgender status” [citing the Mattis policy at page 149a of the petition].  And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender dysphoria) and related treatment (gender transition).  Id. at 207a-208a.  Under the Mattis policy—as under the Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in their biological sex, whereas individuals with a history of gender dysphoria would be presumptively disqualified from service.  Ibid.  The two policies differ in their exceptions to that disqualification.

The D.C. Circuit panel decision last Friday in effect agreed with this latter contention:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military,” the panel explained, “the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”

The idea that the Trump/Mattis policy doesn't discriminate on the basis of transgender status might be a bit startling to those who haven’t been carefully following the developments in the cases.  After all, in his initial memorandum (see pp. 99a-100a of the Karnoski petition), President Trump directed Secretary Mattis “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.”  Yet it’s true, at least as a formal matter, that the Mattis policy (see pp. 207a-208a of the Karnoski petition) does not make distinctions based upon transgender status, as such, let alone implement a transgender "ban"—which is why, after receiving Secretary Mattis’s proposal, President Trump revoked his previous order that would have required such discrimination (see pp. 210a-211a).

That (nominal) about-face in the government’s formal ground of distinction is no accident.  The principal reason DOD and DOJ made the move—in effect, to argue that DOD has not in fact implemented the "transgender ban" that President Trump ordered but has instead "merely" altered the ramifications of distinctions drawn by the Obama Administration—is not merely to try to get some mileage out of the notion that “Obama did it, too,” but also to argue that if the existing Carter policy is not subject to heightened scrutiny under the so-called equal protection component of the Fifth Amendment, then the Mattis policy shouldn’t be subject to such heightened scrutiny, either, given that it’s predicated on similar grounds of discrimination (albeit resulting in far harsher consequences).

In a detailed post over at Just Security, I try to unpack and clarify the differences between the Mattis and Carter policies in order to understand just what’s at stake in these challenges and to explain why the Mattis policy ought to be constitutionally suspect notwithstanding the fact that it's no longer a transgender ban.  Here's a slightly amended version of the conclusion of that post:

If, as appears to be the case, DOD’s principal rationale is based upon an alleged concern about allowing transgender women to share certain facilities with other women, and even if it would be justifiable to impose certain limited restrictions on such facility access, that wouldn't begin to explain why it’d be reasonable for DOD also to prohibit transgender service-members from adhering to the uniform and grooming standards of their experienced gender; for prohibiting those same valuable service-members from engaging in the process of, e.g., social and medical transitioning; and, most dramatically, for categorically prohibiting fully transitioned individuals from joining the armed services at all.  As DOJ emphasizes in its latest filings, even the Mattis policy would permit nontransitioned persons to serve “openly” as transgender.  If that’s the case, then what would possibly justify preventing those same persons from dressing and grooming themselves in accord with their experienced, and self-proclaimed, gender, or justify a categorical exclusion of very valuable and skilled transitioned persons from joining the armed forces?  Because such limitations are grossly disproportionate to the alleged problems, they'd appear to be motivated by nothing more than simple, gratuitous cruelty.  If that’s right, then the Mattis retention limitations ought to be constitutionally dubious no matter what degree of scrutiny the Court ultimately applies, and regardless of the degree of deference it affords to reasonable military judgments.
Posted 9:35 AM by Marty Lederman [link]

National Emergencies, Then and Now

Guest Blogger

John Fabian Witt

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Posted 12:08 PM by Guest Blogger [link]

ACS @ AALS

Joseph Fishkin

For those attending the AALS conference in New Orleans next week, amid many other events the American Constitution Society has two, both on Thursday, January 3rd (flyer here):

Posted 2:41 PM by Joseph Fishkin [link]

The Nondelegation Doctrine -- Correcting a Common Error

Mark Tushnet

Posted 11:22 PM by Mark Tushnet [link]

Can He Do That? Of Appropriations, Walls and Shutdowns

David Super

Posted 3:19 PM by David Super [link]

A Different Border Wall: Judgments of Legal Quality in Texas v. United States

Neil Siegel

In his December 15 post on Texas v. United States ("Off the Wall and on the Wall in the Age of Trump"), Jack Balkin brings to bear the historicist sensibility that partially informs his magnificent 2011 book, Living Originalism. In the post, he opines that Judge Evan O'Connor invalidated all of the Affordable Care Act (ACA) "on (in [Balkin's] own view) pretty dicey legal grounds." But Balkin moves quickly from the perspective of the individual participant in the constitutional system to the perspective of the historicist appreciator of how the system functions. He explains why the arguments accepted by Judge O'Connor are already "on the wall," albeit "barely." In addition, Balkin in effect lays out a road map that, if followed by the right groups of people -- especially a unified Republican Party and conservative intellectuals who work on the arguments -- will rapidly place those arguments firmly on the wall. Most significantly, Balkin writes that "judgments of legal quality and social influence mutually shape each other," but his post focuses almost entirely on how social influence shapes judgments of legal quality, and not the other way around. 

My own view -- and I would bet that Balkin actually agrees with me, although he did not emphasize this point -- is that judgments of legal quality and the character trait of intellectual integrity are a significant part of the reason why conservative intellectuals and many professional Republicans are far from unified on the merits of this particular challenge to the constitutionality of the ACA. 

Specifically:

1. One could reject most or all of modern Article III standing doctrine and try to reground it in a new, substantially more permissive understanding of Article III. But until such an attempt succeeds, it is legally untenable for Judge O'Connor to have concluded that two obviously ideological plaintiffs in Texas have Article III standing because they feel coerced by a "mandate" that will require them to make a shared responsibility payment of $0 if they remain uninsured -- a "mandate" that gives Americans the lawful choice between complying and making the shared responsibility payment. See Nicholas Bagley's incisive analysis.

2. As Marty Lederman and I have separately explained, it is legally untenable for Judge O'Connor to have held that Congress requires an enumerated power to impose no material or expressive consequences on anyone.

3. And as a bipartisan group of experts on severability made clear, it is legally untenable for Judge O'Connor to have concluded in effect that Congress in 2017 accomplished through the reconciliation process what congressional opponents of the ACA lacked the votes to accomplish using the ordinary legislative process -- that is, repeal the entire statute merely by zeroing out the shared responsibility payment and leaving the rest of the ACA in place.

 C'mon, man.


Posted 11:43 AM by Neil Siegel [link]

Three Short and Sweet Possible Legislative Responses to Texas v. United States

Richard Primus

Nick Bagley and I have a short piece in The Atlantic offering the incoming House of Representatives three strategies for super-simple legislation that would end the litigation in Texas v. United States and preserve the ACA.  One would raise the penalty for not carrying insurance from nothing to one dollar; one would clarify that the mandate is severable; one would just repeal the mandate, which, given the absence of a penalty, now hangs atavistically around the ACA like a human appendix, doing nothing useful but threatening to blow up the whole system if attacked from the outside.  We also offer brief thoughts on why it's worth the House's time to adopt one of these fixes even though the Senate's leadership is less keen on the ACA.  The piece is here.
Posted 4:36 PM by Richard Primus [link]

Institute for Justice Podcast on the 14th Amendment

Gerard N. Magliocca

The Institute for Justice has released a podcast to mark the 150th anniversary of the Fourteenth Amendment. You can find the link here. https://ij.org/sc_long_podcast/the-fight-for-the-14th/ I am one of the participants, along with Kurt Lash and others.
Posted 10:43 AM by Gerard N. Magliocca [link]

Texas v. U.S.: Congress's Inherent Power to Require No One to Do Anything

Neil Siegel

While the constitutionality of the Affordable Care Act's minimum coverage provision (the "individual mandate") and shared responsibility payment were pending before the U.S. Supreme Court, Robert Cooter of UC Berkeley Law School and I developed a theory of Congress's taxing power that anticipated, and may have influenced, the Court's taxing power analysis in NFIB v. Sebelius.  (Several commentators, including Neal Katyal, Randy Barnett, and Jeffrey Rosen, noticed close similarities in the analysis, citations, and rhetoric between our article and the majority opinion of Chief Justice Roberts.)  According to our theory, the difference between a permissible tax and an impermissible penalty for purposes of the Taxing Clause turns on the likely effects of a federal exaction on human behavior.  Whereas a tax characteristically dampens the conduct subject to the tax and thereby raises revenue, a penalty prevents the conduct subject to the penalty and thereby does not raise revenue.

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Posted 2:20 PM by Neil Siegel [link]

All the Things You Don’t Realize Are in the ACA and Now Could Vanish

Abbe Gluck

• Health insurers could deny or cancel coverage for people with pre-existing conditions in most markets.
• You could now be charged money for insurance more based on your health, gender and occupation.
• There would be no more prohibition on lifetime limits on health care spending. (Before the A.C.A. those limits meant insurance only took you so far if you had a very serious health condition.)
•  There would be no more out of pocket maximum.
• There would be no more coverage of young adults on parents’ plans up to age 26.
• There would be no more government subsidies to help you buy insurance.

• Basic health benefits we assume are always covered--including maternity coverage and mental health-- could now be denied if you buy your own insurance or get it through a small employer.
• Important preventive services like cancer screening and contraceptive services will no longer necessarily be covered--you could have to pay for them out of pocket unless your state passes a law saying otherwise.
• Vaccines for your kids were covered under the A.C.A., but before the A.C.A. many insurers required a copay and you now may have to pay for them again.
•  Well-baby and well-child exams were covered and now may not be.
•  You could now be charged a co-pay if you go to an emergency room out of network.
• There would be no more health insurance marketplaces, which allow consumers to see and compare insurance plans before they buy.
• There would be no more requirements that large employers offer employees health insurance.

And then of course we lose the expansion of Medicaid.

• The A.C.A made Medicare’s pharmaceutical benefit a lot more generous-- don’t be surprised now when you need to pay for your high price drugs.
• Medicare preventative care without copay? Gone.
• Medicare payment reforms would be gone including the whole new structure of Medicare Advantage.
• Essential funding that has expanded the solvency of the Medicare trust fund so that  Medicare continues to be available into the future would also be gone

• Loss of the Prevention and Public Health Fund, which supports community-based programs that tackle social determinants of health.
• Loss of the Community Health Center Fund, which provides about 70 percent of federal grant programs for these clinics that provide care to 24 million patients, as well as national health service corps scholarships for thousands of physicians, nurses, and dentists to deploy to the biggest rural and urban health professions shortage areas.
• Gone would be calorie labeling on restaurant menus in most localities.
• Gone would be mandatory break time for nursing mothers.
•  Lost would be the reauthorization and reform of the Indian Health Services Act.

• A pathway for the approval and sale of generic biologic drugs, which would save Americans billions on drug costs.
• More tools to help the government combat health care fraud.
• Training for new doctors.
• Non-discrimination provisions that protect people of all genders from discrimination in health care.

Take a step back absorb how much this decision affects.  Most of these reforms have nothing to do with the insurance-purchase mandate the judge opined was so central to the entire 2,000+ pages of the A.C.A. that nothing in those pages could function without it. But more importantly, Congress never said a thing about eliminating all of these provisions-- indeed, Congress failed more than 50 times in attempts to repeal them. Congress only eliminated the mandate penalty, leaving the rest of the law still standing. As we have explained, the legal test at issue turns entirely on what Congress intended.  The judge’s opinion effectively repeals the entire A.C.A. when Congress couldn’t and didn’t.
Of course, Friday’s decision will certainly be appealed and so the court’s ruling is not the final word. And the effects of the decision are most likely to be paused while any appeal is pending, so the devastating implications of the decision laid out here are not immediate, and hopefully will never come to pass.
  

[Cross-posted at https://takecareblog.com/]
Posted 2:58 PM by Abbe Gluck [link]

Texas v. U.S: Off the Wall and On the Wall in the Age of Trump

JB

Judge Reed O'Connor's opinion in Texas v. U.S. has declared all of Obamacare unconstitutional based on (in my own view) pretty dicey legal grounds. Commentators are trashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.

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?

Read more »
Posted 2:05 PM by JB [link]

There is no "mandate." And oh, by the way, Judge O'Connor didn't enjoin enforcement of any provision of the ACA, let alone "strike down" Obamacare in its entirety.

Marty Lederman

All 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.
Read more »
Posted 1:04 PM by Marty Lederman [link]

Happy Bill of Rights Day

Gerard N. Magliocca

Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:

“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 . . .”





Posted 7:51 PM by Gerard N. Magliocca [link]

The Curative Power of Law and Political Economy

Guest Blogger

Posted 9:00 AM by Guest Blogger [link]

Brexit is Prohibition

Gerard N. Magliocca

I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.

Prohibition was a disaster, but Brexit shows that no constitutional system is immune from them.
Posted 11:58 AM by Gerard N. Magliocca [link] (116) comments

CFP--Conference on Constitutional History: Comparative Perspectives

Jason Mazzone

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 9:44 AM by Jason Mazzone [link]

What’s Really Wrong with the Census

Guest Blogger

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Posted 6:45 PM by Guest Blogger [link]

Fiscal Policy after the Mid-term Elections

David Super

Posted 12:34 PM by David Super [link]