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

Fairness for All, a good idea nearly everyone hates

The Constitutional Politics of Impeachment

Symposium on David Schwartz, The Spirit of the Constitution-- Collected Posts

Fair Play or the Rule of Law?

Drafting Articles of Impeachment

Burying McCulloch?

Who "Massacred" Whom on that Saturday Night?: The William Ruckelshaus Legacy (and Why it Has So Little Impact Today)

McCulloch’s “Perpetually Arising” Questions

The Dormant Commerce Clause and the Second Amendment

An olive branch spurned

The Latest Defense for Anti-Gay Discrimination

McCulloch, Slavery, and the Sweeping Clause

Understanding the two Mazars subpoena cases pending in the Supreme Court [UPDATED to reflect SCOTUS stay of mandate]

McCulloch and Fundamental Rights Regimes

Senator Ron Johnson Has A Problem

McCulloch v. Maryland: Not Only Right, But Inevitable

Structural Arguments and Impeachment

Could Justice Thomas Preside over President Trump’s Impeachment Trial?

Elizabeth Warren’s health care trap

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Friday, December 06, 2019

Fairness for All, a good idea nearly everyone hates

Andrew Koppelman

America is now so politically polarized that it’s hard to get both sides of any major issue into the same room to talk to one another. That’s why the Fairness for All Act, which was introduced today, is such a major accomplishment.

The Act, the product of intense negotiation between advocates of the religious right and of the gay rights movement, offers a compromise in the bitter gay rights/religious liberty conflict. It provides LGBT people with nationwide protection against discrimination in employment, housing, public accommodations, adoption and foster care, and education. But it also protects religious institutions’ right to organize themselves around their distinctive sexual morality.

Predictably, it has almost no friends and is being denounced by both sides. Some prominent outlets, such as Buzzfeed, are attributing it to “House Republicans,” not mentioning that most Republicans oppose it because of the broad protections it gives to gay people.

This issue has taken on an importance far beyond the tiny number who have made such claims. Gay rights advocates fear that exempting even a few religious dissenters would unleash a devastating wave of discrimination. Conservative Christians fear that the law will treat them like racists and drive them to the margins of American society.

I’ve been an advocate of LGBT rights for more than thirty years. The bill is cause for celebration. The present paralysis is good for no one, gay people least of all. In most of the US, there is no antidiscrimination protection at all. Twenty-nine states have no such laws, and no new ones have been enacted since 2008.

Fairness for All creates a broad nondiscrimination rule, with exceptions for narrowly bounded religious enclaves. Its public accommodations provision only applies to vendors with at least 15 employees, so the small cake baker is exempted. Gender identity is protected so long as it is not asserted for an improper purpose: men won’t be able to walk into women’s restrooms.

The bill is offered as a substitute for the most recent federal proposal to bar LGBT discrimination, the Equality Act, which passed the House of Representatives in May 2019 and has been stuck ever since. The Equality Act gives minimal protection for religion. Fairness for All, on the other hand, has numerous religious carve-outs, leading Buzzfeed to call it “full of loopholes” and Rep. Mark Pocan to declare the law “an attempt to codify bigotry, plain and simple.” Pocan evidently thinks that no discrimination should never ever be tolerated: “Legalizing discrimination against any person for their sexual orientation or gender identity is unacceptable and this bill should be seen for what it is — a deliberate attempt to legalize prejudice.”

To clarify what’s at stake here, consider religious schools, which are one of the most fraught issues of concern to conservative Christians. Rod Dreher writes that the conflict between gay rights and religious liberty will become most intense “when they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology.”

Under the Equality Act, religious nonprofits would have no right to discriminate on the basis of anything other than religious affiliation. They could not, for example, require employees to conform to a moral requirement not to engage in sexual intercourse outside of heterosexual marriage, because such a requirement would likely be deemed to be discrimination on the basis of sexual orientation. Fairness for All exempts such schools from coverage.

That is the liberal outcome. Justice William Brennan, who I hope will not now be labeled a conservative apparatchik, explained in 1987:

religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to “select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected . . .”

Private schools are incubators for cultural dissent. Teachers teach by example. A school’s mission is jeopardized if the school is required to employ teachers who openly defy its teachings. Religious conservatives need safe spaces as much as anyone else does. They should be entitled to discriminate within their own enclaves.

Both gay people and religious conservatives seek space in society to live out their beliefs, values, and identities. Each side’s most basic commitments entail that the other is in error about moral fundamentals, that the other’s entire way of life is predicated on that error and ought not to exist. That was also true of the religious differences that begot the Establishment Clause of the First Amendment. We’re not going to agree, but that doesn’t mean that society hasn’t got room for all of us.

We can quibble about the details of the Act. I’d change some of them if I could. But that’s the conversation we should be having.

Unhappily, all the bill’s cosponsors are Republicans, including one who voted for the Equality Act. I’m a Democrat, and I thought that we (or at least some of us) were the moderate party, while the Republicans were in the grip of the crazy Trumpists.

Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.

Posted 6:07 PM by Andrew Koppelman [link]

The Constitutional Politics of Impeachment

Mark Graber

My thoughts over on Jurist

Posted 5:29 PM by Mark Graber [link]

Symposium on David Schwartz, The Spirit of the Constitution-- Collected Posts

Here are the collected posts for our Balkinization symposium on David Schwartz’s new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

1. John Mikhail, Introduction to the Symposium on David Schwartz, The Spirit of the Constitution

2. Richard Primus, Marshaling McCulloch

3. Mark R. Killenbeck, Accidents of History?

4. Franita Tolson, What is "Appropriate" Legislation?: McCulloch v. Maryland and the Redundancy of the Reconstruction Amendments

5. Kurt Lash, McCulloch v. Madison: John Marshall’s Effort to Bury Madisonian Federalism

6. Sandy Levinson, Does Importance Equal Greatness? Reflections on John Marshall and McCulloch v. Maryland

7. Victoria Nourse, McCulloch v. Maryland: Not Only Right, But Inevitable

8. Mark Graber, McCulloch and Fundamental Rights Regimes

9. John Mikhail, McCulloch, Slavery, and the Sweeping Clause

10. David Schwartz, McCulloch’s “Perpetually Arising” Questions

11. David Schwartz, Burying McCulloch?

Posted 1:30 PM by JB [link]

Wednesday, December 04, 2019

Fair Play or the Rule of Law?

Gerard N. Magliocca

The rule of law is at the center of modern constitutional thought. The phrase "rule of law" was coined in the late nineteenth century by A.V. Dicey, the influential British constitutional scholar. People have different views about what this ideal means today, but the importance of the rule of law is not denied. Indeed, we often hear worries that government actions pose a threat to the rule of law or are vital to protecting that principle.

If you look back at the leading democratic leaders of the twentieth century, though, they said little about the rule of law. Instead, they emphasized the importance of "fair play." For instance, in his 1937 Constitution Day Address, President Franklin D. Roosevelt said: "The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect." In 1946, Winston Churchill told a Dutch audience that one of his tests for a successful democracy was whether independent courts “administer public and well-established laws associated in the human mind with the broad principles of fair play and justice? Will there be fair play for the poor as well as the rich? Will there be fair play for private persons as well as for Government officials?"

I do not know why fair play fell into decline as a democratic principle or why the rule of law became the slogan of choice. There is, though, an important difference between the two. The rule of law says nothing about the substance of the law or about governmental norms. By contrast, fair play is a test that governs all official actions and does speak to the substance of what they do. One might say that the rule of law is a necessary, but not a sufficient, condition for constitutional democracy.

Consider the current impeachment inquiry. When people allege that the President abused his power, they do not mean that he violated a statute or a court order. They are saying instead that he was being deeply unfair to the other party--it was not fair play. There are many legal actions that can be seen as not fair play (including FDR's own Court-packing plan, defeated in 1937). But how should fair play be defined? How did these past leaders define that idea? These are important questions worth asking.

Posted 9:20 PM by Gerard N. Magliocca [link] (114) comments

Tuesday, December 03, 2019

Drafting Articles of Impeachment

Stephen Griffin

Now that many (though certainly not all) of the relevant facts concerning President Trump’s Ukraine affair are in, House Democrats face crucial choices. Drafting articles of impeachment is no boilerplate task. How the Judiciary Committee chooses to define Trump’s transgressions may have far-reaching consequences. In drafting articles of impeachment Democrats are not merely determining their trial strategy in the Senate. They are also setting the boundaries of public debate, laying the foundation for how the impeachment will be assessed, win or lose, in the 2020 presidential campaign, as well as how it will be regarded as a “precedent” for future presidents (including Trump himself if he wins a second term).

Yet Democrats are about to encounter an issue which so far has been little discussed. What is coming down the pike is arguably the first presidential impeachment in American history to be centered around an abuse of power not strongly connected with a crime or, for that matter, any violation of law. This is potentially a game-changing constitutional moment.

Many commentators have the impression that past presidential impeachments have also involved non-criminal charges. I detail why I believe this is mistaken in this article, which I will not further summarize. For purposes of argument, let’s entertain the idea that there is something profoundly different about the Trump impeachment compared to the Nixon and Clinton impeachments – and Iran-contra, the scandal in which the impeachment of President Reagan was contemplated seriously. We will then be able to see that the task facing Democrats is harder than they may believe.

Posted 10:29 AM by Stephen Griffin [link]

Burying McCulloch?

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

David Schwartz

Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”

Characteristically, Lash’s debatable conclusions and interpretations are accompanied by keen and erudite historical insight. The centerpiece of Lash’s post is an implicit debate between John Marshall and St. George Tucker, the William and Mary law professor, judge, and author of the first major treatise on American constitutional law. For Lash, Marshall channels the nationalist view of broadly construed national powers, whereas Tucker advocates “Tucker’s rule,” requiring that the Constitution “be construed strictly, in all cases where the antecedent rights of a state may be drawn in question.”

In McCulloch, of course, Marshall prefaces his analysis of implied powers with a brief rejection of “compact theory,” the view that the Constitution was, like the Articles of Confederation, essentially a treaty among sovereign states. Marshall instead embraces a “nationalist” vision of the Constitution’s essence in which the people of the United States, rather than the states, ratified the Constitution, meeting in state conventions solely for convenience. As Marshall asked rhetorically, “Where else should they have assembled?”

Every Con Law professor who teaches McCulloch explains this conflict between nationalist and compact theory, so that much is well known. But Lash adds a new layer. Marshall claims that he only mentions compact theory because Maryland’s counsel “deemed it of some importance.” Lash argues that Marshall thereby “feigned ignorance” both of the true expositor of compact theory (Tucker), and of its true importance to the case. “Tucker’s rule” would presumably have required a robust application of the Tenth Amendment by construing congressional powers narrowly in all cases where the states’ reserved powers “may be drawn in question”—that is to say, all cases of implied powers. “Tucker’s rule” was not therefore “of some importance,” to the McCulloch decision, but of central importance: Tucker’s rule is the antithesis of “McCulloch’s rule” that implied powers should be broadly construed to promote the effective operation of the national government.

Lash convincingly argues that Marshall felt compelled to address and reject Tucker’s rule in McCulloch and that Marshall used “Maryland’s counsel” as a stand-in for Tucker, who was an influential constitutional theorist. Moreover, as Lash points out, Madison came around to views similar to Tucker’s by the time of the Virginia and Kentucky Resolutions of 1798. When Marshall penned the McCulloch opinion in 1819, Lash astutely observes, “It would have been politically scandalous to directly criticize the work of James Madison and his influential 1800 Report on the Virginia Resolutions.” Lash provides no direct evidence of Marshall’s motivation to rebut Tucker beyond the fact that Marshall and Tucker were “fellow Virginian[s].” But Lash’s inference has to be right. Marshall had studied law at William & Mary with Tucker’s predecessor, the renowned George Wythe, and it would be a simple matter to show personal and professional connections between Marshall and Tucker in the small circle of Virginia political and legal elites. As I show in my book, Marshall was deeply concerned, if not obsessive, about answering the views of his Virginia opponents—hence his pseudonymous editorials defending McCulloch in the spring of 1819.

Lash thus enriches our understanding of McCulloch and its context in intellectual history. Lash shows that the Jeffersonian “strict necessity” test for implied powers had more substantial backing than that of Maryland’s counsel Luther Martin, the cantankerous old anti-federalist. (The “strict necessity” test held that implied powers were limited to those without which the enumerated power would be “nugatory.”) Lash’s post can also shed new light on Gibbons v. Ogden, where Marshall again seemed to tangle with an unnamed Tucker. There, Marshall oddly changed his tune about the Constitution’s source, describing it, not as the product of the people themselves, but of the states—“these allied sovereigns [who] converted their league into a government.” While more compatible with Tucker, this version of an origin story did not entail that the powers of Congress “ought to be construed strictly.” Rather, Marshall argued, there was not “one sentence in the constitution which gives countenance to this rule.” Gibbons v. Ogden, 22 U.S. 1, 187 (1824). Thanks to Lash, we can infer that “this rule” rejected by Marshall is Tucker’s rule.

Lash is less convincing when he takes off his historian hat and puts on his originalist hat. Lash chides me for being “never completely clear” on what I think is “the correct reading of the Constitution.” But I take it as praise, rather than criticism, that I did not reduce the ongoing 230-year conflict over federalism to a single “correct reading of the Constitution.” I certainly believe that there is a “better” reading. That the Constitution empowers the national government to address all national problems is both historically justifiable and normatively superior to its alternative. That alternative, “enumerationism,” is the Jefferson-Jackson-Taney-Carter Coal-Morrison-NFIB view that we must on occasion let national problems go unaddressed in order to demonstrate to ourselves that we are more committed to the ideology of limited enumerated national powers than we are to the preamble’s purposes of promoting justice and the general welfare of the nation.

Lash insists that Tucker’s rule supplies the “correct” (originalist) reading of the Constitution, requiring that federal powers be narrowly construed whenever they touch on reserved state powers. By rejecting Tucker’s rule and compact theory, Lash argues, Marshall tries to “reshape the story of our constitutional origins” by turning it into a mythical, nationalist one. But at this point, Lash offers a competing myth of his own. He relies heavily on James Madison’s mythical reputation as “father of the Constitution” to claim that Madison’s belated, politically motivated adoption of compact theory in the late 1790s is the true “original meaning” of the Constitution. In doing so, Lash ignores Madison’s earlier views in the Framing and ratification periods, that the national government’s powers were not ceded by the states, but were instead derived directly from the people, who redistributed powers from the states to create a national government with supremacy over the states. (Recall Madison’s cherished proposal at the Convention for a national legislative veto over all state laws.) Lash’s constitutional origin story also asks us to ignore the views of George Washington, James Wilson, Gouverneur Morris, and indeed the dominant majority of the 1787 Convention; the ratification debates over federal power, the Federalist party, Daniel Webster, Henry Clay and the national Republicans -- in short, one entire side of the debate over national powers that began with the founding and has been, in Marshall’s words, “perpetually arising.” To read Tucker’s rule as the sole “original” and therefore “correct” interpretation of the Constitution’s grant of powers to the national government is to read half of constitutional history out of history.

Lash argues that my “almost single-minded focus on implied power” somehow feeds a particular “myth of McCulloch”—presumably the New Dealers’ sometime insistence that broad federal power was the correct original meaning of the Constitution. Of course, Tucker’s rule is also primarily, if not single-mindedly, focused on the theory of implied powers, which is indeed the centerpiece of McCulloch. But, importantly, McCulloch didn’t invent the theory of implied powers, which was the subject of heated debate during ratification and was relied on heavily in the First Congress and in the debates over the First Bank of the United States. Marshall was not “reshaping” this aspect of the Constitution’s origins, as Lash asserts, but merely recapitulating it.

Historian Lash knows this, and it’s hard, even for Originalist Lash, to keep a good historian down. Tucker’s rule, Lash admits, became “the dominant theory of the Constitution” only at “the election of 1800”—not at the founding. And Lash concedes that “One could, of course, argue that Madison and Tucker were spinning myths when they described the Constitution as a dual-federalist compact.” Yes, one could. They were. And originalists are spinning myths when they claim that there is a simple “origin story” of the Constitution that can compel a single “correct” reading of the Constitution’s most contested elements.

David S. Schwartz is Foley & Lardner-Bascom Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at dsschwartz at wisc.edu

Posted 9:30 AM by Guest Blogger [link]

Who "Massacred" Whom on that Saturday Night?: The William Ruckelshaus Legacy (and Why it Has So Little Impact Today)

Marty Lederman

William Ruckelshaus died last Wednesday at age 87. Although he was twice a successful Administrator of the Environmental Protection Agency, he was best known for his role in the “Saturday Night Massacre” of October 20, 1973, when he was serving as Deputy Attorney General (and, for a fleetingly short period that night, empowered to exercise the authorities of the Attorney General).

The lede of the New York Times obituary recounts--correctly, as we'll see--that Ruckelshaus “resigned” from his office that evening. At the time, however, the Times, along with many other papers, reported that Nixon had fired Ruckelshaus—an account the Times repeated in stories for many decades thereafter.

So which was it—did Ruckelshaus jump or was he pushed? And why doesn't the example of the Saturday Night Massacre appear to have any lessons for, or impact on, our current situation?

Posted 7:16 AM by Marty Lederman [link]

Monday, December 02, 2019

McCulloch’s “Perpetually Arising” Questions

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

David Schwartz

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake.

My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were taught to think. But Sandy Levinson persuaded me that I was mistaken in asserting that there was one true interpretation of the case. The more I thought about it, the more my interpretation of McCulloch, like the arc of federalism history, would bend toward nationalism. The case is highly—probably studiedly—ambiguous, and the logic of its theory of implied powers is so decidedly nationalistic that the “aggressive nationalism” interpretation I take issue with is not exactly wrong. By the time I completed the book, I had came around to the view that Marshall tried to mask, and later actually retreated from, the nationalistic logic of his own McCulloch opinion, and that the Supreme Court has never consistently embraced that logic.

But if a book winds up as a mental map of the author’s evolving thinking, it will be confusing and invite conflicting interpretation. I was therefore delighted that the symposium posts read the book the way I ultimately hoped to be understood. The posts by Richard Primus and Victoria Nourse are the sort of book reviews an author daydreams about: expressing what I tried to convey in language better than I was able to write, while extending the book’s implications into ideas of their own. Primus is too modest to say that he is one of the two leading figures (John Mikhail is the other) in the “new wave of literature arguing for … skepticism toward the orthodox account of Congress as a legislature limited by enumerated powers.” If my book contributes to that literature, then my work here is done. Nourse sees my book as supporting her view of federalism as “a story of judicial hubris.” As she crisply puts it, “No federalism standard created by courts can destroy the states.” But the Court has frequently assumed otherwise, and it is this view, I argue, that has led it to ignore McCulloch’s full implications for most of the past 200 years.

Franita Tolson and Mark Graber use my brief treatment of McCulloch and the Reconstruction Amendments as a springboard for a stimulating discussion of the enforcement clauses. Graber argues that the rights/structure distinction in constitutional law teaching and doctrine denigrates the legislative role in creating and enforcing rights. That’s an extremely important insight that delegitimates cases like City of Boerne v. Flores and Shelby County v. Holder, as well as the Court’s failure to overrule The Civil Rights Cases when upholding the 1964 Civil Rights Act. Tolson argues here, as in her excellent scholarship, for a broad construction of Congress’s enforcement powers under these amendments. According to Tolson, the phrase “appropriate legislation” in the enforcement clauses of all three Reconstruction Amendments signals a design to read these clauses synergistically with the other enumerated powers of Congress. I couldn’t agree more that Congress’s enforcement powers under these amendments should be read broadly, and Tolson and I undoubtedly agree that the Court undermined the spirit of these power grants in The Civil Rights Cases and Shelby County.

John Mikhail and Kurt Lash, in very different ways, enrich our understanding of McCulloch’s context. I will reply to Lash in a separate post. Mikhail shows that McCulloch, rather than representing the alpha and omega of congressional powers, is but a piece in the larger puzzle of the Constitution’s enumeration of powers. That puzzle is whether the Constitution limited the national government to its enumerated powers. Mikhail, as I noted above, is the leading figure along with Richard Primus in an emerging body of scholarship suggesting that the Constitution’s grant of powers was not so limited. Mikhail’s current post, along with his recent Balkinization symposium contribution on Jonathan Gienapp’s splendid The Second Creation, are essential reading on this vital question. As Mikhail demonstrates, this question cannot be answered by cherrypicking quotations from The Federalist or the ratification debates, but require disentangling the positions taken in the series of debates from the Philadelphia Convention through the First Congress, with careful attention to the constitutional position of slavery. Mikhail’s dueling “slavery syllogisms,” by which he explains the pro-slavery motivation behind a limited-enumerated-power interpretation of the Constitution, are a brilliant addition to scholarship on federal powers.

Anything written about McCulloch since 2006 owes a huge debt to Mark Killenbeck’s and Sandy Levinson’s scholarship on the case. Along with that of Gerard Magliocca and Jack Balkin, their work asks whether we really understand McCulloch as well as we think we do, and why and how it holds a place within the “canon” of constitutional law. In his post, Killenbeck argues that McCulloch presents “a far more Marshallian conception of federal power” than is recognized in revisionist accounts, particularly when we consider Marshall’s felt need to navigate the hostile Jeffersonian-Republican political environment in which he wrote. I agree with Killenbeck that Marshall ambiguated McCulloch in a (perhaps vain) effort to preempt attacks on the Court by strict constructionists while offering a theory of implied powers that was indeed “robust.” But Marshall himself backed away from the robust implications of implied powers almost immediately after the opinion was issued—starting with his April and June 1819 editorials defending McCulloch and more consequentially in Gibbons v. Ogden (1824). Thus, to my mind, Marshall’s failure to cite McCulloch in later cases, which Killenbeck attributes to Marshall’s judicial writing style, was more more substantive in its implications. For reasons I explain in chapter 4, Marshall refrained from applying the broad implied powers concept to the Commerce Clause, where it might have done significant work in advancing nationalist jurisprudence. In part for that reason, and in contrast to the conventional view, I argue that the appellation “nation builder” applies far more accurately to Marshall’s National Republican contemporaries Henry Clay and John Quincy Adams than it does to Marshall. Unlike Marshall, Clay and Adams actually argued that the Constitution blessed the building of national infrastructure.

Sandy Levinson has read and parsed the McCulloch opinion more than anyone: even in conversation, he can quote passages, chapter and verse, and can cite them by paragraph number. In his symposium contribution, Levinson continues to raise probing questions about Marshall’s argumentative technique and conceptual difficulties in McCulloch. For example, what did Marshall mean when calling Maryland a “sovereign” state in the opinion’s first line? Levinson also shows us that there is much more to be learned from the frequently underemphasized second section of the opinion, dealing with the taxation question, which Levinson dubs “McCulloch II.” Levinson’s longstanding love affair with McCulloch was a source of inspiration to my research, but his post, and more recent writing—including his forthcoming Salmon P. Chase Lecture—look like a series of “Dear John [Marshall]” break-up letters. He continues to call Marshall’s opinion the work of “a rhetorical genius,” but questions the quality of Marshall’s reasoning, particularly on such key concepts as “sovereignty” and the concurrent power of taxation. Levinson goes so far as to suggest that Holmes’s “famously snarky address” on John Marshall Day in 1901 may offer more truth than the conventionally idolatrous portraits of Marshall.

Levinson’s post demonstrates that McCulloch is a deep, if not bottomless, well of ambiguity such that new interpretations of it, to borrow Marshall’s phrase, “will probably continue to arise, as long as our system shall exist.” Levinson is therefore quite right that my book cannot be a “definitive” account of McCulloch; I can only hope that it is a useful contribution to an ongoing dialogue.

David S. Schwartz is Foley & Lardner-Bascom Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at dsschwartz at wisc.edu

Posted 3:15 PM by Guest Blogger [link]

Saturday, November 30, 2019

The Dormant Commerce Clause and the Second Amendment

Gerard N. Magliocca

On Monday, the Supreme Court will hear argument in New York State Rifle & Pistol Ass'n Inc. v. City of New York. Two aspects of the case are receiving lots of attention. The first is whether the case is moot because the city ordinance that is being challenged was repealed earlier this year. The second point (if the case is not moot) is whether the ordinance violates the Second Amendment.

There is, however, a third aspect of the case that is flying under the radar. Assuming that the Court reaches the merits, there is the question of whether the ordinance violates the Dormant Commerce Clause. New York said that almost all gun owners in the City could not take their guns beyond city limits. If they wanted to practice, then they could only use firing ranges with the City.

I submit that this restriction clearly violates the Dormant Commerce Clause. Imagine any other city ordinance providing that you could use some article of personal property only at a business within that city. There is no way such an ordinance would be upheld. Courts would rightly see this as a form of local protectionism that was either intentional or unduly burdensome to interstate commerce.

Why is this gun ordinance any different? The Second Circuit (in rejecting the Dormant Commerce Clause challenge) argued that the record was devoid of proof that the ordinance was intended to discriminate or was unduly burdensome to interstate commerce. A remand might be in order on this point, but I think that the ordinance is invalid on its face for discriminating in favor of local business without an adequate justification. I realize that this conclusion is a letdown for those who want the case to be a big Second Amendment decision, but I think that my analysis is correct on the merits.

Posted 8:35 PM by Gerard N. Magliocca [link] (72) comments

Friday, November 29, 2019

An olive branch spurned

Andrew Koppelman

I am fairly new to Twitter, so as a naïve newcomer I’m perhaps excessively discouraged by a dialogue of the deaf recently begun by the following tweet by the conservative Christian writer Rod Dreher:

Liberal: "You admit Trump is awful, but you're still considering voting for him over 'religious liberty.' That's so trivial, given the enormity of his badness!" Me: "If it's so trivial, then give us what we want. You'll get our votes, or at least Trump won't." Liberal: [silence]

That elicited a long conversation: 94 responses within 17 hours. (Perhaps a lot of people had time on their hands while the turkey was in the oven.) There was a tendency to regard Dreher’s concerns as a demand to harm gay people.

Dreher’s tweet is actually an olive branch to the left: he understands how grotesque it is for Christians to be supporting this hateful, cruel, stupid, evil man, and is looking for a way to make it stop. Comment threads are often dumb, but this one seems to me to accurately represent the hostile response he will get from many of my fellow leftists.

I fear that many on the left don’t understand how endangered religious conservatives feel as a result of the growing success of the gay rights movement – a movement I’ve been part of for more than thirty years. The cases where conservative Christians have been held liable for discrimination feel to them like an existential threat. They fear that the law will treat them like racists and drive them to the margins of American society. Were their fears exaggerated? A majority of the U. S. Commission on Civil Rights declared that proposals for religious accommodation “represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom,’” and “are pretextual attempts to justify naked animus against lesbian, gay, bisexual, and transgender people.” Pretextual: the assumption is that they don’t really believe what they say, that they pretend to believe it as an excuse for hatred.

I know enough conservative Christians to be confident that this is nonsense. There is, of course, a certain charm in the suggestion that our adversaries know they are wrong and are just pretending to disagree with us because they are horrible people. The labeling of their views as “pretextual” seems to rely on the idea that no one could really believe this stuff. But that notion evades the familiar problem of religious diversity. Other people’s religious beliefs often seem obviously bizarre to us.

The gay rights/religion issue has been a disaster for Democrats. If Hillary Clinton had received Barack Obama’s 2012 percentage of the white evangelical vote in Michigan and Florida, she would have won. She made no effort to reach those voters, evidently thinking that there was nothing to talk about with them. It’s not clear that any of the current leading candidates for the Democratic presidential nomination will try to do that either.

Trump’s message was that Christians needed to suspend their moral compunctions about him (and his flagrantly authoritarian policy proposals) because they were endangered. In the Republican primaries, white Evangelicals rejected their coreligionists in favor of someone who promised to be a tough guy, and then remained loyal to him even after he was caught on tape admitting to sexually abusing women. “There is an assault on Christianity. . . . There is an assault on everything we stand for, and we’re going to stop the assault.” Only the ruthless use of political power could save them: “We’re going to protect Christianity, and I can say that. I don’t have to be politically correct.”

Surely it is possible to make some kind of deal that accommodates these voters’ perspectives and fears. I explore that possibility in my next book, forthcoming this spring from Oxford: Gay Rights v. Religious Liberty? The Unnecessary Conflict.

Trump’s support among conservative Christians is inherently fragile. Secular liberalism and conservative Christianity alike condemn lying, cruelty, poverty, oppression, and prejudice. They need to unite against their common enemies. But before they can do that, they need to end this war.

Posted 8:55 AM by Andrew Koppelman [link]

Monday, November 25, 2019

The Latest Defense for Anti-Gay Discrimination

Andrew Koppelman

It’s now more than a month since the Supreme Court heard oral argument in Bostock v. Clayton County on whether federal law prohibits anti-gay discrimination, and suddenly conservatives have focused their attacks on what might seem like an improbable target: Justice Elena Kagan’s insistence on the importance of the plain language of the law. This is a position known as “textualism,” often associated with conservatives such as the late Justice Antonin Scalia.

But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what’s happening in the Court’s chambers—something that worries them.

I elaborate in The American Prospect, here.

Posted 6:59 PM by Andrew Koppelman [link]

McCulloch, Slavery, and the Sweeping Clause

John Mikhail

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

[Note: This post has been updated with a new title and minor revisions.]

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Constitution stated in the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

Modern courts and scholars have generally adopted the narrow reading. All of the opinions in NFIB v. Sebelius, for example, limit their attention to the foregoing powers provision and its connection to enumerated powers when considering the scope of the Necessary and Proper Clause. None of the Justices contemplates a broader use of McCulloch’s central holding, according to which the individual mandate could be justified simply as a necessary and proper means to promote the general welfare. Likewise, most of Marshall’s leading biographers and commentators—for example, Beveridge, White, Smith, Newmeyer, Killenbeck, and Ellis—presuppose a narrow reading of the “Let the end be legitimate” passage. When discussing this passage and the ends “within the scope of the constitution” to which Marshall refers, none of these scholars pauses to consider whether these ends include the objects enumerated in the Preamble.

David Schwartz is a welcome exception to this pattern. In his fascinating new book, The Spirit of the Constitution, Schwartz highlights the fundamental ambiguity of the “let the end be legitimate” passage in the course of making clear just how evasive and unsatisfying Marshall’s entire opinion in McCulloch really is. Most scholars recognize that Marshall’s text supports different and, at times, incompatible readings of implied powers, some breathtakingly wide and others cautiously narrow. With unrivaled depth, sophistication, and attention to detail, Schwartz hammers home this point like never before. Along the way, he places certain nationalist readings of McCulloch that have been ignored or minimized more squarely on the table, including two that are especially noteworthy: the early Federalist theory of implied powers rooted in the Preamble and Sweeping Clause, and a narrower, but still robust, conception of “implied commerce powers” given by the Commerce Clause and the foregoing powers provision.

Schwartz focuses most of his attention on implied commerce powers. His treatment of this subject, and of Marshall’s ambivalence toward taking full advantage of the power to pass all necessary and proper laws for carrying into execution the power to regulate interstate commerce, is simply masterful. Schwartz’s careful analysis of the many subtle lines of constitutional argument flowing from McCulloch through Gibbons, Miln, Cooley, Dewitt, and The Legal Tender Cases, and the rest of the nineteenth-century commerce power canon, is likewise brilliant and penetrating, and it has taught me a great deal I did not know or fully appreciate about these cases. The same is true of his dazzling discussion of how implied commerce powers fared in the Lochner, New Deal, Civil Rights, and Rehnquist and Roberts Court eras. Finally, as if that weren’t enough, Schwartz also supplies a fresh new perspective on McCulloch’s relationship to the enforcement provisions of the Reconstruction Amendments. All this makes the book invaluable reading for constitutional scholars, particularly those of us tasked with teaching McCulloch and its progeny to law students.

Although Schwartz’s focus on implied commerce powers is understandable from a modern doctrinal perspective, at the end of the day I’m not convinced that these powers, grounded in the Commerce Clause and the foregoing powers provision, are the best lens through which to understand the significance of McCulloch. Arguably, a better framework is the other nationalist argument implicated by the “let the end be legitimate” passage—the original theory of implied powers, grounded in the Preamble and Sweeping Clause, which received perhaps its most significant early expression in legislative debates over slavery and the First Bank of the United States. The implied commerce powers story begins primarily with Gibbons and, as Schwartz so helpfully recounts, it eventually comes to dominate the Supreme Court’s implied powers jurisprudence in cases like Darby, Wrightwood Dairy, Heart of Atlanta, and Raich. McCulloch itself, however, is arguably not an enumerated powers/foregoing powers provision case at all. Rather, it is better understood as a case in which Marshall kept alive the older Federalist theory of implied powers, rooted primarily in the Sweeping Clause’s reference to “other powers vested by this Constitution in the Government of the United States,” while nonetheless shrouding that theory in a certain amount of strategic ambiguity and otherwise signaling that the Court would not permit implied powers to be used to threaten slavery.

To see why this alternative reading of McCulloch seems plausible, it helps to recall some key facts about Marshall and the deep historical background to his analysis of implied powers in that case. At least five key episodes or “moments” in Marshall’s life stand out in this regard, all of which help to illuminate and reinforce Schwartz’s thesis that Marshall’s embrace of implied powers was more cautious than is commonly recognized, and to explain why he seems correct to conclude that McCulloch “offered something to both nationalists and moderate Jeffersonian Republicans” in 1819 and “is simply too ambiguous to mandate a particular result in most contested cases about congressional power” today (58, 253).

Posted 2:00 PM by John Mikhail [link]

Understanding the two Mazars subpoena cases pending in the Supreme Court [UPDATED to reflect SCOTUS stay of mandate]

Marty Lederman

[Cross-posted at Just Security]

Two cases currently before the Supreme Court involve whether the Constitution prohibits subpoenas issued to Donald Trump’s accounting firm, Mazars USA, LLP, requiring Mazars to provide non-privileged financial records relating to Trump and certain of his business entities.

The first of those cases, Trump v. Vance, No. 19-635, involves a subpoena issued to Mazars by a New York grand jury. The U.S. Court of Appeals for the Second Circuit rejected Trump’s constitutional objection, and Trump has petitioned forcertiorari. Trump will file his cert.-stage reply brief later today—thereby completing the briefing—and the Court could consider the petition as early as December 6, at the Justices' next conference. [UPDATE: Here's the reply brief. Nothing new of note in it.]

The second case, Trump v. Mazars USA, No. 19A545, involves a subpoena the House of Representatives Committee on Oversight and Reform issued to Mazars back in April. (The New York grand jury subpoena is almost identical to, and was patterned upon, the House's earlier subpoena.) The U.S. Court of Appeals for the D.C. Circuit rejected Trump’s constitutional objection, and Trump will likely petition for cert. in that case any day now. In the meantime, Trump has filed an application to the Chief Justice asking for a stay of the court of appeals’ mandate. If the Chief Justice and/or the Court declines to issue such a stay, Mazars will be required to turn over the records to the House imminently, i.e., upon issuance of the mandate. (The Chief Justice issued an interim “administrative stay” last week to enable the Court to consider the mandate-stay motion.)

The Court will probably issue its decision on Trump’s application for a stay in Mazars shortly, perhaps as soon as today. [UPDATE, evening of 11/25: The Court, without recorded dissent, granted the application to stay the mandate, and gave Trump until noon next Thursday, December 5, to file his petition. The House should be able to file its opposition in time for the Court to consider the petition at its December 13 Conference.]

There’s a third, related case, too, which hasn’t yet reached the Court but might be there soon: In August, the U.S. Court of Appeals for the Second Circuit (Hall, Livingston & Newman, JJ.) heard oral argument in Trump v. House Committee on Financial Services, which involves Trump’s constitutional challenge to subpoenas that two House committees issued to two of Trump’s banks (Deutsche Bank and Capital One), requiring them to turn over financial records of Trump and two of his children. The court of appeals still has not issued its decision in that case, but when it does so the losing party almost certainly will quickly ask the Supreme Court to hear that case, too.

In this post I’ll address three things: (i) the importance of the three cases; (ii) the weakness of Trump’s constitutional arguments in the two Mazars cases before the Court; and (iii) what the Court is likely to do with those two cases.

Posted 9:49 AM by Marty Lederman [link]

Thursday, November 21, 2019

McCulloch and Fundamental Rights Regimes

Mark Graber

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

David Schwartz’s magnificent The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland explicitly challenges how we teach governmental powers in first semester constitutional law and implicitly challenges how we teach civil rights and liberties in second semester constitutional law. Contrary to the impression given in almost all classes in the first part or semester of constitutional law, no straight line exists from the Marshall opinion in McCulloch to the New Deal. Schwartz meticulously details how for two-hundred years, different aspects of McCulloch have been used, abused or ignored in light of the dominant constitutional ethos of the time. Both Chief Justice John Roberts and Justice Ruth Bader Ginsburg in National Federation of Independent Businesses claimed to be Marshallian, even as they offered constitutional visions that sharply diverged from each other and almost as sharply diverged from that of the McCulloch opinion. The Spirit of the Constitution also highlights how McCulloch has been central to questions of slavery and race that often form the bulk of the second part or semester of constitutional law. The history of McCulloch, particularly in the nineteenth century subverts the common decision to discuss government powers in the first part or semester of constitutional law and fundamental rights in the second part or semester of constitutional law. For most of the nineteenth century, government power was the crucial instrument for ensuring that Americans enjoyed certain fundamental rights and interpretations of McCulloch determined the scope of that national power.

Posted 9:30 AM by Mark Graber [link]

Wednesday, November 20, 2019

Senator Ron Johnson Has A Problem

Gerard N. Magliocca

According to Ambassador Sondland's prepared testimony today, he raised his concerns about the Biden quid pro quo with Ukraine with Senator Johnson. This means that Senator Johnson could be called as a witness in the Senate impeachment trial.

Wait a minute, you might ask. One of the people voting on guilt or innocence can also be a witness? In an impeachment trial, the answer is yes. The Senate rules expressly contemplate that a Senator can be a witness in providing that when a Senator gives testimony he must do so standing at his or her desk in the chamber (a somewhat odd procedure, but no matter). Moreover, participation as a witness does not mean that a Senator Johnson must recuse himself. In 1868, Senator Ben Wade would have become President if Andrew Johnson was convicted (there was no Vice-President at the time and the line of succession was different than today). Some Senators insisted that Wade recuse himself, but he did not and voted "guilty." If someone with such a direct interest in the outcome was not required to recuse, then a mere witness cannot be required either.

Nevertheless, Senator Johnson might have to think hard about whether he should recuse. He could make a principled argument along those lines, or he could simply decide that it's in his best interests to find an excuse not to participate.

Posted 9:49 AM by Gerard N. Magliocca [link] (77) comments

Monday, November 18, 2019

McCulloch v. Maryland: Not Only Right, But Inevitable

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

Victoria Nourse

Don’t be fooled by the subtitle’s reference to John Marshall. David Schwartz’s eloquent and eminently readable book—The Spirit of the Constitution—is not simply a historical tour de force about an ancient case. It’s a great rollicking roll through the history of McCulloch v. Maryland as an idea. Even if you do not give a whit for 1787, think about perusing this book. It is one stop shopping for those who want a history of two centuries of constitutional wrangling with federalism and whether Congress is limited to its “enumerated” powers.

Let us not forget that the courts are still struggling with federalism in the year 2019. Consider the strange fact that a federal court in 2018 concluded that Congress has no power to ban female genital mutilation, defined as torture by many international organizations. Really, Congress has no power to ban the equivalent of castration? Or consider the equally strange fact that at least one appellate judge, albeit in dissent, concluded in 2017 that Congress has no power to ban hate crimes, like gay bashing. Really, if Congress can ban everything from child labor to chemical weapons to lottery tickets and cows that cross state lines, can it not criminalize the killing of Jews in Pittsburgh or Hispanics in El Paso? But, the truth is, as constitutionalists all know, the federal government cannot even ban lynching under the 14^th amendment. There is a perfectly respectable legal argument under the Supreme Court’s decisions in United States v. Morrison (2000) and United States v. Lopez (1995) that laws against female genital mutilation and hate crimes are unconstitutional since crime belongs to the reserved powers of the states.

Schwartz’s book helps us understand the legal regime that has led us to this state of affairs. The basic tension lies between the idea of a Congress limited to “enumerated powers,” and one that may rely upon “implied powers,” as McCulloch appears to embrace. The more specific problem, as Schwartz explains, is that recurring notions of states’ rights have caused the court to struggle with limits on Congress’s power. Morrison and Lopez are simply the latest manifestations of attempts by the Supreme Court to draw the line between Congress’s power and the states’ power. These modern cases represent the anti-McCulloch strain in constitutional law, one which waxes and wanes over constitutional history. As Schwartz writes: “McCulloch has been interpreted, or ignored, to fit the varying spirits of the Constitution.”

Posted 9:30 AM by Guest Blogger [link]

Sunday, November 17, 2019

Structural Arguments and Impeachment

Gerard N. Magliocca

Below you can read Josh and Seth's excellent post on whether the Senior Associate Justice may preside over the President's impeachment trial if the Chief Justice cannot. My initial impression, which was that the answer was so, was incorrect. Josh and Seth offer a good explanation for why, though I have a somewhat different one.

Suppose that after President Andrew Johnson's impeachment, but before his trial was over, Chief Justice Chase had died. A constitutional textualist says, "Well, the trial cannot resume until a new Chief Justice is nominated and confirmed." Presumably, President Johnson would have responded by not nominating anyone. Without a nomination, there could be no Chief Justice. With no Chief Justice, there could be no trial verdict. With no trial verdict, there could be no removal.

That can't be right. The President cannot possess the power to halt his own removal through inaction. (Note that for any other impeachment trial this is not an issue, because the Senate can select its own presiding office in the absence of the Vice-President.) To be sure, structural arguments like this are not always winners, as they are divorced from traditional legal authorities (cases, statutes, tradition, and so on). But in this case I think that the principle of "Nemo iudex in causa sua" is broad enough to cover a President preventing anyone from being a judge in his case.

One more thing. Let's hope this situation remains hypothetical. The last thing we need is uncertainty about who can preside over a Senate impeachment trial of the President.

Posted 8:32 PM by Gerard N. Magliocca [link] (40) comments

Could Justice Thomas Preside over President Trump’s Impeachment Trial?

Guest Blogger

Josh Blackman and Seth Barrett Tillman

During most impeachment trials, the Vice President presides over the Senate. But when “the President of the United States is tried,” the Constitution states that “the Chief Justice shall preside.” If President Trump were impeached by the House of Representatives, we can expect Chief Justice John G. Roberts, Jr. to cross the street from the Supreme Court to the Capitol. But what if Roberts can’t, or won’t do the job? Does President Trump get off scot-free? We don’t think so. Instead, the most senior Associate Justice would serve as acting Chief Justice. As a result, Clarence Thomas would preside.

Farfetched? Certainly. Impossible? Absolutely not. Seventeen people have served as Chief Justice. Nine of them died while in office. Historically, several months have elapsed before a new Chief Justice is selected. In the last two centuries, we have had two presidential impeachments. In both cases, the chief justices who presided over those trials subsequently became seriously ill and then died in office. Chief Justice Salmon P. Chase suffered a debilitating stroke two years after he presided over President Johnson’s impeachment trial. And Chief Justice William H. Rehnquist was diagnosed with thyroid cancer less than five years after he presided over President Clinton’s impeachment. It is difficult to imagine a circumstance in which Chief Justice Roberts would not be ready, willing, and able to preside over a presidential impeachment trial. But this unlikely scenario should be considered now, and not during a potential constitutional crisis.

Posted 1:10 PM by Guest Blogger [link]

Saturday, November 16, 2019

Elizabeth Warren’s health care trap

Andrew Koppelman

Elizabeth Warren appears to have finally come up with a health care plan that makes sense. How she got there was ugly. After an excessively ambitious Medicare-for-all proposal damaged her candidacy, she has pivoted to a more modest, and much more politically feasible, set of ideas. Jordan Weissman wisely points out that it would have been better if she had done it with fewer political contortions.

Michael Brendan Dougherty, one of the last (God bless him) anti-Trump conservatives, thinks that it’s a political mistake, because the left will feel betrayed and abandon her. He might be right. A big part of the Democratic base insists on universal Medicare: a complete overhaul of the health care payment system, abolishing all private insurance. It is a foolish demand. Whatever the merits, it is politically impossible. If you hope to excise the ugly boil that is Donald Trump, you need to understand why.

The basic problem of American health care reform is that as it has developed, insurance has been selectively extended to slivers of the population – people with decent jobs, the elderly, the poor, veterans - that were either unusually politically powerful, unusually sympathetic, or both. When the majority, and the most politically vocal parts of the majority, have full protection, then it is hard to expand further. This generated what Paul Starr calls a “policy trap”: so many people were given a stake in the new status quo that further change, in the direction of universal health care, became extremely difficult.

In 1994, Bill Clinton fell squarely into the trap. Most Americans are satisfied with the health insurance that they have. Yet his central idea was to have all insurance funneled through new health insurance purchasing cooperatives, which would negotiate with insurance companies and then present a menu of options to their customers. A national health board would administer a global budget. Employers could no longer purchase coverage directly; they would have to purchase through the cooperatives instead. Small employers that did not provide insurance for their employees would be required to do so. Many doctors and hospitals would have to affiliate with health plans. Perhaps most importantly, employees would probably have to choose different health plans than they already had, and thus change doctors and hospitals.

This was the deepest political flaw in Clinton’s proposal, and Obama learned from it. Obama built on the existing system rather than trying to replace it entirely. (I tell this story in the first chapter of my book, The Tough Luck Constitution and the Assault on Health Care Reform.) The result is inelegant, but it passed, it is working, and millions of Americans are better off as a result. Lives have been saved. The fear of change nonetheless made the bill a very near thing, and there continues to be enormous grievance about the tiny amount of change that did happen. In selling his plan, Obama repeatedly said that if you like plan you have, you can keep it. When that turned out to be true a mere 98% of the time, he was given enormous grief for it. Politifact declared it the lie of the year. It is a massive political mistake to mess with the existing system more than you absolutely must.

That’s why so many of the smartest Democratic political analysts have argued that the demand for Medicare for All, if it is embraced by the Democratic candidate, is a good way to help Trump get a second term.

Trump, who offered nothing but a vague promise to replace Obamacare with “something great,” was able to persuade many voters that he would give them better coverage at lower cost with lower deductibles. That’s what they actually care about. Warren should focus on that and not get lost in the wonky details. Perhaps now she can.

Posted 2:37 PM by Andrew Koppelman [link]

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