Balkinization  

Wednesday, June 20, 2018

Cultural contradictions of capitalism II

Sandy Levinson

Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children.  Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air.  Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples.  All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude).  The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.


Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

Guest Blogger

K. Sabeel Rahman

Consider the following developments:
  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.


There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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Monday, June 18, 2018

The Cultural Contradictions of Capitalism

Sandy Levinson

I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed.  I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s.  One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism."  As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air."  The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps.  Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which  Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy.  Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry.  One might make much the same argument about steel.  But, as I say, that's not the primary focus of this comment.

Instead, I am completely fascinated by the column in Friday's Wall Street Journal, part of its regular series "Houses of Worship," on various religions in America.  The Journal, of course, is to be commended for taking an interest in American religious communities.  This weeks column, by Kim Woodward Osterholzer, is about "Faith and Family Among the Amish."  She herself is a home-birth midwife, now living in Colorado, having earlier lived for nine years in the Amish country in Pennsylvania.  She scarcely presents an attractive picture of the Amish; it is very different, for example, from the high-romanticism offered by Chief Justice Burger in Yoder.  Thus she writes that she "found barely functional homes filled with a bustling, Spartan folk wearing patched and sweat-stined clothes.  I was taken aback by the rough hands, the weather-battered faces, the round and weary shoulders, the bare and blackened feet, the swollen ankles, and the legs stranger with bulging veins.  I glanced when I saw how many young families lived in barns, shed and the basements of partly constructed homes....  I learned to regard with nonchalance the rolls of flypaper that dangled from the ceilings.  After a while, I hardly noticed the mice scampering under doors and along the edges of baseboards,,,, "  She also describes herself as "unfazed by the severity of the religion," which is structured around following the Ordnung, as interpreted by a bishop and two local ministers, "who are selected by lottery and serve for life while keeping their day jobs."  Perhaps needless to say, "women are never allowed to preach."

Lest one think that the column is a criticism of this completely totalitarian enclave of those who might be described by the unsympathetic as religious fanatics, the author in fact ends up with a tribute to what she saw.  "The Amish are a God-fearing, family-centered people.  They work hard, but they also relax and play.  Their lives are so untarnished by the broader culture that to be with them is refreshing...  The fruit of the Amish way i\of life is that it keeps its people better focused on what truly matters--faith and family.  They intimately understand the resilience and fragility of life and the certainty of death.  It keeps them close to the earth, in sync with its rhythms.  Whenever I departed from a visit, I would ask myself:  Do we really need the fear of hell driving us before we can make time to be with one another and enjoy the magnificent world God created for us?"  I suspect that one might find some similar elegies about some Hasidic Jews, who equally withdraw from the world and do everything they can to make sure that their children are indoctrinated into the ostensible virtues of the integral community and rendered basically unfit to exist in the outside world.

Deneen is Catholic, so I doubt that he would be completely taken with these descendants of German Anabaptists.  But they do instantiate the kind of small integral communities whose destruction by liberalism--defined either as the strong consolidated state favored by contemporary progressives or the buccaneer capitalism embraced by libertarians--he laments and seemingly wishes to return to.  There is an obvious problem, though.  If a significant number of Americans were persuaded even that milder versions of Amish austerity were desirable, American capitalism would collapse.  The Wall Street Journal devotes itself to covering those whose lives are devoted to extending the reach of capitalism, including, all importantly, the consumer-oriented societies that define success as owning the next big thing, whether the latest number IPhone or expensive watches or whatever.

I suspect that the Wall Street Journal would be hesitant to open its columns to serious hippies, assuming any are left, who call for the rejection of consumption in favor of the simple life.  Ordinary radicals, who might believe that everyone deserves an equal opportunity to buy Mercedes etc. are far less dangerous to the overall capitalist ethos than someone who preaches the virtue of asceticism, as do the Amish.  So why do they publish the column, and its conclusion?  I suspect it is because they recognize that almost literally none of their readers are likely to find asceticism a genuine virtue.  The Amish play the function of exotic animals at the zoo.  We can feel better about ourselves for tolerating them, but only so long as they do not in fact present a genuine threat to a society built on almost everything the Amish reject.

But Bell wasn't really concerned about the Amish. Rather, he noted that capitalism depends on the destruction, creative or otherwise, of existing ways of life.  My home town of Hendersonville, North Carolina is now a quaint tourist town instead of a community of local small businesses, etc, (where I worked when I was growing up, beginning when I was a ten-year old), because of Walmart, etc.  Donald Trump promises to restore communities in West Virginia and Kentucky that were built around coal, or Gary, Indiana, built around steel.  But, tellingly, he isn' promising to go after Walmart and other denizens of modern American capitalism that have destroyed many small communities.  (Nor do I necessarily think he should.  That, too, is the topic for other conversations.)

The Journal instantiates the most bizarre feature of the contemporary Right, i.e., the alliance between religious conservatives, many of whom genuinely yearn for community, and the agents of American capitalism who are completely and utterly indifferent about the consequences of their prosperity.  Think only of Facebook in this regard.  And, of course, the Journal adamantly supports the further destruction of labor unions, a destruction accurately credited by Stephen Brill in his own book Tail  Spin, as one of the sources of American decline over the past half century.  Opioids and suicide are genuine problems of public health, and they are in part a response to the "creative destruction" of modern capitalism.   




Hjalmar Schacht and Mitch McConnell

Mark Graber


Eugene Davidson’s, The Trial of the Germans was one of the most memorable books I read as a teenager.  I was particularly troubled by the chapter on Hjalmar Schacht.  Schacht played a vital role helping the Nazi party revive the German economy during the 1930s. Although not a member of the Nazi Party, he served as Hitler’s Minister of Economics and main economic advisor during the years before World War II.  His behavior was typical of many German industrialists, who saw the Nazi Party as a vehicle for their desired economic policies that they could control before the worst of Nazi rhetoric was realized.  Schacht was acquitted at Nuremburg because he played no official role in the German government after 1939 and wound up in a concentration camp during the last year of the war.

Schacht came to mind during Aziz Huq’s terrific presentation at the annual meeting of the Law and Society Association.  Huq’s focus, which is in part the focus of his important new book with Tom Ginsburg, How to Save a Constitutional Democracy, was on constitutional near misses.  His argument is that at crucial points the conservative and center-right politicians who initially allied with a political leader who exhibits limited respect for the constitutional rules of the game realize that they cannot control that leader.  They then seek an alliance with the center and center-left in order to preserve the constitutional order.  When major industrialists and their political supporters realize relatively early that they cannot control the demagogue and compromise with their political rivals, the slide towards authoritarian reverses.  When they follow Hjalmar Schacht's example because they and their donors are profiting from some of the demagogue's policies, constitutional democracies collapse.

The contemporary American analogues to Hjalmar Schacht are, of course, Mitch McConnell, Paul Ryan, their political allies and donors.  McConnell and Ryan are no more Nazis or fascists than Schacht.  Like Schacht, they are willing to empower an authoritarian figure because they believe they will get desired economic policies (and pro-life judges) in the short run and be able to control the demagogue in the long run.  As was the case long before Schacht fell from power, the evidence is now clear that McConnell is failing in his attempt to be the real power behind the throne.  Every month brings more evidence that Republicans when faced with the choice will side with the authoritarian demagogue whose bigotry is increasingly unrestrained than with the conservative businessman who needs a tax cut because annual incomes in the millions of dollars are insufficient.   The question is whether the United States is in 1934, when conservatives jumping ship might have prevented untold human misery (at the costs of some profits) or 1939, when Schacht could be pushed out of the Nazi regime without any political consequences.

Nonnonjusticiability

Joseph Fishkin

If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).

However, we should not be deceived by the apparent breadth of support for the disposition of the two cases this morning. There is only one Justice who clearly believes in the nonnonjusticiability of partisan gerrymandering, and he is the subject of endless (and not especially informed) retirement speculation. The surprising conclusion follows that Justice Kennedy still has a chance in June 2018 (the month is young!) to conclusively determine the future of partisan gerrymandering in the United States. Today, he led the court in a new round of creative efforts to hold it nonnonjusticiable. But on the last day of the term, or any time he likes, he could choose to retire. For him to do so while President Trump is in office, especially with the Senate in Republican hands, would be a terrible thing for the future of the United States for a variety of reasons I won’t enumerate. But anyway, to the extent that we assume that even Supreme Court justices intend the reasonably foreseeable consequences of their deeds, we can say that, if he retires now, Justice Kennedy would be affirmatively and firmly deciding, by so doing, to have the Court greenlight partisan gerrymandering, holding that challenges to it are nonjusticiable after all. Justice Kennedy’s hands would look perfectly clean; he would be safely retired and would not have to do the deed. But just as personnel is policy, in this case the fault lines on the Court are so clear that personnel is law. When Justice Kennedy wrote his last major decision-not-to-decide this issue in Veith in 2004, Justice Scalia characterized his vote as a “reluctant fifth vote for nonjusticiability.” I disagree with that characterization, but in light of this morning’s decisions I would characterize any decision by Justice Kennedy to retire this year (or next year, if the Senate remains in Republican hands) as a clear indication that ultimately, his preference is that the Court should hold that no partisan gerrymander is going to be struck down by a federal court, and that he would prefer to have this decided by his retirement instead of being decided by his vote.

Today’s cases of course leave open the possibility that a future Supreme Court will actually follow the lead of some lower courts in striking down a partisan gerrymander as unconstitutional. The Court’s ruling in Gill v. Whitford will somewhat complicate the evaluation of such claims in the future, focusing attention on exactly the place (individual districts) where the harm is the least clear. But, perhaps Justice Kagan’s concurrence for four Justices is correct, and all the Court is doing here is introducing an oddly formalistic little threshold requirement that will drop away once plaintiffs prove they satisfy it—or perhaps even as soon as the plaintiffs say “First Amendment” really loudly and clearly (see part II of her concurrence). Time will tell. For now, we’ve got nonnonjusticiability, the box is safely closed, and a retirement announcement is the only thing left this term that can open it.  If that announcement comes, it will alter the meaning of this morning’s decisions considerably.

Friday, June 15, 2018

Police Surveillance Machines: A Short History

Guest Blogger

Elizabeth Joh

            The year 2015 witnessed a dramatic rise in demands for police surveillance machines.  After a number of widely shared incidents of police violence against often unarmed civilians, public protests and media attention led to calls for the adoption of surveillance machines by the police.  Advocates of surveillance machines, including the family of Michael Brown, argued that these technologies would increase transparency and accountability surrounding police interactions with civilians by collecting and preserving data for public review.  Indeed, the most contentious police-civilian interactions often came down to public disputes as to the alleged threat posed by the civilian, versus the propriety of the police response. Surveillance machines promised a technological layer of accountability by rendering these hidden interactions public. Now that they are being implemented, however, the political economy of police technologies raises new concerns about concentrated private power, consumer platform protection, and adequate regulation of data in the future of policing.
            The structure of American policing--essentially local--dictated how the adoption of surveillance machines would unfold.  In 2015, the federal government offered millions in grant funding for local agencies to purchase their own surveillance machines.  These federal grants required that police agencies address substantive concerns--including “privacy considerations” --in their grant funding, although without detailed specifications. That funding, along with national attention to the problem, spurred police agencies across the country to adopt surveillance machine pilot projects.  Facing considerable public pressure, police chiefs around the country were understandably eager to demonstrate their willingness to engage in reforms with a tangible and technological solution. Hence, most large agencies surveyed in 2016 stated they intended to or already had adopted a surveillance machine program.
            While speedy adoption of these machines demonstrated a visible commitment to reform, it unfolded in a manner that gives private corporate players significant power over law enforcement data, and, by extension, the very nature of policing. In essence, public police agencies are customers in highly concentrated technology markets. In the case of surveillance machines, police agencies have faced limited options from vendors, possessed little guidance about desirable design features to request, and few incentives to establish rules or guidelines about their use prior to purchase. With surveillance machines, procurement was itself policymaking for a democratically accountable institution.
            First, the surveillance machine market offered too little consumer choice to police agencies.  One company, Axon, is the dominant market player.  Axon has relied on long established relationships with most of the country’s 18,000 police agencies it had secured by acting as the primary vendor of electronic force compliance instruments.  Those established commercial relationships reduced competition from smaller surveillance machine companies, and favored Axon. Investigative journalists, for instance, uncovered several instances of Axon encouraging police agencies to enter into no-bid contracts.
            Second, because police agencies are consumers, the design specifications of the surveillance machines they use are dictated by the vendor.  In surveillance products, accountability and privacy are often matters of design.  Whether, for example, a surveillance machine can record surreptitiously or not is a matter of product design.  So too is the choice as to whether the person using the surveillance machine possesses the ability--and thus the discretion--to turn it on or off.  The same is true of future applications for surveillance machines, such as facial recognition technology. When the market is dominated by one company, customers--in this case police agencies--have little choice and input into the final product procured.
            Third, in the example of surveillance machines, adoption came with little thought or deliberation regarding rulemaking over their use.  Police agencies purchased them to demonstrate their commitment to reform, but these machines alone would never guarantee police accountability.  Their service to democratic policing would be as good or as bad as the rules governing them.  In the rush for federal funding, some agencies adopted rules, but a great many were slow to adopt clear guidelines, and some have still failed to do so. The rush to adopt surveillance machines without uniform or consistent adoption of best practices has left their promise of accountability and transparency ill-served.  While individual agency rules vary considerably, in most states, the data generated by police surveillance machines are not presumptive public records.  A non-exhaustive list of other issues that either vary widely or have been scarcely addressed include: data use and access rules, inclusion of biometric identification tools, and recording of activity protected by the First Amendment.
            Furthermore, because both advocates and the police characterized surveillance machines as a response to the specific problem of violent police-civilian encounters, the surveillance machine experience obscured the nature of the technology itself.  Police agencies were purchasing and investing in a platform, not just individual machines.  For example, in April 2017, Axon offered every police agency a free year of surveillance machines for their officers; after a year, any dissatisfied agency could return the machines, no questions asked. That offer lay bare the vendor’s aims.  Few profits arise from individual surveillance machines. Rather, real profits lie in police agency subscriptions to the data platform.  This includes not just cloud data storage, but also the software management systems that allow agencies to permit secure access, to tag metadata, and for services like redaction and transcription.  The company that dominates three quarters of the market is not in the surveillance machine business; it is in the police platform business. And Axon expects to introduce automated report writing and facial recognition technology through its platform to its police customers in the future.
            An Apple-like platform to address a host of police technology needs is a difficult offer to refuse.   Most police departments are ill-equipped to address technology matters internally, and few have the capability to store securely the petabytes of data generated by their officers’ surveillance machines. As implemented currently, Axon’s platform dominates.
            As that platform develops in sophistication, we are likely to see the increasingly uneven and invisible burdens of surveillance on the public.  To be poor, black, and brown has historically meant being subjected to heightened police surveillance.  Surveillance machines both magnify and hide that power.  When applied to surveillance machines, artificial intelligence applied to big data can help the police generate inferences. A facial recognition system coupled with geofencing, for example, can alert the police to people who have left their neighborhoods and fit a suspicious profile hit list.
            Overenforcement is also a likely unanticipated consequence of widespread surveillance machine adoption. This can happen in two ways. Surveillance machines equipped with artificial intelligence might be used to automate enforcement of certain offenses. Alternatively, officers may feel nudged to enforce the law more frequently with a surveillance machine watching their own work.  All of this data is likely to be generated in places where human officers have historically had a heavy presence.
            Police surveillance machines are also a matter of employment privacy for police officers, who might change their behavior in the presence of surveillance.  This accounts for some of the early and vocal resistance to surveillance machine adoption by some police unions.  The lack of clarity about use rules further increased tensions between police management and labor about worker privacy. Some of this resistance has faded, however, as more officers have grown to understand that surveillance machines are useful as evidence gathering tools and as countermeasures against accusations of police misconduct. 
            These features of our experience with surveillance machine adoption have led to many foreseeable consequences that hold lessons about surveillance technology markets, private power, and police reform.  However, these questions of private power, police agencies as consumers, surveillance platforms, and limited public access and input are not limited to this experience.  Many new police technologies will arise in the same way. If we are to effectively use technologies to bring about a more just law enforcement system, we must design police systems of procurement and use in a manner that emphasizes democratic, not private, control.  Our experience with police body cameras provides us with a cautionary tale.

            Elizabeth Joh is Professor of Law at U.C. Davis School of Law. You can follow her on Twitter at @elizabeth_joh.

           



Thursday, June 14, 2018

Happy Flag Day

Gerard N. Magliocca

Today marks the 75th anniversary of the Supreme Court's opinion in West Virginia State Board of Education v. Barnette, which remains Justice Robert H. Jackson's rhetorical masterpiece:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

ACA's Former Foes Agree DOJ/Texas Have Severability Wrong - An Unusual Amicus Brief That Says a Lot about the Case's Lack of Merit

Abbe Gluck

Today, five scholars who have often opposed one another publicly about the Affordable Care Act--Jonathan Adler, Nick Bagley, Ilya Somin, Kevin Walsh and I--filed a brief together in the district court of Texas, opposing the lawsuit brought by a group of states to, once again, strike the entire Affordable Care Act down.  This is the same lawsuit the United States last week shockingly declined to defend.  The unholy alliance, so to speak, of formal opponents, should be powerful evidence--no matter how you feel about the ACA itself-- of how wrong on the law the Texas/DOJ argument is.
 
The crux of the case--and the focus of our brief--is severability; the question whether, if one provision of the ACA is struck down, the rest of the 2000-page law should fall as well. Texas argues that, by eliminating the tax penalties associated with the insurance-purchase mandate, Congress in its 2017 tax reform law eliminated the constitutional basis for the mandate (remember, Chief Justice Roberts construed the mandate as a tax in NFIB).  The states therefore argue that the court should strike the mandate from the statute and--here is the kicker--kill the rest of the statute with it. DOJ, in refusing to defend, argues that while much of the statute could stand, the key insurance reforms that Congress left in the ACA when it eliminated the tax penalties --namely the requirements that insurers must accept everyone regardless of health condition at relatively equal rates-- should go with the mandate in the name of the severability doctrine. 
 
This, as our brief argues, is a gross and dangerous misuse of severability. The five of us have disagreed about many aspects of the ACA, including its constitutionality, its statutory interpretation, its merits as policy and there are many things we still don't agree about.  But the misappropriation of the severability doctrine here is significant enough for us all to agree to leave those questions on which we have differences unanswered for now to set the doctrinal record straight.
 
An unbroken line of Supreme Court cases for decades makes crystal clear that the touchstone of severability is congressional intent. That is, what would Congress had done had it known a court would eliminate a provision of the statute? Of course this question is silly and irrelevant in this context because it was Congress, not a court, that did the eliminating itself. Moreover, in doing so, Congress expressly left the rest of the statute standing--including those key insurance protections the United States argues should fall in the name of congressional intent. Game over. No guessing on loose conceptions of congressional intent is needed when we have duly enacted statutory text answering the question. 
 
The Texas/DOJ position asks the court to effectively usurp legislative power and substitute its own policy views of the ACA rather than applying duly enacted law. Such a decision would be dangerous for future cases and muddy the severability doctrine-- a doctrine based on separation of powers--and turn it into a tool of judicial activism. 
 
I was honored to be among these scholars of different viewpoints who came together in the name of the law. 
 
A taste of the brief, which you can read in full here:
 
The cornerstone of severability doctrine is congressional intent. Under current Supreme Court doctrine, a court must offer its best guess on what Congress would have wanted for the rest of the statute if a single provision is rendered unenforceable. But this guessing-game inquiry does not come into play where, as here, Congress itself has essentially eliminated the provision in question and left the rest of a statute standing. In such cases, congressional intent is clear—it is embodied in the text and substance of the statutory amendment itself. Under these circumstances, a court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.


Wednesday, June 13, 2018

Technology, Political Economy, and the Role(s) of Law

Guest Blogger


Julie E. Cohen

[This post is adapted from Part I of my book manuscript, Between Truth and Power: The Legal Construction of Informational Capitalism (OUP, forthcoming).]

Legal scholars who work on information policy tend to focus on questions about how existing doctrinal and regulatory frameworks should apply to information-era business models and online behavior, perhaps undergoing some changes in coverage or emphasis along the way. They have asked, in other words, how law should respond to the changes occurring all around it. For the most part, they have not asked the broader, reflexive questions about how core legal institutions are already evolving in response to the ongoing transformation in our political economy—questions about how disputes over information are reshaping the enterprise of law at the institutional level. That is a mistake. Information-economy actors do not simply act in markets; they also mobilize legal tools and institutions to advance their various goals. Through that process, legal institutions gradually become reoptimized for the new roles they are called upon to play.

Consider two historical examples: As political economist Karl Polanyi explained, Britain’s transition from an agrarian system of political economy to an industrial and capitalist system involved large-scale appropriation of resources but also entailed equally large-scale conceptual and organizational shifts. Over time, the basic factors of industrial production—labor, land, and money—were reconceptualized as commodities, while at the same time patterns of barter and exchange became detached from local communities and reembedded in the constructed mechanism of “the market.” The movement to industrial capitalism also both relied on and transformed existing legal institutions. Processes of enclosure of common lands, appropriation of other natural resources, displacement of populations from farms to cities, construction of factories for extraction of the value of commodity inputs (including wage labor), and trade in the resulting products all required enabling legal constructs in order to work. Eventually, as those processes produced mounting costs to human wellbeing, a protective countermovement emerged that incorporated new regulatory components. But the countermovement was not law’s first response. Law was, so to speak, in on the ground floor, working to produce the new relations of economic production.

Beginning in the mid-nineteenth century, the American political economic landscape underwent a parallel transformation that also both relied on and transformed legal institutions. The part of that story with which contemporary lawyers and legal scholars are most familiar involves the creation of the modern administrative state during the first half of the twentieth century and the bitter disputes about constitutional law that accompanied it. But those disputes were themselves shaped by earlier doctrinal and conceptual realignments that privileged rising industrial and commercial interests. The development of private and commercial law during both the antebellum period and the post-Civil War years established the distributive backdrop for the disputes about public law that unfolded later. Once again, law was in on the ground floor; countermovements came later.

For some time now, political economies in the developed world have been undergoing a transformation from industrial to informational capitalism.  Borrowing from Polanyi, it is helpful to frame the emergence of informational capitalism in terms of three large-scale shifts: the propertization (or enclosure) of intangible resources, the dematerialization and datafication of the basic factors of industrial production, and the embedding (and rematerialization) of patterns of barter and exchange within information platforms. Once again, powerful interests have a stake in the outcome, and once again, they are enlisting law to produce new institutional settlements.

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The De-Americanization of Internet Freedom

David Pozen

[Cross-posted at Lawfare]

“The Internet,” Ira Magaziner opined in a 1998 speech, is “a force for the promotion of democracy” as well as “individual freedom and individual empowerment.” At the time he gave this speech, Magaziner was the Clinton administration’s internet guru. He began his remarks in a tentative register, observing that “humility is an important quality for anyone working to develop policies for the Internet,” given the “uncharted” nature of the terrain. A minute or so later, Magaziner informed his audience that the internet would “be the primary driver of the broader economy for the next couple of decades,” make dictatorships and other non-democratic forms of government “impossible in the long run,” and “bring all the peoples of the world closer together.”

At least, the internet would deliver these revolutionary benefits if policymakers regulated it appropriately. And that, Magaziner explained, meant regulating it as little as possible: pursuing a “market-driven model” in which “the government role is not in regulating, but rather in setting the terms for a predictable legal environment for contracts to form.” A “regulated model” would stifle the growth of the medium and cause “distortion.” Nation-states, accordingly, should abandon most efforts to tax the internet, to subject it to traditional telecommunications and competition laws, or to censor or control content. (Intellectual property in electronic commerce, on the other hand, would require “strong protection.”) “If I could wave a magic wand,” Magaziner summed up his message, “I would say we should go through a complete deregulation here, and let the market go.”
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The Minsky Moment in Constitutional Law

Gerard N. Magliocca

During the Panic of 2008, fresh attention was given to the economic research of Hyman Minsky. Minsky proposed a theory to explain periodic financial crises that went something like this: The further the previous crisis receded from memory, the more people discounted the possibility that such an event would recur. This led them to take on more risk or deregulate, which eventually triggered the next crisis. And so on.

I wonder if we are now having a Minsky Moment in politics or constitutionalism. In other words, voters and some political elites may be taking for granted the benefits that have flowed from various institutions or practices developed since World War II (free trade, global institutions, rule of law, constitutional democracy, etc.). As a result, people think that we can take on more political or legal risk (in the name of one goal or another) without losing the benefits associated with those practices. Until, that is, there is a significant upheaval. Then everyone will reassert the older caution and learn their lesson until they forget again.


Tuesday, June 12, 2018

Further reflections on "the common good"

Sandy Levinson

As noted yesterday both Patrick Deneen's and Steven Brill's new books, about which I am very enthusiastic, both ultimately turn on the belief that there is an ascertainable "common good" or "public interest" that is being ignored by feckless politicians, for whatever reasons, including, of course, the sheer power of the donor class.  I am not unsympathetic with this critique.  One of the reasons I have become so critical of the Constitution is that, as Mark Graber has pointed out, it is structured so as to assure that no national elected office-holder, including the President, truly has an incentive to think about the "national good."  Every member of Congress is beholden to local constituents.  The only difference between the House and Senate on this score, putting to one side the seven states with more senators than representatives, is that senators represent larger constituencies, but their incentive is to do what they believe these parochial constituencies desire.  Thus Mitch McConnell as the faithful ambassador from a dying coal industry.  Indeed, if one wants to understand why it's going to be so hard to win the "war on coal," one should begin with the fact that most of the largest coal producing states are small (in population) and, therefore, coal plays an exaggerated role in the consciousness of the representatives and senators.  (These states include Montana, Wyoming, Kentucky, and West Virginia, which have a total population of approximately eight million people (out of approximately 325 million people in the entire US), but who have, among them, 8% of the in the egregious and indefensible U.S Senate and, unlike the senators from, say, Illinois, they are not encumbered by in-state groups that might not be so completely committed to maintaining the supremacy of coal.  (Texas, a high coal-producing state, somewhat to my surprise, is now the leading center of wind-energy in the US.)

Although some (especially presidents themselves) claim that the President is the "tribune of the national people," the even more egregious and indefensible electoral college assures that most often the President is the faithful servant of the particular coalition that put him (so far) into power.  Thus, whatever FDR's "real views" might have been on civil rights, the New Deal, as Ira Katznelson has demonstrated, was shameful with regard to protecting the rights of Southern African Americans because racist Democrats were an essential part of the then-Democratic coalition.  (They have, of course, migrated to the Republican Party as a result of the Voting Rights Act of 1965.)  Similarly, the most shameful appointments to the federal courts in the past sixty years, prior to Donald Trump, were JFK's, who felt it "necessary" to pander to Mississippi Sen. James Eastland and others to provide "safe" judges.  Ohio, as a battleground state, has been the recipient of special solicitude from, especially, George W. Bush and now Donald Trump, though I suspect it wouldn't be that hard to find some similar examples from Bill Clinton and Barack Obama.  The only one of the three basic branches that might be free from this critique is, of course, the judiciary.  As Graber has also argued, one cannot possibly understand Dred Scott without realizing that there was a national desire that the Court, as the one remaining "national institution," given the almost total breakdown of Congress as a genuine governing institution, intervene and try to save the Union. Taney didn't do it, but, if one can accept Story's similarly-motivated opinion in Prigg v. Pennsylvania, it's not self-evident that Taney deserves all of the opprobrium visited upon him unless one takes the Garrisonian position, which I'm sympathetic to, that there might have been a more important value than maintaining the Union.   One might also try to defend the "Administrative State" in similarly national terms.

But these are all "political science" points, as important as they are (and which, perhaps, deserved more recognition particularly from Brill).  Far more fundamental, and quite explicit in Deneen's book, is the extent to which what political theorists call "modern" political theory, i.e., post-Machiavellian, basically rejects the notion of an ascertainable "public good" or "public interest."  I have written elsewhere that the most important single paragraph in "modern" political theory is from Hobbes's Leviathan, where he ruthlessly condenses Aristotle's six forms of government--monarchy, tyranny, aristocracy, oligarchy, constitutional government, and demagoguery, into only three.  (Some lists, incidentally, describe the last two as either a "polity" or a "democracy."  The point is that the second "contrast" terms, "tyranny," "oligarchy," and "demagoguery" or "democracy" Hobbes dismisses as merely the names for forms of government "misliked."  That is, there is no real "fact of the matter"; it's simply a matter of (arbitrary) opinion, so that we should analyze only three forms of government, based the sheer number of rulers:  Monarchy (one); aristocracy (the few); and then democracy (the many).

Madison was perhaps fatally schizoid about such matters,  reflected in the Constitution that he helped so much to design.  Many of the Federalist papers clearly presuppose the existence of "virtuous" dispositions that will lead leaders to prefer the common good to merely selfish "factional" interests.  On the other hand, he also seems to indicate, especially in Federalist 10, that it is basically futile to believe that selfishness can be tamed, that we need instead to construct a "machine" that will, with adequate bells and whistles, create a way of balancing out the various factional interests and, implausibly, perhaps, result in a public interest.  That way lies what came to be called "interest group liberalism," which triumphs especially in the 20th century.

When I entered graduate school 56 years ago, it was taken as a simple truth that normative political theory was basically dead, that "everyone" knew it was simply naive to use terms like "public interest" except in reference to a vector sum of bargaining among distinctly factional political interest groups.  Richard J. Daley and New Haven Mayor Richard Lee were the heroes of what came to be called the "pluralist" view of politics.

John Rawls is widely credited with reviving normative political theory with A Theory of Justice in 1971, but key to Rawls is that his approach was based ultimately on a model of "rational choice," in which entirely self-seeking individuals would realize that it was ultimately in their own interest to adopt "a theory of justice" that would maximize certain notions of "fairness" (because, after all, one could never know, in the original position behind a veil of ignorance, what slot one would inhabit when the veil was lifted).  Genuine commitment to a "public good" was not really central to the Rawlsian vision.  Moreover, as Michael Sandel argued, Rawls's ontology, as is true generally of "rational choice" models, was of completely isolated individuals concerned only with maximizing their own welfare.  (In this sense, there was less difference between Rawls and his chief libertarian critic, Robert Nozick, than one might think.)  Sandel, instead, emphasized (like Deneen), the extent to which we come into the world "embedded" and "encumbered" by community loyalties, norms, etc. Not only are they not easy to escape, but one can read Sandel (and certainly Deneen), more controversially, as suggesting that they ought not be escaped.  I dare say that most readers of this blog are "cosmopolitans" of one form or another who have long since left their original birthplace and, perhaps, family and religious traditions behind, and are not particularly taken with the pull of remaining loyal to initial "encumbrances" that in no sense are "chosen" or the product of any kind of "autonomy."  (It is clear that no libertarian can possibly be sympathetic with Sandel, or Deneen.)

But even with the revival of normative political theory and the rich array of books that are now being written, it is scarcely the case that there is anything close to agreement on what constitutes the public good or, even more to the point, on the epistemological tools by which we might ascertain it.  This is what makes arguments like Deneen's and Brill's (and, for that matter, your own favorite politician--both Brill and I are big admirers of Bill Bradley, who would have been a superb President) so genuinely problematic.  It is always tempting, and often correct, to claim that assertions of the public good are mere "ideology," i.e., gussied-up defenses of what are "in fact" merely selfish interests.  The main business of lawyers, after all, is to manufacture arguments favoring their clients in the name of impersonal interpretations of statues or the Constitution.  (Who would be so bold as to describe yesterday's voting rights decision about Ohio as five conservative Republicans making it easier for their party to remain in power rather than the good faith interpretation of two federal statutes?  It would be like describing the Court as the "running dogs of the capitalist empire.")  Going back to Plato and the Gorgias, Socrates distinguished between sophistry and true knowledge.  At best, many (though not all) of us believe that "true knowledge" is available with regard to a certain realm of "facts."  (The Flint water supply was contaminated with lead is not a matter of opinion; I also agree with Brill that it, like many other failures in our infrastructure, can be traced to fanatical Republican opposition to spending public money in a redistributive manner designed to help what Brill calls those who are "unprotected" by class or meritocratic privilege. ) But is it a matter of "fact" that poor people are "entitled" to decent water, public transportation, education, etc., etc., etc.?

I'm skilled at delineating the structure of legal and political debates, but I'm scarcely confident that I in fact know what the "public good" requires.  I remain enough a child of that aspect of my graduate education to be skeptical (just as I'm even more skeptical of claims to true and certain knowledge of what "the Constitution" requires of us).  My first book was "Constitutional Faith," and I have written subsequently of how and why I lost any real faith in the Constitution.  What Brill and Deneen are relying on, though, is perhaps a more important kind of faith, i.e., that we can in fact come to agree on what the "public good" requires and then identify leaders and groups who are committed to bringing it about.  Without some kind of such faith, I don't know how a democracy can ultimately function (unless, that is, one accepts the now generally discredited assumptions of interest-group-liberalism).  But requisite belief can't simply be summoned out of thin air.

More depressing thoughts for a late spring day (provoked by these two very interesting books).

Monday, June 11, 2018

Non-light reading for the summer of our discontent

Sandy Levinson

Remaining at home recovering from a (successful) hip replacement—though I’m eagerly awaiting a second replacement later this year—offers opportunity for reading.  I want to bring to your attention two extremely interesting books well worth your time and intellectual energy.

The first is Patrick J. Deneen, Why Liberalism Failed (Yale, 2018), which has gotten quite a bit of attention.  It is indeed as assault on contemporary liberalism (and on at least some of its theoretical underpinnings in such political theorists as Hobbes and Locke), in both its “strong state” aspect identified with contemporary Democrats and basically anti-social libertarianism that is increasingly prominent on the Right.  A plague on both their houses is his message, for he argues that both are founded on a common rejection of the kinds of communities necessary to human flourishing. A typical passage (p. 102) is that “A technological society like our own comes into being through a new kind of political technology—one that replaces the ancient commendation of virtue and aspiration to the common good with self-interest, the unleashed ambition of individuals, an emphasis on private pursuits over a concern for public weal, and an acquired ability to reconsider any relationships that limit our personal liberty.”  Though Deneen is described as “conservative” in today’s nomenclature, it should be clear that he provides little or no succor to most people who describe themselves as such in today’s world.  As his language suggests, he wants to revive a mixture of ancient and Christian theory that was supplanted, he argues, by Machiavelli and his successors, devoted to a polity of “the common good,” which necessarily require what is described as the “self-discipline” (or “virtue”) to subordinate one’s seeming selfish interests to that good.  Not surprisingly, he revives the distinction between “liberty” and “license.”  One might criticize him for paying insufficient attention to other philosophers writing today, including, most relevantly, Michael Sandel, who also preaches (and I use that word advisedly) a politics of the common good and a critique of John Rawls for promoting a view of human nature that refuses to recognize our "embeddedness" in pre-existing communities.  But Deneen isn't really writing a conventional scholarly book full of citations and response to the arguments of others.  That's all right.

My own view is that in many ways he has written a Port Huron Statement for our time.  That is, it contains much of the critique that Tom Hayden (who was originally Catholic himself) wrote of the alienated and alienating society that required the development of a genuine “participatory democracy” to replace reliance on an impersonal and bureaucratic state. Indeed, some of Deneen’s strongest passages are critiques of The Federalist (and the Constitution) for adopting a completely dessicated theory of citizenship that ultimately substituted the shallow pursuit of commercial interest for genuine concern about the good of the community.  

To be sure, there are, to put it mildly, tensions within his argument.  His encomia to the virtues of living locally and accepting the strictures (and structures) of existing communities pays only extremely limited attention to the discriminatory (and worse) aspects of many communities.  He acknowledges, somewhat reluctantly I think, the presence of unjustifiable racism and patriarchy, but spends almost literally no pages on the desirability of developing a state that is strong enough to overcome communities indifferent to what the Constitution calls “establishing Justice.”  It is also clear that he is unhappy with the latitudinarian policies now pervasive with regard to family (and reproductive choice).  

So there is clearly lots to argue about, but that’s the point.  In 198 pages he presents a strongly felt and argued polemic against the pervasive ideology of the contemporary West.  It would make a marvelous book for collective discussion, precisely because it is really impossible, when all is said and done, to label it as either “left” or “right” in contemporary terms.  It may be “reactionary” in the deepest sense of that term.

The other book well worth reading (and discussing) is Steven Brill’s Tailspin:  The People and Forces Behind America’s Fifty-Year Fall—and Those Fighting to Reverse It (Knopf, 2018). Even moreso than Deneen, it appears designed to produce genuine depression on the part of most of its readers.  That is, it sets out a comprehensive picture of the ways that the US is in a genuine tailspin (independently of, though certainly not helped by, the election of Donald Trump).  He begins with a fascinating chapter built around Daniel Markovits’s commencement speech (which perhaps Jack might have heard) to the 2015 class at the Yale Law School.  Briefly, it suggests that the replacement of traditional WASP hegemons by a “meritocracy” might have had significant costs as well as benefits.  After all, the winners of the meritocratic competition, typified by the Yale Law School, manage to convince themselves, with some exceptions, that they have earned their success and are entitled to prosper even if this means leaving many “losers” well behind.  Think only of Facebook, Google, and other high-tech companies, not to mention the financial services industry that Brill also spends a great number of pages on.  But the book goes on to describe many specifics, unlike Deneen, whose book is far more abstract, and it is impossible, I think, not to agree with Brill on most of his diagnoses.  He has an especially powerful chapter, for example, on the travesty that is American “infrastructure,” which almost undoubtedly poses far greater dangers to more Americans than all world-wide terrorists and which gets almost no attention even when bridges literally collapse or we discover what is happening to the Flint water supply (which he fails to mention specifically).  He places most blame, altogether deservedly, on the modern Republican Party, which is obsessively devoted to depriving the state of taxes necessary to provide for any vision of the common good other than an over-militarized state, but Democrats don’t come out that well either.  The reason is that both parties are increasingly dependent on big donors and protecting their interests.  One might argue that Hillary Clinton destroyed her candidacy when she accepted over $600,000 from Goldman Sachs for giving two speeches whose anodyne texts she resolutely refused to release.  This, I think, established her as the candidate of the status quo (fairly or not) far more than what Bernie Sanders correctly called “those damned emails.”  

One of the reasons that Brill was kind enough to send me a copy of his book was that he had seen my posting on Balkinization referring to the Supreme Court as “the running dogs of the capitalist empire” because of the conservative majority’s valorization of the Arbitration Act of 1925.  He is more temperate than I in his language, but he agrees that Lewis Powell’s 1972 memorandum about business mobilizing in behalf of corporate capitalism (and anti-unionism) was a key moment in American political and ideological history.  He certainly agrees that the Court has indeed done Powell proud, nowhere more than in the arbitration cases, whose costs to a decent society that protects the most vulnerable he eloquently lays out.  He is also harshly critical of the failure of the Obama Administration to hold anyone truly accountable, in any personal sense, for the disaster of the economic collapse.  "Settlements" that include ostensibly impressive fines paid to the treasury become ultimately simply a cost of doing business, leaving the corporations neg better off than they would have been had they not engaged in the practice.  The combination of "too big to fail" and "too big to jail" is, he correctly argues, toxic.  

One of the chief villains of the book is law professor Martin Redish, of Northwestern, whom he views as the chief architect of the corporatization of the First Amendment, i.e., the grant of full-scale First Amendment rights to corporations, whether relating to corporate advertising or political campaign contributions (Citizens United).  Conversely, he selects out former Yale Law School Dean Robert Post for praise in presenting what Brill regards as a more nuanced theory of the First Amendment, though he tellingly quotes Post that at the present time, because of the capture (and theft) of the Court by political conservatives (quite unlike Deneen, it should be clear), “We’re completely fucked.  It’s totally clear.”

Post’s inelegant but altogether understandable comment is key to understanding both the strengths and perhaps ultimate weakness of Tailspin. As the subtitle indicates, Brill has written a highly critical, but not truly despairing, book, for he identifies a number of people and organizations whom he sees as possibly leading our way out of the wilderness.  Some of them, like Peter Edelman, I wholeheartedly agree with; others, like Philip Howard, who draws plaudits for his attacks on the sclerotic civil service and bureaucratic red-tape, I’m far more suspicious about.  Just as Deneen only in passing concedes that liberalism has in fact been responsible for many good things in the world, Brill at times seems overly critical of aspects of the "due process revolution," even as he does admit its truly vital importance.  I agree that it presents a true Goldilocks problem.  Defining the "just right" amount of due process is extraordinarily difficult, and it is not difficult to find specific examples of excess (in both directions). 

But the central question, of course, is really whether there is a way out of our tailspin.

Not surprisingly, I was most disappointed in Brill’s failure to discuss the extent to which our 1787 Constitution may itself be an impediment in important ways.  It is one thing to denounce Marty Redish’s theories of the First Amendment, which could easily be overruled with a new majority on the Supreme Court, or the indefensible deference given the Arbitration Act, which also requires only a new appointment or two to undo.  But, of course, the gridlock that explains, say, the dreadful state of New York’s three airports or the difficulties in the way of modernizing the Newark port (which I was surprised to learn was the second most important port along the East Coast) and the inability to build a new tunnel between New Jersey and New York is in part a function that less than half of the country controls 82 of the 100 senators, and most of them have no interest in contributing to the health of the Northeast.  There is only one reference in the book to the possibility of constitutional amendment, which is quickly (and plausibly) dismissed as futile. Ultimately, he places his faith in the appearance of a political leader like Bobby Kennedy, whose assassination Brill clearly regards as truly of world-historical importance inasmuch as only he might have cemented an alliance between the underclass and the middle-class (including union members).  It would take us far too afield to disuss whether that is a realistic view of Kennedy; what we can all agree on is that that possibility was eliminated fifty years ago this week, and no one has emerged as his true successor.  

Brill continues to exhibit more faith in the regeneration of our polity than I currently have.  I'm a big fan of Lin Manuel-Miranda's injunction, through the mouth of Hamilton, to "rise up," though I confess to near complete uncertainty as to what that might mean in the 21st century.  I am truly surprised that there has not been more rioting in the streets, and Brill actually does suggest that if many bridges start collapsing at once, then perhaps there would be a new-style "March on Washington" that would shut the city down if Congress does not actually act.  And I continue to believe that secession should not be ruled off the table as a serious possibility should the hinterlands (and their 82 senators) continue to be indifferent to the fate of Pacifica or Atlantica.  

So, even if you’re not recovering from an operation, I heartily recommend reading both of these books and, even more to the point, discussing them with your friends and neighbors.  They are important reflections on the causes of our present discontents.

I am continuing my practice of opening my posts to comments, but, as I’ve sometimes stated in the past, I’m completely uninterested in any comments you might have unless you have read at least one of the books, and even then, your comments should be limited to that book.  


Friday, June 08, 2018

The Right of Rescission

Gerard N. Magliocca

I was away on a vacation and returned to see Sandy's interesting posts on the ERA. In one respect, I am in complete agreement with him. States should be able to rescind their ratification votes for an Article Five amendment. Thus, my view is that Congress should not consider the ERA part of the Constitution until SIX more states ratify (as five rescinded their yes votes in the 1970s).

Unfortunately for me and for Sandy, Congress may not agree when the time comes. In 1868, Congress disregarded rescissions by Ohio and New Jersey in declaring the Fourteenth Amendment ratified. And the Supreme Court stated, in Coleman v. Miller, that state rescissions raised a political question for Congress. (Remember that in 1939, when Coleman was decided, many in the South saw the Fourteenth Amendment as illegitimate because of its various procedural irregularities. The Court may well have had this in mind in saying that those sorts of questions could not be reviewed.)

What if Congress decides to follow the Fourteenth Amendment precedent and disregard the ERA rescissions? One point I will make in my draft paper on this subject is that you can read the 1868 rejection of rescission as requiring at least a two-thirds vote in each House of Congress. This is, in fact, what happened then. And there is a good reason for requiring a supermajority to reject state rescissions. First, such a rule recognizes the federalism interest in states getting to change their minds. Second, such a rule would alleviate concerns about the legitimacy of ratifying in the face of rescissions. (Basically, you would need a broad coalition of both parties to "count" rescinding states.)
Accordingly, if Congress insists that states do not have an unqualified right to rescind, then a two-third voting rule should be applied to the final decision to rescind.

Just How Indefensible Does an Argument in a Government Brief Have to Be to Cause All the Career Litigators in Federal Programs to Withdraw from the Case?

Marty Lederman


Late yesterday afternoon, something remarkable—perhaps unprecedented—happened at the Department of Justice.   In Texas v. United States, No. 18-167 (N.D. Tex.)—a suit brought by 18 states, two governors and two private individuals, seeking an injunction against the operation of the entire Affordable Care Act (ACA)—three of the four attorneys representing the United States from DOJ’s Federal Programs Section of the Civil Division, including an Assistant Branch Director (Joel McElvain) and a Senior Counsel (Eric Beckenhauer), moved to withdraw from the case, leaving from Federal Programs only the politically appointed head of the Section, Brett Shumate (who filed an appearance on Tuesday) and a line attorney who was hired only a few weeks ago (Daniel Mauler, who entered an appearance earlier yesterday).  As soon as this remarkable filing was made, close observers assumed that it might be a sign that the Administration could find virtually no career FedPrograms lawyers—none who have been with the Department since before May, anyway—who were willing to file the government’s substantive brief that was due at close of business yesterday.

Perhaps such a mass withdrawal of DOJ attorneys from a case has happened before.  If so, however, I am not aware of it.  (The 1981 Bob Jones litigation in the Supreme Court, in which the Acting Solicitor General noted his withdrawal in the government’s brief after the government switched positions, is probably the closest analogy.)  It’s important to understand that Federal Programs lawyers often put their signatures to briefs that make, shall we say, very aggressive and unlikely-to-prevail arguments in defense of federal programs and statutes.  This is not a timid litigating component.  Of course, lawyers in that section, like any other, occasionally request not to be assigned to a particular case when they have moral or other serious qualms about the government’s actions or arguments.  But such recusal is not common and, more to the point, once those lawyers do represent the government in a case they rarely seek the court’s permission to withdraw representation because they’ve concluded that an argument their supervisors choose to include in a brief is too embarrassing or indefensible to defend.  For three such respected DOJ attorneys to do so simultaneously—just hours before a major filing, and without replacement by any other career lawyers other than a rookie—is simply flabbergasting.  It did not portend well for the brief that was to follow.

And, sure enough, a couple of hours after the mass withdrawal motion, the government filed its brief in response to plaintiffs’ motion for a preliminary injunction, which made it clear why the FedPrograms attorneys, en masse, refused to be any part of this case:  The government’s brief includes not one but two arguments about the intent and effect of Congress’s amendment to ACA in December 2017 that are simply implausible—some might even say preposterous, in light of what everyone knows about the intent and design of the Republican Congress last December. 

The Government’s Implausible Reading of the 2017 Amendment to Section 5000A, the “Individual Mandate” Provision

In order to understand the extraordinary nature of the government’s arguments, it’s first necessary to recall how the so-called “individual mandate” provision of the ACA, 26 U.S.C. 5000A, operates and how the Supreme Court construed that provision when it upheld its constitutionality in 2012 in NFIB v. Sebelius. 

Subsection 5000A(a) provided (and still does) that most individuals “shall … ensure” that they and their dependents are “covered under minimum essential coverage,” i.e., that they maintain health insurance.  Subsection 5000A(b), in turn, provides that if (most) of those covered individuals covered by subsection (a) fail to maintain such insurance, they must pay a “shared responsibility payment” to the IRS “in the amount determined under subsection (c).”  (I say “most” because lower income persons and members of Indian tribes are exempt from the subsection (b) “penalty,” something I discuss below.)  When the Supreme Court reviewed the ACA, the amount of this “penalty” option was the greater of 2.5% of household income or $695.

A majority of the Court in NFIB held that Congress would lack the constitutional authority to actually impose upon individuals a legal duty to maintain insurance.  Nevertheless, it upheld Section 5000A because it construed the provision, read as a whole, to give individuals a choice between (i) maintaining insurance and (ii) making the payment to the IRS, which the Court deemed a tax that Congress could have independently imposed.  Because one of the two options (the latter) was within Congress’s constitutional authority to require, a fortiori Congress had the power to offer people a choice between the two.

On December 22, 2017, President Trump signed the Tax Cuts and Jobs Act of 2017, section 11081 of which amended subsection 5000A(c) to change the “amount” of the applicable tax to zero, effective on January 1, 2019.

Texas and the other plaintiffs argue, in the first instance, that this 2017 amendment effectively eliminated one of the two choices Congress had previously afforded to covered individuals, so that now they all must maintain health insurance—something that the Court has said would be an unconstitutional requirement. 

Yesterday, the Department of Justice somewhat shockingly agreed with this specious argument.

It should be self-evident why it’s mistaken.  Obviously the 2017 Republican Congress did not intend to diminish individuals’ choices and to require them to maintain health insurance beginning in 2019 whereas they previously did not have to do so.  (Indeed, I’d be willing to wager than no members of Congress who voted for the bill would favor such a result.)  Instead, the new Congress’s design was manifestly to lessen the burden on individuals by giving them an option they previously did not have—namely, to decline to either maintain insurance or pay a tax:  Come 2019, payment of “zero” will be a lawful option.

The government insists, however, that because of what the 2017 Congress did, any covered individual who does not maintain health insurance come January will be violating a legal duty, even though they were not doing so until then.  Again, I’m fairly confident that no member of the legislature who voted for the 2017 amendment thinks that is the case, or intended anything like it. 

A hypothetical and an illustrative application of the existing, pre-2017 ACA will help demonstrate the point:

First, imagine, for instance, that an individual who has not maintained insurance for the past few years voluntarily chooses to continue paying the IRS $695 a year, even after January 1, 2019, when the tax requirement will be reduced to zero.  That person, in other words, does not change her behavior in the slightest.  Will she then be violating the law because of the 2017 amendment?  Of course not.  But according to DOJ, she will be.

Alternatively, let’s look at what many (i) lower income individuals and (ii) members of Indian tribes are doing today, before the 2017 amendment goes into effect.  Under the ACA as it has existed since its enactment (Subsection 5000A(e), in particular), such persons are expressly exempt from the Shared Responsibility Payment (the “penalty”).  Accordingly, many of those persons have neither maintained insurance nor made any shared repsonsibility payments to the IRS.  Have they therefore been violating the ACA, by virtue of being exempt from the tax provision, i.e., from one of the two choices available to others?  Of course not.  Well, the effect of the December 2017 amendment will simply be to put everyone else in exactly the same legal position as lower-income individuals and tribal members have been for almost a decade:  They will have a lawful choice to do nothing—to make a “payment” of zero—and will not have a duty to purchase or maintain insurance.

Contrary to the implausible argument in the Justice Department brief, the amended version of Section 5000A does not and will not require anyone to maintain health insurance.  Therefore it is not unconstitutional—instead it is, at most, toothless.  And if Section 5000A is not unconstitutional, that’s the end of Texas’s case.  DOJ’s argument to the contrary is inexplicable.  And that’s true even before we apply the canon of constitutional avoidance.  Or before we recall that President Trump signed the bill just a few months ago without expressing any constitutional doubts about the amendment (and presumably without being advised by OLC that the amendment was unconstitutional).  [UPDATE:  In his letter to Congress yesterday, Attorney General Sessions states that President Trump "has concluded that the statute is unconstitutional."  That's interesting--I wonder why he and DOJ did not say so when he signed the law in December.]  Or before we consider the traditional practice of DOJ to defend the constitutionality of statutes when reasonable arguments are available:  None of the established reasons for deviating from that practice (which I discussed in this post, about why it was not necessarily problematic that Acting Solicitor General John Roberts attacked the constitutionality of statutes in Metro Broadcasting) are remotely applicable here.

But it gets worse . . . .

The Government’s Implausible Understanding of Congress’s Intent About Whether the Guaranteed Issue and Community Rating Provisions Should be Operative if There is No Mandate to Maintain Health Insurance

DOJ’s failure to defend the constittionality of Section 5000A as amended—of the statute that President Trump signed a few months ago—is indefensible, but standing alone it wouldn’t much matter, because (as I discuss above) whether or not 5000A is unconstitutional, it will no longer be doing much work once the tax is reduced to nothing in January.  The much more serious problem with the government’s brief is what comes next.

Let’s assume—contrary to what I’ve written above—that the amended version of Section 5000A does require people to maintain insurance and that it is therefore unconstitutional and will not be enforced.  Texas’s next argument—the one that’s truly at the heart of the case—is that if that’s so, then the entire remainder of the ACA must be declared inoperative because it’s not severable from Subsection 5000A, i.e., that Congress would not have intended any provisions of the ACA to remain in place if there were no enforceable individual “mandate” to maintain health insurance. 

DOJ disagrees with Texas on that broad nonseverability proposition, but nevertheless insists that two crucial provisions of the Act are inseverable from Section 5000A and therefore must be declared invalid beginning in January, when the 2017 amendent goes into effect.  The provisions in question are the well-known Guaranteed Issue and Community Rating provisions (GI and CR) at the heart of the ACA, which prohibit insurers from denying coverage or charging higher premiums, respectively, to any person because of that person’s preexisting medical conditions or medical history.  DOJ argues that Congress would not have wanted the GI and CR provisions to exist if there were no enforceable individual mandate.

In support of this argument, DOJ relies almost exclusively on a finding in the original ACA (Section 18091(2)(I)) that the individual mandate requirement was “essential” to the effective operation of the GI and CR provisions.  That 2010 finding states that “[t]he [Section 5000A] requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” 

The problem with relying upon this finding from 2010 is that the 2017 Congress deliberately both: (i) set the “penalty” for not maintaining insurance at zero, understanding that therefore many more individuals would neither make a payment nor maintain insurance; and (ii) left the CR and GI insurance reforms in place.  The 2017 Congress, in other words, concluded that the insurance reform provisions now could and should function sufficiently even without an effective individual insurance “mandate.”  Nor was such a conclusion irrational, even if the 2010 congressional finding was true at the time it was enacted.  In 2017 the Congressional Budget Office issued a report concluding that insurance markets would still continue to function effectively even if rates increased because of a zeroing out of the fee alternative to the 5000A insurance maintenance requirement.  The CBO found that in light of the situation in the markets as of today (rather than 2010, when fewer people had already purchased insurance policies), “[n]ongroup insurance markets would continue to be stable in almost all areas of the country throughout the coming decade.”  Whether or not others could take issue with that conclusion, it was certainly rational for Congress to rely upon it in 2017.  Which it did.

In this case, in other words, there’s no need to indulge the sort of “counterfactual” that the courts apply to ordinary severability questions about what Congress’s intent would have been for provisions B and C if provision A were rendered a dead letter, for we know what the 2017 Congress’s intent actually was in such a case:  provisions B and C are to remain intact.  As Ilya Somin sharply put the point when Texas filed its suit:

[T]here is a big difference between a court choosing to sever a part of a law, and Congress doing so itself.  And in this case, Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.  It was Congress that removed the monetary penalty imposed on violators of the individual mandate, thus rendering it ineffective.  And it was also Congress which chose to leave the rest of the law in place, nonetheless (largely because President Trump and the GOP leadership repeatedly failed to round up enough votes in the Senate to repeal any more of Obamacare). Unlike in NFIB, a court could not conclude that Congress’ design for the ACA would be fatally undermined without an effective individual mandate. … In this case, Congress itself has concluded that a mandate-less ACA is acceptable (or at least a lesser evil than the available alternatives).

To the same effect, see also Nick Bagley here or listen to Jonathan Adler here.

If this sounds like a slam-dunk point on severability, that’s because it is.  And so how does DOJ counter it?  It devotes all of three sentences to the argument about the 2017 Congress (which is three sentences more than what Attorney General Sessions offers in his letter to Congress yesterday!).  Here are those sentences (in bold), on which the government’s argument crucially depends:

That conclusion [that the GR and CI provisions are nonseverable] is not affected by the fact that the [2017] TCJA eliminated the mandate’s penalty.  It still remains the case that, in the complete absence of the mandate, retention of the guaranteed-issue and community-rating requirements would expose health insurers (and their customers) to unfettered adverse selection by individuals who can game the system by waiting until they are sick to purchase insurance, contrary to Congress’s express intent.  42 U.S.C. § 18091(2)(I).  Nor is this conclusion undermined by the fact that the TCJA did not itself eliminate the guaranteed-issue and community-rating requirements at the same time it eliminated the mandate’s penalty and thereby rendered the mandate unconstitutional.  The best evidence of Congress’s intent is found in the legislative findings [from 2010], which continue to remain part of the ACA after the TCJA.  These express findings continue to describe the mandate as “essential” to the operation of the guaranteed-issue and community-rating provisions. See EEOC v. Hernando Bank, Inc., 724 F.2d 1188, 1190–91 (5th Cir. 1984) (noting that in determining “whether Congress would have enacted the remainder of the statute in the absence of the invalid provision[,] … [c]ongressional intent and purpose are best determined by an analysis of the language of the statute in question”).  Those findings cannot be deemed to have been impliedly repealed by Congress’s mere elimination of the financial penalty.  See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007) (explaining that “‘repeals by implication are not favored’ and will not be presumed unless the ‘intention of the legislature to repeal is clear and manifest’” (citation omitted)).

It’s easy to see why virtually no attorneys in the Federal Programs branch would agree to sign their names to a brief that depends upon those three sentences.  For even assuming that the “repeals by implication are disfavored” canon applies to a findings provision of a law that Congress subsequently amends in fundamental relevant respects, the “intention of the [2017] legislature” to abandon the thrust of the 2010 finding, in light of changed circumstances in the interim, could not be “clear[er]” or more “manifest.”  And DOJ doesn't offer a single word to explain why not.

DOJ attorneys, especially those from Federal Programs and elsewhere in the Civil Division, do not withdraw from a case simply because the government is making a weak argument or an argument the lawyer privately thinks the courts should or will reject—something that happens rather frequently.  The bar for a DOJ lawyer to withdraw from a case because of the implausibility or weakness of a government argument in support of a federal program is understandably set very high.  DOJ’s brief yesterday in Texas v. United States cleared that hurdle with room to spare.


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