Wednesday, April 11, 2012

A Modern Court-Packing Plan

Rick Pildes

In a nice coincidence, Professor Paul Carrington yesterday argued in the NY Times that, should the Court strike down President Obama's health-care legislation, Congress should "Bring the Justices Back to Earth" by adopting a modern version of FDR's Court-packing plan -- on the same day I sought to provide historical perspective on this blog about the lessons to be learned from FDR's failed Court-packing plan. Carrington's piece nicely illuminates, unintentionally, two of the points I sought to make.

First, Carrington offers the conventional law school "lesson" about the New Deal confrontation. As Carrington summarizes the story: "Congress considered a law adding justices, but the bill was defeated when the need for it was eliminated (one justice unexpectedly upheld a challenged law; another anti-New Deal justice retired)." On this politically-neutered, Court-centered story, FDR's Court-packing plan became unnecessary and faded away quietly because FDR bent the Court to his will without the legislation. As I argue, this view ignores the broader political context: the enormous political and public resistance to FDR's proposal and the destruction of FDR's larger political agenda caused by FDR's decision to invest his massive political capital in his Court-packing plan. I realize the constraints of a brief op-ed, but I nonetheless think Carrington's "lesson" from the New Deal confrontation is revealing.

Second, Carrington's piece illustrates the perverse paradox of efforts to change the Court through the political process. He suggests pushing his plan in the wake of a Court decision striking down the health-care legislation. But of course, that would make the effort look like a politically-driven assault on the Court; not only would the half of Congress that would celebrate the Court's decision rally to the Court's defense, but history suggests many moderate and independent voters (whether they agree or not with the Court's decision), would also support the Court if legislation looks like a politically-driven, outcome-oriented challenge to the Court. The most effective context for mobilizing legislative efforts to change the Court would be, in theory, a context involving a broad coalition that would cut across conventional partisan lines and would not appear to be outcome-driven, in the sense of being a response to a particular, politically-charged decision. But of course, it is virtually impossible to mobilize sufficient public and political attention to these issues in this kind of sterile environment. Hence, the perverse paradox that makes effective legislative political challenges to the Court's power hard to envision. Carrington himself, of course, is not motivated by a narrow partisan agenda to punish the Court for any particular decision; he has been pushing his Court-packing proposal, along with a number of supportive legal academics, for many years. But I take his op-ed to reflect the realization of how difficult it is to generate political energy around this issue in the absence of a triggering Court decision -- but which would then politicize the proposal and destroy its chances for adoption. Hence, the perverse paradox that insulates the Court from these efforts having any meaningful political prospect.

By the way, Jack wrote a clever, fun post a few years back that provides a counterfactual history of what the modern Supreme Court would have looked like had Carrington's proposal (which Jack supports) been adopted after WWII. See here for that thought-experiment.


If Carrington is understating the political fallout from the court-packing scheme, you're overstating it. Roosevelt's biggest mistake was the fiscal tightening he supported which crashed the economy in 1938. Now that's a true parallel to Obama today.

In any case, I agree with you that Obama won't support any court-packing scheme. The sad thing is that nobody will consider any more extensive revision of the process such as fixed 18 year terms, staggered so a new Justice is nominated every 2 years with a mandatory vote within X days. That would be real reform.

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I'd emphasize that I think the lower courts is the real concern here. Filibustering, e.g., is not a real concern for SC justices. My immediate concern is cleaning up that appointment process.

The 18yr term for SC justices thing would for me be a reasonable add-on.

I deleted a more expansive comment, but one thing that comes to mind is that the breadth of jurisdiction also is something tweaked over the years. This is one reason, e.g., the USSC takes so few cases but also has more to pick from.

Limiting appeals from states (e.g., the very first judiciary act did this) or expanding Anti-Tax Injunction Act type legislation (if necessary, via use of the amendment process) can more directly deal with concerns here than judicial term limits.

I very much agree with Joe about the confirmation problem at the lower court level. There needs to be a fixed time frame for a vote. If 18 year terms were the price of that change, I'd be fine.

I'm less sure about tweaks to jurisdiction. I frankly think the Court gives too much deference as it is -- what are we up to now, 6 different "deference" principles? Those plus limited standing, the case and controversy rules, etc. mean that the Court has self-limited quite a bit. While I'm a big believer that most decisions should be made by the legislature, the Court does have a proper role and I don't want to create conditions which limit that role too much. That's in the abstract; any particular limitation could be good or bad.

One other suggestion I'd make is splitting the District Courts and Courts of Appeal (and maybe the Supremes) into criminal and civil sides. I know that in many Districts its hard to get civil cases heard and the judges these days too often come from the criminal side and just aren't familiar with civil practice.

I'm open the merits of my second suggestion but that does seem to be a major concern of people. I personally think many state criminal cases probably need not be taken by the Supreme Court. Stevens repeatedly made that an issue.

Reagan-Obama (thus far) had two to three slots to fill. 2/3 of the SC was picked less than 20 years ago. I don't think that is the issue. Maybe, limit the CJ to ten years.

In recent years, that position had some bite with even shadow CJ Stevens playing his role with skill.

The Court packing plan was an assault on the legitimacy of the Court because it was an obvious attempt to fix decisions in favor of the administration.

An alternative would be to impeach members of the Court for not following the Constitution. Putting aside for the moment whether impeachment under those conditions would itself be constitutional, this approach has the virtue of attacking alleged wrongdoing by the Court rather than simply trying to rig the process. Of course, if your beef is that the Court is enforcing the limits of the Constitution by striking down your unconstitutional legislation, this latter approach becomes far more problematic.

Yes, I do not think the problem with the federal judiciary is that Congress and the President have too little clout with them. Rather, it's that they're given so much deference that any more would erase the Constitution entirely.

If Obama isn't reelected, he has no chance at all of packing the Court. If he is reelected, statistically he's unlikely to NEED to pack the Court, the probability of one of the 5 who don't automatically rule in his favor dying during his second term being fairly high.

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I'm with Joe and Mark on the appointment process. It is just wrong that a group of Congresscritters (channeling our friend, here) can keep the nation's courts understaffed (under-judged?) for no reason other than partisan enmity.

Of course, I have the same view about all executive nominations.

Executive appointments are an a fortiori case AFAIC. With judges I can at least understand the motivation because of lifetime appointments. For District Courts even that is absurd.

There was an event today on C-SPAN honoring O'Connor with all four women justices present.

The moderator suggested a reform regarding the time it takes to decide upon judicial nominees. Ginsburg noted the problem there wasn't justices but lower court judges. Sotomayor noted it took over a year to confirm her as appellate judge. O'Connor (akin to Gore being elected) thought this terrible.

Of course, some new rule will apply no matter what party is in control of whatever branch.

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I think Rick Pildes is overstating his case. The FDR incident, however it is interpreted, was only one data point after all.

I wonder if a less dramatic resolution of the matter might be possible than Court packing. The original case establishing judicial review, Marbury v. Madison, was unanimous. Would it be constitutional to limit the Supreme Court's jurisdiction where the constitutionality of a federal law is called into question to cases where ALL nine justices vote to hear the case? This would not eliminate judicial review, but would require a greater degree of certainty before a law was declared unconstitutional.

It seems that the use of judicial review by the Supreme Court is much less likely to be political if striking down legislation required a unanimous vote.

Dan Ernst has an interesting post at the Legal History Blog today (4/12/12) on Chief Justice Hughes in a short discussion of a new book "FDR and Chief Justice Hughes" to be discussed later today at NYU. Dan closes his post with this:

"When a sharply divided Supreme Court and Roosevelt’s Court-packing plan jeopardized 'the independence and esteem of the judiciary,' Hughes saw to it that his ideal of the judiciary as a repository of reason would survive. He preserved that ideal–and, as we might say today, 'won'–by following his own advice: he extracted his Court from 'questions which lie close to public impatience' by crafting decisions that upheld controversial legislation from constitutional challenge."

What was it Finley Peter Dunne's Mr. Dooley said about the Court and "illictions"?

IOW, he saved the Court's 'reason' by abandoning the use of it? By finding ways to uphold legislation that very reason dictated should be struck down?

When we pay the danegeld, we will rationalize it. That's all he was doing: Rationalizing giving in to extortionate demands.

I haven't read the new book Dan Earnst discussed but I await reports on the NYU discussion. Maybe Brett has read the book already or Dan's post or perhaps only the excerpt I provided. What intrigued me about Dan's comment was the use of the word "won" in connection with Hughes "following his own advice" noted by Dan, suggesting that FDR has not "won," to compare with Prof. Pildes' theme of his recent posts.

But Brett responds res gestae like the cat whose tail has been stepped on without exploring Hughes' "reason." Let's call it "born-again reason," recognizing the events that started in 1929 that flowed from as least 1920, that in 1937 were far from resolved politically, including by the politics of the Court. Brett would probably prefer undoing much of what the Court did post-Dred Scott, especially during the New Deal and the Warren and Burger Courts.

Perhaps Prof. Pildes may be in attendance at NYU for the discussion on the book. If so, reports from him would be welcome.

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I don't think unanimity is workable. Note Marbury not only reaffirmed judicial power but all the justices were Federalists, the lead the Secretary of State who handled the matter originally. Not a great example to provide.

Brett, using a Vikings metaphor, thinks Cardozo/Bradeis/Stone/Holmes et. al. did not show "reason" and since they did before 1937, I wonder their excuse.

Hughes was a swing vote. He did not see things as easily as Brett. He also -- like Madison -- took a lesson from the forces of the time and the people overall on what an open-ended thing like commerce power or general welfare entailed.

It is overly simplistic to make this just about like he had a gun to his head. I note he also, with no pressure from FDR on the matter, was in the lead as the SC began to respect personal liberties outside of the economic realm. Previously, free speech, racial equality etc. was (except in a few cases) largely ignored.

"Reason" dictated it should not be ignored.

In his biography of Roosevelt, Jean Edward Smith argues that the Justices were already moving towards the modern interpretation of the commerce clause before the so-called "switch in time". In that interpretation, of course, there was no "danegeld" to pay.

Making matters worse, Mr. Carrington has His facts wrong. He states, "The Judiciary Act of 1789 set the number of justices at seven and imposed on them the duty to travel the nation in horse-drawn wagons to hear and decide cases" when the actual bill states "the Supreme Court shall consist of a Chief Justice and five associate justices". If He cannot/will-not research and/or read legislative history correctly, I question Mr. Carrington's qualification to speak on such a subject.

He also says, "The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?" He is incorrect. Nothing prevents the congress or the states from amending the constitution if the court fails to exercise due constraint. America has done so before with the 11th, 13th, and 16th amendments coming readily to memory. Mr. Carrington seems to be forgetting the fact the judiciary was intended to be independent of the other branches, raising further doubt to Me about qualifications.

Lastly, Mr. Carrington's concern about "the length of time that a mere mortal should hold so much political power" misses the fact the SCOTUS is not "a" Person but a collection of People. If Mr. Carrington cannot/will-not make such a mental distinction, again, I question His qualifications.

Well, I guess you told him. Geesh.

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Debt Consolidation Cannot agree more with this post...when will the USSC get their act together..take on a few more cases..and make some decisions?

Jack Balkin's Atlantic article provides historical background that may be useful as a guide for Pres. Obama vis-a-vis campaigning reflecting the impact of the Roberts Court on the current situation. As Jack points out:

"Despite what many people think, [FDR] did not run against the Supreme Court in the 1936 presidential campaign. He had every reason to, of course. .... Roosevelt did not make the Supreme Court a major focus of attention in his 1936 presidential campaign. Instead [FDR] directed his attacks primarily at the Republican Party and the American Liberty League. The Liberty League, financed by wealthy industrialists, was devoted to attacking the New Deal and accusing [FDR] of being a socialist The League attempted, unsuccessfully, to present itself as a bipartisan grassroots organization that represented the interest of ordinary citizens. {FDR] skillfully used it as a foil in his 1936 campaign. Attacking the League and the Republican Party allowed [FDR] to criticize the Court through indirection."

The court-packing attempt came AFTER the 1936 election and turned out to be ill-advised, impacting significantly FDR's domestic program. Consider that FDR did not present his Second Bill of Rights - that included health care - until1944.

Obama's steps so far are aimed at uniting real-people citizens.

While I agree with Jack that Obama will not run against the Court's power of judicial review and that "the institution of judicial review is by now well-entrenched", I'm not quite sure of this:

" ... indeed, around the world [judicial review] is generally regarded as one of America's distinctive contributions to constitutionalism"

since other nations' adaptations of judicial review may avoid extension to judicial supremacy.

Having read the author's book on CJ Marshall, I checked out Mark Field's referenced book. It does not go into much detail about the SC (which is suggests was "moderate" and as I did noted its civil liberty record), the discussion is suggests the Court was going in a certain direction already.

The vote on a key "switch" occurred months before the plan was released. The major problem with earlier legislation was bad draftsmanship and overreach (such as giving industries broad powers to make regulations) though also late 19th Century narrowing of Marshall rulings on the Commerce Power etc. helped.

The ongoing trend in the courts to change what was later deemed artificial line-drawing was already in the works in cases such as Nebbia v. NY. This plus the stuff noted by Balkin and Shag etc. underlines the context.

Obama has made limited remarks mainly on respect to two major cases with deep political significance. Judicial activism is a major political issue. Presidents appoint judges, through the Solicitor General counsel them what cases are appropriate to take and have an obvious major role in executing (and making) the law in which how the third branch acts is quite relevant.

It makes perfect sense for him to say the basic things he said, especially since (just one of the many things often missed in these discussions) he has been talking about these issues (and how he thinks even liberals should use the courts less, and his overall moderate appointments suggest this somewhat too) for years.

He is not making some major "war" on the Court and I doubt he will unless that overused word is abused akin to some remark yesterday by a commentator was exaggerated as some "war on woman." I think some of this commentary is putting too much into his remarks.

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Off topic (with advance apology).

I enjoy Mark Tushnet's posts at this Blog and respect that he does not provide for comments. But his two recent posts on his "Art and the First Amendment" have confused me. So I downloaded, printed and just finished reading his article. I'll be thinking about the article for much too long (except at age 81 it can't be too much longer). The title of his article lured me into reading it. But my understanding of art and of the First Amendment was not enhanced. Perhaps Prof. Tushnet's article might have better served readers if it had a subtitle, like:

"Our Framers ... Who "Art" in Heaven ... Have Given us a Hell of a First Amendment"

It might have served to attract originalists as to the public meaning/understanding of the First Amendment as of 1781 in considering how art fits in.

I only wish George Carlin were alive to provide commentary (beyond his famous seven words) on Prof. Tushnet's article.

But since George isn't available, maybe we could hear from Jack Balkin whose First Amendment views are somewhat criticized by Prof. Tushnet at page 206.

I eagerly await part 3 of Prof. Tushnet's post on "Art and the First Amendment."

Off topic comment correction: "1781" should be "1791." I need to get my originalism timetables straight when that constitutional time machine is available to go back to those appropriate years to determine public meaning/understanding back when.

Neil's post above is some of the most subtle yet sharp sarcasm I've yet read on the web. Kudo's to Jack for being willing to publish a piece that skewers him so thoroughly.

Brett must have missed the part that skewers Classic Originalism that apparently was too subtle for a simpletonian libertarian long suffering from a chronic case of "Wick-burn" to grasp.

Neil's tag of "Diet Originalism" for Jack Balkin's version translates to "Originalism Lite" which may have already been taken. But then all originalism is "Lite" going back to its foundational Ed Meese's "original intent."

I'm no big fan of Prof. Balkin's originalism discussions since I find the whole "originalism" debate hard to take seriously.

Brett really should watch out though. Balkin in effect underlines the plastic nature of "originalism" in that he can use it for his own ends w/o too much heavy lifting. Any satiric comment of his approach has far reach.

Brett, however, selectively appeals to the text and history (this isn't unusual, nor is his sarcasm when facing "them" who misconstrue what text/history means aka not his view of it*) so might need to worry less about that. Bad motive is present for Balkin, but those "other" originalists (the truth telling ones) are different.


* See, e.g., Mark Field, who is well schooled on both the text and history of major debates here, but somehow doesn't agree with Brett.

I think what Balkin is up to, and I make no bones about it, is exacly what Neil says above: He is "repurposing" the term "originalism".

In the same way a car thief "repurposes" vehicles...

As Neil piercingly puts it, "First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.”"

This is rather like a "Darwinist" whose account of gentic change is called "divine miracles". Originalists, definitionally, have a systematic account of constitutional change, which they call "amendments". The position is defined by this, and if you reject this, you are not an originalist.

Even if, for rhetorical purposes, you insist on calling yourself one.

Brett seems to have no clue as to the history of originalism as he compares Jack Balkin's alleged repurposing to that of a car thief. Originalism began with a form of divinity with the ability to determine original intent of the framers/ratifiers. Of course, Paul Brest smashed this to smitherines requiring originalists to go back to their Ouija boards several times, and continuing, even with Jack Balkin, with variations. It is the originalists who think they can divine what lurked in the minds of the framers/ratifiers/public back when. I don't know if Brett was even born or an adult when Ed Meese came up with his originalist divining rod. Assuming that Brett actually read Neil's rather short paper, perhaps he might follow up by reading Sandy and Jack's 1991 article ""Law, Music, and Other Performing Arts" cited by Neil in his article for background. I'm two-thirds through the former and will finish up later today or early tomorrow AM. I'd be interested in hearing whether Sandy and Jack sort of diverged after their article on the direction of constitutional interpretation.

In any event, there is no science to originalism - and only law office history.

Originalists, definitionally, have a systematic account of constitutional change, which they call "amendments".

"Originalism" has many definitions, including how -- within certain areas -- there can be some sort of "constitutional change."

The fact that interracial marriage is now deemed to be a constitutional right is a "change" of constitutional dimension. The specifics of federalism, the 1A and a myriad of other things too.

Many "originalists" that don't agree with Balkin on various things accept this. Madison himself understood how the specific understanding of what the Constitution meant could change over time.

Firm statements that suggest one very argumentative definition of the text and history is THE definition, even in the face of explainations from those who know history a lot more than the person speaking (not speaking about me personally here), is one reason why originalism debates are so tedious.

Does let people like Brett feel self-righteous. Certain positives, I guess.

Correction: Substitute in my comment:

"I'm two-thirds through the former"

"latter" for "former." I had fully read Neil's article earlier and am thrilled that it led to Sandy and Jack's 1991 article. Maybe the next nominee to the Court will ignore the "umpire" analogy and come up with musical licks.

Sandy and Jack's article reflects in a limited way Hans Georg Gadamer's "Truth and Method" on hermeneutics, another method of interpretation.

"The fact that interracial marriage is now deemed to be a constitutional right is a "change" of constitutional dimension."

Resulting from the 14th amendment, not at all incidentally.

Resulting from the 14th amendment, not at all incidentally.

If something that was originally not understood to be required by the amendment by most people at the time "results" in such a right -- see also Balkin's understanding of abortion rights -- the plastic nature of originalism is apparent.

If general principle can be stretched so far, it is hard to see what the limit is. But, "originalism" has so many meanings, often confused with textualism or something else, it isn't too surprising.

Brett's selective koans however might not be intended to be taken seriously. I'm sure Prof. Balkin, Randy Barnett and the like will provide 60 page analyses to determine the answer with the end result of "who knows."

Shag will have something to read after his long lunches though.

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After my long lunch yesterday, that closed with a glass of nice port for dessert, I finished reading Sandy and Jack's 1991 article. At the time it was written, both were at the Univ. of Texas School of Law. While Jack has of course written extensively on originalism, it is not clear to me whether Sandy has bought into it, especially based upon my reading of their 1991 article that skirts, musically, around originalism. (It Don't Mean A Thing, If It Ain't Got That Swing.) Here's the first paragraph of their Conclusion:

"Felix Frankfurter described as 'the single most important utterance in the literature of constitutional law' John Marshall's admonition that 'it is a constitution we are expounding.' Equally important is Marshall's insistence that the Constitution be interpreted so as to 'endure for ages to come, and consequently, to be adapted to the various crises of human affairs.' It has always been feared, though, that too much 'adaptation' would mean not the endurance, but rather the death of the Constitution. Yet how is one to tell the difference? Only half in jest do we announce that the subtext of this review is the question whether the performance of constitutional interpretation is better analogized to the Hanover Band's version of the Pastoral Symphony or to a jazz improvisation on Thelonious Monk's Round Midnight. We do not mean to suggest that the choice must be exclusively between these two alternatives."

Sandy and Jack are constitutional cats I can dig.

My reading pile grew just this morning with Stephen A. Siegel's "The Constitution on Trial: Article III's Jury Trial Provision, Originalism, and the Problem of Motivated Reasoning," available at SSRN:

A direct link is available at Larry Solum's Legal Theory Blog, where Larry gives it a "Highly Recommended! Download it While it's Hot!" and adds editorial comment urging originalists to respond (as Larry is a strong originalist) to Siegel's challenge.

Sandy is a participant in the Conference on Jack's book. So eventually we may find out if they converge or diverge on originalism, at least Jack's version. Perhaps the Conference may boil down to a Miller Lite moment on originalism:


In a further review of the participants at the Conference on Jack's new book, am I reading too much between the lines that this might actually be an INTERVENTION by non-originalists to bring Jack back from his addiction?

By the Bybee [expletives deleted], Sandy and Jack's 1991 article has a great take for film buffs on "The Freshman" beginning at the bottom of page 39, carried over to page 40, including footnote 166, in their description of post modernism.

The two (2) (Neil and Stephen) Siegels' attacks on originalism bring to mind Alfred Hitchcock's "The Birds" and a sign of what Jack may face at the upcoming Conference on his new book. (Hopefully a phone booth will be available for Jack's protection.)

Justice Stevens gave a speech that has some originalist implications (re: sovereign immunity) at University of Texas Law Review Association’s Annual Banquet, Austin, TX.

A lesser known part of the USSC website.

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I read Stephen Siegel's article on the Patton case over the weekend and he does a masterful job in demonstrating that Justice Sutherland (who preceded Meese and Bork on originalism), who wrote the unanimous opinion, stretched his originalism in the face of the express language of Article III, Section 2 on jury trials in federal criminal cases into living constitutionalism. As I read the article, I thought of an alternate title (or subtitle):


Yes, this 1930 decision was unanimous, " ... and there was no other opinion. Justices Brandeis, Holmes, and Stone are noted as concurring in the result only." (Pages 418-9)

The Originalism Blog has yet to post on this article, which wasLarry Solum's "Download of the Week." Perhaps the Originalists there are working on a suggested response like Larry Solum suggested when he first posted on this article.

The May 10th issue of The New York Review of Books has an interesting article by Ronald Dworkin "Why the Mandate is Constitutional: The Real Argument." A direct link is available at the Legal History Blog in its Sunday post on book reviews. It's relatively short, readable, with only two footnotes, and answers the broccoli brouhaha.

Dworkin is as usual interesting reading. One discussion of his article:

For those interested, I found Jonathan Gruber's graphic novel approach "Health Care Reform: What It Is, Why It’s Necessary, How It Works" informative. He is an economist that worked with both MA and the feds on health care.

Mark Tushnet with his new post "Publishing Standards" at New York Times acknowledges he is late with part 3 on his "Art and the First Amendment." But Mark makes a strong point on the failure of the NYTimes in its treatment of Philip Larkin's poem "This Be the Verse" by substituting in his short poem a "clean" word for a "dirty" word. The explanation of the NYTimes' Public Editor might be headed "This Be the Worse."

I'm glad that Mark has not forgotten about his part 3, which I continue to look forward to.

Today is the second and final day of the Intervention of Jack Balkin on his new book. I look forward to reports - including Jack's responses - hopefully fairly soon rather than months from now.

Mark Tushnet's part 3 post on his "Art and the First Amendment" asks the following question:

"Where Art Thou, Normativity?"

and links us to his new paper:

"The First Amendment and Political Risk"

which I have downloaded. The NYTimes, Sunday political shows and the Boston Globe are higher priorities for today, so perhaps tomorrow I'll find out if his new paper covers the GOP presidential campaign. Perhaps ACA may provide the candidates with medical coverage for foot-in-mouth disease.

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