Balkinization
an unanticipated consequence of
Jack M. Balkin
Balkinization Symposiums: A Continuing List
E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
The Health Care Case and the Social Contract
Now it can be told: John Roberts was secretly taking orders from Grover Norquist
The Missing Constitution
The Switch of One
John Roberts as Mona Lisa
The Secret History of the Chief Justice’s Obamacare Decision
Kennedy loses it
A Massive Victory for Liberalism
It was always about the tax-- and the Medicaid
Not the Power to Destroy: An Effects Theory of the Tax Power
The little tax power argument that could
Silver Linings for Today’s Losers in the PPACA Rulings
Early Thoughts on the Health Care Case
Terrible arguments prevail (but it’s not so bad)
Chief Justice Roberts and the Rule of Law
Congrats to Jack Balkin...
Charles Lane proves Akhil Amar's point
Supreme Court Strikes Down All Laws Signed By Barack Obama
Tough Luck Libertarianism and Health Care
On Griffin, Wartime, and the Wars that Matter
Considering War Time
What will we call the Health Care Cases?
Who will write the final opinions of the Term (and what will they say?)
Automated Arrangement of Information: Speech, Conduct, and Power
Citizens United Redux: or What "Democracy" Means for our Five Republican-Appointed Justices
Grab a Diet Coke
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The Health Care Case and the Social Contract
JB
If you haven't already, read Joey Fishkin's post on why "we are headed for a long-term change in the basic social bargain in the United States."
In an essay at the Atlantic, I connect this theme-- the Affordable Care Act as a significant change in the social contract--to the way that federal courts work in American history.
One important function of the federal courts is legitimating and policing government innovations that alter the terms of the social contract. Although they may resist at first, courts eventually ratify the changes and, in the process, set new constitutional ground rules going forward.
We can see this process in the constitutional struggles over the New Deal and the civil rights revolution. The Health Care Case is yet another example. In my essay, I explain why Chief Justice Robert's opinion performs this function: it legitimates and ratifies the new social contract created by universal health care, but with a conservative spin. Mandates on people not otherwise engaged in commerce must use the taxing power, not the commerce power, and conditional federal spending can't leverage withdrawing funding from existing social programs to induce states to accept new social programs.
In this respect, Roberts' opinion is of a piece with the work of the Burger Court: The Burger court ratified the 1960s civil rights revolution and Great Society programs, but with a distinctively conservative gloss that reshaped the meaning of these achievements going forward.
The Health Care Case is, of course, is only one decision. It is the beginning of the story. A great deal will turn on who wins the next several elections, and who gets to staff the federal courts and the Supreme Court. We will only know what changes we have wrought, and what they mean, later on.
Posted
11:49 AM
by JB [link]
Now it can be told: John Roberts was secretly taking orders from Grover Norquist
JB
That's because Norquist's organization, Americans for Tax Reform, argued that the mandate was a tax back in January of 2011: 1 Adult 2 Adults 3+ Adults 2014 1% AGI/$95 1% AGI/$190 1% AGI/$285 2015 2% AGI/$325 2% AGI/$650 2% AGI/$975 2016 + 2.5% AGI/$695 2.5% AGI/$1390 2.5% AGI/$2085Comprehensive List of Tax Hikes in Obamacare
Next week, the U.S. House of Representatives will be voting on an historic repeal of the Obamacare law. While there are many reasons to oppose this flawed government health insurance law, it is important to remember that Obamacare is also one of the largest tax increases in American history. Below is a comprehensive list of the two dozen new or higher taxes that pay for Obamcare’s expansion of government spending and interference between doctors and patients.
So now we know the truth: John Roberts never switched his vote! Like a good movement conservative, he followed Norquist's line unquestioningly.
Individual Mandate Excise Tax(Jan 2014): Starting in 2014, anyone not buying “qualifying” health insurance must pay an income surtax according to the higher of the following
Exemptions for religious objectors, undocumented immigrants, prisoners, those earning less than the poverty line, members of Indian tribes, and hardship cases (determined by HHS)
Posted
11:09 AM
by JB [link]
The Missing Constitution
Mark Graber
The opinions in National Federation of Independent Business v. Sebelius serve as a reminder that most justices think they are being paid by the word or have moral obligations to keep their otherwise idle clerks busy. Each opinion is based on a Constitution that can be summarized in several sentences. What is most interesting and disturbing is the absence of one alternative Constitution.
Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.
Chief Justice Roberts’s Constitution is the Constitution of the Republican Party. National powers are enumerated and limited. Those limits are enforced by the Supreme Court. The New Deal represents the absolute limit of federal power. No New Deal legislation actually required persons to purchase products available on the interstate market. Therefore, the individual mandate is not a valid exercise of the commerce clause. No New Deal measure ever conditioned so much money on compliance with federal conditions for receiving federal funds. Therefore, the extension of Medicaid is unconstitutional. New Deal decisions, however, plainly stated that any exaction that gets some revenue can be a tax. Therefore, the individual mandate is a constitutional tax.
The Constitution of the Justices Kennedy, Scalia, Alito, and (particularly) Thomas, is the Constitution of the Tea Party. New Deal decisions such as Wickard v. Filburn survive, if they survive, only on the principle of stare decisis. Such pre-New Deal decisions as United States v. Butler better reflect fundamental constitutional commitments. The federal government has a very limited role in making social welfare policy, so such agencies as the Department of Education are constitutionally suspect. Both the individual mandate and expansion of Medicaid invade fundamental state prerogatives and so should be declared unconstitutional unless clearly sanctioned by text or precedent. Whether states on their own can solve health care problems is not relevant to the constitutional question.
What might be called the Move-On or Progressive Constitution is missing from this debate entirely. That Constitution, as elaborated in different ways by Jack Balkin, Frank Michelman, Alexander Tsesis, Rebecca Zietlow, Sot Barber and many others (one always loses friends composing these lists) goes something like this. The post-Civil War Amendments, most notably the abolition of slavery and the equal protection clause, were designed to ensure that all persons would have the rights and resources necessary to live lives as democratic citizens (or some other phrase). Persons need rights to health care in order to function as democratic citizens. Therefore, the individual mandate and expansion of health care are legitimate exercises of congressional power to enforce the rights protected by the Thirteenth and Fourteenth Amendments.
This absence may have a subtle effect on constitutional development. Opinions do not simply decide cases. They make different developmental paths somewhat more or less likely. Even though Lawrence v. Texas explicitly denied having any relevance for same-sex marriage, the constitutional case for same-sex marriage was easier to make after that case was handed down. The health care opinions entrench the basic principles of the Republican Constitution a bit more than was previously the case and make championing the Move-On Constitution a bit more difficult.
Posted
4:55 PM
by Mark Graber [link]
The Switch of One
Gerard N. Magliocca
"A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in--a judge who does not to some extent tailor his judicial philosophy to his beliefs inevitably becomes badly frustrated and angry. . . A judge who does not decide some cases, from time to time, differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his judicial philosophy, and be subject to criticism for doing so, no matter how important the issue involved, is a fool."
Justice Hugo Black
Posted
1:38 PM
by Gerard N. Magliocca [link]
(21) comments
John Roberts as Mona Lisa
Guest Blogger
Rick Pildes
Her enigmatic, knowing smile comes to my mind each time I re-read Chief Justice Roberts’s opinion. How much of his opinion reflects his own purely internal legal analysis, how much his concern for perceptions about the institutional authority and legitimacy of the Court? Did he always accept the tax power argument or did his views shift during the course of the opinion-writing process? Did he do any work to persuade Justices Breyer and Kagan to join his opinion on the Medicaid issue, or was that their view from the start? John Roberts is hauntingly, gently smiling out at us from his opinion, and we will be staring back at his opinion for years trying to come to terms with all that his opinion might or might not imply.
crossposted at Election Law Blog
Posted
12:23 PM
by Guest Blogger [link]
The Secret History of the Chief Justice’s Obamacare Decision
Guest Blogger
John Fabian Witt
A Democratic Party president’s signature legislative victory is imperiled by an aging Supreme Court stocked by Republican appointees. Tricky constitutional law obstacles, including limits on the Congress’s power under the Commerce Clause, threaten to undo a vast federal insurance program designed to solve a pressing social crisis. But then one of the justices identifies an alternative way to rescue the constitutional basis for the legislation: Congress’s tax power, he concludes, offers the basis for upholding the legislation.
The scenario sounds like Chief Justice John Roberts and the Affordable Care Act known as Obamacare, which the Supreme Court upheld yesterday on the basis of the Congress’s taxing power. But it also matches perfectly the story of Justice Louis Brandeis, President Franklin Roosevelt, and the Social Security Act of 1935. And amidst all the coverage of yesterday’s decision, the crucial connection between Roberts and Brandeis has gone missing. Right out of law school, in 1979, the Chief Justice clerked for Henry Friendly, long thought of as one of the greatest judges of the twentieth century, perhaps the greatest federal judge (alongside Learned Hand) never to serve on the Supreme Court. Friendly, in turn, clerked for none other than Louis Brandeis. Brandeis’s broad view of the Congress’s taxing authority is readily apparent in Friendly’s widely respected taxation decisions. And now Brandeis’s influence is apparent in the most important opinion of Chief Justice Roberts’ tenure. Read more »
Posted
10:58 AM
by Guest Blogger [link]
Kennedy loses it
Andrew Koppelman
You can read the rest of this post at Salon.com, here.
Posted
8:56 AM
by Andrew Koppelman [link]
A Massive Victory for Liberalism
Joseph Fishkin
Simple question: Who won yesterday?
Let’s begin with a useful distinction of Jack’s and Sandy’s: between the ordinary, low politics of winning and losing elections and enacting laws, and the high politics of constitutional meaning and constitutional change. In simple low politics terms, Obama won yesterday. The two-word headline version of the day’s news is: “Obamacare Upheld.” That is as far into the story as a lot of voters will go. That’s why many conservative commentators and actors in low politics, such as Michelle Bachmann on the steps of the Supreme Court, immediately attacked the ruling in the harshest terms as a defeat and a betrayal. They think they lost—and in terms of low politics, they did. This ruling will help bolster the President’s case for re-election by underscoring the legitimacy of his central policy achievement, whereas a ruling the other way would have lent support to many different lines of political attack against him.
On the other hand, a number of elite conservative commentators, who are more engaged with high politics than low, claimed a major victory. It is easy to see why. In his Commerce Clause discussion, Chief Justice Roberts has, at a minimum, reaffirmed and reinvigorated the Lopez/Morrison line of Rehnquist Court limitations on the Commerce power whose future after Raich had seemed in doubt. He has also taken a major whack at the Spending Clause (in a holding that won seven justices!). “We won,” Randy Barnett crowed, “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today.” Barnett has a special right to crow. Due in no small part to his own activism, arguments that seemed “off the wall” only two years ago were adopted by conservative media, then Republican politicians, and finally by half the Supreme Court. Thus George Will wrote that “the conservative legal insurgency against Obamacare has won a huge victory for the long haul.” So, in high politics terms, looking beyond the outcome of the case itself, was NFIB v. Sebelius essentially a victory for the Federalist Society and its constitutional project?
No.
The decision was the most important court victory for liberalism in my lifetime. For all that Chief Justice Roberts gave conservative movement activists in his compromise ruling yesterday—and he gave them a lot—he gave liberals something even more precious.
Read more »
Posted
3:40 AM
by Joseph Fishkin [link]
It was always about the tax-- and the Medicaid
JB
Over at Slate, I have a longer discussion of the Health Care Case, including my guess about what the Medicaid holding means for the future. Here's a taste:
Read more »
Posted
8:00 PM
by JB [link]
Not the Power to Destroy: An Effects Theory of the Tax Power
Neil Siegel
In his decisive opinion today, Chief Justice Roberts embraced a view of the tax power entirely consistent with a theory of the tax power that Robert Cooter and I have developed. A somewhat dated version of the article that articulates the theory, forthcoming in the Virginia Law Review, is available here. Bob and I will post an updated version on SSRN soon. The title is "Not the Power to Destroy: An Effects Theory of the Tax Power." Here's the latest abstract:
Unless the U.S. Supreme Court’s tax power jurisprudence reinforces restrictions on the Commerce Clause, Congress can circumvent limits on its commerce power by calling regulations backed by penalties “taxes” and justifying them under the tax power. When the Court restricted federal commerce power in the 1920s and 1930s, it distinguished between taxes, which raise revenues, and penalties, which regulate behavior. This distinction is misguided because many federal exactions do both. The post-1937 Court essentially abandoned judicially enforceable limits on the Commerce Clause, so it had no need to rethink previous distinctions between regulations of interstate commerce and taxes. Since its “new federalism” decisions, the Court has yet to reconsider the scope of the tax power, causing confusion in litigation over the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA).
Legal theory helps to answer constitutional questions when existing doctrine does not. One who must pay a pure penalty is condemned for wrongdoing. Moreover, she must pay more than the usual gain from the forbidden conduct, and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. A pure penalty prevents behavior, thereby raising little revenue.
Alternatively, a person who must pay a pure tax is permitted to engage in the taxed conduct. Moreover, she must pay less than the usual gain from the taxed conduct, and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. A pure tax dampens conduct but does not prevent it, thereby raising revenues.
Situated between pure taxes and pure penalties are mixed exactions, whose expression sounds like a penalty and whose material characteristics look like a tax. Thus the ACA’s exaction for non-insurance has a penalty’s expression and a tax’s materiality. Should courts interpret a mixed exaction as a tax or a penalty? Our answer depends on the exaction’s effect and follows the Court’s deferential approach to federalism cases. If Congress could reasonably conclude that the exaction will dampen—but not prevent—the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could reasonably conclude only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. The Congressional Budget Office predicts that ACA’s exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the exaction is a tax for purposes of the tax power.
Posted
7:52 PM
by Neil Siegel [link]
The little tax power argument that could
JB
Over at CNN.com I explain why the tax power argument only moved to center stage at the very end of the litigation over the Affordable Care Act.
This is an opportunity to offer a shout out to Gillian Metzger, Trevor Morrison, Andy Pincus, and the entire amicus team for their outstanding work on the tax power briefs we filed in the lower federal courts and in the Supreme Court. Thanks also to Brian Galle and Edward Kleinbard, who joined forces with us at the Supreme Court level.
We seemed to get nowhere in the courts for a very long time, but slow and steady wins the race!
Posted
6:50 PM
by JB [link]
Silver Linings for Today’s Losers in the PPACA Rulings
Frank Pasquale
There are many excellent commentaries on the Supreme Court’s rulings today. Pam Karlan offers a great summary of the opinions:
Posted
6:16 PM
by Frank Pasquale [link]
Early Thoughts on the Health Care Case
Deborah Pearlstein
Initial reports by CNN and Fox News reporting that the Affordable Care Act (ACA) had been struck down notwithstanding, the world now knows the Supreme Court voted to uphold the ACA in nearly every respect. In brief, I think the Court reached the right outcome on the individual mandate, and Chief Justice Roberts did the right thing in voting to uphold it. We learned there is still a difference in this country between politics and law. And the Court, albeit by a bare 5-4, knows it when it sees it.That said, the case produced nearly 200 pages worth of opinions from the justices, and they are chock full of interesting and important things to discuss. In no order of priority and purely in the interest of starting somewhere, a few initial thoughts.
A Little Kremlinology
As a blogger or two have noted, the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito refers repeatedly to Justice Ginsburg’s opinion (most of which was also joined by Justices Kagan, Sotomayor, and Breyer) as a “dissent.” In the official court syllabus, Ginsburg’s opinion is called an opinion “concurring in part, concurring in the judgment in part, and dissenting in part.” Was this an error by the joint dissenters? Evidence that a majority of the Court had been planning to overturn the ACA, that the joint dissent was itself initially a majority opinion, and that Chief Justice Roberts’ vote changed at the last minute, leaving the Court to scramble to revise and correct all of its opinions (corrections it wasn’t fully successful in making)?
Well, maybe. Justice Ginsburg’s opinion goes both ways, so to speak. Still, it is a bit odd that the primary dissent refers to an opinion substantially concurring with the Court’s judgment as a “dissent,” rather than, say, a concurrence, or probably better given Ginsburg’s mixed conclusions, the “opinion by Justice Ginsburg.” Standing alone, I’d say curious, but perhaps not dispositive.
Read more »
Posted
5:56 PM
by Deborah Pearlstein [link]
Terrible arguments prevail (but it’s not so bad)
Andrew Koppelman
You can find the rest of this post at Salon.com, here.
Posted
4:37 PM
by Andrew Koppelman [link]
Chief Justice Roberts and the Rule of Law
Gerard N. Magliocca
We have a split personality when it comes to judges. Sometimes we want them to follow the law no matter what the consequences are. Blind justice. Sometimes, however, we want them to make a wise decision no matter what the law is. Solomon.
Chief Justice Marshall famously found a way out of tough spot in 1803 by reading the Judiciary Act of 1789 in a peculiar way to deny William Marbury a remedy. Following the law would have brought the Court into a terrible (and destructive) clash with President Jefferson. He lectured the President about not giving Marbury his commission, but did nothing to help.
Chief Justice Hughes less famously found a way out of a tough spot in 1935 by holding that Congress lacked the power to repudiate partially Treasury bonds but that bondholders were not entitled to a remedy. Following the law would have brought the Court into a terrible (and destructive) clash with President Roosevelt. He lectured Congress about the sanctity of bonds, but did nothing to help.
Chief Justice Roberts did something similar today. Following the law and reading the Affordable Care Act in the most natural way (failing to buy health insurance leads to a penalty, not a tax) would have forced him to strike down the individual mandate. So he didn't do that. Why? Because a 5-4 straight-line party decision invalidating part or all of the Act would have have brought the Court into a terrible clash with President Obama. The Chief Justice gave a pretty speech about federalism, but ultimately he did nothing about it. (Maybe I'm underestimating the importance of the Medicaid issue--I'm not sure.)
Now let's turn to the campaign and see if the voters renew the President's mandate or not. No preemptive opinion this time (barely).
UPDATE: If you want to read more about the Chief Justice Hughes example, see my paper that will be coming out in the Florida Law Review.
Posted
12:35 PM
by Gerard N. Magliocca [link]
(35) comments
Congrats to Jack Balkin...
Frank Pasquale
...for authoring "The Health-Care Mandate Is Clearly a Tax—-and Therefore Constitutional," back in May. From his lips to Justice Roberts's ears.
I would also like to congratulate "individuals exposed to asbestos from a mine in Libby, Montana," for keeping the Medicare coverage PPACA granted them. The joint dissent would have stripped that away, along with other parts of the Act they deem "minor provisions," in a blanket repeal of PPACA they would characterize as "caution" and "minimalism." I'm sure the tens of millions of Americans who will now enjoy insurance define "caution" quite differently.
Finally, a tip of the hat to Tim Jost, who has carefully and comprehensively blogged about key steps toward PPACA implementation, even with the "constitution in exile's" Sword of Damocles hanging over it. If you want to learn more about the "Premium Tax Credit Final Rule," essential health benefits, or minimum loss ratios, he's the go-to person.
Posted
12:23 PM
by Frank Pasquale [link]
Charles Lane proves Akhil Amar's point
Stephen Griffin
One of the hardest points to get across to the media about the ACA is why so many legal scholars think it should have easily survived without all the sturm und drang. The fact that most scholars think the ACA is constitutional has been widely reported. The why, not so much. It's proven hard for journalists to cope with the acres of precedent supporting complex regulatory statutes like the ACA. Apart from the occasional article on grain for home consumption and medical marijuana, the reality of a substantial web of precedent has proven difficult to convey.
Charles Lane's WaPo column of yesterday illustrates this by reducing the dispute over the ACA to a conflict of values. It's liberty vs. egalitarianism according to Lane (with an apparent assist from Stephen Carter). This is a good example of how some political theorists read the Constitution, as an abstract "ordering of values." But not lawyers. Funny thing is, we think the Constitution is actually a law. As law, the Constitution could only be effective across a wide range of disputes once it was implemented by the judiciary in a system of common law precedent. Lane's approach simply junks the common law in favor of going right to the supposedly underlying values. This has the effect of proving Amar's point that the only way the Court could invalidate the ACA is by ignoring decades of multiple precedents, something that courts do quite rarely.
Lane believes turnabout is fair play, invoking the overturning of, yes, decades of precedents during the New Deal. The justices that found themselves in the minority were arguably defending an abstract value, federalism, albeit one directly implicated by the constitutional plan. They thought the system of federalism would collapse unless a hard distinction was maintained between what was national and what was local. But Lane is missing that there is no real parallel between the pre-New Deal and post-New Deal precedents. Post-New Deal, the Court realized that it was not in the best position to defend federalism by making what amounted to policy decisions. The value the Court came to defend was not liberty or equality, but deference to Congress. Or, if you like, democracy.
The asymmetry between the pre and post-New Deal cases has a deeply practical side. The conservative jurists who opposed the New Deal predicted, in effect, value chaos. They were wrong. Those who support the post-New Deal cases don't predict value chaos if the ACA is overturned. That's not what happens when you don't defer to Congress. Some values may be vindicated tomorrow. But if the ACA is struck down the result could well be policy chaos of a kind we haven't experienced since the New Deal. That's what happens when the Court substitutes its judgment for Congress in the service of abstract values untamed by precedent.
Posted
6:26 PM
by Stephen Griffin [link]
(17) comments
Supreme Court Strikes Down All Laws Signed By Barack Obama
JB
Associated Press, Wednesday, Jun 27th
WASHINGTON (AP)-- In a suprising announcement, the United States Supreme Court assembled one day earlier than expected and announced their decision in the highly contested health care litigation.
In a 5-4 decision, the Justices struck down not only the entire Affordable Care Act, but all legislation signed by Barack Obama since he became president.Having held that the individual mandate is unconstitutional, we next consider whether the mandate is severable or is inextricably related to the rest of the Affordable Care Act. Upon further reflection, it appears to us that all of President Obama's efforts since his election have been part of an elaborate scheme to foist European-style socialism on an unsuspecting public. See generally, Fox and Friends (collecting examples of Obama's socialist agenda); The Rush Limbaugh Show (same). Like the ACA itself, none of these acts contains an explicit severability clause stating that if one law is held unconstitutional the others should remain standing. We therefore conclude that all laws signed by President Obama during his term in office are void.
Departing from Supreme Court tradition, Justice Antonin Scalia published his concurring opinion on his new blog, It's Nino's Law: Get Used to It. In his opening post, Justice Scalia explained:Since my recent opinion in Arizona v. United States I've finally realized that what I've really always wanted to be is a conservative pundit. Therefore from now on all my opinions will appear as blog posts. Oh, and by the way, why does Barack Obama hate America?
Not to be outdone, Justice Ruth Bader Ginsburg published her dissenting opinion on Twitter:Ruth Bader Ginsburg @ruthiebg
OMG! WTF!
Posted
2:45 PM
by JB [link]
Tough Luck Libertarianism and Health Care
Andrew Koppelman
Posted
11:43 AM
by Andrew Koppelman [link]
On Griffin, Wartime, and the Wars that Matter
Mary L. Dudziak
Thank you to Stephen Griffin for his interesting post about my book War Time. One thing Stephen and I agree on, and that informs his current work, is that seriously taking up diplomatic history is essential to understanding the way war powers and the national security state develop in the 20th Century.
As it happens, I am rushing off to the diplomatic historians' annual meeting, so I have time only for a short note. At the opening state-of-the-field plenary panel on Thursday evening, I plan to discuss the ways that foreign affairs history and legal studies need each other. In developing my remarks, I have had the contributions in Griffin's work in mind.
While there is much we agree on, let me highlight an important point of disagreement. Griffin argues that:
Dudziak determinedly ignores the issue of the relative significance of America’s various and very different twentieth century military conflicts to our post-9/11 reality. One plausible way to distinguish among America’s wars, for example, is to take into consideration the importance of the foreign policy objectives pursued, the costs incurred, both quantitative and qualitative, and, of course, casualties.
This point matters to Griffin because distinguishing between big military conflicts and smaller ones is an essential element of his work. It is these larger wars, he argues, that are the ones constitutional scholars should be concerned about, and where democratic constraint is most important. I don't dispute the importance of democratic constraint in the decision to engage in a large-scale war. In my Balkinization post Another way to think about War Powers: Why the Small Wars Matter I responded to Griffin this way:
historian Marilyn Young argues
that the small wars have played an important role in this normalization
of the use of force, and especially the insulation of the American
people from American war politics. In the many American military
interventions of the Cold War, she argues, post–World War II
administrations “had to create a public tolerance for war as normal rather than aberrational, so normal that
after a while only those who were actively engaged in fighting it—and
their families—noticed it was being fought at all.”
For more on American power in the context of on-going warfare, this review by war correspondent Peter Maass is especially illuminating.
This consciously facilitated insulation of the American people from American wars, I argue,
has helped to atrophy political restraints on the war powers. And so
the "real" wars that have impacted the workings of our constitutional
order include the small wars and the "forgotten wars" that lead us to
Bacevich's critique, that "war has become a normal condition, something
that the great majority of Americans accept without complaint."
Posted
10:55 AM
by Mary L. Dudziak [link]
Considering War Time
Stephen Griffin
I’m
happy I had the chance to make a post about war powers before the ACA din
descends. My comments here are taken
from a short review of fellow Balkinization blogger Mary Dudziak’s book War Time that I just posted to
SSRN. Her book is well worth reading and
is expressive of a widespread unease with the way America went to war after
9/11.
Posted
8:51 PM
by Stephen Griffin [link]
What will we call the Health Care Cases?
JB
Students of constitutional law know that many famous Supreme Court decisions that resolve several different lawsuits at once have been called not by the names of the parties in the lead case, but by a nickname that describes their content. The most famous examples are The Slaughterhouse Cases, The Civil Rights Cases, and the Trademark Cases. In addition, groups of opinions decided roughly contemporaneously have later been grouped together in hindsight, although they are not always cited that way in legal opinions. Examples are The Insular Cases and The Legal Tender Cases.
Posted
11:57 AM
by JB [link]
Who will write the final opinions of the Term (and what will they say?)
JB
There are three opinions left for this Supreme Court Term:
Posted
4:05 PM
by JB [link]
Automated Arrangement of Information: Speech, Conduct, and Power
Frank Pasquale
Tim Wu's opinion piece on speech and computers has attracted a lot of attention. Wu's position is a useful counterpoint to Eugene Volokh's sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like "search is speech" or "computers can't have free speech rights." Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.
Digital Opinions
Wu states that "The argument that machines speak was first made in the context of Internet search," pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it "spoke" the offending arrangement of information and 2) the arrangement was Google's "opinion," and could not be proven factually wrong (a sine qua non for liability).
Read more »
Posted
12:45 PM
by Frank Pasquale [link]
Citizens United Redux: or What "Democracy" Means for our Five Republican-Appointed Justices
Marvin Ammori
Today, without oral argument or briefing, the Supreme Court handed down American Tradition Partnership v. Bullock, a one-page decision reversing the Montana Supreme Court and striking down a 100 year old law limiting corporate spending in Montana elections. The Court--or rather the same five Justices appointed by Republicans who brought us Citizens United--held that Citizens United squarely forbids states from banning corporate spending on elections--whatever the facts in that state. The dissenters--or the four Justices appointed by Democrats--would have heard the case to reconsider Citizens United, noting that expenditures can be as corrupting as direct contributions, and noting the huge flood of corrupting corporate money in the 2012 elections.
This decision may show that the Supreme Court will not defer to the fact-finding of legislatures. The Court is instead determining its own facts. Those facts: no, no, expenditures do not give rise to corruption or its appearance. The first fact is about how elected officials react to expenditures. The second fact is about how Americans view the millions spent by SuperPACs and huge corporations. The Supreme Court's view on both of these facts is probably totally detached from the experience of elected officials and average Americans, many of whom think their government is corrupt.
But that can't be right. The Montana decision goes into great detail about how out of state corporations and "copper kings" would buy and sell the government through expenditures. Those facts were swept aside in a page. (You should read for the riveting, corrupt soap-opera-like drama alone (e.g., pages 14-25).)
Instead, what's going on is something different.
Either (1) the five Republican-appointed Justices are completely unprincipled and simply will do whatever it takes to help Republicans gain power and enact a pro-corporate agenda. In a widely read Atlantic piece, James Fallows just accused the five Justices--Kennedy, Scalia, Thomas, Roberts, and Alito--of being part of a judicial "coup" running back to Bush v. Gore, which included three of these justices and two replaced by Roberts and Alito.
Or, to be more charitable, the Supreme Court might actually have a principle. The Supreme Court (2) might not care about the facts (as it doesn't) because it simply believes that corporations should be part of our democracy. They should be able, as a matter of right, to buy and sell candidates who agree and disagree with them, just as individuals should be allowed to vote for or against candidates. They don't think there's anything wrong with corporate involvement in campaigns. Justices on the infamous Lochner court probably didn't second-guess the health conclusions of the laws; they believed the laws conflicted with liberty.
From both Citizens United and this decision, it seems our Republican-appointed five man majority defines liberty and democracy to require unlimited corporate spending on elections--whatever the facts, whatever the outcomes (though knowing those outcomes favor Republicans and favor donors who fly Justices to nice events and fund their wives' organizations). (For more on this point, see Joshua Cohen's 2011 Dewey Lecture.)
This decision raises one other point: many hopeful activists have proposed ways around Citizens United they think would be upheld. That is probably nuts. The five-member majority will not let that happen. If a state Supreme Court, upholding its own legislature, on a hundred year law, on a colorful and deep record, to keep out the corruption of out-of-state corporations, is struck down without ceremony, I can't see many laws getting through these guys.
The Court has even undermined public financing and public matching funds more than most people will admit. If a state makes public financing available for one side, the state could not increase the amount provided or the matching funds formula based on the money spent by the other side or the supporters of the other side. These limits constrain the effectiveness of public funding; indeed, they effectively make it impossible to match the resources of those backed by billionaires willing to write huge checks.
I have written elsewhere that I think Obama should make the Supreme Court--and particularly Citizens United--a key plank in his campaign. If the public knew more about the five Republican appointees to the Supreme Court--e.g., that their current Chief isn't Thurgood Marshall and Harry Reid--maybe they would be more excited about voting for Obama and for Senate Democratic candidates, and against their opponents.
Posted
11:45 AM
by Marvin Ammori [link]
Grab a Diet Coke
Ken Kersch
I got a text a few days back from a non-plussed former student, now in law school, doing his first stint as a summer associate in a large prestigious law firm in a big glass box. It reminded me of my two-years as a K Street lawyer. I offer a series of office haiku I wrote back then (the Clinton administration)(I'm currently an “inactive” member of the DC Bar).
The hum of the air
Slumped in my chair nodding off
Suddenly, a knock.
Window reflecting
Sealed like a submarine porthole
The law – a depth charge.
Photos on the desk
In clear plastic, places I’ve been
Not ceilings, but sky….
High back swivel chair
Rolls inches and tilts back, forth
Why reach for the phone?
White outlet, beige wall
Two faces in terror bored
Waiting for the prongs.
Press down the button.
In liquid suspended the time
Later than I thought.
Drop ceiling above
If the world weren’t upside down
White enough to ski.
Degrees on the wall.
Is this what the smart people do?
Grab a Diet Coke?
Posted
8:05 AM
by Ken Kersch [link]
Books by Balkinization Bloggers
Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024)
David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024)
Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024)
Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023)
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
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Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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