Balkinization: December 2013

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Coming to a Theater Near You: Constitutionalism, Constitutional Orders and the AALS

Hobby Lobby Part III-A—Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?

The Utah Attorney General's office blows it

Happy Boxing Day!

An Interview with Orly Lobel-- Talent Wants to be Free

Judge Shelby and Justice Scalia

Hobby Lobby Part III—There is no “Employer Mandate” [UPDATED 12/18]

Throwing The Civil Rights Cases

Hobby Lobby Part II -- What’s it all about?

How Congress Works (And the ObamaCare Subsidies Lawsuit)

Hobby Lobby Part I -- Framing the issues

Nelson Mandela and the American Constitution

Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter

Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?

Reality mimics parody

Is Our Constitution Broken?

More on pardons

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Sunday, December 29, 2013

Coming to a Theater Near You: Constitutionalism, Constitutional Orders and the AALS

Mark Graber

Miguel Schor has organized two wonderful panels on “The Importance of Constitutionalism” for the Annual Meeting of the AALS at the end of this week. The first panel (Friday, January 3, 8:30-10:15) is devoted to how ordinary citizens shape the meaning of the Constitution. Speakers include David Cole (Georgetown), Kim Scheppele (Princeton), Reva Siegel (Yale), and Rebecca Zietlow (Toledo). The second panel (Friday, January 3, 3:30-5:15) focuses on whether the Constitution facilitates or undermines the goals in the Preamble. Speakers include Randy Barnett (Georgetown), David Law (Washington), Sandy Levinson (Texas), and, perhaps for comic relief, me. All told a healthy dose of Balkinizationers and friends.

My remarks are going to be based on a new project I am starting. My first point is that conversations about whether constitutions are working should focus on the entire constitutional order rather than, as is too often the case, on constitutional law or constitutional texts, and that one crucial facet of constitutional orders is the way constitutional politics is organized. The way in which constitutional politics is organized, the project maintains, influences the roles of different constitutional institutions and whose understanding of the constitution becomes the official law of the land.

My second point is that constitutional politics in the United States has frequently been transformed, that The Federalist Papers belongs in the fiction section of the law school library. The rough history goes something like this. Madison wants a "constitution against parties." By the mid-1840s, we have a struggle over which coalition is the legitimate party of the people. Abraham Lincoln, in this sense, is far more indebted to Martin Van Buren in his understanding of politics and constitutional authority than he is to Madison or any other framer. Lincoln's rejection of judicial supremacy in his first inaugural is based on van Buren’s understanding of parties as constitutional interpreters, not on Jefferson’s departmentalism, which was rooted in a Madisonian separate of powers logic. Republicans win the struggle to be the legitimate party of the people (in part by slaughtering rivals), at least temporarily, and the post-Civil War Amendments are designed to entrench that constitutional politics. They fail. By the 1880s and 1890s, we see the development of a new constitutional politics, one structured by competition between two non-ideological parties and an increased role for the federal courts. The New Deal Revolution seeks to entrench this system, even as the precise regions the judges are expected to patrol is altered. This New Deal constitutional order begins to break down in the late 1960s as constitutional politics is slowly transformed from a competition between two non-ideological parties to a competition between two polarized parties. This is the system we have today, with the important proviso that while we have a constitutional politics structured by two ideological parties, we have a constitutional theory and a great deal of institutional practice that reflects the constitutional commitments of a constitutional order operated by two non-ideological parties.

I hope this whets a few appetites both for the panels and projects.

Posted 10:48 AM by Mark Graber [link] (18) comments

Saturday, December 28, 2013

Hobby Lobby Part III-A—Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?

Marty Lederman

The plaintiffs in Hobby Lobby and Conestoga Wood argue that federal law compels them to act contrary to their religious obligations, by requiring them to offer (and pay for and administer) employee health insurance plans that include contraception coverage. As I explained in my most recent post, that turns out to be a simple misreading of the law: Although employee plans must include contraception coverage, the Affordable Care Act does not require that employers offer such plans to their employees, nor even impose substantial pressure upon them to do so.

I received several thoughtful responses to that post, questioning whether that conclusion can be right. My correspondents have not taken issue with my reading of the law. Nor have they argued that the law imposes a duty on the plaintiffs to offer health insurance plans. They have suggested, however, that the law must have a very different practical effect than I surmised because, if I were correct, then most employers would be dropping their health insurance plans—something that is not happening and that the government does not expect to happen anytime soon.

My correspondents are of course correct about their factual premise: Some large employers will drop their employee heath insurance plans in response to the ACA, but most will not. Why? Is it because the ACA or other federal law places substantial pressure on them to retain their plans? In this post, I’ll try to grapple with that question and then, toward the end, discuss how it might affect the specific RFRA question at issue in the Hobby Lobby and Conestoga Wood cases.

As I will explain, the mere fact that most large employers might on balance choose to continue to provide employee health insurance plans, even once their employees would otherwise be eligible to purchase insurance on an ACA “exchange,” does not itself establish that federal law itself imposes a sufficiently direct, let alone “substantial,” degree of pressure on employers to retain such plans, so as to establish the sort of “substantial burden” on religious exercise that triggers RFRA scrutiny. And more importantly, plaintiffs in these cases have failed to allege facts that would demonstrate that federal law substantially pressures them to retain their plans, and thus (allegedly) to violate religious obligations.

Posted 9:22 AM by Marty Lederman [link]

Friday, December 27, 2013

The Utah Attorney General's office blows it

Andrew Koppelman

An underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General's office in litigating the case.

Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal. That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.

In Utah, however, the state inexplicably neglected to request a stay before the ruling issued. That led to a bizarre phone conversation between Judge Robert Shelby and the AG's office, which the judge describes in pp. 5-6 of the transcript of the hearing, here. The AG's office asked whether a stay would be issued, and the judge properly responded that he had received no request for such a stay and would not consider one until he received a motion in writing. Given the uncertainty of the outcome, his refusal to issue a stay (and the Tenth Circuit's subsequent, similar decision) is questionable. It means that some same-sex couples will get licenses of uncertain validity, with human costs that are hard to assess in advance. But the door to this result was opened by the AG's goof, which put the state procedurally in the wrong at the outset of the appeal.

Posted 11:05 AM by Andrew Koppelman [link]

Thursday, December 26, 2013

Happy Boxing Day!

Gerard N. Magliocca

In honor of the holiday, I give you this passage from A.V. Dicey (the famed British constitutional scholar) written more than a century ago that fits well with some of the themes of this blog:

"The constitution of a Federal state must, as we have seen, generally be not only a written but a rigid constitution, that is, a constitution which cannot be changed by any ordinary process of legislation. Now this essential rigidity of federal institutions is almost certain to impress on the minds of citizens the idea that any provision included in the constitution is immutable and, so to speak, sacred. The least observation of American politics shows how deeply the notion that the constitution is something placed beyond the reach of amendment has impressed popular imagination. The difficulty of altering the constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the constitution. The House of Lords has lasted for centuries; the American Senate has now existed for more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modify the constitution of the Senate. To this one must add that a federal constitution always lays down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism."

Posted 11:55 AM by Gerard N. Magliocca [link] (7) comments

Saturday, December 21, 2013

An Interview with Orly Lobel-- Talent Wants to be Free

Guest Blogger

Kiel Brennan-Marquez
Orly Lobel

[Yale ISP fellow Kiel Brennan-Marquez interviews University of San Diego Law Professor Orly Lobel about her new book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding (Yale University 2013)]

KBM: By way of introducing the book, I'd be curious to hear about your adversaries. Here is how I understood the central claim of Talents Wants To Be Free: value is destroyed when we constrict the fluid movement of highly skilled labor, and when we create disincentives for enterprise and entrepreneurship outside of formal employment channels. This made a lot of sense to me. In fact, it made so much sense, I must say that I found myself wondering who actually takes the opposing view. I guess an incorrigible formalist might say that non-compete clauses, IP assignment clauses, and the like should be respected on traditional contract grounds. And I can certainly imagine a spokesperson for the private sector combating some of your ideas. But among serious academics, taking a public interest approach to the question of how best to govern the highly skilled labor economy, do you encounter a lot of resistance? If so, from whom? On what grounds?

OL: I am happy you find the arguments persuasive! But the reality is that not only big business spokespersons but also quite dominant voices in the academic world truly believe that robust human capital constraints are essential to incentivize firms to invest in R&D and innovation. It's true that William Landes and Richard Posner have admitted about non-competes that "it is not even clear that enforcing employee covenants not to compete generates social benefits in excess of its social costs." And it's also true that we have had as much conversation about what I call "under the radar IP expansion" as we've had about the scope of patents and copyright where we have deep and ongoing scholarly debates. But we've had for a while quite an unchallenged he traditional analysis assumes that absent contractual protections over knowledge, skills and ideas, employers would under-investment in research, development, and employee training because of the increased risk that these employees might leave and use that training as competitors. We see this analysis going strong, from earlier writings such as Harlan M. Blake, Employee Agreements Not To Compete, 73 Harv. L. Rev. 625, 627-29 (1960) through the 1980s with Paul H. Rubin & Peter Shedd, Human Capital and Covenants Not to Compete, 10 J. Legal Stud. 93, 100 (1981) and into the 21st century, for example Mark A. Glick et al., The Law and Economics of Post-Employment Covenants: A Unified Framework, 11 Geo. Mason L. Rev. 357, 357-60 (2002). What is exciting at this moment though is that especially in other fields, in economics and business schools, psychology and organizational behavior, there is a critical mass of evidence to suggest a much richer story and to examine anew how we regulate human capital.

Posted 11:11 AM by Guest Blogger [link]

Friday, December 20, 2013

Judge Shelby and Justice Scalia

Jason Mazzone

Whatever the merits of Judge Robert J. Shelby's ruling today that Utah's same-sex marriage ban violates the Fourteenth Amendment, his opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger. Some sample statements from today's decision:

Justice Scalia . . . recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest . . . disagreement that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." [Windsor, 133 S. Ct. at] 2709 (Scalia, J., dissenting).
The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
The court . . . agrees with the portion of Justice Scalia's dissenting opinion in Lawrence in which Justice Scalia stated that the Court's reasoning logically extends to protect an individual's right to marry a person of the same sex.
[T]radition alone cannot form a rational basis for a law. . . . [A]s Justice Scalia has noted in dissent, "'preserving the tradition institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).

Inasmuch as Justice Scalia has never "recommended" that lower federal courts strike down state marriage laws, Judge Shelby's "agreement" with Scalia is nothing of the kind. Call me old fashioned, but it seems to me that if you can't fairly represent the opinions of Supreme Court justices, you have little business being on a district court.

Posted 6:29 PM by Jason Mazzone [link] (79) comments

Monday, December 16, 2013

Hobby Lobby Part III—There is no “Employer Mandate” [UPDATED 12/18]

Marty Lederman

As I explained earlier, the crux of plaintiffs’ RFRA claims in Hobby Lobby and Conestoga Wood is that the HHS “Preventive Services” Rule substantially burdens the religious exercise of the companies’ owners and managers by putting them to an untenable choice between their civil and religious obligations. As the Hobby Lobby complaint puts it: “Plaintiffs will face an unconscionable choice: either violate the law, or violate their faith.”

The plaintiffs’ theory is that by requiring the companies to offer their employees access to a health insurance plan that guarantees coverage without cost-sharing for certain forms of contraception, the HHS Rule allegedly forces the individuals who own and operate such companies to “participate in,” pay for and “support” their employees’ use of “abortion-causing drugs and devices” (quoting from the Hobby Lobby complaint)—something their religion is said to forbid.

I hope to be able in later posts to examine whether the courts must defer to the plaintiffs’ counterintuitive assertion that such a requirement would compel the plaintiffs to be complicit in their employees’ use of contraceptives in a way their religions prohibit. For now, however, I’ll assume that such deference is appropriate.

Even so, the plaintiffs’ argument about an irresolvable clash between civic and religious obligations runs into a serious obstacle at the outset—namely, that federal law does not impose such a legal duty: the so-called “contraception mandate” is a misnomer.

Rather, what Congress has done under the ACA is to establish a new social benefit to which everyone in the United States is entitled--affordable health insurance, including for certain categories of preventive care--and to offer large employers a choice between two ways of sharing in the societal burden of paying for that new entitlement. At least one of those two employer options almost certainly would not impose a substantial burden on the plaintiffs’ exercise of religion—even on their own account of their religious obligations. Moreover, with respect to that one of the two options a RFRA claim is virtually foreclosed by the Court’s unanimous 1982 decision in United States v. Lee.

As far as I know, every single court that has considered a challenge to the HHS Rule has failed to address this argument, because virtually every court has assumed, incorrectly, that the plaintiff employers are under a legal obligation, enforced by “fines” or “penalties,” to offer their employees access to a health insurance plan. Once it is understood that there is no such obligation, the RFRA claims ought to be seen in a very different light.

1. The Operation and Effect of the HHS Rule—What Must Health Care Plans Include?

By their terms, the HHS Rule and the underlying federal statute do not impose any obligations at all on employers, such as Hobby Lobby and Conestoga Wood—let alone on corporate shareholders or company administrators. Instead, as I described in detail in my earlier post, federal law requires virtually all group health-insurance plans, and insurers of group or individual health insurance, to include coverage for various preventive services, including 18 forms of FDA-approved birth control, without “cost sharing”—i.e., without requiring plan participants and beneficiaries to make copayments or pay deductibles or coinsurance. 42 U.S.C. § 300gg-13. (It’s not cost-free to the employees, of course: They typically pay significant premiums for the insurance coverage itself. But not having to make copayments or pay deductibles makes the services much more affordable.)

Nevertheless, plaintiffs are correct about this much: If a plan or insurer fails to include HHS-required coverage in a plan—for contraception or any other required service—the government can impose extremely onerous taxes not only upon the plan and the insurer, but also upon the sponsoring employer, such as Hobby Lobby or Conestoga Wood. 26 U.S.C. § 4980D(e)(1). Those taxes are so severe that they would be catastrophic for most employers, virtually requiring them to go out of business. (By the courts of appeals’ calculations, for example, Conestoga Wood would be liable for at least $95,000 a day; and Hobby Lobby would owe at least $1.3 million a day.) Therefore, it is fair to say—as Hobby Lobby and Conestoga Wood do say—that if an employer offers its employees a health insurance plan, the HHS Rule would, indeed, virtually require that such plan include coverage for the specified forms of contraception without cost-sharing. Or, at the very least, the tax imposed by § 4980D is so draconian that it would place enormous pressure on employers to comply—pressure that would be sufficient to at least trigger the “substantial burden” inquiry under RFRA. (More on that below.)

2. Federal Law Does Not, However, Require the Plaintiffs to Offer an Employee Health-Care Plan

OK, one might then ask, but if an employee health insurance plan must include contraception coverage, doesn’t the HHS Rule thereby de facto obligate all large employers to make such contraception coverage available to their employees, since such large employers are required by law to offer, and to partially subsidize, an employee plan? Isn’t that what the Affordable Care Act “employer mandate” is all about?

No. Contrary to common wisdom, federal law does not impose a legal duty on large employers to offer their employees access to a health insurance plan, or to subsidize such a plan. There is no such “employer mandate.”

What the ACA does, instead, is to impose a tax on large employers (just as with Social Security), ensuring that they share in the national burden of the new public entitlement—but with an option allowing such employers to avoid the tax if they offer a health insurance plan to their employees.

Posted 9:36 AM by Marty Lederman [link]

Sunday, December 15, 2013

Throwing The Civil Rights Cases

Gerard N. Magliocca

Many scholars who have examined the Supreme Court's 1883 decision in The Civil Rights Cases argue that the Government's briefs in the case were terrible. They neglected to raise points that might have swayed the Court and were poorly written overall. The Court (save for Justice Harlan) found most of the statute unconstitutional, and Congress did not enact a similar civil rights law until 1964.

This leads me to ask the following question. Is it possible that the Government wanted to lose The Civil Rights Cases and thus intentionally wrote lackluster briefs? Before you fit me for a tin-foil conspiracy hat, consider this. There is a longstanding custom that the Department of Justice should defend the constitutionality of a federal statute. Every once in a while, though, the DOJ concludes that it cannot do that. (The most recent example was DOMA.) I am not clear, however, that in the nineteenth century there was an understanding that the DOJ could make exceptions like this. What would the DOJ do then? Maybe it would just write a really weak brief. Imagine what the Obama Administration brief in support of DOMA would have looked like if they were compelled to write one. Would it have been really strong? Probably not.

There is circumstantial evidence to suggest why the Administration of President Chester Arthur may have wanted the Civil Rights Act of 1875 invalidated. Basically, the political environment was not hospitable for civil rights enforcement by the 1880s. If the law were upheld, then the Administration would have been obligated to enforce it (and get criticized) or not enforce it (and get criticized).

Anyway, it's an interesting topic for someone to research. Perhaps there are internal documents among Arthur's papers that shed light on this. A bad brief could just a bad brief, but it's suspicious.

Posted 11:33 AM by Gerard N. Magliocca [link] (24) comments

Friday, December 13, 2013

Hobby Lobby Part II -- What’s it all about?

Marty Lederman

Are the Hobby Lobby and Conestoga Wood cases about employee health insurance plan coverage of contraception, writ large, or—as the plaintiffs in those two cases would have it—“only” about coverage of “abortifacients,” or about four discrete forms of birth control? Something less? Something more?

As I'll try to explain in this post, the cases do not, in truth, have anything to do with abortion or “abortifacients” as those terms are generally understood under federal law or in the medical and scientific communities. Beyond that, however, it is hard to know for certain exactly which forms of birth control are specifically challenged in these two cases. Nevertheless, what is clear is that the Supreme Court’s decision in these cases could implicate legal requirements imposed upon for-profit employers that reach well beyond any particular birth-control methods—indeed, beyond contraception itself.

As I noted in my opening post, the plaintiffs in the two cases before the Court allege that the “Preventive Services” Rule, issued by the Departments of Health and Human Services, Labor and Treasury, “substantially burdens” their exercise of religion for purposes of RFRA based on the following logic:

(i) federal law requires the companies in question to offer their employees access to a medical insurance plan;

(ii) the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;

(iii) the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[] others to engage in, or otherwise support[] [the use of] abortion-causing drugs and devices”; and

(iv) the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”

In my next post, I will examine the fundamental predicate of the plaintiffs’ argument—number (i) above—which is that federal law requires large employers to offer their employees access to a medical insurance plan, upon threat of serious sanction.

And in future posts, I’ll discuss whose exercise of religion is at stake in these cases—the corporations’, the individual plaintiffs’ as owners of the companies, or the individual plaintiffs’ as managers of those companies; whether the plaintiffs have carried their burden of showing a “substantial burden” on that religious exercise; and, if so, whether the government can justify denials of exemptions under the RFRA test.

In this post, however, I start with a discussion of the second step in plaintiffs’ argument—their assertion that the HHS Rule requires an employee health insurance plan to provide for coverage of “abortifacients.”

Posted 5:36 AM by Marty Lederman [link]

Thursday, December 12, 2013

How Congress Works (And the ObamaCare Subsidies Lawsuit)

Abbe Gluck

It’s that crazy time of year when time is short, but I cannot resist a couple of quick posts about the pending Obamacare health exchange lawsuit, which should be decided within the next week or so by a district court in Washington D.C.(Judge Paul Friedman), and followed by several similar decisions in suits pending in Virginia, Oklahoma and Indiana. The case is incredibly important—if the challengers win, consumers on more than half of the Obamacare health insurance exchanges will receive no tax subsidies to help cover the cost of insurance, an outcome that will devastate the operation of the Act. The case, in my view, is also incredibly weak. And perhaps most significantly for law professors, the case shows us just how much lawyers and courts have to learn about the legislative process. This post will offer some “Congress 101,” and explain how an understanding of the ACA’s legislative process should have put this case to bed long ago. In my next post on this subject, I will tackle some of the other issues in the case, including some interesting Chevron arguments.

A quick summary of the case, for those not up to speed: The health reform statute, the ACA, sets up new insurance marketplaces (like Expedia for health insurance) and provides generous subsidies to individuals and families with incomes up to 400% of the federal poverty level to help them buy insurance in those marketplaces, which are called insurance exchanges. The statute makes states the default operators of those exchanges but if a state chooses not to operate one or fails to, the federal government steps in. As most readers know, more than half of the states have decided not to operate their own exchanges, and so the federal government is doing so (how it’s doing in that regard is another important story, but one not relevant here).

What is relevant here is that the ACA is a very badly drafted statute. And it’s badly drafted for a simple reason that turns out to be important to understanding how the pending litigation should be resolved: Because Senator Ted Kennedy died in the middle of the legislative process and was replaced by Republican Scott Brown, the statute never went through the usual legislative process, including the usual legislative clean-up process. Instead, because the Democrats lost their 60^th filibuster-preventing vote, the version that had passed the Senate before Brown took office, which everyone initially had thought would be a mere first salvo, had to effectively serve as the final version, unchangeable by the House, because nothing else could get through the Senate. In the end, the statute was synthesized across both chambers by an alternative process, called “reconciliation,” which allows for only limited changes but avoids a filibuster under Congress’s rules. Keep this in mind and read on….

Posted 9:59 AM by Abbe Gluck [link]

Wednesday, December 11, 2013

Hobby Lobby Part I -- Framing the issues

Marty Lederman

Earlier this month, the Supreme Court announced that it will consider two related cases involving claims for religious exemptions to what has commonly (but inaccurately) been called the “contraception mandate” under the Affordable Care Act—Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Corp. v. Sebelius. The cases will be consolidated for oral argument, which the Court will almost certainly hear between March 24 and April 2. The first briefs in the cases will be filed on January 10. Amicus briefs on both sides are due January 28.

The cases raise a host of potentially difficult and complicated questions. Eugene Volokh has published a series of posts about many of those issues on the Volokh Conspiracy; his introductory post is here. I asked Eugene to consolidate them all in a published Word document for readers’ convenience—and he did, in 53 single-spaced pages! In this case, length is a distinct virtue: Eugene’s herculean effort is of enormous benefit to those wishing to understand and follow the case; and he neatly separates out the various topics so that the reader can easily pick and choose among them.

I agree with much, but not all, of what Eugene writes; in the posts that follow I’ll focus on some of the questions on which we disagree. But regardless of what one thinks of the merits of many of these issues, Eugene’s magnum opus offers a very useful and engaging exposition of the two cases and of many of the arguments we can expect to see from the parties and their amici. In particular, Eugene’s first three posts alone (1A through 1C) offer a very useful primer on the statute at issue in these cases, the Religious Freedom Restoration Act (RFRA)—which saves me a bunch of exposition here.

Meanwhile, here at Balkinization, we’ve already published several important posts—this one by Joey Fishkin, and a series of three posts on the Establishment Clause questions raised in the case—here, here and here—co-authored by Micah Schwartzman, Rich Schragger and Nelson Tebbe. These posts all appropriately emphasize that although the parties in the two cases are employers and the government, the legal questions depend crucially on how the law affects a third set of actors who are not formally parties to the case—namely, the millions of female employees of large, for-profit corporations.

In the series of posts that I’ll be blogging in the coming days, I hope not to repeat much of what Eugene and my fellow B’Zation bloggers have already written. I thought it might be useful, however, to clarify some of the misconceptions and confusions surrounding the cases and the laws governing them, and to probe a bit further into some of the many complex questions they raise.

I begin, below the fold, with a general framework for thinking about the cases—one that will inform most of my posts to follow.

Posted 10:28 PM by Marty Lederman [link]

Tuesday, December 10, 2013

Nelson Mandela and the American Constitution

Gerard N. Magliocca

The death of Nelson Mandela raises the age-old question of whether individual leaders or impersonal forces drive history. Most of the time it's the latter, but there are exceptional circumstances where the man or woman plays a pivotal role. South Africa is one example. The relatively peaceful transition of power in 1994 was hardly inevitable, and Mandela's personal qualities made a huge difference.

With that in mind, I cannot help but reflect on how much was lost when Lincoln was assassinated at a crucial juncture of our history. Not only did America lose his exceptional skills and authority, but he was succeeded by a series of presidents who were not up to the task. Andrew Johnson is an obvious example, but lately I've come to think that Ulysses S. Grant was almost as bad. He had a chance to make Reconstruction work, but he squandered that opportunity through corruption and cluelessness. Ron Chernow, who was written fine biographies of Alexander Hamilton and George Washington, is now working on Grant. I wonder if he will be able to explain what went wrong.

Posted 4:16 PM by Gerard N. Magliocca [link] (70) comments

Monday, December 09, 2013

Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter

Guest Blogger

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

We have been arguing (here, here, and here) that a religious exemption to the contraception mandate would raise serious concerns under the Establishment Clause. In our last post, we rejected the argument that employees are not burdened when the government creates an exemption from a government-provided benefit. Here, we want to consider a different objection, namely, that the Supreme Court has, in fact, allowed religious employers to impose substantial burdens on their employees. This objection rests, in turn, on a more general claim, which is that the Establishment Clause does not prohibit costs shifting when the government lifts burdens it has imposed on private religious actors.

A number of critics, including Eugene Volokh (here), have argued that the Establishment Clause prohibition on cost shifting does not apply in Hobby Lobby. To make this argument, they rely upon the Supreme Court’s decision in Corporation of Presiding Bishop v. Amos, which held that religious non-profit associations have a statutory right, pursuant to a religious exemption in Section 702 of Title VII, to discriminate on religious grounds against employees who do not share their religious affiliation, even when those employees are performing otherwise secular functions.

Some have misread Amos to stand for the proposition that the Establishment Clause does not limit cost shifting when the government lifts burdens that it has created, but only when it imposes legal obligations on third parties. We reject this view because it flatly contradicts the Supreme Court’s decision in Cutter v. Wilkinson, which relied upon Estate of Thornton v. Caldor to hold that the Establishment Clause requires courts to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” (We previously discussed Caldor here.)

A better interpretation of these cases is available – one that gives full meaning both to Amos and to the prohibition on cost shifting in Cutter and Caldor. In our view, Amos is about protecting the associational interests of churches and religiously-affiliated non-profits by allowing them to control their membership. But that protection does not extend to for-profit enterprises, which generally have weaker associational interests and which implicate greater concerns about equality of opportunity in the market. As we argue below, this interpretation is superior because it shows that the Supreme Court’s precedents concerning Establishment Clause limits on religious exemptions – Amos, Caldor, and Cutter – can be reconciled in a way that respects the different constitutional values expressed in them.

Posted 11:15 AM by Guest Blogger [link]

Wednesday, December 04, 2013

Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?

Guest Blogger

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

Last week, we argued here and elsewhere that a basic constitutional issue has been overlooked in the religious freedom challenge to the contraception mandate. In brief, the missing argument is that granting a statutory exemption to the mandate for religious employers would violate the Establishment Clause by imposing a significant burden on the employees who are the intended beneficiaries of the mandate. A longstanding nonestablishment principle prohibits the government from lifting its burden on the religious beliefs of one party when that would mean shifting the cost to third parties who do not share those beliefs. Now that the Supreme Court has agreed to hear Hobby Lobby and Conestoga Wood, it is imperative that this constitutional issue be aired.

In this post, we want to address one objection to that argument, namely that if religious employers are exempted from the mandate their employees will suffer no burden at all. According to this objection, employees have no right to health insurance that covers contraception in the first place. Therefore, when religious employers are relieved of the obligation to provide that coverage, employees suffer no burden whatsoever. They are simply put in the same position they were in before Obamacare: without coverage for contraception.

This objection presents a baseline question. If the normal state of affairs is that no one has contraception coverage, then denying that coverage imposes no burden (even if it is unfair). If, however, the baseline for comparison is a world in which everyone can legitimately expect affordable health insurance that includes contraception, then removing that coverage imposes a burden. Which is correct?

Posted 6:04 PM by Guest Blogger [link]

Tuesday, December 03, 2013

Reality mimics parody

Andrew Koppelman

A story in today's New York Times, about a new wave of legal challenges to the Affordable Care Act, includes the following description of a remarkably principled individual:

One plaintiff in the District of Columbia case, David Klemencic, the sole owner of a carpet and flooring store in the town of Ellenboro, W.Va., was also a plaintiff in the constitutional challenge to the individual mandate. In an interview, Mr. Klemencic, who does not have any employees, said he had deep, philosophical objections to any effort by the government to require him to purchase insurance, and would refuse to accept a subsidy even if eligible. “I go to the doctor now, I go to the dentist now, I take my checkbook and I pay for it,” he said. “If I’m forced into some sort of program where it’s subsidized by the government, I won’t go see a doctor.”

About ten years ago, the satirical newspaper The Onion ran the following fictitious story:

Libertarian Reluctantly Calls Fire Department
CHEYENNE, WY—After attempting to contain a living-room blaze started by a cigarette, card-carrying Libertarian Trent Jacobs reluctantly called the Cheyenne Fire Department Monday. "Although the community would do better to rely on an efficient, free-market fire-fighting service, the fact is that expensive, unnecessary public fire departments do exist," Jacobs said. "Also, my house was burning down." Jacobs did not offer to pay firefighters for their service.

Here, reality has outpaced fantasy. Presumably, if Klemencic's house catches fire, he will resist any effort by the fire department to trespass on his property.

Posted 4:05 PM by Andrew Koppelman [link]

Monday, December 02, 2013

Is Our Constitution Broken?

Gerard N. Magliocca

I'll note (since nobody else yet has) that our own Sandy Levinson is profiled in an article by Jeffrey Toobin in this week's New Yorker. Unfortunately, the article is behind a paywall.

Posted 1:47 PM by Gerard N. Magliocca [link]

Sunday, December 01, 2013

More on pardons

Sandy Levinson

Today's NYTimes has a number of responses to my Monday letter on presidential pardons (itself reprinted), as well as my final thoughts. I continue to find it significant that no one, whether those writing letters to the Times or Balkinization discussants, has actually defended Obama's (or Bush's) hesitation to exercise the constitutionally-granted pardon power. Jeffrey Crouch, who has written an interesting book on the pardon power, has a letter repeating his concerns about abuses of that power, including, especially, George H.W. Bush's "last Christmas in Washington" pardons of a number of people who were being investigated for their role in "Iran gate" and their potential ability to implicate Bush himself. He also pardoned Elliot Abrams, who had lied to Congress; that pardon presumably helped rehabilitate Mr. Abrams and make possible his service in the administration of George W. Bush. I conclude my "on-line" response--the print version had to be edited for reasons of space--with the following:

Finally, Professors Crouch and Ruckman set out the conflicting arguments about the use of the presidential pardon power. All such powers are subject to misuse.

The question is whether we fear “sins of commission” like the Marc Rich pardon more than the “sins of omission” of presidential heartlessness.

UPDATE: The Washington Post has a strong editorial criticizing the President for his stinginess in granting pardons (or commutations). He is, indeed, the stingiest president in modern history. (He has, however, pardoned ten turkeys during his five years in office.) Interestingly enough, one of the Post's polls based on the obviously unscientific responses of their online readers indicates that 53% "oppose" the proposition that the President should issue more pardons and only 47% "support" it. I realize that those who write letters to the NYTimes or respond to Balkinization posts are no more scientific a sample, but this heartless majority nonetheless surprises me unless it is based on the premise that Obama should do nothing at all, period.

Posted 12:33 PM by Sandy Levinson [link] (19) comments

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