Balkinization  

Wednesday, November 05, 2014

Obamacare is Not Settled--Part XVII

Gerard N. Magliocca

Here are a couple of observations about yesterday's results.  One is that GOP control of the Senate means that there will be no voluntary retirements from the Supreme Court until 2017.  Like it or not, Justice Kennedy will continue as the swing vote.  Another is that House Republicans now control around 250 seats, which is their largest number since Al Capone was powerful and flagpole sitting was popular.  There is no way that Democrats can make up that deficit in one election cycle, thus we are looking at a GOP House for at least four more years.

Here's my big takeaway though.  The Affordable Care Act is still not settled law.  While Congress cannot repeal the Act over the President's veto, the issue will remain a live one through 2016.  More important, the election results may influence the Court's thinking on whether to take the cert. petition in King.  Court watchers noted the other day that the petition was relisted, which is often (though not always) a prelude to a grant.  The timing of the relist to correspond with the midterm election may be a coincidence, but in any event the election result may embolden the Justices who dissented in NFIB to take a statutory crack at the Act.

Comments:

Gerard:

Here is how the GOP Congress can either repeal or defund Obamacare:

1) Break up the current omnibus spending bill into smaller bills funding individual departments and large programs. Each bill will have a rider forbidding transferring money out of that department or program. This will take away Obama's ability to shut down the government and then fund what he pleases by vetoing a single budget.

2) Bypass the Senate filibuster by attaching substantive riders on the spending bills in reconciliation.

3) Pass all the necessary spending bills first. Defense, law enforcement, justice, infrastructure, Social Security and Medicare. Do not pass anything else until Obama signs these. Maintain the current spending. Do not pick fights here.

4) Pass a bill funding Medicaid with a rider eliminating the entitlement and providing a capped grant to the states. Obama can either defund Medicaid or accept the repeal of his Obamacare expansion of the program. Defunding the program disproportionately hurts Democrat government dependents so there is no real political downside for the GOP.

5) Pass a bill funding the HHS bureaucracy with a rider repealing the Obamacare statute and its regulations. Obama can either defund HHS's enforcement of Obamacare or the law itself. Once again, the HHS bureaucracy with Medicare removed serves Democrat government dependents, so the political downside for the GOP is minimal.

This could be a done deal before the new fiscal year starts next October.


 

With Sandy Levinson now a "guest," are you like the last remaining full term participant here willing to provide comments? Sad.

Al Capone and flagpole sitting together being cited as a marker is new to me.
 

I think Sandy Levinson will permit comments with subsequent posts. I recently read Sandy's "What Should Citizens (as Participants in a Republican Form of Government) Know About the Constitution?", 50 Wm. & Mary L. Rev. 1239 (2009). (written Nov. 18, 2008). I recommend this article highly. It is valid some 6 years later. Will political dysfunction continue unabated? Perhaps with the diminishment of the Tea Party, there may be some improvements. But 2016 elections are just 2 years away.

Gerard's choice of Obamacare as his "big takeaway" I see as misplaced, at least by means of actions by Congress. The GOP would prefer that the Court strike down keys parts of Obamacare as certain aspects of Obamacare are popular. To me, it's income/asset/inequality that will impact voters in 2016. And such inequality would be further exacerbated by any changes, whether by Congress (by means of veto overrides) or the Court, to such popular portions of Obamacare. Keep in mind the low favorability rate of the Court in recent years. Erosion of Obamacare by the Court would surely impact 2016 elections.

Does the GOP have a mandate? It has yet to be spelled out. With 2016 only 2 years away, GOP presidential candidates will have to start coming out of the woodwork to build up momentum.
 

FYI: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1076&context=wmlr

The article is a piece of Sandy Levinson's concern that the people overall should be informed and have more of a role in giving life to our Constitution.

The same is true in a fashion about our Declaration of Independence. A good book on that front can be found here:

http://www.nybooks.com/articles/archives/2014/aug/14/different-idea-our-declaration/

Perhaps, SL's post was a one time thing, but have a feeling this election did not improve his dark mood of how this republic has been going in recent years.
 

Shag:"Does the GOP have a mandate?"

Only to reverse the Democrat policies they all ran against with Obamacare at the top of the list.

Unfortunately, the GOP did not offer any affirmative reforms.
 

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Mark Graber's "The Declaration of Independence as Canon Fodder" reviews 4 books. It is available via SSRN:

http://ssrn.com/abstract=2344733

Footnote 114 cites "Sanford Levinson, The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate or Serious Arguments to be Wrestled With, 66 Ark L. Rev. forthcoming 2014.

I hope Sandy makes this available soon. Sandy's "dark mood" is far from unreal. Will the 2014 elections change this? I have my doubts with the 2016 presidential and other elections only 2 years away.

Graber's paper is quite informative on the Declaration as seen through the eyes of the 4 authors.



 

By the way, all this impeachment baiting is rather silly. If there's one thing Republicans learned from the Clinton impeachment, it's that there isn't any point in impeaching a President, however criminal, if enough members of his own party in the Senate regard impeachment as a purely political matter to block conviction.

Its silly to prosecute when you know in advance the jury is stacked.

I will say, though, if Obama carries through on his threat to unilaterally provide an amnesty to millions of illegal immigrants, he will be fully deserving of impeachment. For all that it would be futile to attempt it.
 

This comment has been removed by the author.
 

Brett: "If there's one thing Republicans learned from the Clinton impeachment, it's that there isn't any point in impeaching a President, however criminal, if enough members of his own party in the Senate regard impeachment as a purely political matter to block conviction."

Unfortunately, you are correct.

First it was presidential felonies and now it is transitioning the presidency into an effective dictatorship.

The Democrat Party has pretty much devolved into an organized criminal enterprise.

I wish I was kidding.
 

This comment has been removed by the author.
 

Brett's:

"I will say, though, if Obama carries through on his threat to unilaterally provide an amnesty to millions of illegal immigrants, he will be fully deserving of impeachment. For all that it would be futile to attempt it."

can be excused as he is not trained in the law, especially Administrative law. The ability of the President to "legislate" is limited by the extent that a law passed by Congress imposes limitations on the executive. The federal courts are available to challenge allegedly improper "legislative" action by the executive. Impeachment would not be appropriate under the circumstances. As to what Brett claims re: amnesty, perhaps Brett can provide statements by the President substantiating "his threat to unilaterally provide an amnesty to millions of illegal immigrants ...." Obama has recognized the limitations that Administrative law impose on his ability to "legislate" on immigration.
 

Mark Graber in his review of 4 books on the Declaration makes this point (page 478):

"The American experience with Brown [v. Bd. of Educ.] suggests that constitutional canons go through three phases. In their first phase, they fight to survive. In their second phase, they seek to expand. In their third phase, they become celebrities, endorsed by all political factions in large part because their central teachings can be invoked by parties to all sides of the most salient controversies of the day. This metamorphosis does not render the canonical texts entirely without meaning. The canonization of Brown provides an impregnable barrier that prevents Americans from returning to the days of Jim Crow. Nevertheless, as the opinions in Parents Involved suggest, Brown is no longer a very effective weapon in contemporary struggles over racial equality."

Let's see how this plays out with GOP control of both houses of Congress.

By the Bybee [expletives deleted], in Obama's press conference yesterday he did not make an effort to emulate Mitch McConnell's 2009 expressed goal to limit Obama to a one-term presidency.
 

Shag: "The ability of the President to "legislate" is limited by the extent that a law passed by Congress imposes limitations on the executive. The federal courts are available to challenge allegedly improper "legislative" action by the executive."

That remedy is disappearing as well.

Long ago, progressive courts established the principle of judicial deference to bureaucratic "interpretation" of statute. Since then, progressive appellate panels are willing to rubber stamp bureaucratic rewrites of statute. Thus, any appeal is a crap shoot that you will actually get a non-progressive panel who is willing to enforce the statute as written. The odds of rolling progressive craps in an appeal have increased with the Obama appointees to the DC Circuit which hears most of these cases.

For a particularly egregious example, see the 4th Circuit opinion erasing the Obamacare's statute's express limit of subsidies to exchanges created by states.
 

As to CT's comment, the "first" observation is about the Senate & how it will affect retirements. We then are told "another" observation that respects the House.

Sen. McConnell's, shall we say crafty, support of the 'website' underlines continual support of ACA's actual provisions, even if as a concept it might continue to be attacked. Ditto support of now voluntary Medicaid expansion.

This leads me to find the "embolden" hypo somewhat dubious, but generally it would be a tad outrageous. This is going to influence interpretation of a statutory provision?

Scalia skips over legislative intent via questionable legislative testimony and the like to testing electoral winds years after passage.

Anyway, I think Shag is right that it will take time for things to settle & with upcoming presidential elections, there isn't much time there. I also think support of divided gov't helps the Democratic presidential candidate to some degree here.

Perhaps, the Republicans will unite enough to pass some legislation regarding immigration, border issues, authorization of force and so on to help avoid more unilateral executive action, be it authorized by Art. II or not.
 

Perhaps the GOP control over both houses of Congress will inspire some Republicans to undo the Administrative State. Of course some Republicans actually recognize that by eliminating the Administrative State, they may actually be required to legislate in elaborate detail around the clock, leaving them less time to spend on campaign funding. Imagine the loopholes that might result. The alternative may be anarchy libertarian style.
 

Shag:

One of the GOP House bills which Harry Reid refused to bring to a vote was legislation to require all significant regulations to be submitted to and enacted into law by Congress.

The practical effect of this reform would be to massively slow down the federal red tape factory, which created over 24,000 pages of regulations last year alone.

As of last summer, the paperback volumes of the US Code made up well over 30,000 pages and the Federal Register over 170,000 pages.

Utter economy killing insanity.

 

"if Obama carries through on his threat to unilaterally provide an amnesty to millions of illegal immigrants, he will be fully deserving of impeachment."

Maybe first Congress should just try to repeal the laws granting the President the kind of discretion he's reportedly thinking of using? Impeachment is supposed to be for actual crimes, not uses of authority you disagree with or wish had never been empowered to do.
 

Some legal experts weigh in on the authority to take executive action on immigration here:

http://americasvoice.org/research/resources-executive-action-on-immigration/
 

Mr. W: "Maybe first Congress should just try to repeal the laws granting the President the kind of discretion he's reportedly thinking of using?"

Precisely what statutory provisions authorize the President to forbid deportation of Millennial illegals and then grant them work permits?

Your cited legal experts do not cite any.

The prosecutorial discretion argument is specious. Prosecutorial discretion is declining to prosecute individual cases where the defendant is technically guilty, but there are substantial mitigating factors counseling against criminal sanctions. Discretion does not reach entire classes of people.

What Obama is doing is the equivalent of a state governor deciding that he does not agree with the law forbidding children from driving and issuing them driver's licenses by decree.

 

A) Thanks for leaving comments open. B) If you see Professors Balkin and or Tamanaha, please let them know I am working on my brush painting, C) Jeez, Bart, business still that bad?
 

"Discretion does not reach entire classes of people. "

This is not true as a matter of history, for example see: http://en.wikipedia.org/wiki/Executive_Order_12711

It also doesn't wash philosophically, as explained by Professor Dorf in this passage:

"The basic objection to categorical prosecutorial discretion is that it looks too much like Presidential nullification of an act of Congress, and thus violates the President's duty to take care that the laws are faithfully executed. But it's not obvious that this objection holds up. If one or more factors suffice to justify a decision not to devote executive resources in a particular case, then those same factors probably ought to suffice to justify the same decision across a category of cases. And indeed, many prosecutors' offices in fact have categorical guidelines governing when and when not to exercise prosecutorial discretion. Ordinarily, we would think of the regularization of such discretion as a virtue, rather than a vice, of government."
 

Mr. W:

Bush gave a temporary reprieve from deportation refugees for citizens from a country whose government was in the midst of a crackdown on dissent. This was circumstantial.

Obama stopped deportation of all Millennial illegal immigrants not matter their circumstance and then illegally provided them work papers. This is a class.

The claim that ICE does not have enough resources to both deport felons and deport other illegal immigrants is a bald faced lie that does not pass the snicker test. The Obama administration accomplished both rather efficiently until Mr. Obama needed to buy votes for his reelection.

As I noted above, the Democrat Party has devolved into little more than organized crime.
 

But the classes are determined by their circumstances. In Bush's deferred action all of the Chinese immigrants (a class) fell under it because of the circumstances of turmoil in China, in Obama's all of those who had been brought into the country when they were non-culpable minors and who had no experience living in their native lands (circumstances) constitute the class.
 

If you are passing messages to your colleagues, please advise them of a factual error in the impeachment primer. It states that Clinton was bombing terrorist training camps while the House was considering impeachment. Actually, that bombing occurred in August 1998, while the Starr report was not received by the House until September. They are probably thinking of Clinton's December 1998 bombing campaign against Iraq, which occurred just as the House was about to vote on the impeachment charges.
 

Mista Whiskas said...But the classes are determined by their circumstances. In Bush's deferred action all of the Chinese immigrants (a class) fell under it because of the circumstances of turmoil in China, in Obama's all of those who had been brought into the country when they were non-culpable minors and who had no experience living in their native lands (circumstances) constitute the class.

Mr. Obama is again lying about the reality of his policies. The President's de facto amnesty does not require that your illegal parents brought you into the US when you were a child. So long as you fit the age criteria, you are in.

Hell, Obama was also lying about diverting resources to deporting criminals. I just finished up a case for a client who entered the country on his own and just pled guilty to domestic violence on the advice of this immigration attorney who tells me that the Obama ICE does consider most misdemeanor crimes as disqualifying to getting amnesty and work papers.

If you are wise, you should automatically assume that this President is lying and do your own research on the subject.
 

Whatever the reason (and with the DC ruling held for en banc, it isn't a circuit split):

http://www.scotusblog.com/2014/11/court-to-rule-on-health-care-subsidies/

A reasonable application of a statutory provision w/o a circuit split with the DC circuit en banc in the process of hearing the issue where the Solicitor General opposes review -- cert -- same sex marriage where the parties ask for it & is based on constitutional grounds, no cert. until there is a circuit split (maybe).

Yeah. That makes A LOT of sense.
 

"They are probably thinking of Clinton's December 1998 bombing campaign against Iraq"

I recall that; That was the one where Clinton had a pharmaceutical plant blown to pieces, (Commonly refered to in the press as an "asprin" factory, its primary output were much needed anti-malarial drugs.) to grab the headlines.

One employee died in the bombing, 10s of thousands subsequently died from the drug shortage it caused.
 

"to grab headlines"

http://en.wikipedia.org/wiki/Al-Shifa_pharmaceutical_factory

Sounds pretty complicated though general wariness about use of force is a good policy.

 

Our resident self-professed criminal defense expert in one comment refers to Pres. Obama "lying" three times. Surely he can back this up as factual as otherwise such accusations can impact on our expert's credibility and professionalism.

Also, our expert provides an anecdote involving a client he recently represented to make his point against Pres. Obama. But that anecdote is incomplete regarding his role as defense counsel. I don't know if the client authorized the telling of this anecdote. If not, there are some ethical issues potentially involved with relating this anecdote. Possibly our expert is lying about the matter.
 

The bombing of the pharmaceutical factory in Sudan took place as part of the response to the Al Qaeda bombings of the US embassies in August 1998. The Iraq bombing took place in December 1998 and was justified by the need to stop Saddam Hussein's chemical, biological and nuclear weapons program. As President Clinton explained at the time, "I have no doubt today, that left unchecked, Saddam Hussein will use these terrible weapons again."
 

Shag:

I set the bar high when I accuse someone of lying.

A lie is making a false statement that you knew or should have known was false when you made the statement. Standard political spin and puffery are not lies.

Every Obama lie I cited easily clears that hurdle.

Can you cite a single Obama policy about which he has not lied?

Take Obamacare for example. Obama lied repeatedly before, during and after the imposition of Obamacare that his program would allow you to keep your insurance, keep your doctor and pay an average of $2,500 less.

I cannot think of a program off the top of my head where Obama has not lied. Maybe you can help me.
 

I wonder how high the Colorado Bar is set with our self professed criminal law expert's rant to the effect that he can't think of a situation where Pres. Obama hasn't lied. No, our expert is not a high hurdler but rather mole-like. I trust some ethical attorneys in CO will bring our expert's rant to the attention of its Bar.

But note that our expert fails to respond to critique of his client anecdote. OOPS? Flannel mouth professionalism?
 

Is mls, with this:

"As President Clinton explained at the time, "' have no doubt today, that left unchecked, Saddam Hussein will use these terrible weapons again.'"

suggesting that Pres. George W. Bush and VP Dick Cheney's WMD-based invasion of Iraq was, to put it mildly, ill-informed?
 

Shag:

I thought you read the NYT?

http://www.foxnews.com/politics/2014/10/15/us-troops-wounded-by-decades-old-chemical-weapons-during-iraq-war-report-claims/

http://www.nytimes.com/2014/11/07/world/middleeast/-more-than-600-reported-chemical-weapons-exposure-in-iraq-pentagon-acknowledges.html?_r=0


 

I thought you read the NYT?

http://www.foxnews.com/politics/2014/10/15/us-troops-wounded-by-decades-old-chemical-weapons-during-iraq-war-report-claims/

http://www.nytimes.com/2014/11/07/world/middleeast/-more-than-600-reported-chemical-weapons-exposure-in-iraq-pentagon-acknowledges.html?_r=0


# posted by Blogger Bart DePalma : 3:28 PM


Blankshot, you're not one of those morons trying to sell that crap as justification for the Iraq Disaster, are you?

(who are we kidding, of course you're one of those morons...)
 

Yes, indeed, I read the NYTimes and other reports, especially that the Bush/Cheney Administration did not (I wonder why?) yell "Eureka, we were right, it was a slam dunk." I suppose our self-professed criminal law expert never gets beyond headnotes.

By the Bybee [expletives deleted], note that our expert still ducks the critique of his client anecdote.
 

"I just finished up a case for a client who entered the country on his own and just pled guilty to domestic violence on the advice of this immigration attorney who tells me that the Obama ICE does consider most misdemeanor crimes as disqualifying to getting amnesty and work papers."

I read this as supportive rather than undercutting the idea that this involves fairly common discretion. As to your comment on the age, it seems all that shows is that he uses an overinclusive approximation in deciding deference.

Again, deciding to defer action against an entire class of offenders who meet certain general criteria is common enough. Here's an example at the local level.
http://nypost.com/2014/04/23/brooklyn-da-wont-criminally-prosecute-potheads-without-criminal-records/
 

As to WMD, take it from the cowboy's mouth:
https://www.youtube.com/watch?v=3M-ClS5uwNo

 

Mr. W:

My understanding is that the Obama administration enacted a rule ignoring various misdemeanor offenses in their extension of de facto amnesty to Millennial illegals.

This is policy, not discretion.
 

Mr. W: As to WMD, take it from the cowboy's mouth...

I have never understood the Bush White House's public position on the lack of WMDs in Iraq.

The WMD search teams, who only covered 2% of Iraq, found over 500 sarin and mustard gas artillery shells.

Apparently, the military occupying far larger areas of Iraq found several thousand more chemical weapons which injured our troops.

If the sides were reversed and the GOP were attacking Obama for failing to find WMDs in Iraq, I know damned well that Team Obama would have made very public hay over these discoveries.

Why didn't Team Bush?

Something was going on behind the scenes.
 

I have never understood the Bush White House's public position on the lack of WMDs in Iraq.

# posted by Blogger Bart DePalma : 9:32 PM


That's because you're an idiot. I'll try to explain it to you. They didn't find any WMD. The stuff they did find only highlighted the stupidity of going to war for nothing. So they covered it up. Capiche?
 

Our CO "dopey-ganger"'s:

"Why didn't Team Bush?

Something was going on behind the scenes."

should call for an investigation, as those alleged "scenes" took place during the Bush/Cheney years before the Bush/Cheney Great Recession nearly destroyed the US economy. Were John McCain (and his vapors buddy Lindsay Graham (Cracker, SCar)) aware of this during the 2008 campaign? Perhaps the explanation is covering up mere stupidity on the Bush/Cheney Administration in instructing troops on disarming of these missiles. Consider the recent reports of the numbers of troops that have medical issues as a result in their participation in such disarming. Add this to the VA woes that were triggered by the Bush/Cheney WMD inspired invasion of Iraq. No wonder Jeb's mom doesn't think another Bush in the White House is appropriate. Perhaps the GOP 2016 ticket will be PAUL R-AYN/RAND PAUL, an a-PAUL-ing thought, except perhaps in contrast to a CRUZ/PALIN wet-dream for the Tea Party.

By the Bybee [expletives deleted], Pres. Obama proposed breaking bread with the GOP leaders and the latter end up breaking wind. There is no GOP agenda. Expect more of the same from the GOP that started with Mitch McConnell's 2009 goal to limit Pres. Obama to one term. See Mann and Ornstein today at the WaPo.

Further "By the Bybee [expletives deleted]," our CO "dopey-ganger" seems to be avoiding references to the Tea Party.
 

"This is policy, not discretion."

What it is was described in the quote from Dorf I posted earlier:

" If one or more factors suffice to justify a decision not to devote executive resources in a particular case, then those same factors probably ought to suffice to justify the same decision across a category of cases. And indeed, many prosecutors' offices in fact have categorical guidelines governing when and when not to exercise prosecutorial discretion. Ordinarily, we would think of the regularization of such discretion as a virtue, rather than a vice, of government."

As to the WMD, I think BB has it right. Unlike diehard partisans Bush had the good sense to realize that if the WMD rationale had been understood to be about finding old cannisters of mustard gas public support would not have been what it was for the invasion.
 

Mr. W:

Dorf: "Ordinarily, we would think of the regularization of such discretion as a virtue, rather than a vice, of government."

Ordinarily, we think of regularization of policy as law.

In our constitutional republic, Congress enacts law.

Ordinarily, we think that an executive ignoring the law enacted by the legislature and decreeing his own is a dictator. Unless, of course, you are a progressive academic spinning for a progressive dictator.
 

Our CO "dopey-ganger's":

"In our constitutional republic, Congress enacts law."

And sometimes such laws enacted by Congress provide the Executive with certain authority to "legislate." When a nation in 200+ years grows from 3+ million in population to 300+ million, Congress is not structured to avoid Administrative law.

Our CO "dopey-ganger" continues to avoid responding to criticism of his client anecdote. Mr. W picks up on what he perceives as our CO "dopey-ganger's" point, whick may e textually supported, but the client anecdote remains incomplete, as I noted earlier:

"But that anecdote is incomplete regarding his role as defense counsel. I don't know if the client authorized the telling of this anecdote. If not, there are some ethical issues potentially involved with relating this anecdote. Possibly our expert is lying about the matter."

Our CO "dopey-ganger" claims to be the top legal dog in his high, white mountain-top community, at least in criminal matters. That is a small community and perhaps it is no secret in the community as to the identity of that client. According to the anedote, it was the immigration attorney who had recommended the client plead to the domestic violence charge. Perhaps it was our CO "dopey-ganger" relying upon the immigration attorney; or perhaps it was an "economic" decision, wink, wink, the client could not afford the fee for an actual trial. It is not that unusual for a DUI legal specialist to plead out clients, especially if they are unprepared for legal fees for an actual trial.

Mr. W's take suggests that our CO "dopey-ganger" may have taken advantage of Pres. Obama's executive powers under Administrative law on immigration (as perceived by the immigration lawyer), which powers our CO "dopey-ganger" objects to.

But does the client subject to this anecdote have concern with the relating of the anecdote?



 

Shag:

Article I grants Congress sole authority to legislate.

The progressive theory to get around that fact to create the regulatory bureaucracy was that Congress's enabling statute set policy and the bureaucracy merely filled in the details.

The president decreeing law in violation of that enabling statute is unconstitutional even under progressive administrative theory.
 

The Administrative state has been confirmed by Supreme Court decisions over the years despite, or perhaps because of, Congress' power to legislate under Article I. Yes, progressives were instrumental in the Administrative state going back to the early years of the 20th century. It is here to stay for so many reasons that Congress is not about to undo the Administrative state.

Our CO "dopey-ganger" continues to evade responding to criticism of his client anecdote.
 

Segregation was "here to stay" until Brown. Every evil is "here to stay" until overcome, and counseling resignation has always been the prefered way to defend evils.
 

Perhaps Brett might elaborate on "counseling resignation" as it is not clear who is doing the counseling or the resignation. How did "counseling resignation" work for former Democrats in the former slave states who became the base of the Republican party in challenges to Brown and the follow up 1960s Civil Rights acts?
 

Here's the URL for Sandy Levinson's recent article "The Twenty First Century Rediscovery of
Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate or
Serious Arguments to Be Wrestled With?"

http://media.law.uark.edu/arklawreview/files/2014/06/ArkLRev-67-1-Levinson.pdf

This is 63 pages that I hope to finish today or tomorrow.
 

The opening of that article calls to mind a recent ballot measure that passed:

http://ballotpedia.org/Arizona_Rejection_of_Unconstitutional_Federal_Actions_Amendment,_Proposition_122_%282014%29


 

I finished Sandy's article reading straight through yesterday. It is a great read as usually are his articles. While he addresses judicial supremacy and nullification, the most controversial aspects of the article are on secession. Sandy provides a world history on secession, both recent and past, AND points out that the American colonies in effect seceded from Great Britain in 1775-6 as spelled out in the Declaration of Independence.

Sandy's big concern in recent years involve political dysfunction. Query: Might secession of states, regions, etc, eliminate political dysfunction? It's not clear that Sandy thinks so. He still calls for a constitutional convention. Query: Might a constitutional convention lead to such secessions in exasperation of failing to come up with a new constitution that would address political dysfunction for all in the convention?

Sandy raises the question whether America is too big and that smaller may be better, with America broken into smaller units. What might this do with regard to America's role in the world? What comes to mind are America's National Security Strategies over the years, in particular the George W. Bush Strategy (Sept./Oct. 2002) to the effect that America is #1 economically, militarily and politically and will take all steps necessary to maintain these #1 positions. China may be creeping up economically to challenge one leg. But how might such secessions impact upon world leadership as the world seems to get more dangerous?

Sandy uses the analogy of No-Fault Divorce for secession by agreement/settlement (as opposed to war). Yes, with No-Fault Divorce, fault is not in issue in the grant of a divorce. But fault is an issue in settling property rights of the spouses. Consider economic issues that might be addressed with secessions involving assets/liabilities. Would there be winners and losers? And would the new sovereign nations resulting from such secessions have constitutions comparable to each other?

I'll have more to say later, but those reading Sandy's article with care should note Jack Balkin's comment to Sandy on the No-Fault Divorce analogy as impacting others than the spouses involved.

Again, this is a great read and I expect that after filtering through the legal community, the media may pick up the question of secession, asking whether America is too big and be subject to failure.
 

Sandy raises the issue of whether secession would be constitutional without providing an answer. He points to who constitute "the people" in determining a movement to secede. He also points to the constitutional guarantee of a republican form of government for the states (however that phrase is defined).

With regard to Sandy's reference to Jack Balkin (page 64):

"In many instances of divorce, one may need to ask the question, 'but what about the children' or 'what are the economic consequences for the more vulnerable of the two spouses'? Divorce rarely affects only the two primary people. As my Friend Jack Balkin suggested in responding to an earlier draft of this article, the equivalent of 'the children' or of 'the feminization of poverty' that has become the reality of many abandoned ex-wives is the fate of various groups within a seceding territory who may not share the views or aspirations of the seceding majority and who are distinctly worse off in the new independent country than in the older version of the polity."

Sandy poses this (page 78) perhaps as a response:

"Thus I pose a final question: Imagine that, contrary to any plausible expectation , a majority of Texans exhibit a credible desire to secede. One can easily predict, for what it is worth, that Austin and points south within the state would almost certainly attempt to emulate the 'Free State of Winston' by promptly attempting to secede from the presumptively right-wing reincarnation of the Lone Star Republic. In any event, assuming you are not a Texan, would you support a violent response by the United States or would you, instead, bid the Lone Star State a peaceful farewell, at least following negotiation with the leaders of the secessionist regime to ensure that the United States confiscates any nuclear weapons now stored in Texas or that Austinites and residents of the Rio Grande Valley are given the opportunity to set up their own independent states?"

But the Texas leaders might insist upon such weapons to protect the Lone Star State from neighboring potential threats. With multiple secessions, who can lawfully claim the nuclear arsenal in America? I could imagine a variation of the 2nd A in the Lone Star State extending the type of "arms" covered.
 

Speaking of the 2nd A, Sandy's "The Embarrassing Second Amendment," may have been responsible for sparking the movement that led to Heller and McDonald, although that does not seem to have been Sandy's intention. But with this current article, especially as it relates to secession, he may wish to spark discussion on secession as a possible means of addressing political dysfunction if a constitutional convention is not called to address such dysfunction. Let's see how other constitutional scholars react to Sandy's recent article. However the legal academy responds, the mainstream media may well consider Sandy's article as a call for secessions, even though Sandy may have reservations. As I noted in an earlier comment, the call of a constitutional convention might end up in such disagreement that secession may become the cry of some of "the people." And what might foreign powers (allies and otherwise) think of America possibly being broken up into several nations?
 

Here is the URL for 67 Arkansas L. Rev., Issue 1:

http://media.law.uark.edu/arklawreview/previous-issues/

that includes links to various papers on the Symposium that featured Sandy's "lecture," including an introduction, followed by Sandy, then essays by Jack Rakove, Mark Brandon and James Read, and then a panel discussion by other symposium participants. The introduction and essays are relatively short with the panel discussion somewhat longer but in conversational tone. These are my next reads.

The issues raised in this Symposium are most important in this day and age of American political dysfunction, world crises and America's role, as well as the increasing income/asset/inequality in America. Query: What might be the effect of secession of segments of America on such issues. I don't think the legal community has all or any of the answers. We'll have hear from historians, political scientist, economists, and other disciplines, as well as "the people," whoever they are.


 

The papers commenting on Sandy's article are good reads. I may have some comments on some of them later, but feel compelled to mention Mark Killenbeck's "Bad Company?" where Footnote 92 includes this:

"Aha! Levinson's real agendais offering support for secession in the hope that there will be a new constitutional convention!" [The footnote is to a lengthy Jefferson quote.]

My earlier comment to that effect was made before I read Killenbeck's paper. That doesn't put me in "Bad Company?", does it?
 

"Rebel souls, deserters we are called
Chose a gun and threw away the Son
Now these towns, they all know our name
6-gun sound is our claim to fame
I can hear them say

Bad company
And I won't deny
Bad, bad company
'Til the day I die, oh, yeah
'Til the day I die,"

http://www.azlyrics.com/lyrics/badcompany/badcompany.html
 

Joe,
You made my day! I've been waiting since early this morning for oil burner service that was promised by 3:00 PM, requiring another call, and finally just a few minutes ago was told that the serviceman was on his way. Then your comment. I did not get the title of the paper I referenced as I was not aware of the song. Maybe I'm keeping good company.

I trust you may have time to read some, hopefully all, of the papers. It all goes back to Brown v. Bd. of Educ. as augmented by the 2nd A (and further back to slavery, the secessions following Lincoln's election, Civil War, Jim Crow, etc). I'll have more to say when I warm up. Right now, I'm cold.
 

I might try to read some but given other reading etc., appreciate your summary and comments as they come.




 

ETA: http://media.law.uark.edu/arklawreview/2014/06/13/symposium-introduction-bad-company/

The note hyperlinks are neat. I'm something -- contra Justice Breyer -- something of a footnote nerd & easing reading of them w/o jumping to the end is appreciated.
 

Joe, thanks. And perhaps it would make more sense to quote "Bad Country?" reference to Thomas Jefferson:

"In 1820, in the wake of the Missouri Compromise, Thomas Jefferson recognized that the issue of slavery 'divides us at this moment too angrily.”90 He hoped that the passage of time would give both parties the opportunity 'to cool' and to 'divin[e] a practicable process of cure.' 91 But he also noted, with no apparent disapproval, that secession, albeit possibly only for a short time, might be the course pursued:

'Should time not be given, and the schism be pushed to separation, it will be for a short term only; two or three [[15]]years’ trial will bring them back, like quarrelling lovers to renewed embraces, and increased affections. The experiment of separation would soon prove to both that they had mutually miscalculated their best interests. And even were the parties in Congress to secede in a passion, the soberer people would call a convention and cement again the severance attempted by the insanity of their functionaries. ' 92"

Some might read into Jefferson that secession is for lovers. How might that fit with Sandy's "No Fault divorce analogy?


 

Jefferson was off a few years, I guess, given the Civil War lasted five years. Not sure that he even would have supported that amount of blood in the promotion of "liberty."

Meanwhile, RIP Alice Lee, sister of Harper.

http://www.al.com/news/mobile/index.ssf/2014/11/alice_lee_sister_of_to_kill_a.html
 

Consider this from the Jefferson quote:

" ... like quarrelling lovers to renewed embraces, and increased affections."

Has this happened following the Civil War to date, considering Jim Crow that surfaced promptly after the Civil War Amendments through Plessy, Brown v. Bd. of Educ., the Civil Rights Acts of the mid 1960s, Nixon's Southern Strategy in the 1968 presidential campaign, the switch of former southern Democrats during the civil rights movement to become the base of the current Republican party, the Court's Shelby County decision, steps taken by so many former slave states to enact ID voting laws, to the reaction of the Republican party to Obama's election as the first Black President in 2008.

Jefferson's "forecast" in 1820 may not have had in mind schism because of slavery (despite his relationship over the years with Sally Hemings).
 

Some of us remember the proliferation of revisionist histories for the Civil War Centennial by primarily southern historians proclaiming that the Civil War came about over states' rights leading to secessions by the slave states, not because of slavery. The Centennial was "celebrated" during the civil rights movement accelerated by Brown v. Bd. of Educ. (1954) and Cooper v. Aaron (1957). (More on Cooper in a later comment.) But accurate histories trumped these revisionist histories (which attempted to justify the Civil Secessions) demonstrating that those secessions were indeed over slavery.

Sandy's article might suggest to some readers that such secessions;did not call for a Civil War. Such a suggestion might add fodder to the current secession movements. I don't know if this was Sandy's intent; perhaps yes, perhaps not. Current day secessionists from former slave states might assert that there was no need for the Civil War because of such secessions, and blame Lincoln for the many deaths that resulted in that War.
 

It might bear remembering here that Sandy Levinson comes at these questions being born and brought up in North Carolina and long being a professor in Texas. So, he's not just some Yankee like me.

http://www.cardozoaelj.com/wp-content/uploads/2013/02/Shapiro-Fishbone-in-the-Throat.pdf

[I read the book reviewed there, and mostly appreciated it, though I was not totally convinced with his p.o.v.; it is cited to provide his background]
 

Joe,
Thanks for the link. I have downloaded the review that I shall read later today. I did not read Sandy's book and don't plan to. But I did read the plaque that starts the review, noting its reference (inter alia) to "states' rights," part of the revisionist histories I referred to in a comment about the "celebration" of the Civil War Centennial.

As to Sandy's roots, while a liberal Texan may be a yankee conservative, I'm satisfied with Sandy's liberal/progressive chops over the years. My comments on Sandy's Ark. L. Rev. article and other papers at the Symposium are not aimed at goading Sandy responding to them. Rather, my goal is to goad others to read Sandy's article and the other papers, especially on the subject of secession. Polls on Americans favoring secession are alarming. There may be a small "pure" secessionist movement in Vermont but for many secessionist movements a little scratching below the surface reveals racial overtones.

I'll have more to say on the subject of secession.
 

Joe,
I read the review of Sandy's book that you provided a link to. Based on the review, Sandy's liberal/progressive chops were not diminished by his book, in my view. But many years have passed since Sandy's book was published (1998). Has Sandy changed? (Of course, we can all change over time.) Recently we have had Sandy losing faith an d calling for a constitutional convention as a means, possibly, of overcoming political dysfunction. Now with his new article on secession (inter alia), do these suggest a change in Sandy's "career" views?

I'm thinking of the monument inscription near the top of the review, 'DIED FOR STATE RIGHTS GUARANTEED UNDER THE CONSTITUTION." The inscription continues, indicating that the seceding slave states were right and that Lincoln was wrong. So let me repeat from one of my earlier comments:

"Sandy's article mig t suggest to some readers that such secessions [claimed due to states' rights and not slavery] did not call for a Civil War. Such a suggestion might add fodder to the current secession movements. I don't know if this was Sandy's intent; perhaps yes, perhaps not. Current day secessionists from former slave states might assert that there was no need for the Civil War because of such secessions, and blame Lincoln for the many deaths that resulted in that War."

I'm not suggesting that the inscription over the years since 1998 has changed Sandy's views.
 

One aspect of SL's views that didn't change is his view of judicial restraint. This was seen in the book (which was more a series of essays) and remains true today.

That is, he thinks the courts usurp too much authority at times in deciding questions & also the people overall have great responsibility and power to apply constitutional principles themselves.

This is partially based on pragmatic and prudential concerns on the limits of judicial review. This leads him to be sympathetic to Breyer's jurisprudence. And, is seen in his support of the holding of Heller, but not the reasoning.

SL's feelings in regard to "overcoming political dysfunction" probably got more pessimistic. Nonetheless, I think his works on the need of a new constitutional convention, the problems with the current Constitution etc. probably reflect long held views.

Anyway, me citing is Southern heritage was meant to cite his particular mindset, but as with Yankees, there are a variety of breeds there.
 

Speaking of judicial review, take a peek (a long one is required) at Jill LePore's "The Great Paper Caper" in The NewYorker. The Legal History Blog provides a link. Yes, there is a lot of mystery with the Court and its Justices who are not directly accountable to voters/public. There is a crying need for review of the judiciary. A recent poll indicated 30% approval of the Court, 29% approval of the President and 9% approval of Congress. If enough of the public becomes aware of LePore's article, I wonder how it might affect polling on approval of the Court.

By the way, I am in general agreement with Sandy's criticisms of judicial review, which he touches upon in his article relative to nullification. And I also agree with his criticism of judicial supremacy, also discussed by him in the article on nullification.

Hopefully I'll be able to get in a few more comments on the Symposium before it is pushed back into the archives.
 

For those who do not have time to read the Symposium papers in their entirety might focus on the panel discussion "Where the Rubber Meets the Road: A Dialogue" among several Arkansans, about 34 pages long, but a fast read. The outlier at this Symposium is Bob Ballinger, a lawyer/legislator in Arkansas. He is a real piece of work in this day and age but the other panelists are quite effective in response. The Dialogue points to the fact that the State of Arkansas has yet to fully accept Brown v. Bd. of Educ., despite significant financial costs to the State.

Bollinger lauds Sandy for "thinking-outside-the-box." But I imagine Sandy churning over the content of Bollinger's remarks. And I'm not quite sure that Sandy takes as a complement "thinking-outside-the-box," whatever that means.

Here's a sample of Bollinger (p.121):

"The fact of the matter is that I am a State Representative, and I have sworn an oath to defend both the United States and Arkansas Constitutions. For me, the Second Amendment in the Bill of Rights and article 2, section 5 of the Arkansas Constitution are profoundly unambiguous. And for the record, while this is not central to today's discussion, I must mention that I include in my personal calculus humankind's natural rights of self-defense, and the Declaration of Independence's reference to unalienable frights from our Creator. In my worldview, these rights are superior to any man-mad law, and I make no apologies for that. Natural rights were of paramount importance to the framers, and I will not pretend that they are inconsequential to me."

Bollinger fails to mention that the Declaration did not extend such "natural rights" to slaves. And I assume that the "Creator" is the God of Abraham, of judaism, christianity and muslims, and look at the worldview of histories among these major groups including in this day and age: "Praise the Lord and Pass the Ammunition ...."
 

The Arkansas Law School Symposium was held last Fall. Sandy has not, to my knowledge, made reference to his role - a major one - in the Symposium. And I haven't detected an acceleration of discussions on nullification and secession. Perhaps the 2014 elections have cooled down the conservative advocates what with GOP control of both the House and the Senate in January. And while there is still talk of political dysfunction during the lame duck session of Congress, the GOP talks now of getting legislation done with such controls, subject of course to Obama vetoes, as compared to the GOP's say "NO" to whatever Obama does policy since Obama's first term began.

So perhaps it is the turn of liberals to talk of nullification and secession. In any event, the political dysfunction can be expected to continue even if Congress can override an Obama veto. But consider the politics of the third branch, the Court, which may come to the rescue of the GOP overcoming Obama vetoes, aka the tyranny of the Court (5-4) or aka domestic political torture by unelected officials.

But I'm curious as to Sandy's silence on his contribution to the Symposium.
 

Would you be interested in exchanging links? Mmaprediction.com Deepol.net Intercite.biz
 

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