A Potential Workaround for Obamacare Subsidies

Gerard N. Magliocca

The Supreme Court will hear King v. Burwell in March, and I want to discuss a legal fiction that may become important for the case and for its aftermath if the Court rules against the Administration.

As readers of the blog know, King is about a section of the Affordable Care Act that says subsidies are available for health insurance only "through an Exchange established by the State."  The Court is being asked to assess if "the State" is unambiguous given what the rest of the statute provides.  If it is unambiguous, then insurance subsidies would be unavailable for people in the more than thirty states that have not set up an exchange and are instead relying on the federal exchange.

Let's assume for the sake of argument that "the State" is unambiguous.  The relevant language says that an exchange must be established by a state, not that the state must operate the exchange.  Thus, I would submit that a state could--consistent with the statute--establish an exchange and then delegate the authority to run that exchange to the federal government.

If I am correct, then willing states could respond to King by passing a one-page statute that does what I've said.  Problem solved.  What about unwilling states?  My thought is that they could not argue against setting up their own exchange due to its complexity or expense.  The only rationale for not setting up a state exchange along the lines that I am describing would be disagreement with the Act.  In that case, state elections would become the forum for deciding the issue, which would at least have the benefit of making that issue transparent.

My final observation is that accepting this "formal state exchange" argument would make it easier for the Court to rule against the Administration, though it probably shouldn't.  If states face no expense or burden to "establish" an exchange, then a congressional requirement that they do so for their citizens to get subsidies will not seem unreasonable.  This makes an opinion going against the Administration easier to write for those Justices so inclined.
Posted 10:46 AM by Gerard N. Magliocca [link] (122) comments

Versa project at Cardozo Law School publishes translations of Israeli Supreme Court opinions

JB

The Cardozo Law School has just created a new website, Versa, devoted to the opinions of the Israeli Supreme Court. The site contains English translations of some of the court's most important decisions. The Versa website is part of a larger Israeli Supreme Court Project that is co-directed by Professors Michael Herz and Suzanne Last Stone.
Posted 9:30 AM by JB [link]

A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition

Andrew Koppelman

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses — civil unions and domestic partnerships — that were created by states to serve as functional marriages. Even though all the states that created such alternative policies now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or domestic partnerships retroactively, even in situations where it is now recognizing same-sex marriages retroactively.
 
In an essay that my coauthor, Prof. Deborah Widiss, and I have just posted on SSRN, we argue that the current federal policy is based on a mindlessly literalist approach to statutory interpretation that should be repudiated. Federal law generally looks to state law to determine valid marriages, and the state laws that created these alternative statuses defined them to be fully equivalent to marriages in all respects. Couples who enter into such unions thus make exactly the same legal commitments to each other that couples who marry make to each other. Just as the federal government routinely recognizes foreign marriages, even when called something other than “marriage,” it should recognize state civil unions or domestic partnerships that are likewise legally indistinguishable from (other) marriages.
Posted 9:17 AM by Andrew Koppelman [link]

the more things change . . .

Marty Lederman

Posted 9:28 AM by Marty Lederman [link]

New Developments in Originalist Theory

JB

Over at the Liberty Law Blog, there is a very interesting symposium responding to Steve Smith's essay on Meanings or Decisions? -- Getting Originalism Back on Track.  Steve is concerned that the turn to original meaning originalism was mistaken, in part because it made possible my fusion of living constitutionalism and originalism in Living Originalism. If people like me can join the original meaning club, he suggests, maybe it isn't worth being a member anymore. He wants to start over with a new term, like "original decisions originalism."

In one sense Steve is right, of course: once originalism moved to a focus on original public meaning and away from a focus on original intentions or original understanding, the distinction between original meaning and original expected applications was inevitable. So too was the intellectual synthesis that I produced in Living Originalism, showing that the best versions of originalism and living constitutionalism were just two sides of the same coin.

In fact, I was by no means the first to spot the likely consequences for original meaning originalism.  Mark Greenberg and Harry Litman made this argument in 1998; a year later Randy Barnett made a similar move, as did Kim Roosevelt in 2006; and of course, Ronald Dworkin's notion of semantic originalism made the point even earlier still.  The major problem for Steve is that going back to something like "original decisions originalism" is just going to dredge up the same problems as earlier versions of originalism that have since been abandoned.

I believe that there is no going back at this point. Originalism and living constitutionalism are now one nation, indivisible (with liberty and justice for all, we hope!)--and originalism, like humanity itself, is condemned to be free.

There are three responses to Steve's essay:  One is by Michael Rappaport, The Original Decision and Abstract Originalism-- An Unbiased Approach to Originalism.  Mike agrees with Steve Smith that my approach should be rejected, but he points out that Steve's move to original decisions won't work very well. Instead, he argues for his and John McGinnis's theory of original methods originalism, developed most fully in their new book, Originalism and the Good Constitution.

Read more »
Posted 5:35 PM by JB [link]

Hobby Lobby and the question for religious freedom

Andrew Koppelman

Winnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously.

The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”

As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.

Our choices are clear: either we sometimes accommodate, or we never accommodate. The argument for the latter option relies precisely on the religious heterogeneity that Sullivan invokes.

I elaborate the argument in a piece just posted on The Immanent Frame, here.
Posted 12:38 PM by Andrew Koppelman [link]

The Senate Torture Report: Accounting without Accountability

Jonathan Hafetz

In her speech on the Senate floor marking the Senate Select Committee on Intelligence’s release of its long-awaited report on the CIA’s Torture Program, Senator Dianne Feinstein (D-CA) declared that the report would “show the world that we are in fact a just and lawful society” and a society "governed by law." The Senate report does much, and much that is good, but what it does not do is vindicate either justice or law.

The report provides the most comprehensive examination to date of the CIA Torture Program. Above all, it helps strip away the layers of secrecy and expose the misrepresentations to better inform the American public what actions its government took in the name protecting its security. In that sense, the report serves an informational role vital to a democracy and the deliberative process on which it depends.

But accounting should not be confused with accountability. It is crucial to remember that the torture and other misconduct committed by U.S. officials was not simply immoral, barbaric, and counterproductive. It was also criminal, prohibited under both U.S. and international law. In other countries, detailed investigations into human rights violations helped lay the groundwork for subsequent prosecutions. (Argentina and Guatemala are two examples). But President Obama has already suggested that the Senate report will not cause him to reverse his original decision not to pursue a full criminal investigation. The President called the report’s findings “troubling,” but cautioned against “refighting old arguments” and, once again, urged the country to look forward, not backward.

To be sure, political winds in the U.S. may shift, or another country may prosecute U.S. officials under international law. (Prosecutions under universal jurisdiction have previously been attempted in several European countries). But history, not law, may well be the final arbiter of America’s Torture Program. If so, the report’s main contribution will be the factual record it provides to us now and to future generations.

Much of the information about the interrogation methods was already known, although the report includes many new details (from finding that more detainees had been water boarded than previously acknowledged to describing additional interrogation methods like “rectal feeding” and “rectal hydration”). The report’s more significant findings describe the degree to which the CIA mismanaged the detention program, quashed internal opposition, and misrepresented the program to Congress, to the President and senior administration officials, and to the American public (although, in my view, the report goes too far in absolving others outside the CIA). Most importantly, the report counters, in painstaking detail, the claims that “enhanced interrogation methods” produced valuable intelligence and saved lives, including the claim that such methods helped the U.S. find Osama bin Laden in Pakistan.

The report thus makes a compelling case that torture does not work. Most professional interrogators agree. While I confess to no such expertise, I have represented a number of detainees accused of terrorism and have always found that legitimate methods are the most effective way to get suspects to cooperate. Apologists will continue to defend the Torture Program, as the immediate backlash to the Senate report shows. But even if they could show torture had provided some useful information, it shouldn’t matter. The criminal prohibition against torture does not, and should not, rest on utilitarian arguments. And to the extent it does, it will remain vulnerable to the claims of the next Cheney or Tenet that torture works.

The United States is not the first society to confront the commission of grave crimes by the state. Other countries have committed torture and other atrocities, and done so on a much wider scale. In some instances, they have not opted for a traditional criminal law approach and instead pursued other accountability mechanisms. But, as Kevin Jon Heller observes, even a South-African-style Truth and Reconciliation Commission conditioned amnesty on admission of wrongdoing. Moreover, most other societies confronting a past of systematic, state-sponsored human rights violations are also transitioning from a period or internal armed conflict or a change in their political order. The fear is that prosecutions will derail that process.

While the opposition to criminal prosecutions remains undeniably intense, the U.S. faces no comparable choice between peace and justice. The trade-off is one of politics, not peace. And, so far, politics has trumped law. There are other ways for the U.S. to achieve a measure of accountability, from noncriminal sanctions against those responsible to providing remedies to victims. But to date other accountability mechanisms have been not taken hold. Instead, we are left with accountability through accounting.

And herein lies the Torture Report's central paradox. It is because the Senate report provides such devastating details into the Torture Program that the stakes for the rule of law are now so high. By demonstrating the depth and degree of America’s lawlessness, the Torture Program shines the light even more brightly on law’s absence in addressing the crimes of the past.




Posted 9:52 AM by Jonathan Hafetz [link]

"Opinions on the Shape of the World Differ" Legal Reporting

Mark Tushnet

Posted 1:59 PM by Mark Tushnet [link]

Call for Papers: Sesquicentennial Conference -- The Thirteenth Amendment through the Lens of Class and Labor

Guest Blogger

Posted 12:45 PM by Guest Blogger [link]

The Bill of Rights Reconsidered

Gerard N. Magliocca

The draft of my revised paper on the history of the Bill of Rights is available for download here.
Posted 8:46 PM by Gerard N. Magliocca [link] (248) comments