Balkinization: September 2017

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

The Enduring Significance of the Defeat of “Repeal and Replace”

Why the Court can't really solve the problem of fair representation

More on Puerto Rico

The Supreme Court's New Term

Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press

Puerto Rican Statehood

Top Ten Upsides of a Nuclear War with North Korea

And, Right on Cue...

Free Speech on Campus

The State of "Our Democracy" -- Sitting in for Sandy Levinson

The Senate's latest health care proposal: Once again, it's all about the tax cuts

They're back!

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Saturday, September 30, 2017

The Enduring Significance of the Defeat of “Repeal and Replace”

David Super

My friends are holding a New Year’s Eve Party tonight to ring in the new federal fiscal year. At the stroke of midnight, in place of the Times Square ball, what will be dropping is the “reconciliation instruction” that Republicans gave themselves last winter to repeal the Affordable Care Act (ACA). The Senate Parliamentarian’s ruling on this makes sense: that instruction was contained in the budget resolution for fiscal year 2017, and Congress cannot even purport to improve that year’s budget after the year is finished. Although procedural maneuvers are still possible to allow repealing the ACA with a simple majority in the Senate, doing so would undermine efforts to pass massive tax cut legislation that is even dearer to Republican donors than repeal-and-replace. Such maneuvers also would take a while, allowing opposition to mobilize, precluding sudden attacks like the recent Graham-Cassidy bill.

We may see renewed efforts to kill the ACA if Republicans pick up seats in the mid-term elections or if Mike Pence, who surely would be a stronger president, replaces Donald Trump in the Oval Office. The ACA will not definitively be safe until Republicans pass legislation to improve the ACA, such as that under negotiation between Senators Lamar Alexander (R-TN) and Patty Murray (D-WA). Still, this seems like a good time to consider what the demise of “repeal-and-replace” means for our informal constitution.

Abbe Gluck offers a fascinating argument that the ACA’s survival signals a fundamental change in how Americans have come to see health care, from individual privilege to social necessity. She is clearly correct: the repeal legislation’s remarkable difficulties in a deeply conservative House, and its ultimate defeat in the Senate, reflect its overwhelming unpopularity with the broad electorate. Not only did it largely unite a progressive coalition that had previously been consumed with squabbling about single-payor plans, but it also won the enmity of huge swaths of voters that supported Republican congressional candidates and President Trump. Popular constitutionalists like Bruce Ackerman, Bill Eskridge, and John Ferejohn argue that constitutional moments are not complete until the new order becomes so entrenched that continued resistance becomes politically suicidal. We have not reached that point yet, but we may be getting close. Ironically, it may be President Trump’s deliberate sabotage of the ACA that takes us the rest of the way by creating a crisis that Republicans cannot ignore (because they are implicated) and cannot address by tearing down the ACA (because they have lost public credibility through their numerous horrific “repeal-and-replace” bills).

What remains to be seen is whether this constitutional moment is limited to health care. A few years ago I argued that if the ACA survived, it would represent a broader change in our public law regime in at least four respects. Specifically, I argued that the ACA forcefully placed the federal government’s superior fiscal capacity at the center of our fiscal federalism. That model rose to prominence in the New Deal, but has faced pushback from those regarding it as subversive to states’ dignity and sovereignty. The ACA effectively ended several decades of experiments with state-level health care reforms, which regularly fell apart when recessions prevented states from maintaining subsidies.

Champions of the repeal-and-replace bills, most of which also capped federal contributions to the existing Medicaid program at levels far below projected need, invoked state sovereignty when insisting that reduced federal contributions did not necessarily require Medicaid cuts. Technically, they were right: states could make up the difference out of their general funds. Yet the impracticality of this argument prevented it from ever gaining traction, with estimates of huge coverage losses being widely accepted. The ignominious fate of the Graham-Cassidy bill certainly suggests a sea change from the Nixon, Reagan, and Gingrich eras, when proposing a block grant was the magic elixir for making social programs disappear. Going forward, arguments from the federal government’s superior fiscal capacity seem likely to become decreasingly controversial. President Trump’s bizarre attempt to blame Puerto Rico for lacking the financial capacity to provide its own disaster relief cannot help critics of the superior capacity model.

I also argued the ACA’s near-universal coverage provisions reflect a sharp move away from social welfare policy’s longstanding attempts to separate the worthy from the unworthy poor, in part through behavioral requirements and in part through demographic limits on which low-income people may qualify for aid. This is in part a more generalized version of Abbe Gluck’s point about shifting the framing from individual responsibility toward social solidarity. It may prove to be limited to health care, but the broader legitimation of empathy for childless adults at least opens up lines of argument that previously had been inconceivable in much of the country. NFIB v. Sebelius partially restored the categorical limitations of the old Medicaid, but by triggering state-level battles over Medicaid expansion it allowed the argument about demographic limitations on empathy to be replicated under conditions favorable to social solidarity (e.g., with the federal government bearing the vast majority of the cost and with hospital and business lobbyists aligned with progressives). Although a significant minority of states still have not embraced the ACA’s Medicaid expansion, opponents in most states have largely avoided direct attacks on the worthiness of childless adults.

Advocates of repeal-and-replace bills tried to argue that projected coverage losses were not real because they reflected individual choices to disenroll – and were widely ridiculed for doing so. And having this debate in the context of insurance rates cast the spotlight on the most sympathetic set of childless adults: those in late middle-age. The Trump Administration seems poised to grant some states Medicaid waivers that will impose various “worthiness” tests on Medicaid recipients; the reception that political and legal attacks on these waivers receive will tell us much about how far we have moved toward non-categorical social compassion.

The third area where I argued the ACA had transformed public law was taxation. The ACA’s intricate premium subsidy system administered through the federal income tax system seemed a forceful rejection of the notion of populist simplicity exemplified by the Tax Reform Act of 1986 and undergirding persistent public support for payroll taxes and “flat tax” proposals even from lower-income workers who fare much better under graduated income taxes.

The House Republicans attempted to invoke populist simplicity when they argued against tying their stripped-down premium subsidies to income. This compounded the impact of their huge withdrawal of funds so severely that they reintroduced a tepid means-test in their final bill. A better test of the viability of populist simplicity will come in the impending debate on tax legislation. Republicans are making invocations of 1986-style reform a mainstay of their argument for passing huge upper-income and corporate tax cuts. If this blows up in their faces, populist simplicity will be badly wounded.

Finally, I argued that the ACA represented a dramatic deterioration in the line between public and private. Private industry’s needs heavily influenced the ACA’s structure, provided the main conduit for providing its benefits, secured a central role in making substantive decisions about the extent of coverage within broad standards for actuarial value, and pressed regulation into service as a means of redistribution. Republicans pushed back against this comingling of public and private with complaints about excessive market regulation and about forcing men to pay for policies with maternity coverage. So, indeed, did some Democrats, with their renewed promotion of a single-payor plan. It is difficult to see attitudes about privatization played a significant role in defeating “repeal-and-replace” or that they will be prominent in single-payor’s continued failure to gain traction. On the other hand, the ACA’s public-private model facilitated strong industry opposition to Graham-Cassidy and some of its predecessors. And the specific question of regulatory redistribution received enough attention that similar attacks seem less likely to prevail in the future.

In sum, a full accounting of the Affordable Care Act’s constitutional significance must await its entrenchment, which may be years off. Nonetheless, the struggles of the past year offer tantalizing hints of some fairly dramatic changes in the substance of, and our discourse about, public law.

Posted 2:13 PM by David Super [link]

Friday, September 29, 2017

Why the Court can't really solve the problem of fair representation

Sandy Levinson

Great hopes are being placed by many that the Court will help to staunch the cancer on American democracy that is partisan gerrymandering. I certainly hope there are five Justices who agree that Wisconsin (and many other contemporary states) are acting unconstitutionally. But it is a mistake to believe that even your favorite opinion (whatever that might be) would truly alleviate the problems posed by the House of Representatives. It is doomed to be "unrepresentative" in many important ways so long as it remains within the stranglehold of the 1842 congressional act, reaffirmed in 1967, that requires single-member districts. What is needed, in all states with more than, say, six representatives, is multi-member districts with candidates elected on the basis of proportional voting. This would not only go far to eliminate the ravages of contemporary partisan gerrymandering, but would also assure, say, that Republicans in LA would be able to elect a representative, just as Democrats in West Texas would finally get some genuine representation.

From one perspective, single-member districts doesn't present a "constitutional problem" at all, because they are the result of a congressional statute that could presumably be repealed, to be replaced with a requirement that states adopt multi-member districting and proportional voting. But we all know that there are no conceivable circumstances under which the House of Representatives would ever vote for such legislation, even assuming the Senate and President would go along. Nor, as a practical matter, can one envisage Congress proposing a constitutional amendment along these lines, for the very same reason. (Now, it would take only 1/3+1 of House members to keep the status quo.) Were the US like California or Nebraska (a decidedly non-crazy state), "we the people" could organize to support a constitutional initiative-and-referendum to reform our ever more indefensible system of "representative government." But, of course, thanks to James Madison and his associates' fundamental mistrust of popular sovereignty, there is not a scintilla or an iota of direct democracy in the US Constitution, unlike 49 of the 50 state constitutions--Delaware is the once exception. So, therefore, the only way to alleviate the problem in which conscious gerrymandering is only the very visible tip of an iceberg is through a constitutional convention.

My hunch is that at least some of you will agree that the House of "Representatives" is becoming ever more an oxymoron, and even that the proposal, advocated by FairVote, of multi-member districts and proportional voting, is a good idea. BUT not via a constitutional convention. So we are doomed to continue to be liked in the vise of an unrepresentative and undemocratic Congress because we are scared stiff of the kind of democratic politics that a constitutional convention would generate. This is the present American dilemma. Since most of us don't really believe in the genuine possibility of democratic government, which requires some degree of faith in "the people," instead we produce a market for unscrupulous demagogues, like our current President, whose only saving grace is his manifest incompetence as an actual governor. But in the future, without basic constitutional reform, we'll get far "better" demagogues, as it were, who will learn from Trump's mistakes. In any event, the last thing we should do is to continue believing that the Court will save us. It could make things marginally better if it strikes down the pernicious Wisconsin gerrymander, and one should be grateful for small favors. But that's all it would turn out to be in the absence of a national conversation, which we're simply not having, about what might constitute "representative government" in the 21st century in a divided country of 320,000,000 people where. more people live in each single-member congressional district than lived in the largest American state circa 1790.

Posted 4:45 PM by Sandy Levinson [link] (52) comments

More on Puerto Rico

Sandy Levinson

As part of the blog about our new book, Fault Lines in the Constitution, my wife Cynthia and I have just posted a discussion about Puerto Rico. It doesn't add very much to Gerard's excellent post, save that we hope that at least some of our audience includes the teenagers to whom our book is directed and their teachers. I do suspect that this will be a decisive moment in the relationship between the US national government and what is now the world's largest remaining colony (defined by the absence of any voting representation in the metropolitan government, unlike, for example, the French territories). One can only imagine what would be happening if Puerto Rico, which is the same population roughly as Connecticut, had that state's two senators and five members of the House (not to mention seven electoral votes). I would think, at the very least, that events of the past week have weakened the attraction of Commonwealth status, and I will be curious, should this turn out to be the case, if the defectors support statehood or independence (or, of course, independence should a bigoted Congress reject statehood because the dominant language of Puerto Rico is Spanish. And, of course, it would be extremely interesting, to put it mildly, to see what the response of the US would be to a truly serious secessionist movement patterned after 1776.

Posted 4:25 PM by Sandy Levinson [link] (7) comments

The Supreme Court's New Term

David Gans

The Supreme Court is back, and its October oral argument calendar is chock full of blockbuster cases. Even with the removal of the challenge to President Trump’s Muslim travel ban, it’s hard to remember a single month with so many important cases. These October cases aren’t the only big cases on the docket this Term, but they will certainly define this year at the Supreme Court.

This lineup of blockbuster cases comes at a critical juncture. For much of the last two years, the Supreme Court has hobbled along with eight Justices, avoiding big cases and issuing extremely narrow rulings. This Term, Chief Justice John Roberts is back at the helm of a fully staffed Court. This may also be a big Term for Justice Neil Gorsuch, who joined the Court in April and quickly showed that he would be on the far right of the Court. Given the cases on the docket this Term, Justice Gorsuch will face a series of huge tests whether he will follow the Constitution’s text and history, no matter where it leads.

The term begins with a truly momentous case testing whether states may draw district lines that discriminate against voters on account of their political affiliation. On October 3, the second day of the Term, the Supreme Court will hear Gill v. Whitford, a landmark case on constitutional limits on partisan gerrymandering, which could change how state legislatures draw district lines. The stakes for our democratic system of government could not be bigger.

Partisan gerrymandering is a cancer on our democratic system of government, turning on its head the fundamental principle that voters choose their elected representatives, not the other way around. In Gill, the Justices confront a particularly grotesque set of facts: in 2011, after Republicans took control of the Wisconsin state legislature, they met behind closed doors to devise new Assembly districts, drawing lines so that their party would wield political power far in excess of votes cast at the polls. Taking advantage of new technology to manipulate the district lines for maximum advantage, Republicans in Wisconsin sought to entrench their party in power no matter what happened in future elections.

In Gill, the Supreme Court will decide whether the government may, consistent with the Constitution’s guarantees of freedom of speech, freedom of association, and equal protection for all persons, act to subordinate members of a political party because of their views and degrade the effectiveness of their votes. The Court should strike down Wisconsin’s extreme partisan gerrymandering, making clear that, under our Constitution, states cannot rig the electoral process to entrench the governing party in power. Striking down Wisconsin’s brazen gerrymander would not end all gerrymandering, but it would send a powerful lesson: courts will step in when legislators seek to perpetuate themselves in power.

In Gill, all eyes will be on Justice Kennedy, who almost certainly will cast the deciding vote. Over the course of three decades on the Supreme Court, Justice Kennedy has issued a long list of landmark First Amendment rulings, defending the special role that free speech and association plays in our democracy and making clear that the government may not regulate speech and association “based on disapproval of the ideas and perspectives” expressed, “which is the essence of viewpoint discrimination.” The question in Gill is whether Justice Kennedy will carve out a redistricting exception to these principles, permitting the government to subordinate persons because of their political views and affiliation.

Justice Kennedy’s record in past gerrymandering cases is mixed, but he has previously recognized that the First Amendment may be a specific limit on partisan gerrymandering by the states. As he has written, “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” If Justice Kennedy votes to give state legislators a green light to gerrymander and degrade the voting rights of their political opponents, it would be a black mark on his First Amendment legacy.

Corporate accountability will be another big theme of the Court’s October cases —and likely the Term as a whole. The Supreme Court under the leadership of John Roberts has, year in and year out, rewritten the law to make it harder for workers, consumers, and others to hold corporations accountable in the courts for their wrongdoing. As Adam Winkler has observed, “one thing remains constant on a dynamic Supreme Court: corporations and business interests win.” The Supreme Court Term opens with two blockbuster cases in which corporations are urging the Court to close the courthouse doors to those injured by corporate abuse of power.

On October 2, the Court will hear an important case about whether employers can force their employees to give up the right to bring class actions in court to hold corporations accountable and make their employees arbitrate their cases before a decisionmaker handpicked by the company. In Epic Systems Corp v. Lewis, a slew of corporations, backed by the Chamber of Commerce and the Trump Administration, argue that employees can be forced to waive their right to file class-action lawsuits against their employers and submit to binding arbitration, even though federal law explicitly guarantees employees the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” On October 11, in Jesner v. Arab Bank, the Supreme Court will consider whether corporations can ever be sued under the Alien Tort Statute, a Founding-era federal law designed to ensure that foreigners can sue for a violation of the law of nations. The Alien Tort Statute does not limit at all who may be sued, and, for centuries, it has been well settled that corporations may be sued for corporate wrongdoing. But the Arab Bank, whose New York branch allegedly financed international terrorism, insists that it cannot be held accountable.

Epic and Jesner pose a key test for Justice Gorsuch, whose very first opinion for the Court insisted that “it is . . . our job to apply faithfully the law Congress has written,” making clear that courts should not “rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” “The business of enacting statutory fixes,” Gorsuch wrote in another opinion, is “one that belongs to Congress and not this Court.” The question now is whether Justice Gorsuch will abide by these principles or try to find a way to rewrite the law to close the courthouse doors on injured workers and others.

Trump’s travel ban won’t be argued in October—at least for now—but other important immigration cases remain on the docket. Last Term, the Supreme Court had two major immigration cases on its docket—Jennings v. Rodriguez and Sessions v. Dimaya—which it was unable to resolve. Both will be reargued in October.

It is a basic constitutional principle that whenever the federal government acts, it is bound by constitutional limits on its power. Deference to the political branches, as Chief Justice John Roberts put it in the health care decision of 2013, “can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.” The question for the Justices this Term is whether this basic principle applies when the federal government regulates immigration, or whether immigration is a Constitution-free zone in which the usual rules don’t apply.

In Jennings, the Justices will consider whether immigrants held in prolonged, indefinite detention—up to several years in some cases—pending their deportation are entitled to a bail hearing to ensure protection of their fundamental liberty. In Dimaya, the Court will determine if immigrants can be subject to mandatory deportation under vaguely-worded federal statutes. In both cases, the U.S. government—as it has in the travel ban cases—is urging the Court to apply a watered-down version of constitutional protections in the immigration context.

After a relatively quiet 2016, the Supreme Court has a long list of blockbuster cases on tap for 2017. What happens in the first month of the new Supreme Court Term will go a long way to defining the Roberts Court in the Trump era.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.

Posted 2:22 PM by David Gans [link]

Tuesday, September 26, 2017

Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Sandy Levinson

It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times. Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me. I confess I am very pleased about that. But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution. As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting." Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program. I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power. Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself. We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.

Everyone knows that the hardest achievement is to get from 0 to 1 with regard to a public issue. For years now, the number of mainstream pundits willing to engage in serious discussion about constitutional defects has been zero. Now we have one, and my fervent hope is that Ms. Goldberg will spark the long overdue discussion that we are so desperately in need of. My conservative friend Seth Lipsky just posted a welcoming editorial about Goldberg in the New York Sun website (again, for some reason I can't link to it), in which he takes issue. So perhaps the number in one day has gone from zero to two.

As usual, I'm willing to allow comments, but I fervently hope that everyone will first log on to the NYTimes site and read Ms. Goldberg's column before commenting. Let me say, incidentally, that I was heartened by the comments to Gerard's very important posting on statehood for Puerto Rico. Almost uniquely, I felt that everyone was genuinely in conversation with one another and not simply attempting to score cheap (and completely predictable) political points. Puerto Rico presents really difficult issues, which are almost certainly going to get every more complicated. Will the response of Puerto Ricans to mainland indifference be to encourage a switch of "commonwealth's" to supporters of statehood, in order to get some genuine political clout that they now lack, or, instead, will it promote support for secession from the American Empire a la 1776, and would we allow it? Would Republicans in fact support statehood, whatever their platform says, given the high likelihood that it would result in two Democratic senators and five Democratic representatives?

Ms. Goldberg, incidentally, is also courageous enough to treat the issue of secession with some seriousness, interviewing Gov. Jerry Brown about potential developments in California. It will be really interesting to see where she chooses to focus on in the future, but her debut, from my perspective, was auspicious in every conceivable way!

Posted 11:22 PM by Sandy Levinson [link] (62) comments

Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press

David Pozen

Jameel Jaffer and David Pozen

The First Amendment’s free speech and free press clauses, and the values they stand for, have been the subject of intense controversy in recent years. Events in Charlottesville have reinvigorated old debates about the proper response to hateful speech. President Trump routinely vilifies the news media and constitutional libel law. Critics on the right decry what they describe as a growing culture of close-mindedness on university campuses. Critics on the left decry a “Lochnerian” turn in judicial doctrine, as the courts have come to rely on the First Amendment to limit regulation of economic activity. On the Internet, new threats to political discourse—from “fake news” to increasingly subtle forms of governmental and nongovernmental censorship made possible by digital technologies—appear to be mounting.

Against the background of these formidable challenges, we are excited to announce that the Knight First Amendment Institute at Columbia University will commission and publish a series of essays that grapple with newly arising or intensifying structural threats to the system of free expression. These threats may be caused by changes in the forms and applications of technology, in the means and economics of communication, in the norms and practices of politics, or in legal doctrine itself. The Emerging Threats papers explore ways to address these threats and thereby preserve features of democracy essential to healthy open societies.

We launch this series today with the publication of a provocative essay by Tim Wu, professor at Columbia Law School and author of The Attention Merchants. In “Is the First Amendment Obsolete?” Wu observes that some of the forces that undermine contemporary political discourse—such as “troll armies,” “flooding,” and propaganda robots that aim to distort or drown out disfavored speech—may be beyond the reach of the First Amendment as traditionally interpreted. To secure the expressive environment against these threats, Wu explores a range of possible responses, including new uses of “accomplice liability” and “captive audience” doctrines under the First Amendment and new laws that would broaden criminal liability for online intimidation of members of the press. We asked two leading legal scholars to reflect on Wu’s arguments. Geoffrey Stone of the University of Chicago identifies historical parallels to the threats Wu spotlights and urges caution, while Rebecca Tushnet of Harvard Law School considers possible extensions of Wu’s ideas in areas such as compelled speech and public education.

In future Emerging Threats essays, authors including Matthew Connelly, Justin Driver, Lina Khan, Kate Klonick, Frederick Schauer, Amanda Shanor, and Olivier Sylvain will examine the legal and policy implications of fake news, hostile audiences, privately owned online platforms, government secret-keeping, economic concentration in the media and related sectors, online conduct that harms historically subordinated groups, and other phenomena that are raising profound challenges for the system of free expression. We don’t expect to offer simple or uncontroversial solutions to any of these challenges, but we hope that the series will deepen certain existing First Amendment debates and spark some new ones.

Posted 11:53 AM by David Pozen [link]

Monday, September 25, 2017

Puerto Rican Statehood

Gerard N. Magliocca

Sometimes a disaster or a crisis is required to bring about long-overdue change. Whatever people may say about the Federal Government's response to Hurricane Maria so far, it is hard to avoid the conclusion that Puerto Rico would be getting more (and faster) aid if the island was a state with two senators and at least one voting representative in Congress.

Moreover, President Trump ran on Puerto Rican statehood. Here is the relevant language in the 2016 Republican Party Platform:

We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state. We further recognize the historic significance of the 2012 local referendum in which a 54 percent majority voted to end Puerto Rico’s current status as a U.S. territory, and 61 percent chose statehood over options for sovereign nationhood. We support the federally sponsored political status referendum authorized and funded by an Act of Congress in 2014 to ascertain the aspirations of the people of Puerto Rico. Once the 2012 local vote for statehood is ratified, Congress should approve an enabling act with terms for Puerto Rico’s future admission as the 51st state.

Maybe Congress will take up this opportunity for bipartisan legislation to start the admission process.

Posted 9:45 PM by Gerard N. Magliocca [link] (28) comments

Top Ten Upsides of a Nuclear War with North Korea

Mark Graber

1. Gives Donald Trump new opportunities to demonstrate incompetent, boorish and bigoted behaviors.

2. Nuclear winter will reverse the consequences of climate change.

3. Will likely increase federal health care spending.

4. Americans will all be singing Tom Lehrer’s, “So Long Mom, I’m off to Drop the Bomb”

5. Will enable Puerto Ricans to take their minds off having no food, power or safe water.

6. Rubble will provide cheaper material for building the Wall.

7. Domestic hate groups will expand their repertoire.

8. Congress, taking a cue from World War I, will insist that kimchee be referred to as “liberty cabbage.”

9. Students kneeling under their desks when national anthem is played during air raids will be expelled by all schools owned by Betsy DeVos.

10. Holocaust that destroys all human life will at least cause cancellation of The Orville and New York Giants football season.

Posted 9:04 PM by Mark Graber [link]

And, Right on Cue...

Mark Tushnet

The Supreme Court has taken the travel ban case off the argument calendar, asking for letter briefing on whether the case is moot (and, presumably, what should be done if it is). As the mootness question was entirely predictable (I think I may have been the first one to flag it publicly, but lots of people did rather quickly), should any of the justices be annoyed at what seems to me the patent manipulation of the Court? I assume that the limitation of the scope of the injunction ordered by the Court in itself justifies the government's positions. But, I also assume that the limitation resulted from negotiations within the Court, and attendant (perhaps modest) tensions, and some people might not take kindly to the filings having that effect (if, of course, my assumption is correct).

Posted 3:32 PM by Mark Tushnet [link]

Sunday, September 24, 2017

Free Speech on Campus

Mark Tushnet

On Friday I published a piece in Vox attempting to describe the application of the First Amendment to free speech on campus, focusing on the then-pending Free Speech Week at Berkeley (now canceled, but I hope the exposition remains helpful). Erwin Chemerinsky, dean at Berkeley Law,and Howard Gillman, chancellor at UC-Irvine, have published a book on "Free Speech on Campus," reviewed in the Washington Post. (I haven't read the book.)

In my piece I asserted that, in my view, people who attend a speech and vigorously disagree with the speaker by shouting him or her down, don't violate the speaker's constitutional rights. I did so because my sense is that a lot of people think that the speaker has some sort of constitutional entitlement to get his or her message across. I think it's reasonably clear that speakers don't have such a right.

On my Facebook page a modest controversy arose among me, Geof Stone, and Daria Roithmayr over a related but different issue: Would a college violate the hecklers' constitutional rights if it intervened to stop them? Analogizing the problem to a ban on noise that unreasonably interfered with a facility's ordinary operations (including a loud political protest outside a hospital or a classroom building), Geof wrote that there would be no constitutional violation. I'm more ambivalent about that claim because, it seems to me, the speaker and the hecklers are symmetrically situated with respect to speech. So, it seems to me, we need either a content-neutral rule that explains the preference for the speaker's speech over the hecklers', or a balancing test (that somehow doesn't take content into account).

Geof's content-neutral rule is "unreasonable interference with ordinary operations" (or something like that -- the Facebook format doesn't encourage more precision than that). My concern is that sometimes the interference arises from speech activities rather than mere noise (as Geof's examples of political protests show), and that sometimes the interference is with speech activities, and that those distinctions probably ought to matter in developing the content-neutral rule. (One way of putting the point is that a lot might be concealed within the word "unreasonable.")

My sense is that a lot of people have an intuition that something like a "first come, first served" rule explains the permissibility of preferring the speaker to the hecklers. I think it's more complicated than that, mostly because it's not immediately apparent why the speaker is the "first" -- if the hecklers are in the room, they are the "first" to hear the speech (certainly as between them and the speaker's supporters, they are symmetrically situated), and if they are outside the room, the hecklers are the first ones in that specific venue. (For the cognescenti, I refer to Miller v. Schoene as illustrating the problem of symmetry -- in a different doctrinal context.)

The difficulty with a balancing test, of course, is that it's really hard to figure out how one could devise one that didn't take content into account. Suppose the heckling takes the form of repeated shouts of "You lie!" (remember congressmember Joe Wilson?), and the like, at every assertion by the speaker, to the point where the speech is disrupted. I doubt that there's a way to strike balance that doesn't take content into account.

OTOH, Geof has thought a lot more, and for a lot longer time, than I have about free speech problems, and the fact that he thinks that there's no constitutional problem with preferring the speaker to the hecklers certainly gives me pause, and -- once the pause is over -- I might end up agreeing with him. (I do note that, as the citation to Miller v. Schoene suggests, my position may well derive from deeper, Crit-like analytic [not surface-level political] commitments that Geof of course doesn't share.)

Posted 11:51 AM by Mark Tushnet [link]

The State of "Our Democracy" -- Sitting in for Sandy Levinson

Mark Tushnet

I think I'll save Sandy Levinson some time and point out that a Washington Post piece by E.J. Dionne, Thomas Mann, and Norman Ornstein ("the heart of the Washington punditocracy," as I think of them), on "Now Trump is Helping to Save Our Democracy," says not a word about the contribution the hard-wired Constitution makes to problems with "our democracy," nor about whether the hard-wired Constitution stands in the way of "saving" it. (The piece is an extract from a larger work, and maybe they say something about those issues in that work. Still, it must mean something that they and the Washington Post thought that the way to publicize the book was to use this extract rather than one dealing with the hard-wired Constitution.

Posted 11:23 AM by Mark Tushnet [link]

Wednesday, September 20, 2017

The Senate's latest health care proposal: Once again, it's all about the tax cuts

The Graham-Cassidy proposal currently before the Senate looks different than the House ACHA and Senate BCRA bill in one important respect. It does not eliminate most of Obamacare's taxes. ACHA and BCRA were little more than a tax cut for wealthy donors disguised as a health care bill. By contrast, Graham-Cassidy appears, on its face, to keep taxes in place and to strike a blow for federalism.

But looks can be deceiving. Graham-Cassidy is also about making it easier to cut taxes on the wealthy; it merely does so through a less direct process.

Graham-Cassidy converts Medicaid entitlements and Obamacare subsidies into block grants to states. The total amount of these block grants decrease projected government spending on health care over the next two decades, with the very largest cuts placed at the end. An analysis from Avalere Health reports that Graham-Cassidy will cut 215 billion dollars over a ten year period and more than 4 trillion dollars over a twenty year period. The block grants to states are the vehicle through which the spending cuts are achieved.

In the process, Graham-Cassidy would also shift money from states that previously expanded Medicaid to cover more poor people and/or have relatively generous Medicaid benefits to states that rejected Medicaid expansion for the poor and/or have relatively ungenerous Medicaid benefits. In other words, it produces a transfer of income from (mostly but not exclusively) blue states to (mostly but not exclusively) red states. The more that states tried to help the poor through the Medicaid expansion, the more they have to lose from Graham-Cassidy, and the more other, less generous, states have to gain.

But the redistribution of federal funding among the states is not the most important feature of Graham-Cassidy's use of block grants.

Converting subsidies and Medicaid entitlements into block grants lowers the baseline of predicted federal expenditures on health care for the next two decades-- and thus the baseline estimate of the predicted federal deficit. A lower level of predicted expenditures, in turn, makes it easier for Republicans to lower taxes for their wealthy donors consistent with the reconciliation rules for next fiscal year's budget.

To be sure, Congressional Republicans will probably not be content with the tax cuts they can permanently enact through the reconciliation process. So they may decide to pass additional tax cuts that must end in 10 years. If they follow this approach, Graham-Cassidy will also partially offset the very large deficits these tax cuts will create.

Graham-Cassidy, like its predecessors, is bad health care policy. Many journalists have wondered how intelligent men and women can vote for something called health care reform that increases costs and limits effective access to health care for millions of Americans. It seems as if Congressional Republicans don't understand their own bill.

But the Congressional wing of the Republican Party has never really been all that concerned with good health care policy. They have been focused on reducing or eliminating entitlements, and on cutting taxes and regulations that affect their wealthy donor base.

From this perspective, Graham-Cassidy makes perfect sense. It is the tribute that politicians pay to the oligarchs who actually control them.

Posted 4:31 PM by JB [link]

Monday, September 18, 2017

They're back!

David Super

Defying the almost universal prediction of political observers, Senate Republicans are again making a concerted effort to repeal the Affordable Care Act (ACA). The lead sponsors of this new effort are Sen. Lindsay Graham (R-SC), a favorite of many liberals for his willingness to criticize President Trump, and Sen. Bill Cassidy (R-LA), who had previously co-authored a plan to allow states to choose whether to continue the ACA or accept a block grant. Far from being the moderate, compromise approach some imagined that Republicans would pursue after their embarrassing setback this summer, the Graham-Cassidy legislation combines many of the most problematic provisions of previous Republican proposals with a block grant that is underfunded at the start, loses purchasing power over time, and then abruptly stops in 2027.

It appears that Senate Republicans are only one or two votes short of the fifty they would need to produce a tie, which Vice President Pence would break in their favor. Senate Majority Leader McConnell reportedly has said he will bring the legislation up as soon as fifty votes are in view. How did we get here?

Part of the answer is procedural. Republicans’ efforts to repeal the ACA have depended all along on the special protections that the “reconciliation” process affords to legislation conforming tax and entitlement laws to the budget resolution Congress approved for a particular fiscal year. The Congressional Budget Act allows both a budget resolution and a budget reconciliation bill to pass the Senate with a simple majority, capping debate and disallowing a filibuster. Last winter, Republicans passed a budget resolution for federal fiscal year 2017 – which already had started – to give themselves the ability to use reconciliation procedures for ACA repeal. FFY 2017, however, ends on September 30. The Senate parliamentarian has confirmed that no budget reconciliation bill is possible under a budget resolution for a fiscal year that has already ended. Thus, if ACA repeal does not clear the Senate by the end of this month, Republicans will lose their procedural magic wand.

In theory, they could pass a new budget resolution for FFY 2018 with the same “instruction” to repeal the ACA through reconciliation legislation. In practice, they do not want to do so because they plan to use the FFY 2018 budget resolution to authorize budget-busting tax cut legislation. Longstanding Senate precedent disallows more than one reconciliation bill on spending or more than one reconciliation bill on revenues for the same fiscal year. As much as Republicans want to kill the ACA, their donors would never tolerate slamming the door on tax cuts. So it is now or never.

Senate Majority Leader McConnell, who has made a career out of being underestimated, also carefully laid the groundwork for this moment even amidst the ruins of his defeat last summer. He never allowed an up-or-down vote on ACA repeal itself. Instead, he brought the unpalatable House Republican bill to the floor and allowed a series of votes on whether various proposals should replace it as the pending legislation. When those proposals failed, the result was only that no viable alternative to the House bill had been found, not that repeal legislation was defeated. Thus, he can call up the same legislation and allow Senators Graham and Cassidy to offer their substitute. If it prevails, the Senate can rapidly move to final passage because the chamber has already consumed much of the permissible time for debate on a reconciliation bill.

Also helping Republicans is budget process law’s narrow requirements for cost estimates. Throughout the spring and summer, whenever the Congressional Budget Office (CBO) released a cost estimate, the bill in question lost public support because the estimates invariably showed millions of people losing health care coverage and millions more facing brutal premium hikes. This time, by delaying the finalization of their proposal, Republicans have prevented CBO from issuing a similarly comprehensive estimate of Graham-Cassidy. Instead, Republicans have requested a simple one-page letter affirming that their proposal stays within the constraints established in the budget resolution. This will suffice to allow the Republican Chairman of the Senate Budget Committee to declare that the requirements for reconciliation legislation are met while denying opponents numbers about coverage losses and premium hikes. The proposal’s similarity to past proposals assures devastating results, but without official estimates, Republicans will get much less bad press until after the vote is held.

Much of the reason the ACA’s fate is again in the balance, however, is political. After the summer’s political incompetence, the Republican leadership is doing far better now. To undermine the opposition of Senator John McCain (R-AZ), they lined up the rousing endorsement of Republican Arizona Governor Doug Ducey who, like many governors, relishes the power that directing a large block grant would bring him. Senator McCain is not historically a maverick on human services programs, and he voted for a devastating ACA repeal bill this summer before switching his vote on Senator McConnell’s final proposal.

Another crucial “no” vote in July came from Senator Lisa Murkowski (R-AK), who also had previously not focused much on human services programs. Senator Murkowski’s top legislative priorities have always been ruinous anti-environmental policies that would aid various business interests in her state. These measures would have little chance of approval on their merits. Instead of threatening her as they clumsily did in July, this time the Trump Administration made a timely announcement that it is advancing drilling in the Arctic National Wildlife Refuge.

Sen. Dean Heller (R-NV), who cast a symbolic vote against some early repeal bills but supported the leadership on the key vote, has received harsh criticism from both sides for being weak and indecisive. Leaders allowed him to be the third-listed sponsor of the new proposal, allowing him to claim that he is now leading rather than following.

By contrast, many Democrats have been playing into the Republicans’ hands. Instead of emphasizing opposition to Republican proposals, which unites a broad swath of the electorate, sixteen Democrats last week made a great show of introducing a politically implausible and highly divisive single-payer plan. The health insurance industry is far from loveable, but it did provide solid opposition to ACA repeal efforts in the end, helping to give cover to wavering Republicans. Proposing to legislate them out of business while ACA repeal efforts are still alive is a pretty good way to dampen their enthusiasm for the fight. The plan’s implicit criticism of the ACA is also particularly ill-timed when an energetic public mobilization is needed to defeat Graham-Cassidy.

So what will happen? It is hard to know. If the Graham-Cassidy plan does pass the Senate, the House will almost certainly take it up and pass it as-is, sending the bill directly to the President for his signature. True, some House Republicans’ states will be severely disadvantaged by the block grant’s funding formula, but the House leadership has proven highly effective at twisting arms to get the votes in needs. With the supposedly more moderate Senate giving Members cover, and perhaps with promises of subsequent legislation to reallocate block grant funds, it seems unlikely that House Republicans will dare to take responsibility for killing the ACA repeal effort. (Sending the bill to a House-Senate conference committee would not work because, by the time the committee finished its work, a full CBO estimate would be out and, more importantly, the Senate’s reconciliation carriage will have turned back into a pumpkin.)

On the other hand, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), the chair and ranking member of the Health, Education, Labor and Pensions Committee, have been working on a modest legislative package to improve the stability of the ACA’s insurance markets, including an end to President Trump’s oft-repeated threats to withhold statutorily mandated reimbursements to insurance companies for providing the ACA’s cost-sharing subsidies to people under 250% of the federal poverty line. If they finish negotiations and announce a proposal before Graham-Cassidy reaches the Senate floor, that could weaken the momentum for ACA repeal. Presumably Senator Alexander is coming under intense pressure to refrain from any announcement for just that reason. What remains to be seen is whether he or other senators will have the courage to defy their leadership and the Party’s donor base.

Posted 8:56 PM by David Super [link]

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