Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday The New York Times ran an editorial entitled "President Trump, Please Read the Constitution." The editorial listed various allegations of unconstitutional conduct by the President, and then stated: "But his most frequent target is the Bill of Rights, which protects Americans against the federal government and, through the 14th Amendment, against the states." With a book coming out soon on the Bill of Rights (Amazon has added the "Look Inside" feature, so you can see more), I heartily endorse the editorial's sentiments.
What I found interesting, though, is that next to the editorial the Times chose to reprint the entire Bill of Rights along with the Reconstruction Amendments. This gets at one of the central questions posed by my book, which is why do we call the first ten amendments and only the first ten amendments the Bill of Rights? As the book explains, there were jurists and elected officials who said in the past that the Fourteenth Amendment was part of the Bill of Rights, in part to emphasize the importance of that text. Likewise, many state bills of rights include the Thirteenth Amendment as part of what they see as fundamental. At the national level, though, we don't think of the Thirteenth Amendment so much. And the right to vote, which certainly outranks many of the guarantees in the first set of amendments, is definitely not considered part of the Bill of Rights. This matters. Consider how the Supreme Court might view the pending case on partisan gerrymandering differently if the right to vote was typically referred to as part of the Bill of rights.
Political Campaigns and the Future of the University
It’s no secret that the Republican tax plan is something of an innovation in legislative partiality—the favoring of some sectors of the country and the economy over others. Some parts of the bill add complexity and others reduce it; some parts raise revenue and others destroy it; but it’s difficult to find a provision in the sprawling (and still-evolving) bill that doesn’t favor relatively Republican constituencies—such as the very wealthy with large estates, or recipients of large amounts of “pass-through” business income—over relatively Democratic constituencies, such as people with lots of education and student loans, or upper middle-class residents of expensive coastal cities who deduct a lot of state and local taxes and mortgage interest. It didn’t have to be this way: when you’re planning to blow up the deficit by $1.5 trillion, there’s ample room to cut everyone’s taxes a little, while still cutting your favored constituencies’ taxes a lot. This bill goes a different way: some people’s taxes are definitely going up to pay for others’ taxes going even further down, and the bill writers seem pretty clear about who they favor and disfavor. The bill’s myriad higher education provisions are a good example. The House bill doesn’t just kill the important above-the-line student loan interest deduction. It also, as described in mediareports, would require all universities that waive tuition for graduate students to treat such tuition waivers as income to the graduate students, on which the students would then owe tax. The bill would eliminate or restructure multiple tax credits that help non-traditional and part-time students pay tuition; it would eliminate the tax subsidy for employers who pay their employees’ educational costs. At elite schools, the bill would kill the tax exclusion for tuition benefits for faculty members’ children; it would introduce a 20% excise tax on compensation over $1 million (for the top employees of any nonprofit, including colleges, although for-profit colleges would be exempt)*; and finally, as has been widely reported, it would impose a 1.4% annual tax on the earnings of large university endowments.
In light of the approach to tax legislation that this bill exemplifies—rewarding favored constituencies and punishing disfavored ones—and in light of the evolving self-conception of the Republican party, some sort of attack on large university endowments, which would once have been politically unthinkable, instead now begins to seem politically inevitable. Taxing these endowments strikes at the heart of the educational elite that some Republicans, unfortunately, have come to see as sitting at or near the center of what they’re fighting against. And these endowments are big enough that taxing them could generate real revenue. To be sure, the tax proposal in the current (House) bill is pretty modest. In round numbers, a $700 million endowment, that generates $70 million in income this year, would have to pay $1 million in tax. That’s real money that will have to come from somewhere, but it’s not going to radically change the nature of the university. However, if one of our political parties continues to view elite universities the way the current Republican party does**, the political logic of further raising taxes on elite-school endowments to defray future revenue needs could be irresistible. (And indeed the current proposal, if enacted, would over time increase its bite: it applies only to the largest endowments as measured on a per-student basis, but the threshold where the tax kicks in is not indexed to inflation, so each year a few more schools will get caught in its net.)
To me, the interesting question is how higher education itself would be reshaped by these changes in tax policy over the long term. And there – particularly when it comes to the innovation of taxing large private-school endowments – I wonder whether a (potentially disturbing) lesson might be drawn from the evolution of political campaigns and parties in response to changes in campaign finance rules.
The SG’s Remarkable Cert. Petition in Hargan v. Garza, the “Jane Doe” Abortion Case
Last Friday, the Solicitor General filed a self-described “Petition for a Writ of Certiorari” in No. 17-654, Hargan
v. Garza, the case involving HHS’s efforts to deny a 17-year-old girl in
its custody—"Jane Doe"—the right to obtain an abortion to which she was entitled
under the Constitution and Texas law.The SG’s petition asks the Supreme Court to review a decision of the
en banc U.S. Court of Appeals for the District of Columbia Circuit. That court, by a vote of 6 to 3, denied the
government’s motion to stay a preliminary injunction that Judge Tanya Chutkan issued
against officials of the Department of Health and Human Services, prohibiting
them from interfering with the efforts of Doe’s guardian and attorney ad litem
to transport her to a clinic to obtain an abortion.
The SG filed his petition, however, nine days
after Doe obtained her abortion—that
is to say, long after the preliminary injunction against HHS had served its purpose
and run its course.As the petition
itself therefore acknowledges (p. 19), the only portions of the injunction that the court
of appeals addressed “are now moot.”
That mootness is only one of many reasons why the SG’s
“Petition” is a singularly remarkable document.
I’ve never seen anything like it, especially not emanating from
the Office of the Solicitor General. In many respects this filing departs, sometimes dramatically, from
the justly lauded, traditional standards and practices of that office. Indeed, it is difficult to avoid the
conclusion that it is fundamentally a press release, for an audience other than
the Justices of the Supreme Court itself.
I hope I am mistaken about that—but it's difficult to come up with any other
explanation for it.
In this post, I’ll try to identify many of the most remarkable
characteristics of the SG’s petition.
First, however, some background is in order, without which it’s hard to
understand many of the ways in which the petition is so irregular—and how it
deviates from the norms of the Office.
From the Heckler’s Veto to the Provocateur’s Privilege
“It is now widely believed,” Frederick Schauer observes in a
new essay, “that restricting the speaker on account of the actual or
predicted hostile and potentially violent reaction of the audience gets our
First Amendment priorities backwards.” To restrict speakers on this basis would
be to grant the so-called heckler’s veto. Angry audiences would have, in
effect, a right to enlist the state to suppress speech they don’t like; the
more mayhem they threaten, the more potent this right would become.
Over the past fifty years or so, the U.S. Supreme Court has
become less and less willing to countenance the heckler’s veto. Its First
Amendment case law turned decisively against the proposition that a speaker may
be punished for provoking a hostile audience, or inciting a sympathetic one, in
a series of cases from the 1960s involving civil rights demonstrators. By the
time the Court decided Forsyth County v. Nationalist Movement in 1992,
it was not clear there were anyjustices who would allow a government
body to impose higher fees on speakers, such as the white supremacists of The
Nationalist Movement, whose messages were likely to create higher expenses for
police or related services because of their inflammatory content. Lower courts haveappliedForsyth
County with vigor. By now, Dan Coenen recently opined, “the heckler’s-veto-based,
hostile-audience-speech concept” appears “all but constitutionally extinct.”
The basic First Amendment question that a city like Charlottesville faces today
when white supremacists seek to hold a rally is not whether it can force them
to internalize the resulting law enforcement costs, much less ban them
altogether. The question Charlottesville faces is just how much money and
effort must be allocated to protecting the white supremacists.
In place of the heckler’s veto, the Court has thus created what
we might call the provocateur’s privilege. Extreme speakers have become
entitled not only to use public forums in the face of actual or anticipated
hostility, but also to commandeer public resources to try to keep that
hostility within bounds. And the more extreme a speaker is, the more hostility
will need to be managed and so the more resources will need to be commandeered:
as Schauer writes, “the greater the provocation, the greater the reallocation.”
Modern First Amendment doctrine, in other words, does not simply prevent
neo-Nazis, neo-Confederates, and the like from being silenced by disapproving
communities. It forces those communities to pay extra to enable their speech.