Almost everything I've read about Joan Biskupic's presentation of NFIB v. Sibelius asserts that it confirms the already established story that Chief Justice Roberts "switched" his vote in the case. Concluding her chapter, Biskupic does refer to Roberts's "change of heart." The account she actually offers, though, does not show a switch or a change of heart. (I take some satisfaction that her account mostly confirms the inferences I drew in In the Balance -- and that the divergences are mostly on matters that I speculated about but that she doesn't discuss.)

Here's what Biskupic says:  At the conference discussion on the case, Roberts "felt just as strongly about the commerce-clause power as did the other four in the majority." He "voted to uphold the Medicaid expansion, yet he expressed some tentativeness on this provision." "No vote had been taken related to congressional taxing power."

Then Roberts began to draft his opinion. His draft maintained the position he had taken at the conference, that the individual mandate could not be sustained under the commerce clause. He apparently thought that this would invalidate only two provisions, community rating and coverage of preexisting conditions. [Justice Kennedy (correctly, I think) rejected that position, taking the view that without those provisions the entire system would be unsustainable (and so should fall because the two provisions were inseverable from the entire system). But this, it seems to me, is peripheral to the "changed his mind" story.]

After working on the commerce clause issue, "in mid-April, Roberts moved into new territory" -- the possibility of construing the individual mandate as a tax and upholding the mandate under that clause.
"Roberts decided that he could make a case for the taxing-power grounds." "By early May," he was drafting an opinion doing just that.

This account DOESN'T SHOW THAT ROBERTS CHANGED HIS MIND on anything. He thought from the beginning that the mandate was unconstitutional under the commerce clause, and continued to think that. And he hadn't thought anything at all about the tax issue, but when he turned his mind to it, he concluded that the mandate could be construed as a tax and as such was constitutional.

What about Medicaid expansion? Remember, he "expressed some tentativeness" about its constitutionality. Biskupic doesn't say much about Roberts's thinking about this issue as he worked on his opinion, but it's seems reasonably clear that his view about "coercion" was the way he converted his initial tentativeness into a holding.

Biskupic writes, "Breyer and Kagan disagreed with Roberts's new thinking on Medicaid, but they were pragmatists." "They were willing to meet him halfway" "if there was a chance that Roberts would cast the critical vote to uphold" the individual mandate. And, she says, "negotiations in May were such that they still considered that a shaky proposition." The implication here is that Breyer and Kagan voted with Roberts on limiting the Medicaid expansion to solidify his vote on the tax issue. The timeline here is fuzzy, and -- in my view -- without additional information (such as identification of the sources she had and the precise statements they made),* the account seems to me not entirely plausible or consistent with the dynamics of opinion-drafting. [To put it as clearly as possible, it strikes me as highly unlikely that anyone said or thought, "I/he (John Roberts) will drop the section on the tax issue unless they/we (Breyer and Kagan) go along with me/him on Medicaid expansion."] And maybe it's worth pointing out that, on this account, the only people who "changed their minds" were Breyer and Kagan.

The most parsimonious explanation is consistent with the account Biskupic provides: The justices -- all of them -- voted as they did because that's what they thought the best view of the law required. (Just to be clear, that doesn't mean that I think they were just calling balls and strikes. Their best view of what the law requires is political all the way down -- but it is also, as Justice Kagan said, law all the way down too.)

* I personally would be skeptical were the material to be sourced to law clerks, who generally think they understand the Court's dynamics better than they actually do.

Recently, there has been a lot of talk on the ideological left in the United States, including among certain Democratic presidential candidates, about the benefits of adding seats to the Supreme Court (that is, “Court expansion” or “Court-packing,” depending on one’s rhetorical objectives) when the Democrats again control the White House and both houses of Congress. I will call such a move Court-packing, which is the more common term and also the term that seems to me more honest. In this post, I will put aside whether it is a smart electoral strategy for Democrats to be talking about Court-packing at this time. Instead, I will first consider whether Court-packing would violate a longstanding norm of proper governmental conduct. I will then consider whether Court-packing would have harmful consequences for the American constitutional system.  

     Alexandria Ocasio-Cortez was a political sensation when she combined organizing prowess, extraordinary skill with social media, and a keen sense of what voters wanted in New York’s 14^th Congressional District to unseat a long-serving Democrat last year.  That by itself would guarantee her a prominent place in our political culture.  Since arriving in Washington, however, she has proven herself even more of an innovator in defining the role of a Member of Congress than she had as a candidate.  This post examines some of what she has been doing and seeks to draw broader lessons about how power is wielded in Congress.  The goal most definitely is not to contribute to the trend toward hagiography; on the other hand, institutional innovators of her caliber do not come along often and are worth observing in real time.

     First, she has dramatically advanced and deepened the understanding of money’s role in politics.  The power of campaign contributors and bundlers has long been widely discussed.  Her refusal of special interest contributions, while laudable, was hardly very dramatic:  running against a Ways and Means Committee Member in the primary, she was not going to be getting any special interest money anyway; running in a solidly Democratic district in the general election, she did not need any.  But her decision to establish a minimum congressional staff salary far above customary levels is profoundly important. 

     Members of Congress cannot themselves stay on top of the broad array of issues on which they are asked to vote.  They inevitably will need staff; the only question is whether the crucial advice will come from staff paid with public funds or from lobbyists advancing their clients’ interests.  Every move made to weaken official congressional staff helps special interest lobbyists function as Members’ informal staff.  Staff paid a small fraction of what lobbyists make may well wish to please lobbyists whom they see as potential future employers.  Yet even aside from that, the constant turnover resulting from low congressional staff pay greatly expands lobbyists’ access.  New staff rely on lobbyists to get them up to speed; veteran staff can more readily exercise independent judgment.  Staff turnover also erases institutional memory of which lobbyists are dishonest, thus lowering the costs of deception. 

     More generally, congressional staff inevitably make or facilitate enormously important decisions for the country.  Their working conditions on the Hill are appalling, crammed together several to an office with little opportunity for the careful study and reflection momentous decisions require.  Paid as little as they are – especially in a city where housing prices are rising rapidly – staff may be forced to live in group houses with similarly little privacy.  These are not conditions conducive to making important decisions with far-reaching effects.  The alternative, of course, is to hire staff from families who can subsidize them during a two- or four-year sojourn on the Hill.  That can lead to a subtler skew in favor of the affluent.

     Just as shorting staff pay is penny-wise-and-pound foolish, she has had the courage to start a conversation about how holding down congressional salaries causes Members to seek money on the side, commonly from interests with business before Congress.

     Second, Rep. Ocasio-Cortez is contributing to a remarkable revival of the congressional hearing.  To appreciate this, one must understand how ghastly and worthless hearings have become.  When someone proudly tells me that they are testifying, I assume either that they are a neophyte who does not understand how actually to influence legislation or that they who hope to impress neophyte funders or clients.  Whenever possible, I have deflected invitations to testify; I only have testified when those efforts failed.  Testifying at congressional hearings consumes a great deal of time but almost never has any impact on actual legislation.  Typical attendance is one Member – and that is only because rules require the hearing to stop when only staff is present.  Others on the committee may come in the Members’ entrance, catch the eye of the committee clerk to be recorded as present, and then leave without ever taking their seats.  Staff install name-plates on Members’ desks only when they arrive and whisk them away as soon as the Member departs, all to prevent photographs of the Member’s desk sitting empty.  Staff for Members not planning to attend commonly do not attend themselves.  When Members in attendance get their turns, they read windy opening statements and spend their time allotted for questions either creating soundbites for the cameras or throwing softballs to their preferred witnesses (who often write the questions they want to be asked).

     Rep. Ocasio-Cortez not only condemned the traditional model of congressional hearings, she set out to change it.  Despite being a non-lawyer in a sea of attorneys, Rep. Ocasio-Cortez has approached hearings much as a skilled litigator would.  She spends none of her time posturing for the cameras (she can get plenty of air time elsewhere).  She follows the litigator’s maxim of never asking a question to which she does not already know the answer.  Perhaps as a result, unlike most Members of Congress, she patiently and effectively pursues witnesses trying to evade her questions.  Several confirmation hearings, notably the one for former Attorney General Jeff Sessions, could have gone quite differently had senators been more adept with follow-up questions.  I strongly encourage my students who want to work on the Hill to take trial advocacy courses to hone their questioning skills.  Rep. Ocasio-Cortez has struck pay-dirt enough times already that other Members may start investing more effort into hearing questions.  Her performances also, of course, highlight the wisdom of her approach to staff hiring and compensation.

     Third, she has shown that there is nothing inconsistent about having strong political views that disquiet many in her party, on the one hand, and being a team player, on the other.  In an environment of shameless self-promoters, she repeatedly goes out of her way to praise and elevate other Members.  Some of the Democrats that she is having to work with on her committees are extremely difficult; I have no doubt she has copious frustrations with them, but she keeps those to herself.  Instead, she presents a relentlessly positive picture of her caucus.  The one occasion she criticized fellow Democrats was when she and other progressives felt blind-sided by conservative Democrats’ voting for a Republican motion to recommit.  On that occasion and others, she has taken pains to endorse other Democrats’ right to espouse different policy preferences. 

     Finally, she has shown remarkable creativity in finding ways of being effective as a new Member without crossing more senior Members whose support she needs to succeed.  Most new Members accept that their role is to be seen and not heard; a few seek more consequential roles and are rudely slapped down by their elders.  Rep. Ocasio-Cortez has shrewdly exploited the opportunities congressional procedure affords new Members, such as asking questions at hearings, while leveraging her high public profile to change the conversation.  Particularly noteworthy was her approach to launching the Green New Deal.  Sponsoring major legislation is typically a role for full committee chairs; even very senior subcommittee chairs commonly get shoved aside.  She, however, couched the proposal as a notional resolution rather than formal legislation.  In this Congress, the difference is negligible:  nothing remotely like this could make it through the Senate, much less get signed by this President.  Most Members would nonetheless want to introduce a proposed law, but she wisely recognized that any legislative vehicle would be only symbolic and so took the route that avoids invading senior colleagues’ turf.  Avoiding a formal bill also enabled her and her allies to introduce it quickly, in time for most debates, without having to work through all of the mechanics of their proposed program or negotiate with Members having qualms about this or that detail. 

     Rep. Ocasio-Cortez is not perfect:  she has made some mistakes and inevitably will make many more.  It nonetheless is exciting to see a bright, creative, hard-working person take a fresh look at the creaky, inbred culture that has developed in Congress over the years.  It also is delightful to see her so openly and proudly treat this process as an education.  That may once have been more common, but today the custom of claiming omniscience obstructs honest communication and worthwhile innovation.  @DavidASuper1

The Constitution, Article I, section 9, clause 4, requires that a “direct tax” must be apportioned among the states by population.   Elizabeth Warren has proposed an annual wealth tax, reaching the rate of 3% of wealth for those who have more than a $1 billion of wealth.
 

 Warren’s wealth tax would be constitutional.   The defining characteristic of a “direct tax,” according to the Founders, is that it is the kind of tax in which apportionment among the states by population would be appropriate and reasonable.    If apportionment among the states by population is not appropriate and reasonable, the tax is not a direct tax.
 

The original meaning of “direct tax” was a tax directly on states, that is, requisitions.  The term “direct tax” expanded, as language often expands, to include the kinds of state taxes that could be used to satisfy state requisitions.  But if a tax could not be reasonably and appropriately apportioned among states by population, the tax does not sufficiently resemble a state requisition and so the tax is not direct.  Thus, for example a tax on imports was not a direct tax because it could not be known in which state the goods would settle and which state should get credit in its quota under a requisition.  Excises, duties and carriage taxes were once considered direct taxes because they were part of the system of requisitions upon the states, but they were excluded from the definition of “direct tax” once it was known that they did not have the necessary reasonable and appropriate apportionability.
 

Today, apportionment of a wealth tax by population is not reasonable or appropriate.   Wealth per capita in poor Mississippi is just over half of wealth per capita in rich Maryland.  Apportionment by population would mean that tax rates in Mississippi would have to be almost twice the rates in Maryland.  The result has no policy justification, but would simply arise by necessity from the fact that Mississippi is such a poor state that is has so little tax base over which to spread its quota.  Because apportionment would not be reasonable, a tax on wealth today would not be viewed as direct using the Framers’ original reasoning.

     On Monday, March 11, President Trump released his proposal for the last meaningful budget of his first term.  It will cover the period from October 1, 2019, until five weeks before the 2020 presidential election.  To avoid either a pre-election government shutdown or embarrassing pre-election concessions, the President and Congress will almost certainly agree to a continuing resolution to cover the pre-election period, with the final 2021 budget’s contours determined by the election’s victors.  This is, therefore, President Trump’s final opportunity to insert his priorities into law during this term.

     The popular media has done a fair job of capturing the broad themes:  large increases in defense spending, making upper-income 2017 tax cuts permanent, and a partial offset of those costs with dramatic cuts in programs assisting low- and moderate-income people.  President Trump also manages, in one document, to breach all three parts of his campaign promise not to support cuts in Social Security, Medicare, and Medicaid.  The purpose of this post is to provide a few specifics and to discuss what comes next, procedurally and politically. 

     The Congressional Budget Act makes the President’s submission of a budget proposal the de facto start of the annual budgeting process.  It was due in early February, but the partial federal government shutdown made that impossible as budget proposals build on the current year’s budget, which was still unresolved.  Historically, presidents’ budget proposals have been a mix of serious proposals for the more mundane “housekeeping” parts of the federal budget and aspirational proposals that the President knows Congress is unlikely to accept as-is.  The mix between practical and ideological proposals has shifted over the years. 

     A few customary ground rules have applied to presidential budget proposals, although some of these norms are becoming quite frayed.  The president’s budget proposal is typically the high water mark for his party’s initiatives:  the opposing party cites the president’s budget much as trial lawyers cite party admissions to reject out of hand any proposals going farther.  This practice has discouraged realistic presidential budget proposals.  Thus, during the Clinton and Obama Administrations, congressional Democrats could expect no traction for social initiatives not in that year’s presidential budget proposal.  President Trump has not felt bound by this tradition:  his proposals for a border wall, for example, evolved repeatedly from last year’s budget proposal. 

     Presidents also express their aspirations for overall fiscal effects – the size of deficits or surpluses and the division of funds between defense and non-defense programs – in their budget.  The seriousness of these aspirations can be assessed by the degree to which the budget depends on accounting gimmicks or proposals that obviously lack congressional support. 

     Since the Budget Control Act of 2011, presidential budgets also have had to take a position on whether they will adhere to the draconian caps on annual appropriations (“discretionary spending”) that that law and its subsequent sequestration imposed.  No president or Congress since then has found a palatable way to operate the federal government within those funding constraints.  As a result, Congress has passed and presidents have signed a series of bipartisan deals increasing those caps for two years at a time, offsetting part of the cost with cuts in domestic entitlement programs.  The most recent such deal, signed by President Trump, expires at the end of the current fiscal year. 

     Even by the standards of recent presidential budgets, President Trump’s proposal is quite extreme.  He does not propose new legislation raising the caps on discretionary spending, which would force Congress to write appropriations bills to fit within the “sequestration” limits.  This would mean an 11% average cut in non-defense discretionary (NDD) spending in 2020 below the current year’s levels after adjusting for inflation.  Because he proposes large increases for the Department of Homeland Security, which falls within the NDD category, the actual cut he would require from other programs would be even greater.  The President’s budget assumes further reductions in NDD spending in future years:  by 2021, it would be the smallest share of the economy since the Hoover Administration and over ten years it would drop 40% after adjusting for inflation.  Apparently recognizing that these cuts are politically untenable, the Administration is claiming that they are much smaller than they are. 

     Although President Trump’s budget purports also to apply the comparably severe caps on defense spending, it evades the effect of those caps with a giant accounting gimmick.  It transfers substantial amounts of regular Pentagon spending into a special category, Overseas Contingency Operations (OCO), that is exempt from the caps.  OCO was intended to pay the special costs of the wars in Afghanistan and Iraq on an emergency basis.  The Pentagon has long reclassified parts of its regular operating budget as OCO, but President Trump’s converts this stream of extra Pentagon funding into a raging torrent:  defense spending designated as OCO would jump from $69 billion to $165 billion in a single year.  This obliterates the Budget Control Act’s commitment to have defense and non-defense spending subject to parallel constraints.  Both Mick Mulvaney, the President’s Chief of Staff and former budget director, and former House Speaker Paul Ryan harshly criticized much more moderate abuses of the OCO device when they were in Congress. 

     Even the President’s proposals for non-defense discretionary spending do not appear designed to be taken seriously.  For example, he would cut $5 billion from the National Instituted of Health, which enjoy broad bipartisan support.  He would terminate low-income energy assistance and the Community Services Block Grant, which funds the remnants of War on Poverty service programs.  Even Republican Congresses have ignored deep cuts proposed for these programs in the past.  He would slash the Job Corps and dislocated worker programs serving the very people for whom he claims his trade war is being fought.  Few in Congress will want to be associated with those cuts.

     Most of the President’s supposed domestic initiatives in the budget also are gimmicks.  He boasts of a new fund of money for infrastructure but appears to cut transportation and housing funds by even more, resulting in a net reduction in federal infrastructure spending.  He claims to be launching major efforts against the opioid epidemic and HIV, but he would deeply cut Medicaid – the primary source of treatment funding for many fighting addition and HIV infection – with the result that fewer total resources would be available. 

     Critics are no doubt correct that this budget proposal will be “dead on arrival” in Congress:  almost all presidential budget proposals are.  It nonetheless remains significant for several reasons.  First, it provides a comprehensive statement of this Administration’s values and priorities.  It makes the 2017 upper-income tax cuts permanent – at a cost of $275 billion in 2028 alone – at the same time it would impose 30% reductions in food stamps as well as deep cuts in Social Security Disability Insurance, Supplemental Security Income for the elderly and disabled, Medicaid, and family income support. 

     Second, the President’s proposal to replace the Affordable Care Act with an inadequately funded block grant – along with his proposed Medicare cuts – confirms that the Act has now become firmly entrenched.  Republicans will continue to condemn the Act, but few will want to run on this proposal in the 2020 elections.  Even if Republicans win, they will have no mandate to launch another effort to repeal the Act.  The Act’s entrenchment has important broader implications for U.S. public law.

     Finally, the budget proposal’s insistence on adhering to the sequestration spending caps, however disingenuous, suggests that the Administration will resist negotiating a new bipartisan agreement to raise those caps.  Neither party’s appropriators are likely to want to vote for bills containing such draconian cuts.  The House likely will pass a “deeming resolution” waiving points of order against considering bills over the caps.  Senator McConnell likely will be reluctant to do the same so the Senate may be unable to bring appropriations bills to the floor.  In any event, neither chamber probably can pass appropriations bills at the sequestration levels, and without such legislation appropriations above that will result in new automatic across-the-board budget cuts. 

     Postponing all the complex, contentious decisions that appropriations entail to the last minute will greatly increase the chance that a snag will trigger another federal government shutdown.  That is already a significant likelihood because Democrats and some Republicans will want to insulate appropriations accounts from “emergency” transfers to build the President’s proposed border wall.