an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Gorsuch/Garland: Is the Supreme Court a “Majoritarian” Institution?
The fact that it is Judge Gorsuch, rather than Judge
Garland, for whom confirmation hearings are now underway prompts a return to
the question of whether the Supreme Court is capable of doing little more than
reflecting the preferences of political majorities.
Over the last decade, it became
fashionable (first in the academy, then among journalists) to press the view that
Supreme Court decisions cannot and do not stray far from the policy preferences
of political majorities.My friend and
colleague Barry Friedman’s one-volume history of the Court, The Will of the People (2009), played a
major role in re-invigorating this line of commentary about the Court.
you think the Gorsuch/Garland difference is likely to be a significant one for
Court decisions, what does that suggest about where “the majoritarian thesis” goes
awry?Here, I want to suggest at least
two places, which the current context helps illuminate.The first is the role of historical
contingency, in both politics and Court vacancies.
The most likely mechanism through which
the Court might be expected to reflect the views of political majorities is
through the appointments process.But
since we do not have a structure through which Supreme Court vacancies occur at
regularly recurring intervals, there is a great deal of randomness about how
many appointments, if any, any particular President gets to make.President Nixon, for example, made four
appointments between 1969-1972, which shaped the Court for decades.Yet there are Presidents in the modern era
who have served one term without being able to make any appointments at
all.Jimmy Carter had none, and George
W. Bush had none in his first four years.Donald Trump, of course, entered office with a vacant seat awaiting
him.And since Justices are appointed
younger and serve much longer these days, there is a great deal of luck
involved as to whether even two-term Presidents can re-shape the Court in their
image.Up until 1970, a two-term
President appointed nearly 5 Justices on average, or a majority of the Court;
but since then, that figure has dropped to 2.7 Justices, on average.
Politics and elections themselves, of course,
are also highly contingent, as this fall’s election also should remind us. Donald Trump won an electoral majority, but
not a popular majority.Even assuming a
Justice he appoints reflects the substantive preferences of his electoral
constituency, what does that tell us about whether that Justice’s positions
reflect “the majority’s preferences”?Beyond
that, if the Democrats had found their way to a different candidate, would the
outcome of the election have been the same?Who knows?And had Justice Scalia
died three months earlier (or six) so that President Obama had
filled the seat, matters would be very different for that reason as well.The point is that when the country is so
closely and sharply divided, small differences in politics and elections can be
highly consequential, yet have enormous consequences for Court appointments.
The second reason to be skeptical
about the idea that the Court is highly constrained to do little more than
reflect the preferences of political majorities is that on many issues, the
very idea of “the majority” is so nebulous as to make this claim hard to give
content to.Most of the “majoritarian”
claims about the Court never tell us what majority the Court is supposedly
reflecting.Is it the political majorities
in Congress, which in theory have power to respond to Court decisions (if government
is not itself divided)?Or is it the “popular
majority” as reflected in something like national public-opinion surveys?Indeed, a lot of recent political science research
suggests that our political bodies do not even reflect the view of popular
On some issues, people’s views are
unsettled, fluid, and highly responsive to the way political elites – including
the Court in its decisions – frame the issues.So “the majority” sometimes follows the actions of public institutions, including
the Court, rather than constrains or determines those actions. And because the
country is so intensely, yet closely, divided on other issues, there simply is
not any dominant majority by which the Court could be constrained.The Court can make decisions in either
direction and find support from some large, strong faction of the public who
likes the outcomes.
wake of Citizens United, I wrote an
article raising some of these challenges, which was titled Is
the Supreme Court a “Majoritarian” Institution?Justin Driver has written good critiques
along similar lines.Campaign finance is
a good test of the claim that the Court is destined to do little more than
reflect the views of “popular majorities.”Do the Court’s campaign finance decisions, which strike down legislation
enacted by national or state majorities, do that?I don’t put a lot of stock in public-opinion
polls, though it seems the “majoritarian thesis” requires us to do that; but
those polls purportedly show large majorities that reject these decisions (that
does not make these decisions right or wrong, as a legal matter, of course).It’s not necessary, though, to go even that
far.The country might be deeply divided
on campaign finance without a clear majority one way or the other.The Court has a lot of room for freedom of
action in this area, as in many others, regardless of what “public opinion”
Yes, it is true that Court decisions are inevitably affected by broad shifts in culture over time. If there are clear majorities, sustained over long enough periods of time, the Court will come to reflect a dominant political sensibility of an era. If you look at the Supreme Court from a 10,000 foot altitude, perhaps that is all you will see. But historical contingency affects the Court, as it does all other institutions, and the current confirmation process provides a dramatic reminder of that.
far as I can tell, legal treatises and casebook chapters on federalism do not discuss
race and my colleagues interested in critical race theory tell me not much is
said in that literature about federalism.
That seems a shame, for they are surely connected in American
constitutional history. There are
reasons, of course, relating to the nature of the Supreme Court’s federalism
jurisprudence, with its somewhat narrow doctrines of “commandeering” and so
on. But it is still unfortunate because
it did not prepare constitutional scholars for what I have described in my
earlier two posts as the sectional and racial aftermath of Sebelius as well as voting rights cases such as Shelby County. The rationales the Court advanced in these cases
crossed an important line – in fact, a color line – and so opened the door to a
racial past that many had thought closed.
As Joseph Fishkin points out with respect to Shelby County, the legacies of the Civil War and Reconstruction are
still with us when the Court uses doctrines such as the “equal dignity” of
states. Once again, race and federalism
respect to health care, Paul Starr provides a reminder of the sectional reality
that existed prior to the ACA in his book Remedy
and Reaction: “The United States developed out of radically different
social systems in the South and the North, and while the South invoked states’
rights in defending slavery and later Jim Crow, federal intervention was
crucial in efforts to achieve equality from the Emancipation Proclamation to
the civil rights movement. Even now, in
economic and social policy, states in the South (and Southwest) show the
influence of their traditions. Compared
with the rest of the country, they continue to provide the least support for
the living standards, including the health care, of their low-income
population. In Louisiana, for example,
unemployed parents have had to earn less than $2,400 (11 percent of the federal
poverty line) to qualify for Medicaid.
In practice, therefore, turning health policy entirely over to the
states means denying access to medical care and insurance protection for
millions of the poor and near-poor in the South and Southwest.” This was a telling preview of the impact of
the Medicaid opt-out created by Sebelius.
now, note Starr’s reference to the “traditions” of the South. Those traditions became newly relevant when
Chief Justice Roberts created the option for states to reject the Medicaid
expansion. This led to the tragedy of
every southern state save Arkansas rejecting the expansion (Louisiana adopted
the expansion in 2016). This outcome was
surely connected with the South’s history.
A Modest Revision of the Accepted Wisdom About the Nondelegation Doctrine
Cass Sunstein's quip that the nondelegation doctrine had one good year -- 1935, the year of Panama Refining and Schechter -- is not quite right. Carter v. Carter Coal, decided in 1936, held the Bituminous Coal Act unconstitutional on two separate grounds, one of which was a violation of the nondelegation doctrine, understood as a requirement of due process rather than as flowing from ideas about the separation of pwoers. (Schechter also relied on two grounds for invalidating the National Industrial Recovery Act.)
Justice Sutherland's treatment of nondelegation in Carter v. Carter Coal is more pointed about the "class legislation" nature of the delegation than Schechter:
"The power conferred upon the majority is, in
effect, the power to regulate the affairs of an unwilling minority.
This is legislative delegation in its most obnoxious form, for it is not
even delegation to an official or an official body, presumptively
disinterested, but to private persons whose interests may be and often
are adverse to the interests of others in the same business. The record
shows that the conditions of competition differ among the various
localities. In some, coal dealers compete among themselves. In other
localities, they also compete with the mechanical production of
electrical energy and of natural gas. Some coal producers favor the
Code; others oppose it, and the record clearly indicates that this
diversity of view arises from their conflicting and even antagonistic
interests. The difference between producing coal and regulating its
production is, of course, fundamental. The former is a private
activity; the latter is necessarily a governmental function, since, in
the very nature of things, one person may not be entrusted with the
power to regulate the business of another, and especially of a
Sutherland calls this a violation of the due process clause, but, in addition to using the phrase "legislative delegation in its most obnoxious form," he introduces the discussion by saying that the statute "delegates the power to fix maximum hours of labor to a part of the producers and the miners," and he cites the pages in Schechter relying on the nondelegation doctrine.
CBO report is here: 24 million Americans predicted to lose coverage by 2026 under GOP ACA replacement
Here is the report. Fourteen million of the 24 million would feel this loss by 2018, conveniently in time for the midterm elections. Savings to the federal budget, largely because of the Medicaid cuts and the cuts in other subsidies for individuals buying insurance, are projected to be $337 billion over the 10 year period.
This is not a surprise; the replacement bill from the start was viewed as a tax break for the upper class that harms the least fortunate in the process. The GOP has more work to do to justify this as a "health care" bill.
As I noted last week (here and here), the GOP already began the process of trying to preemptively discredit the nonpartisan CBO (currently headed by a Republican) in advance of this report.
Next I predict there will be an effort to delay the Medicaid cuts til 2020, conveniently timed for... you know what. Several Republican governors took to the media over the weekend to speak out against the bill. The Senate should help these governors hold the GOP House members accountable for these numbers.
The Crises of -- What Is That Economic System, Anyway?
On Friday David
Brooks’s column identified three “crises” of contemporary U.S. society,
which, he argued, needed to be addressed more urgently than matters like health
care and, in general, the size of the national government. They are crises of
opportunity, solidarity, and authority. I’m generally not a fan of Brooks’s
work, which is too often fatuous and pompous (all this apart from his notorious
reliance on “facts” that prove not to be so). This column, though, seemed to me
basically right – but radically (so to speak) incomplete.
The first gap is the most important – a failure to connect
the dots, as Sandy Levinson is wont to say. What, one might ask, is the
source/cause of these three crises? The answer is The Economic System That Must
Not Be Named: capitalism.
A related gap – Brooks doesn’t identify any national level (or
any other level) policies that might address those crises, because he can’t and
still maintain his belief that he’s a true conservative. There might in
fact be no such policies, although I suspect that a massive government jobs
program could do a lot to address the first two crises, and maybe the third. Of
course, Brooks can’t support such a program. But then his criticism of
President Obama for mistakenly pursuing health care reform rather than using
his political capital to address the three crises seems a bit churlish.
Finally, though this is more contestable, my view is that
the crisis of authority results in large part from a concerted campaign by
Brooks’s erstwhile allies in the Republican Party to undermine such sources of
authority as science and technocratic expertise. One might respond that the
phrase “Question Authority” is associated with the left, and that much of the political
action in the 1960s and 1970s consisted of efforts by the left to undermine
existing authority. Here I think it might be worth distinguishing between
liberals associated with the Democratic Party, who – I think – are entirely
comfortable with authority, and the dirty effing hippies who really did
question authority (and still do), but who are not now, and may not have ever
been, a significant force in U.S. politics. (They are – we are – my peeps,
though. On this question, I can’t recommend strongly enough Tom Stoppard’s “Rock 'n' Roll,” which places the conflict between the dirty effing hippies and the
sedate Marxist left at its heart, and “shows” that the hippies were right.)
[Provoked by an e-mail exchange with Mike Seidman]
Rushing the ACA Repeal through the House without a Budget Score, and More
The GOP Obamacare repeal this week raced through the two House
committees with oversight at breakneck pace-- with essentially a one-day committee markup, with not a single change to the bill emerging
from the markup.The GOP for years has
been saying they could do health care better than the Democrats, and yet when
given their chance they have shown themselves more eager to do something quick than
to do something well considered. Is this really what they have been waiting this long
Perhaps the greatest evidence of the current jam-it-through strategy is
the fact the House Republicans allowed the committees to vote the bill out
without the Congressional Budget Score--that is, without knowing its effect on
the federal budget and the broader market.
For a bill of this magnitude, not getting the score before the vote was highly unorthodox .
In King v. Burwell,
the 2015 ACA challenge, Chief Justice Roberts said a lot of things right. But
he did make one crucial mistake: implying the ACA was not deliberated. The ACA wasn’t properly cleaned up, but it was
excessively deliberated. Tthe ACA went through countless hours of markup,
amendment and change. And it was scored before
the main drafting committees (Senate HELP and Finance) voted on it, so that the committee
members accountable for their votes, as well as the American people, would know
the implications of the bill being sent to the full body.
The GOP has not made itself similarly accountable, and now, together with White House Press Secretary Sean Spicer, GOP representatives have taken to the media to discredit CBO--which has been a nonpartisan, respected congressional institution for decades and is led now by a Republican--presumably laying the groundwork for a budget score of the repeal that they won't like (because it will reveal how many millions will be harmed by the repeal with no countervailing economic benefit for the country) . It's yet another chapter in the Administration's effort to discredit any outside source that could provide a check- -with actual facts--on the Administration's claims and agenda. First it was the media, now it's CBO.
I develop these arguments further here, in the LA Times, with Dean Sherry Glied. Here is an excerpt, please link the link for the full op-ed.:
Someone who believes he’s lost weight
isn’t afraid to step on a scale. Why, then, won’t Republicans let the
Congressional Budget Office provide a cost estimate, or score, for their
Affordable Care Act replacement?
Early reviews of the proposed legislation
reveal that it would harm low-income populations — and the states left holding
the bag for those populations — as well as likely further destabilize insurance
markets. It would radically change the healthcare system. But neither Congress
nor the American public knows the exact implications.
Republican sidelining of the CBO is
especially galling since the party likes to sell itself as the one that cares
about dollars, cents and deficits. In fact, Republicans passed a rules package
last month that required the CBO to more carefully document how legislation
affects the deficit. At the same time, they specifically exempted ACA repeal
from that requirement. They want us to have faith in their repeal without even
having the CBO complete its standard analysis.
Republicans claim they want to repeal the
ACA because it has been an economic “disaster.” All right, then — on what
measure would their bill count as an improvement? The number of people covered?
No one has suggested that the Republican proposal would preserve coverage for
all of the 20 million Americans who got insurance under the ACA, never mind the
millions more who could still benefit from it. If the advantage is an economic
one, the CBO should be allowed to do the books.
Republicans are friendly to business and
suspicious of regulations. They want minimal government as a matter of
principle. But there is another group that wants to shrink government:
professional criminals who hate cops. They want no interference when they hurt
President Trump's recent executive order,
titled "Reducing Regulation and Controlling Regulatory Cost," speaks
the language of the principled libertarians, but its beneficiaries are likely
to be the thugs.
Is the typical conservative crud (in public law)
systematically worse than the typical liberal crud? My sense, though, subject
to revision in light of reactions, is, “Yes, because of choices that the
authors have made.” Some of what follows is overstated to make my points, but
not, I hope, so much as to distort the account of what I’ve observed.
First, if we bundle three generic articles we get the modal
entry-level conservative article. The generic titles are: (1) “The Original
Public Understanding of Article ---, Section ---, Clause ---“; (2) “A New
Epicycle on Original Public Understanding Originalism”; and (3) “Why Justice
Scalia Was Right In [case name] [doctrinal position].” On the merits of those articles (the comparison with the
modal liberal crud comes later): B-o-r-r-r-i-n-g.
The odds that any of these articles will be interesting are quite slim. With
version (1), either there’s a lot of scholarship on Article ---, Section ---,
Clause ---, or there isn’t. If there is, the odds that the author is saying
something new and interesting are vanishingly small. If there isn’t, well,
there’s probably a good reason why – like, who cares about Article ---, Section
---, Clause ---. The problems with version (2) are obvious: tweaks can be
important within an established paradigm, but tweaking originalism isn’t likely
to demonstrate the author’s ability to do scholarship even well behind the
leading edge. And, with version (3), Justice Scalia’s explanation for his
position is likely to be better than the author’s – or, put another way, why
bother to read this article when I can read Justice Scalia’s presentation itself?
Of course, what I’ve just done is non-comparative. The
comparison with liberal crud is that liberal crud extends across a wider range
of topics – or so it seems to me. It might have some data about police
practices that’s new to me, even if the data ends up “informing” a quite
pedestrian normative analysis. Or, it might tout public benefit corporations as
the solution for all that ails us; qua solution, the article’s likely to be
boring, but at least I’ll know something about public benefit corporations that
I didn’t know before. (A confession: I stop reading articles when they get to
the “policy prescription” section. Really, I do.) So, roughly, liberal crud is
marginally more interesting, because marginally more informative, than
conservative crud. (Mentors for conservative entry-level prospects might do
well to guide them away from the modal topics and into other areas – an
analysis of police-citizen interactions from the point of view of a police
officer, for example.)
This is a belated reaction to the letters from several
conservative legal academics to the AALS dealing with diversity along political
lines. I’m going to do two posts in quick succession, and they ought to be read
together. This first post goes through a number of qualifications that, I
think, are required for one to think reasonably clearly about the issues. The
second makes some comments on the issue of political diversity in the field I
know best, public law scholarship.
The first and probably most important point is that we
always have to keep Sturgeon’s Law in mind: “Ninety percent of everything is
crud.” So, the question at issue is something like this: How much more likely
is it that a liberal who produces crud will get a job in the legal academy than
a conservative who produces crud? That framing is important because, first,
it’s the correct question, and second, because it helps avoid unproductive
discussions that begin with an assertion that “Conservative X did really good
work but couldn’t get a job, while liberal Y wrote something quite pedestrian
and did get a job,” and then continue by focusing on whether X’s work is
actually as good as is claimed, and Y’s as pedestrian. We ought to frame the
discussion on the assumption that we’re comparing two candidates who work is
cruddy, because – per Sturgeon’s Law – that quite likely to be true.
US v. Me: The Real Fight in American Health Care that this Debate, like all the Earlier Ones, Won't Resolve
The GOP ACA “replacement” draft is expected
today. Chances are it will look much more like Obamacare than people might
expect.It also isn’t going to answer
the biggest question in health policy-- a question every Congress that has attempted
health care reform from FDR’s to Trump’s has steadfastedly avoided. What is
a health care system for?
If two people are dying from the same disease,
and require the same operation to survive, and one can pay and one cannot, is
it OK for the poor person to die? This is the
central question in health policy-- the tension between “social solidarity”
and “personal responsibility” (terms popularized in this context by Wendy
Mariner of Boston University), and it poses a particular problem for American
politics, because it sets upa debate between
our American capitalist ethos and our norms of equality that we all
share to some extent (even the Republican plans keep Medicaid and the ACA’s
generous insurance reforms, and Trump himself has repeatedly claimed no one is going to lose their care), but that raise entrenched concerns about socialism.
Our collective unwillingness to confront this question also has resulted in a American health care
system that is a hodgepodge of layered programs that mix public and private regulation
and that does everything in its power to hide
the government’s role in health policy. We do this-- Obamacare did this, and the current GOP plan is expected to do this, too--by running our much of our national health policy and federal assistance through insurance regulation and tax policy,
so it seems private and so remains palatable to our capitalist ethos. But make no mistake: the
government is helping most of us. Not just the poor and the elderly: anyone who
gets their health insurance from work is getting a “handout” too.
For a lot more, please see my piece out today
on Vox’s The Big Idea section.
Section Four of the Twenty-Fifth Amendment states, in part:
Whenever the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
The decision to lodge part of of Section Four's "involuntary suspension" power in a majority of the Cabinet was a mistake. For one thing, the President can fire Cabinet Secretaries who might be considering such a suspension and thereby block a removal. (Some members of the Cabinet also strike me as rather poor choices for such a substantial decision.) Since Congress can change the Cabinet requirement through a simple statute, they should do so under an Administration where that is not a live question. Perhaps that responsibility should be given to Congress, or some members of Congress, or a group including the Chief Justice of the United States.
Part I, I described the impact of the Court’s creation of a Medicaid expansion option
for state governments as “sectional” and related to race. As an introduction to both aspects, consider a 2015 report by the Kaiser Family Foundation. It described the impact of the coverage gap
created once a state refuses the Medicaid expansion. As I recounted in Part I, it is the gap with
respect to adults who Congress expected would be covered by the Medicaid
expansion yet do not earn enough to qualify for the alternative of receiving
subsidies to purchase insurance on the exchanges. The Kaiser report stated: “Uninsured Black adults are more than twice as likely as
White and Hispanic uninsured adults to fall into the coverage gap. Nearly
one-quarter (24%) of uninsured Black adults fall into the coverage gap,
compared to 11% of White uninsured adults and 7% of Hispanic uninsured adults.
This reflects the fact that a large share of uninsured Black adults resides in
the southern region of the country where most states have not adopted the
The South, in other words.
Consider an example. Governing
Magazine tells the story of Deadra Malloy, who moved from New York to South
Carolina prior to the passage of the ACA although she was HIV-positive. She wasn’t aware that she had crossed a
sectional border from a state and region with generous Medicaid benefits to a region
with no benefits. After going without her
expensive medication for a year, she ended up in the emergency room with
pneumonia. The article summarizes: “None of the nine deep Southern states with
the highest rates of new HIV/AIDS diagnoses—Alabama, Georgia, Florida,
Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and
Texas—has opted to expand Medicaid under the Affordable Care Act. Those states
also have the highest fatality rates from HIV in the country, according to the
Southern AIDS Coalition.” As I noted in
my first post, Louisiana has since accepted the Medicaid expansion.
tragedy of the Medicaid expansion is that this southern failure after Sebelius was both predictable and very
unfortunate in terms of its impact on health outcomes for all the poor in
southern states, but especially for racial minorities. The topic of Medicaid eligibility has its
complexities and I am not a health law expert.
But as I said at the outset, I think this issue is relatively neglected
by constitutional law scholars so it is worth taking on, despite the risk of
making (hopefully minor) mistakes. There
are also, I believe, some important lessons to be learned about the policy consequences
of the Court’s federalism doctrines. For
those interested in checking my claims (those not documented by links), I will
attach a short bibliography to the last post.
On Feb. 22, 2017, I gave the Dermot S. McGlinchey Lecture at Tulane Law School. The video is below.
My lecture was called "Constitutional Time," and the thesis was that if we want to understand the meaning of the Trump Presidency we have to understand where we are in constitutional time-- that is, in the history of our republic and its Constitution.
In the lecture, I discuss my colleagues Bruce Ackerman's and Steve Skowronek's theories of constitutional time and how they might help us understand Trump's presidency.
I also describe the classical view of the rise and fall of republics, which offers a different view of constitutional time. In particular, I discuss the idea that as republics become corrupted and people lose faith in institutions, they become vulnerable to demagogues. Demagogues undermine and shatter existing political norms. They are often uncouth and uncivil, and use these features of self-presentation to identify themselves with ordinary people. Demagogues denounce elites as corrupt, exacerbate distrust and discord in society, and appeal to people's fear, prejudice, envy and resentments. They promise that they alone can fix things and restore the nation's lost glory. These classical ideas about the decline of republics and the rise of demagogues seem entirely relevant in today's world.
In my view, Trump is not the beginning of a new politics. Rather, he is the last Republican in the Reagan Regime. He will be unable to hold his coalition together and he will preside over the regime's dissolution. This makes him structurally like Jimmy Carter, the last president in the New Deal Civil/Rights Regime, although the two men could not be more different in terms of personality and values.
The politics of disjunction usually involves a party that is at war with itself. Even though the Republicans appear to hold all of the levers of power, they are structurally in a weakened position. Before Trump arrived, they were in the midst of a civil war. Trump's election did not resolve those problems; they merely displaced them. It is important to remember that Jimmy Carter was elected when Democrats controlled both houses of Congress, but his relationships with Congressional democrats quickly soured, and he soon faced opposition within his own party.
I predicted that Trump would be a disjunctive president on Balkinization on November 14th, 2016. Julia Azari made a similar argument in Vox in December 2016, and Corey Robin made a more elaborate comparison with Jimmy Carter's presidency in n+1 in January 2017.
If Azari, Robin, and I are correct that Trump is a disjunctive president who takes power at the end of the Reagan era, we are likely to be in an especially fraught period of constitutional struggle, one that will eventually result in constitutional rebirth in a new regime led by the party in opposition to Trump's Republican Party. Although that opposition party is most likely the Democratic Party, some of its values and commitments may change in the course of the struggle and the transition between regimes.
This last point is quite important. Just as the Democratic Party of Cleveland and Wilson is not the Democratic Party of FDR, and the Republican Party of Eisenhower, and Nixon is not the Republican Party of Reagan, the Democratic Party of the future is unlikely to be the same as the party of Bill Clinton, Barack Obama and Hillary Clinton.
Donald Trump is Shiva the Destroyer. He will ultimately undermine his own party's coalition and he will also alter the coalition of his opponents. A new regime will emerge out of his destructive tendencies; we must hope that it will be beneficial for the country.
Last week the Trump administration withdrew the 2015 Department of Education guidance letter construing Title IX to require recipients of federal education funds to permit transgender students to use restrooms corresponding to their gender identity. That decision might have far-reaching consequences . . . but it might not, depending on how the Supreme Court handles Gloucester County School Board v. G.G., which is currently scheduled for oral argument on March 28.
Yesterday, plaintiff/respondent Gavin Grimm urged the Court to proceed full steam ahead. After all, even without the Obama administration guidance, Grimm's lawyers argue, Title IX still forbids his school from excluding him from the high school's "male" restrooms. The defendant/petitioner School Board also urged the Court to decide the case, which is not surprising given that the lower court ruled against it; the Board, however, asked that oral argument be delayed so that the new administration can weigh in (and perhaps in the hope that a delay would allow a Justice Gorsuch to participate).
Meanwhile, merits briefs have been coming in to the Court. The School Board argues that the Congress that enacted Title IX intended “sex” to refer to what the Board’s brief calls “physiological distinctions between males and females.” That is at best vague, even as applied to this very case. Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; he presents as male in virtually all material respects. The Board, however, treats him as "female" because of his external reproductive organs. The Board also argues that this treatment is consistent with Title IX, which generally permits restroom segregation between males and females.
Meanwhile, echoing the withdrawn guidance letter, Grimm's brief argues that the School Board’s policy discriminates against him on the basis of sex because the term "sex," as used in Title IX, includes gender identity. That is a potentially compelling argument, but it is possible the Court will not want to reach it if the case can be decided on narrower or more straightforward grounds.
It can be. An amicus brief that the four of us filed today argues that the school board policy excluding Grimm from the common restrooms, thereby publicly stigmatizing him as unfit to use the same restrooms as all other boys, discriminates against him based on sex in the most literal way: it excludes him from the male restrooms on the basis of his external sexual anatomy.
That exclusion, we argue, is undoubtedly "based" on sex and, as we explain at length in our brief, Title IX presumptively forbids such segregation. To be sure, a longstanding federal regulation permits federally funded educational institutions to establish sex-segregated restroom facilities, and that rule is a proper reading of Title IX as applied to most students. Nevertheless, the school board’s policy contravenes Title IX (and is thus invalid) when applied to transgender students because of the severe harm it inflicts on them without furthering any important institutional interests.
We urge interested readers to check out our brief for the details of our argument. Readers who do will note that in addition to the four of us, Eric Citron (Counsel of Record) and Kevin Russell are co-counsel. We are very grateful to them, as well as to law students Michael Chu, Jeane Jeong, Meghan Larywon and Max Schulman, for their indispensable contributions to the brief.
The Tragedy of the Medicaid Expansion: A Story of Race and Federalism (Part I)
is well known that in NFIB v. Sebelius,
the Supreme Court made the Affordable Care Act’s Medicaid expansion optional
for state governments. The Court’s de
facto rewriting of the law created the current patchwork of states – 32 (including
DC) have accepted the expansion, at least in some form, and 19 have not. It is also widely appreciated that in the
states refusing the Medicaid expansion, there is a “coverage gap”
unanticipated by Congress. The coverage
gap applies to those adults who would have been covered by the Medicaid
expansion, yet earn less than the amount required to be eligible for coverage
through the insurance exchanges created by the ACA. These adults in the 19 states are out of luck
as far as health care coverage, at least if their employer does not offer an
insurance plan. And there are many such
is not well understood is that the Court’s decision to make the Medicaid
expansion optional opened a door leading to a very unfortunate sectional and
racial past. Sectional is not a term one hears much anymore, but in fact there
is a case to be made that the Court has been busy reviving a distinctively
sectional racial vision in other areas of constitutional law, most notably
voting rights. With respect to the ACA,
the sectionalism of Sebelius became apparent
quickly as every southern state (and every former member of the Confederacy)
except for Arkansas refused the Medicaid expansion. As I will elaborate, this had drastically bad
health implications for the historically very poor populations, many of whom
are African American, in southern states.
Yet these states, save for Arkansas and Louisiana in 2016, have continued to reject
the Medicaid expansion.
write these posts out of a concern that especially among constitutional law
scholars (as opposed to health law scholars who are highly aware of the policy
details I discuss), the distinctively sectional and racial implications of the
Court’s Medicaid decision have been largely overlooked (although one exception
is this article by Tomiko Brown-Nagin and I will cite other articles by health law scholars as I go). I hope the information I present will go some
distance to remedying this oversight in constitutional law casebooks and legal
scholarship. It also seems a good time
to look back on this aspect of Sebelius,
as Congress, President Trump, and the nation’s governors debate whether the ACA
should be changed.
tragedy of the Medicaid expansion is that it was fairly foreseeable that the
burden of the Court’s decision would fall on the backs of extremely
impoverished adults in southern states and that this burden would be strongly connected
with America’s historic burden of race.
In changing the legal structure of the ACA, in adopting, in effect, a
new law the Court was also making a policy decision, one with vast
consequences. Yet little of this was evident from the Court’s opinion. Nor
could it be gleaned from the many expert amicus
briefs. This is partly because few
anticipated that the Medicaid expansion might be struck down and so no studies
were run to anticipate what might happen.
But it is also because the Court did not ask the right questions.
Originalism as Old and New, Part III: Solving the Puzzle? (With thanks to Richard Re)
This post is my third (and, I predict, my last) arising out
of an observation that I made at a recent conference at the Center for the
Study of Originalism.The purpose of
this post is to note an important suggestion by Richard Re—one that might solve
the central puzzle of this conversation by pointing to a miscommunication
between me and a number of my originalist interlocutors.
first post noted that it seemed to me that a significant number of the
self-identified originalists at the conference were of the view that
originalism is an interpretive theory that is still relatively early in its
theoretical development and that has not yet been put into practice.One of the important corollaries of that
claim, as I understand it, is that the virtues of originalism cannot be soundly
measured by reference to what courts up until this point in history have
actually done when they have applied, or purported to apply, original
meanings.To be sure, constitutional
history is replete with examples of judges justifying their decisions by
reference to original meanings.But as I
understand the idea, originalism—or, more particularly, a properly skilled and
theoretically sophisticated originalism—does not yet have enough of a track
record to enable the method to be judged on the basis of how it works out in
And then I wrote this:
“I grew up hearing people say that communism had never been
tried, either, and perhaps there's a cautionary tale in that comparison.
Sometimes an idea is worth giving up on even if its core supporters don't
believe it's yet been fully put to the test. But perhaps the comparison
is misleading: just because people have made the never-been-tried argument as a
way of not coming to grips with the problems in practice of one idea doesn't
mean that every use of never-been-tried is similarly flawed.”
After my initial post, a few originalists who had attended
the conference said (either privately to me or publicly) that they suspected I’d
misunderstood something.Their responses
mostly took (some form of the) view that originalism is in fact a practice with
deep roots in American jurisprudence, rather than something new and
post by John McGinnis is a good example.After hearing these responses, I
wrote a second post speculating about why my perception of the prevalence of
what I called the “never-been-tried” view differed from that of several
originalists who had attended the conference.
Now the new development.Richard Re, who attended the conference, has suggested to me that the
root of the apparent difference in perceptions is likely an ambiguity in
referring to originalism as something that hasn’t been tried.Re points out that in the context of my
initial post, “never-been-tried” is a shorthand for something like “not yet
conducted with sufficient persistence and proficiency so as to let its record
of conduct stand as a fair test of what the theory can deliver if carried into
practice properly.”That’s in fact what
I intended it to mean, as the reference to the analogous claim about communism
suggests.But Re points out that people
could also take “never-been-tried” to mean that something is so novel that
nobody has even attempted to put it into practice yet.And Re is certainly right that that could be
a reasonable understanding.Indeed, on a
literal reading, “never-been-tried” carries exactly that meaning.
It is certainly not the case that nobody has ever tried to
do originalism and to do it properly.So
it’s understandable that people who took me to be saying that many originalists
seem to think that the idea of deciding cases on the authority of original
meanings is something new under the sun would have reacted with surprise or
confusion—or simply by thinking that I was wrong to think that any significant
number of originalists held such a view.To the extent that my use of the “never-been-tried” meme fostered that
misunderstanding, the responsibility for the confusion is mine.
But Re is right about what I intended to convey: not that a
significant number of originalists claim that regarding original meanings as
authoritative is new, but that a significant number of originalists claim that originalism
has not yet been done by courts with sufficient persistence and proficiency so
as to generate a record of performance on the basis of which one could judge
whether originalism in practice delivers the set of desiderata (e.g., predictability, constraint) that
many originalists claim as virtues of their preferred method.It remains my understanding that a nontrivial
proportion of academic originalists holds something like that view.
To come a bit closer to the ground: Many originalists argue
that originalism is a good theory at least in part because it has the capacity
to constrain judicial decisionmaking better than other methods can and, perhaps
relatedly, because it has a greater capacity than other methods to keep the law
stable.Several critics of originalism
(including me) have argued that there isn’t much evidence to support these
claims.If one looks at how courts have
actually behaved, it’s not at all clear that judges are more likely to agree
with one another when they traffic in original meanings than when they deploy
other methods, nor is it clear that deciding cases by reference to (judicial
perceptions of) original meanings is a better formula for holding the law
stable than it is for legal innovation.The significance here of the view that originalism has not yet been done
by courts with sufficient consistency and proficiency to allow the record of
judicial practice to furnish a fair test of originalism’s capacities is that it
enables those originalists who wish to do so to demur to this criticism.OK, they can say, maybe we haven’t seen a
demonstrated tendency of originalism to constrain judicial decisionmaking more
than other methods do.Yes, Heller was 5-4, and the lineup was
pretty much what you’d expect if the Justices had decided the case without
plumbing original meanings.But the
Court’s division in Heller isn’t evidence
of originalism’s limits, because at least some of the Justices weren’t doing
originalism properly. (The claim could be either that the dissenters
weren’t in good faith about their analysis or else simply that they were bad at
it.)More broadly, the overall judicial
record doesn’t furnish such evidence, because the courts in general haven’t
done originalism well enough and consistently enough to let us see what would
happen if originalism were done consistently and well.That’s the demurrer.And the ability to demur this way is
important precisely because it means that these originalists don’t have to
contest the claim that, on the available evidence, it’s hard to see that
originalism actually does the work that many of its advocates claim it will do.
If originalism hasn’t yet been done consistently and well
enough to furnish a record on which its actual capacities can be judged, it might
follow that originalism should be given further opportunity to refine itself so
that it can be allowed a fair chance to show its virtues.Alternatively, maybe it’s unrealistic to
think that courts could do originalism in a substantially more consistent and
proficient way than they’ve done it up until now.In that case, originalism’s record to this
point, such as it is, is the record on which the method must be judged.I have a view on that issue, of course.But resolving that issue isn’t the main
purpose of this post.The main purpose of
this post is to highlight the ambiguity in the “never-been-tried” meme, to note
that that ambiguity might well underlie the confusion in this conversation, and
to thank Re for pointing it out.
Americans should prepare to spend more time traveling abroad (assuming they will be allowed in)
A story in the Washington Post details the idiotic behavior of the United States in nearly preventing a distinguished French historian of the Holocaust (who apparently is originally Egyptian) from entering the United States at the Houston International Airport in order to go to Texas A&M to deliver an academic speech. I earlier suggested that no international organization with any sense would schedule conventions (or sports contests) within the United States at least until the demise of the Trump Administration, and this episode (even though it had a "happy ending") after the intervention of the A&M president is simply grist for that mill. So Americans who are members of international organizations should expect to spend more time traveling abroad in the next few years. Of course, we have no idea whether other countries will begin relating against the United States for its paranoiac policies. I earlier adverted to my having to pay a hefty visa fee to go to Argentina and Brazil for professional conferences, which are clearly labeled as retaliatory measures for similar US treatment of Argentine and Brazilian nationals. As the Trump-Bannon Administration destroys our alliance systems abroad, I do wonder whether other countries, sympathetic to the travails facing their own members upon trying to visit the US (especially if they want to get anything more than a tourist visa), will not making life harder for Americans to give us a taste of our own medicine. In any event, a true irony of the Trump Administration is that the hotelier-President may well destroy tourism to America.
I guess the current mantra is that "we can't be too careful" whom we let into the country, but the same is not true, of course, about whom we allow to purchase guns run potentially-polluting companies, teach in our now-sacred charter schools, etc. Not to mention coming to terms with the risks of global warming, though I must say I look forward with relish to the flooding of Mar a Lago (if only it could be confined to that particular venue and it's $200K/year members).
UPDATE: THE DISCUSSANTS BELOW INSIST ON TALKING ABOUT CONSTITUTIONAL POWER. LET ME CONCEDE, ARGUENDO, THAT THE US, AS A "SOVEREIGN STATE," POSSESSES "PLENARY POWER" (WHATEVER THAT ACTUALLY MEANS) OVER IMMIGRATION. I WOULD HOPE THAT READERS MIGHT BE CAREFUL ENOUGH TO NOTE THAT I'M NOT REALLY MAKING A LEGAL ARGUMENT. I'M SIMPLY ARGUING THAT ADOPTION OF TRUMP-BANNON PARANOID IMMIGRATION POLICY WILL LIKELY LEAD TO CONSEQUENCES THAT MANY AMERICANS, INCLUDING TRUMP VOTERS, MIGHT REGRET. THE NYTIMES HAS A LONG STORY TODAY ABOUT THE LIKELY NEGATIVE CONSEQUENCES FOR OUR BID TO HOST THE WORLD CUP IN 2026. AND I CONTINUE TO BELIEVE THAT ANY INTERNATIONAL ORGANIZATIONS--INCLUDING BUSINESS-ORIENTED ONES AND NOT ONLY ACADEMIC GATHERINGS OF POINTY-HEADS LIKE MYSELF--WILL REFRAIN, IF THEY ARE WISE, FROM PICKING THE U.S. AS A DESTINATION AFTER ALL, LOOK AT THE INCREASINGLY GENUINE INTERNATIONALIZATION OF COMPANIES LIKE COCA-COLA AND MANY, MANY OTHERS. THE 'CULTURE WAR" IS INCREASINGLY BETWEEN GLOBALIZED BUSINESS AND DELUDED TRUMPISTAS WHO BELIEVE THAT A MERCANTILIST ECONOMIC POLICY BASED ON BEGGAR THY NEIGHBOR MAKES ANY SENSE IN THE 21ST CENTURY. THIS OBVIOUSLY DOESN'T MEAN THAT THE CLEAR LOSERS UNDER GLOBALIZATION SHOULDN'T GET ALL SORTS OF (EXPENSIVE) FEDERAL AID, INCLUDING DECENT MEDICAL CARE. BUT THAT IS OBVIOUSLY DIFFERENT FROM PROMISES THAT THE GREAT DAYS OF MANUFACTURING WILL RETURN IF JUST WE CLOSE OUR BORDERS AND ADOPT HIGH TARIFFS. AND ANYONE WHO BELIEVES THAT HE/SHE IS MORE THREATENED BY AN ALIEN TERRORIST THAN BY DRIVING ON OUR HIGHWAYS (FOR STARTERS) SIMPLY HAS NO CAPACITY TO UNDERSTAND STATISTICS. (THAT MAY WELL DESCRIBE OUR PRESIDENT, HOWEVER SMART HE CLAIMS TO BE.) IN ANY EVENT, IF YOU WANT A CAREFUL LEGAL PARSING OF WHAT THE US CAN CONSTITUTIONALLY DO, GO TO ANOTHER POST (OR POSTER). Posted
by Sandy Levinson [link]
Thursday, February 23, 2017
Originalism as Old and New, Part II
Four days ago, I posted
in this space some reflections about a very good conference I’d just
attended at the University of San Diego Law School’s Center for the Study of
Originalism.The core of my reflection
concerned a hypothesis I developed over the course of the conference: that there
has been some movement in recent years among leading originalists toward the
view that originalism hasn’t yet really been tried out in American courts.Holding in abeyance the question of whether
that hypothesis is correct—I didn’t do a survey of the thirty or so
originalists at the conference, and I wouldn’t know how representative that
group of thirty is of academic originalists overall—I then offered some
thoughts about what would be interesting about movement toward that perspective
among originalist theorists.
I’ve gotten various feedback to that post: some agreeing,
some criticizing, some speculating further.But one note of feedback seems to me to be worth reporting to the
audience for these posts.After my first
post, two or three originalists who had attended the conference got in touch
with me to let me know that they, personally, do not subscribe to the
originalism-has-never-been-tried view, and one or two of them ventured further
that they think I overestimated the number of people at the conference who do.In a more
recent post, John McGinnis—one of the prominent originalists at the
conference I attended—has also come forth to say that I overestimated the
incidence of the never-been-tried idea.Given this feedback, I should take seriously the possibility that I did
in fact overestimate.
It’s certainly possible.I heard the idea articulated, in a few different forms, by (I think) five
people at the conference.But given the
perceptions of others who were there, it’s possible that I overread the
significance of that observation, in any of the following ways: (1) I extrapolated
from what I heard, figuring that the people I heard from probably weren’t the
only people at the conference to hold forms of that view.But maybe I overextrapolated; maybe I
happened to hear from everyone, or close to everyone, who has something like
that perspective. (2) Maybe the originalists who report that the position is
not on the rise are working from a different (and perhaps better informed) baseline
than I am.Maybe people who attend
originalism conferences regularly were already accustomed to whatever the
incidence of this idea is among originalists, and I saw as an uptick what to
them is simply the status quo.And then
of course there are questions about the ability of insiders and outsiders to
read a culture.Sometimes insiders can
better read what is actually going on in a community; sometimes it takes an
outsider to notice something that insiders haven’t.Which of those dynamics was more in play in
this case, if either, isn’t something I’m qualified to judge.But in any event, I’m grateful to those who
reached out with the feedback, which should (and does) induce in me a healthy skepticism
about my hypothesis of an uptick.
Of greater interest to a general audience than my
perceptions, though, is the underlying set of issues about the ways in which
originalism is old, new, or some combination of both.To a considerable degree, I agree
with McGinnis when he says that the practice of arguing from original
meanings has waxed and waned over the course of American history and that it is
today one of several contending approaches to constitutional jurisprudence,
rather than being either alien or dominant.I certainly agree that anyone who thinks American judges have never reasoned
about constitutional cases by appealing to original meanings would be misreading
the historical record, and not by just a little.
Where I may differ from McGinnis is in certain judgments about
how predominant originalism was at specific past times.Quoting Madison and also Howard Gillman,
McGinnis identifies originalism as present at the Founding and asserts that
nearly all constitutional interpreters appealed to original meanings until the
time of the twentieth-century progressives.McGinnis is right, of course, that Madison and Gillman said what he says
they said.I have great respect for
Gillman—and not less for Madison.But I
have always thought that Gillman overstated the case for universal originalism
in the nineteenth century.(Paul Kahn’s Legitimacy
and History still stands as one powerful contrary view.)And Madison’s endorsement of a jurisprudence of
original meanings in the passage McGinnis quotes stands in contrast to some
ideas articulated by his contemporaries.Madison is called the Father of the Constitution, as McGinnis reminds us—but
Gouverneur Morris, who actually wrote more of the document than any other
single person, famously derided the idea, saying with the authority of the man
who held the pen that a history of the Constitution would not be a good aid in
interpreting its provisions. (To be clear, McGinnis doesn't say that everyone was an originalist near the Founding, just as I am not saying that no one was.)
The point here is not that people didn’t reason from and
about original meanings near the time of the Founding.Of course they did—which means “of course
many of them did, at least some of the time.”And others of them were skeptical of that approach.Similarly, one can find originalist reasoning
cropping up in many nineteenth- and twentieth-century sources, which doesn’t
demonstrate that originalism, much less any particular form of originalism, was
the consensus or dominant method of that age.Argument from original meanings, it seems to be, have always been one
strain of constitutional arguments, jostling with several other strains—a state
of affairs that is still true today and that I would bet is likely to continue
for some time.