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
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 marty.lederman at comcast.net
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
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A story in today's New York Times, about a new wave of legal challenges to the Affordable Care Act, includes the following description of a remarkably principled individual:
One plaintiff in the District of Columbia case, David Klemencic, the
sole owner of a carpet and flooring store in the town of Ellenboro,
W.Va., was also a plaintiff in the constitutional challenge to the
individual mandate. In an interview, Mr. Klemencic, who does not have
any employees, said he had deep, philosophical objections to any effort
by the government to require him to purchase insurance, and would refuse
to accept a subsidy even if eligible.
“I go to the doctor now, I go to the dentist now, I take my checkbook
and I pay for it,” he said. “If I’m forced into some sort of program
where it’s subsidized by the government, I won’t go see a doctor.”
About ten years ago, the satirical newspaper The Onion ran the following fictitious story:
Libertarian Reluctantly Calls Fire Department
WY—After attempting to contain a living-room blaze started by a
cigarette, card-carrying Libertarian Trent Jacobs reluctantly called the
Cheyenne Fire Department Monday. "Although the community would do
better to rely on an efficient, free-market fire-fighting service, the
fact is that expensive, unnecessary public fire departments do exist,"
Jacobs said. "Also, my house was burning down." Jacobs did not offer to
pay firefighters for their service.
Here, reality has outpaced fantasy. Presumably, if Klemencic's house catches fire, he will resist any effort by the fire department to trespass on his property.
I'll note (since nobody else yet has) that our own Sandy Levinson is profiled in an article by Jeffrey Toobin in this week's New Yorker. Unfortunately, the article is behind a paywall. Posted
by Gerard N. Magliocca [link]
Sunday, December 01, 2013
More n pardons
Today's NYTimes has a number of responses to my Monday letter on presidential pardons (itself reprinted), as well as my final thoughts. I continue to find it significant that no one, whether those writing letters to the Times or Balkinization discussants, has actually defended Obama's (or Bush's) hesitation to exercise the constitutionally-granted pardon power. Jeffrey Crouch, who has written an interesting book on the pardon power, has a letter repeating his concerns about abuses of that power, including, especially, George H.W. Bush's "last Christmas in Washington" pardons of a number of people who were being investigated for their role in "Iran gate" and their potential ability to implicate Bush himself. He also pardoned Elliot Abrams, who had lied to Congress; that pardon presumably helped rehabilitate Mr. Abrams and make possible his service in the administration of George W. Bush. I conclude my "on-line" response--the print version had to be edited for reasons of space--with the following:
Finally, Professors Crouch and Ruckman set out the conflicting arguments about the use of the presidential pardon power. All such powers are subject to misuse.
The question is whether we fear “sins of commission” like the Marc Rich
pardon more than the “sins of omission” of presidential heartlessness.
UPDATE: The Washington Post has a strong editorial criticizing the President for his stinginess in granting pardons (or commutations). He is, indeed, the stingiest president in modern history. (He has, however, pardoned ten turkeys during his five years in office.) Interestingly enough, one of the Post's polls based on the obviously unscientific responses of their online readers indicates that 53% "oppose" the proposition that the President should issue more pardons and only 47% "support" it. I realize that those who write letters to the NYTimes or respond to Balkinization posts are no more scientific a sample, but this heartless majority nonetheless surprises me unless it is based on the premise that Obama should do nothing at all, period. Posted
by Sandy Levinson [link]
Saturday, November 30, 2013
The perverse incentives of "divided government"
My latest on-line column for Al-Jazeera elaborates my argument that "opposition" parties have no incentive to collaborate with presidents on "signature" legislation for the simple reason that almost invariably it is the president (or his/her party) that will benefit if the legislation is in fact popular. Thus I regard as absolutely fatuous the argument of Fouad Ajami in the Wall Street Journal (hyperlinked in the column) that the reason the Affordable Care Act is defective (which it certainly is) is because of Obama's refusal to "compromise" with Democrats. The fact is there is no evidence at all that a single Republican was genuinely willing to work in good faith with the Administration. Those who hinted at doing so, such as Sen. Grassley, were apparently told in no uncertain terms that their future as Republican leaders depended on getting with the McConnell program of bitter-end resistance..
Has this always been the case? Arguably not, since David Mayhew and others have argued that much legislation was passed in the past during episodes of divided government. I think there are problems with Mayhew's argument, principally involving how one evaluates the merits of such legislation (as against the kind of legislation that would have passed had the president's party been in control), but even if one accepts his argument, I think one can argue that things have changed in just the last decade or so (though I think that a seminal moment was Bill Kristol's memo in 1993 to Republicans telling them that whatever else they did, they had to make sure that Bill Clinton was denied the passage of any medical care legislation).
Micah Schwartzman, Richard Schragger, and Nelson Tebbe began an important conversation with their post on this blog about the contraceptive mandate and the Establishment Clause. It’s important in part because it brings into the picture the people who are the key to understanding the constitutional stakes in Hobby Lobby and Conestoga Wood Specialties: the employees.
These cases are triangle-shaped. Government, employers, and employees each have an important relationship with each of the other two. Because of the design of the Affordable Care Act, all of these relationships are implicated in the litigation over the contraceptive mandate and religious exceptions to it. However, only two corners of the triangle are parties to the litigation: the employers and the government. Employees are not represented. This makes it easy to overlook much of the real action. I look forward very much to the rest of Micah, Rich & Nelson’s series.
My aim in this blog post is to make a pretty simple point. Here it is: As large employers in a post-ACA world, Hobby Lobby and Conestoga Wood Specialties are acting partly on behalf of the federal government, with subsidies from the federal government (as well as extensive regulation), when they offer health insurance to their employees. Large private employers have been enlisted, by law, as one part of an overall federal project of health insurance provision. Their role is essential. Hobby Lobby is the exclusive instrument through which the federal government provides the benefits of the ACA—federally subsidized, affordable insurance—to a set of individuals entitled to the benefits of the ACA (the company’s employees). That is the key background fact against which one must measure the First Amendment implications—on both the Establishment side and the Free Exercise side—of the special exceptions being sought by large private, for-profit employers with religious owners.
On the face of it, it may seem odd to suggest that a private employer, going about its own business, offering a health plan to its own employees, could at the same time be acting partly on behalf of the federal government or as an instrument of the federal government. Yet that is exactly what is going on, post-ACA. To understand why, we need to understand how the ACA works and how it alters the basic setup of the American social welfare state.
The Establishment Clause and the Contraception Mandate
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
Yesterday the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which ask whether large, for-profit corporations and their religious owners can assert rights of religious free exercise under the Religious Freedom Restoration Act (RFRA), and, if so, whether their rights are violated by the government’s requirement that they pay for health insurance that includes coverage for various forms of contraception.
So far, the five circuit courts that have decided these questions – including the lower courts in Hobby Lobby and Conestoga Wood – have focused exclusively on two main issues: (1) who can assert claims for religious exemptions under RFRA, and (2) whether those claims are likely to be meritorious given RFRA’s requirement that courts apply strict scrutiny to laws that substantially burden religious exercise.
But as we argued yesterday in Slate, the contraception mandate litigation, and the media coverage of it, is not presenting the full range of arguments. The courts and the litigants have failed to consider a serious Establishment Clause challenge to exempting large, profit employers from the contraception mandate.
I have a letter in today's NYTimes that is part of their "invitation to a dialogue" series. I will reply in the Sunday Times to letter received today and tomorrow. Understandably, the Times shortened my original submission, so it is perhaps worth pondering the following paragraph that did not make the final version:
of omission, by failing to exercise mercy when it is called for, are
just as serious as what might be thought to be President Clinton’s sin
in pardoning Marc Rich (or Ford’s pardon of Nixon). The
difference, of course, is that the latter was greeted by widespread
public criticism and hostile editorials, as was the case when former
Mississippi Governor Haley Barbour pardoned
215 convicted felons, including several murderers, as he left the
“Christianity teaches us forgiveness and second chances.” Barbour explained.
One doesn’t have to be Christian to see merit in Barbour’s argument.
No doubt President Obama is far more likely to pardon the Thanksgiving turkey than to take seriously his constitutional right/duty to monitor the basic fairness of the federal criminal justice system. One of the things that is noteworthy is that a number of conservative federal judges have been as vociferous in their dismay over the mindless mandatory minimums imposed by a fearful and callous Congress as have more liberal judges. This is no longer, assuming it ever was, a partisan political issue. (One of the most objectionable aspects of Mitt Romney, incidentally, is that he took pride that he had never exercised his gubernatorial power to pardon while governor of Massachusetts. This is, I think, a dispositive argument about his genuine character.)
One other point: I am uncertain whether Ford's pardoning of Nixon is really condemnable. It may well have served the interests of the country.
UPDATE: Tomorrow is slated to be the day on which President Obama will "pardon" at least one Thanksgiving turkey. In the best of times, presidents should stop engaging in such a stupid rite. But Obama himself should be absolutely ashamed--indeed, mortified--at participating in this ritual given his remarkable degree of heartlessness toward thousands of people serving unjustifiably long terms in federal prisons. A fine piece in this afternoon's Washington Post includes facts and figures demonstrating how Obama has used his pardon power less than any other president in recent American history. Many people are in prison serving excessive mandatory minimum sentences under a statute declared unconstitutional by the Supreme Court but, in its infinite wisdom, made non-retroactive. They are truly victims of being in the wrong place at the wrong time.
I think it is interesting that no one who wrote into the Times as art of the "invitation to a dialogue"--the letters and my response will be in the forthcoming Sunday Times--took genuine issue with me. Nor, for that matter, has anyone in the "comments" below, which have morphed into a discussion of the Nixon pardon. Whatever may be said about that pardon--or Marc Rich's or Scooter Libbey's commutation--is really quite irrelevant with regard to the less famous and well-connected wretches languishing in federal prison. (Obviously, there are even more in state prisons, but Obama can do nothing for them, unlike federal prisoners.) Wouldn't it be wonderful if 100,000 Americans--the new minimum, I think, under the White House policy of accepting petitions from the general public--sent in a petition demanding that he exercise his constitutional prerogative--indeed, duty--to temper legalistic justice with mercy?
FURTHER UPDATE: Alas, Obama did indeed participate in the idiotic ritual. It will be interesting to see if he displays any genuine mercy as we move toward what had been the traditional "pardoning season."
Most contemporary liberal political philosophers in this country are kindly
disposed toward the idea of religious liberty. But ever since the Reagan era
they have been anxious about the rise of the Religious Right, and
correspondingly eager to contain the influence of religion over politics. Drawn
to the notion that the state ought to be neutral with respect to any
controversial conception of what constitutes a good life, they have spawned a
number of theories that aim to recast what is politically salient about
religion in neutral, nonreligious terms, such as “conscience” or “individual
autonomy.” Unhappily, this move toward abstraction discards
everything that is specifically valuable about religion, even as it threatens
to deprive us of the legal and political tools we need to deal with the
problems that religious diversity generates.
For many years, the Canadian philosopher Charles Taylor has been a leading
voice for a more historically and ethically grounded approach to the
complexities of religious practice in secular society. In his most recent
writings, however, Taylor has started to sound a lot like the advocates of
neutrality. In an essay titled “Why We Need a Radical Redefinition of
Secularism,” he argues that “all spiritual families must be heard” in the
process of social self-determination. And in Secularism
and Freedom of Conscience, a 2011 book co-authored with Jocelyn
Maclure, he writes that the democratic state must “be neutral in relation to
the different worldviews and conceptions of the good—secular, spiritual, and
religious—with which citizens identify.” Anything else, he insists, would make
some into “second-class citizens.”
These claims can be read two ways. One of these takes them
as a call for a negotiated common ground, working from whatever commitments
citizens happen to have—religious or otherwise—toward an outcome that will
honor all those diverse commitments while adjudicating the inevitable conflicts
among them. In present U.S. law, for instance, accommodation is given to ritual
peyote use in Native American religious ceremonies but not to recreational use
of hallucinogens, and nobody gets permission to use heroin. The other view is
that Taylor has joinedcause with
those theorists who claim that the state ought to be neutral with respect to
any conception of the good. Which view of Taylor’s thinking is more accurate?
originally designed, the Affordable Care Act expanded Medicaid to cover
childless adults up to 138% of the federal poverty level – with the federal
government picking up every penny for the first couple of years and at least 90%
thereafter.Those who got health
insurance through exchanges would get a subsidy if they earned between 100% and
400% of the FPL. But the Supreme Court unexpectedly declared that the
states could reject the expansion – and where Republicans are in charge, many have.The old Medicaid, which continues to operate,
can be remarkably stingy. In
Alabama in 2009, it covered adults with children who have incomes below 11.5%
of the federal poverty line, which was $2,425.50 a year for a family of four.So the refusal to expand Medicaid is a pretty
severe way to score political points against Obama.
Important new research by Kentucky Law Prof.
Nicole Huberfeld shows
that this story has been misreported.Many of the states that have been counted as refusing the Medicaid money
are in fact moving toward accepting it.There are a few stubborn holdouts, including Texas, which has a huge
uninsured population.But the overall
pattern is different from what you’re likely to read in the newspapers.
The Senate today voted to change its rules and end the power of the minority to block a judge or an executive nominee through a non-traditional floor filibuster. I applaud this change, as readers of the blog know that I am a critic of modern filibuster practice. It is worth noting, though, that all this change does is bring us back to where we were about ten years ago. Filibusters of lower federal court and executive nominees were basically unknown prior to the Bush 43 Administration.
I'll add another thought. This change may influence the resolution of the Noel Canning case. The recess appointments at issue in Noel Canning arose because President Obama's NLRB nominees were being filibustered. Now that this is no longer possible, the Court might be more sympathetic to the argument that the recess appointment power should be construed narrowly. Posted
by Gerard N. Magliocca [link]
Lawyers Masquerading As Historians
Gerard N. Magliocca
I was watching a panel from last week's Federalist Society Conference on YouTube and was surprised to hear a quote of mine discussed. The panel was on "Originalism and Textualism," and the quote comes from an article that I wrote a long time ago in which I said: "Constitutional lawyers are paid to masquerade as historians." This quote can be used to challenge the ability of lawyers to engage in originalism or their sincerity, and was labeled as "a cheap shot" by Randy Barnett.
I thought I'd take a moment to explain what I meant. To some extent, the quote was ironic, as it was the first line of an article that went on to discuss the history of the presidential veto power. But there is a more serious point. Lawyers and historians have different tasks. Lawyers are supposed to make choices about what should be done now. Historians are supposed to describe what happened in the past. When you mix the two, problems can arise.
A historian of the Founding era is no better at determining how we should interpret the Constitution than a lawyer. Much more than history goes into that task. To be sure, history is a useful tool, and historians should step up to correct inaccurate information that lawyers are using. But going further is, in my view, wrong. That's why I don't sign "Amicus Briefs By Legal Historians." In theory, such a brief could just provide background information for a case, but usually it is taking a position in the litigation. At that point, the historian is no longer being a historian.
On the legal side, you have a related pitfall. Lawyers need to reach conclusions. They cannot say (as an advocate or as a judge) that the judgment in a case is indeterminate. Unfortunately, though, a lot of history is indeterminate. This often leads lawyers into the "narrative fallacy" (in other words, you select those facts that make the past coherent and exclude the others) to in order to make an argument or justify a result.
How do I deal with these issues in my work? In books or articles, I try to avoid commenting on current disputes in the guise of history. Now I've strayed at times, but when I have that's reinforced the point that I should not. Blogging is more free-form, so I pay less attention to the distinction when I post, though I think that I still try to keep the history separate from my opinions. Posted
by Gerard N. Magliocca [link]
Wednesday, November 20, 2013
The latest demonstration of why constitutional structures matter
No doubt many of us are following with train-wreck attention the goings-on in Toronto and its remarkable mayor Rob Ford. I have no views on his general loutishness or flouting of what I assume to be Canadian drug laws. At the very least, he is certainly calling into question the depth of modern Canadian commitment to "peace, order, and good government" as the foundational virtues.
What interests me is that Toronto is stuck with him until the end of his term, for a very simple reason. There is, apparently, no way of impeaching or recalling a drunken, bullying lout (or perhaps even someone who has committed a "high crime and misdemeanor"). The Council has apparently tried to strip him of as much power as possible, but he remains "da mayor" with whatever residnal power resides even after the stripping efforts.
Assume that Toronto responds to this by amending its City Charter (or goes to the Ontario Parliament for a new charter, if that's necessary). Should impeachment and recall be part of any new charter? And, if the former, should it be necessary to prove a "high crime and misdemeanor" or is "maladministration" enough. And how much does anyone's answer depend not only on our view of Canadians, whom we might well view as sober enough not to use recall provisions recklessly, but also on our assessment of the particular office. Should it be easier to get rid of a mayor than a governor, a governor than a President?
In any event, I am curious whether anyone believes that Toronto establishes a good model for future constitution drafters by having no way to get rid of Mr. Ford. And, if you do think it is a good model, is that because you proudly identify with "Ford Nation" and wish that Rob Ford were mayor of your home town? Posted
by Sandy Levinson [link]
I am thinking of dedicating the next phase of my life to
building the nation’s first tier-five law school. Our basic principles will be as follows:
1. The facilities and program of education will be
consistent with all relevant ABA and AALS standards.
2. Faculty pay will be substantial.Junior faculty will start at the starting
salary at big law firms.Tenured faculty
will be paid a minimum of a quarter-million a year.There will be generous summer and housing
subsidies.Interest free, possibly
forgivable, loans for summer homes are negotiable.And needless to say, as founder and Dean, I
will be compensated quite generously.
3. Tier-five Law will have open admissions.Any graduate who applies and pays the tuition
will be admitted.
4. Needless to say, tuition will be quite steep,
given the need to pay for items 1 and 2.
5. As a condition of being admitted, all students
agree to make public their employment history and any other information any
critic of the legal academy believes might help prospective applicants decide whether
to attend Tier-five Law.
6. Tier-five Law also agrees to make public any
additional information that any critic of the legal academy believes might help
prospective applicants decide whether to attend Tier-five Law.
Suppose this business model actually works and Tier-five Law
becomes a thriving enterprise. Our
placement record isn’t great but enough young people decide that, given that the
market for low achievers in college is really bad, their best prospects for the
middle class is making the substantial investment in Tier-five Law. Given our full disclosure rules, is there anything
about the operation of Tier-five that is immoral or otherwise worthy of
the good people at Tier-five Law discover we can improve our business model by
doing some tuition discounting, offering half tuition to any person who
graduated from a set of relatively elite colleges and universities. Again, assuming we are correct in our
judgment that these people are more likely to get better jobs than others, is
there anything about our operation that is immoral or otherwise worthy of