Sunday, November 19, 2017

Entertaining Satan: Why We Tolerate Terrorist Incitement

Andrew Koppelman

Recently proposed restrictions of terrorist incitement, beyond what is already unprotected, are unworkable. The law cannot reach internet speech that originates overseas, and restrictions on reading such material cannot give readers adequate notice of what is banned. There is also value in permitting readers to expose themselves even to evil and destructive views. When people are treated as adults, they may make bad choices, but free people have to be permitted to contemplate such choices.

I elaborate in a new paper in the Fordham Law Review, here, part of a “Terrorist Incitement on the Internet” Symposium that also includes contributions by Alexander Tsesis, Alan K. Chen, Danielle Keats Citron & Benjamin Wittes, Raphael Cohen-Almagor, Caroline Mala Corbin, David S. Han, Heidi Kitrosser, Helen Norton, Martin H. Redish & Matthew Fisher, and Thane Rosenbaum.

Monday, November 13, 2017

What is the Constitutional Core?

Gerard N. Magliocca

Yesterday The New York Times ran an editorial entitled "President Trump, Please Read the Constitution." The editorial listed various allegations of unconstitutional conduct by the President, and then stated: "But his most frequent target is the Bill of Rights, which protects Americans against the federal government and, through the 14th Amendment, against the states." With a book coming out soon on the Bill of Rights (Amazon has added the "Look Inside" feature, so you can see more), I heartily endorse the editorial's sentiments.

What I found interesting, though, is that next to the editorial the Times chose to reprint the entire Bill of Rights along with the Reconstruction Amendments. This gets at one of the central questions posed by my book, which is why do we call the first ten amendments and only the first ten amendments the Bill of Rights? As the book explains, there were jurists and elected officials who said in the past that the Fourteenth Amendment was part of the Bill of Rights, in part to emphasize the importance of that text. Likewise, many state bills of rights include the Thirteenth Amendment as part of what they see as fundamental. At the national level, though, we don't think of the Thirteenth Amendment so much. And the right to vote, which certainly outranks many of the guarantees in the first set of amendments, is definitely not considered part of the Bill of Rights. This matters. Consider how the Supreme Court might view the pending case on partisan gerrymandering differently if the right to vote was typically referred to as part of the Bill of rights.

Thursday, November 09, 2017

Political Campaigns and the Future of the University

Joseph Fishkin

It’s no secret that the Republican tax plan is something of an innovation in legislative partiality—the favoring of some sectors of the country and the economy over others. Some parts of the bill add complexity and others reduce it; some parts raise revenue and others destroy it; but it’s difficult to find a provision in the sprawling (and still-evolving) bill that doesn’t favor relatively Republican constituencies—such as the very wealthy with large estates, or recipients of large amounts of “pass-through” business income—over relatively Democratic constituencies, such as people with lots of education and student loans, or upper middle-class residents of expensive coastal cities who deduct a lot of state and local taxes and mortgage interest. It didn’t have to be this way: when you’re planning to blow up the deficit by $1.5 trillion, there’s ample room to cut everyone’s taxes a little, while still cutting your favored constituencies’ taxes a lot. This bill goes a different way: some people’s taxes are definitely going up to pay for others’ taxes going even further down, and the bill writers seem pretty clear about who they favor and disfavor. The bill’s myriad higher education provisions are a good example. The House bill doesn’t just kill the important above-the-line student loan interest deduction. It also, as described in media reports, would require all universities that waive tuition for graduate students to treat such tuition waivers as income to the graduate students, on which the students would then owe tax. The bill would eliminate or restructure multiple tax credits that help non-traditional and part-time students pay tuition; it would eliminate the tax subsidy for employers who pay their employees’ educational costs. At elite schools, the bill would kill the tax exclusion for tuition benefits for faculty members’ children; it would introduce a 20% excise tax on compensation over $1 million (for the top employees of any nonprofit, including colleges, although for-profit colleges would be exempt)*; and finally, as has been widely reported, it would impose a 1.4% annual tax on the earnings of large university endowments.

In light of the approach to tax legislation that this bill exemplifies—rewarding favored constituencies and punishing disfavored ones—and in light of the evolving self-conception of the Republican party, some sort of attack on large university endowments, which would once have been politically unthinkable, instead now begins to seem politically inevitable. Taxing these endowments strikes at the heart of the educational elite that some Republicans, unfortunately, have come to see as sitting at or near the center of what they’re fighting against. And these endowments are big enough that taxing them could generate real revenue. To be sure, the tax proposal in the current (House) bill is pretty modest. In round numbers, a $700 million endowment, that generates $70 million in income this year, would have to pay $1 million in tax. That’s real money that will have to come from somewhere, but it’s not going to radically change the nature of the university. However, if one of our political parties continues to view elite universities the way the current Republican party does**, the political logic of further raising taxes on elite-school endowments to defray future revenue needs could be irresistible. (And indeed the current proposal, if enacted, would over time increase its bite: it applies only to the largest endowments as measured on a per-student basis, but the threshold where the tax kicks in is not indexed to inflation, so each year a few more schools will get caught in its net.)

To me, the interesting question is how higher education itself would be reshaped by these changes in tax policy over the long term. And there – particularly when it comes to the innovation of taxing large private-school endowments – I wonder whether a (potentially disturbing) lesson might be drawn from the evolution of political campaigns and parties in response to changes in campaign finance rules.

Read more »

Wednesday, November 08, 2017

The SG’s Remarkable Cert. Petition in Hargan v. Garza, the “Jane Doe” Abortion Case

Marty Lederman

Last Friday, the Solicitor General filed a self-described “Petition for a Writ of Certiorari” in No. 17-654, Hargan v. Garza, the case involving HHS’s efforts to deny a 17-year-old girl in its custody—"Jane Doe"—the right to obtain an abortion to which she was entitled under the Constitution and Texas law.  The SG’s petition asks the Supreme Court to review a decision of the en banc U.S. Court of Appeals for the District of Columbia Circuit.  That court, by a vote of 6 to 3, denied the government’s motion to stay a preliminary injunction that Judge Tanya Chutkan issued against officials of the Department of Health and Human Services, prohibiting them from interfering with the efforts of Doe’s guardian and attorney ad litem to transport her to a clinic to obtain an abortion.  

The SG filed his petition, however, nine days after Doe obtained her abortion—that is to say, long after the preliminary injunction against HHS had served its purpose and run its course.  As the petition itself therefore acknowledges (p. 19), the only portions of the injunction that the court of appeals addressed “are now moot.”

That mootness is only one of many reasons why the SG’s “Petition” is a singularly remarkable document.  I’ve never seen anything like it, especially not emanating from the Office of the Solicitor General.  In many respects this filing departs, sometimes dramatically, from the justly lauded, traditional standards and practices of that office.  Indeed, it is difficult to avoid the conclusion that it is fundamentally a press release, for an audience other than the Justices of the Supreme Court itself.  I hope I am mistaken about that—but it's difficult to come up with any other explanation for it.

In this post, I’ll try to identify many of the most remarkable characteristics of the SG’s petition.  First, however, some background is in order, without which it’s hard to understand many of the ways in which the petition is so irregular—and how it deviates from the norms of the Office.

Read more »

Thursday, November 02, 2017

From the Heckler’s Veto to the Provocateur’s Privilege

David Pozen

“It is now widely believed,” Frederick Schauer observes in a new essay, “that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backwards.” To restrict speakers on this basis would be to grant the so-called heckler’s veto. Angry audiences would have, in effect, a right to enlist the state to suppress speech they don’t like; the more mayhem they threaten, the more potent this right would become.

Over the past fifty years or so, the U.S. Supreme Court has become less and less willing to countenance the heckler’s veto. Its First Amendment case law turned decisively against the proposition that a speaker may be punished for provoking a hostile audience, or inciting a sympathetic one, in a series of cases from the 1960s involving civil rights demonstrators. By the time the Court decided Forsyth County v. Nationalist Movement in 1992, it was not clear there were any justices who would allow a government body to impose higher fees on speakers, such as the white supremacists of The Nationalist Movement, whose messages were likely to create higher expenses for police or related services because of their inflammatory content. Lower courts have applied Forsyth County with vigor. By now, Dan Coenen recently opined, “the heckler’s-veto-based, hostile-audience-speech concept” appears “all but constitutionally extinct.” The basic First Amendment question that a city like Charlottesville faces today when white supremacists seek to hold a rally is not whether it can force them to internalize the resulting law enforcement costs, much less ban them altogether. The question Charlottesville faces is just how much money and effort must be allocated to protecting the white supremacists.

In place of the heckler’s veto, the Court has thus created what we might call the provocateur’s privilege. Extreme speakers have become entitled not only to use public forums in the face of actual or anticipated hostility, but also to commandeer public resources to try to keep that hostility within bounds. And the more extreme a speaker is, the more hostility will need to be managed and so the more resources will need to be commandeered: as Schauer writes, “the greater the provocation, the greater the reallocation.” Modern First Amendment doctrine, in other words, does not simply prevent neo-Nazis, neo-Confederates, and the like from being silenced by disapproving communities. It forces those communities to pay extra to enable their speech.

Read more »

Tuesday, October 31, 2017

Conference on Constitutional History: Comparative Perspectives

Jason Mazzone

The annual Illinois-Bologna Conference on Constitutional History: Comparative Perspectives will be held on November 13 & 14, 2017 in Bologna, Italy. Program details are available at this link. We do have space available for audience members; if you are interested in attending, please contact me at mazzonej [@] Papers from the 2016 conference, held in Chicago, were published in the Illinois Law Review and are available online

Four Star Nonsense

Gerard N. Magliocca

The notion, as the White House Chief of Staff said last night, that Robert E. Lee was "an honorable man" is junk history, as I've posted about before. The General also, though, offered the half-baked idea that the Civil War was caused by a failure to compromise. If he ever bothers to walk down the street to the Lincoln Memorial, he will see emblazoned on its walls the answer to that claim:
The Almighty has His own purposes. 'Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.' If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'

Saturday, October 28, 2017

The "best and the brightest" revisited

Sandy Levinson

In the spate of stories about the new material on the JFK assassination, I could not help but notice the following in a NYT account by Peter Baker:
One document included in the July release outlined a proposal to cause food shortages in Cuba as part of Operation Mongoose, the Kennedy administration project to remove Castro from power. The plan called for introducing untraceable biological agents to destroy crops in Cuba, leading to widespread hunger that could set off a revolt against Castro. 
According to the memo, Kennedy’s national security adviser, McGeorge Bundy, “said that he had no worries about any such sabotage which could clearly be made to appear as the result of local Cuban disaffection or of a natural disaster, but that we must avoid external activities such as the release of chemicals, etc., unless they could be completely covered up.” Like many of the plans, there is no evidence that it was ever executed.
Bundy, of course, was the former Dean of the Faculty at Harvard who became JFK's National Security Advisor (and who became one of the architects of Vietnam, serving well into the Johnson Administration).  David Halberstam delivered the classic critique of Bundy and his associates in The Best and the Brightest.  But note the implications of these paragraphs.  The well-educated and cultured Harvardian expressed no objections in principle to adopting a policy of mass starvation of innocent Cubans in order to elicit opposition to Castro.  He simply pointed out that it would have "to be completely covered up."  Anne Applebaum has been receiving praise this week for her newly published book on Stalin's collectivization of farms in Ukraine that resulted in mass starvation.  Almost of all of us today find this kind of ideological zeal appalling.  But Bundy was suggesting an American form of Stalinism, which, of course, brought us Vietnam and much else that we continue to live with today.  
We should be comforted, of course, by the information that "there is no evidence that it was ever executed," but one can't help wondering why not.  Did the denizens in the JFK Administration realize that the idea was truly appalling and should be dismissed forthwith, or was it "simply" that they came to the conclusion that it could not in fact be successfully covered up?  [ADDITION:  OF COURSE, THE INSANE EMBARGO THAT WAS IN PLACE FOR A HALF CENTURY WAS NOT AT ALL SECRET, AS WAS THE CASE WITH THE EMBARGO ON IRAQ REFERENCED BELOW IN ONE OF THE COMMENTS.  THE LIVES OF NON-AMERICANS OFTEN SEEM TO MATTER VERY LITTLE TO US POLICY MAKERS, INCLUDING, OF COURSE, THOSE WHO ARE THREATENING WAR WITH NORTH KOREA AND THE ALMOST CERTAIN "COLLATERAL CONSEQUENCES" FOR OUR PUTATIVE ALLIES IN SOUTH KOREA WHO SEEM TO BE PLAYING NO REAL ROLE IN THE SABER RATTLING.]

Friday, October 27, 2017

What the New Congressional Budget Resolution Means

David Super

     The House of Representatives yesterday approved the Senate-passed Concurrent Budget Resolution for Fiscal Year 2018.  The narrow margin – 216-212 – reflected Republican anxieties both about the impending tax legislation’s consequences for the deficit and about some of the upper-middle-class tax preferences that Republican leaders have discussed trimming to reduce the net cost of the measure.  These include the deduction for state and local taxes (SALT) and the exclusion for contributions to 401(k) and similar retirement plans.  Because much of the popular media coverage has been rather muddled, this seems a good time to set out where this process stands. 

     Budget resolutions are not law – they are concurrent resolutions not submitted to the President for signature – but rather allocate important procedural advantages within Congress, chiefly in the Senate. 

Growing partisanship, fractures within each of the parties, and the rise of multi-year budget deals have robbed annual budget resolutions of much of the importance they once had in setting the nation’s fiscal priorities.  At present, its main function is to authorize “reconciliation” legislation, which are bills that can move through the Senate immune from filibusters and pass with a bare majority.  Budget resolutions contain a great deal of additional material, but most of it is not binding.  Thus, for example, the language in this budget resolution assuming reductions in the SALT deduction does not commit Congress to enact that into law.

     Last winter, Republicans passed a budget resolution for Fiscal Year 2017 that authorized repeal of the Affordable Care Act through reconciliation but ultimately were unable to secure the 50th vote needed for passage.  That resolution expired with the end of Fiscal Year 2017 at the end of last month. 

     This new budget resolution authorizes reconciliation legislation to cut taxes any time between now and September 30.  This budget resolution also allows this reconciliation legislation to authorize leasing of the environmentally delicate coastal plain of the Arctic National Wildlife Refuge for oil and gas drilling. 

     The House and Senate versions of the Fiscal Year 2018 budget resolution differed in several important respects.  In particular, the House version also would have given several committees with jurisdiction over important anti-poverty programs reconciliation instructions to propose deep cuts in those programs to pay for part of the cost of the tax legislation.  Theoretically, if these committees failed to report out such legislation, the budget committees could have written it for them and sent it directly to the floor, where only a bare majority would be required to pass in the Senate. 

     The Senate leadership concluded that mandating deep spending cuts at the same time would needlessly complicate passing upper-income tax cuts:  even the draconian cuts the House envisioned would only offset a small part of the cost of the envisioned tax legislation, leaving congressional Republicans still subject to attack for fiscal irresponsibility while adding vulnerability for playing “reverse Robin Hood”.  Believing that senators were set on this position, the House leadership opted simply to bring the Senate version up for a vote in the House rather than attempting to call a House-Senate conference committee. 

     The final budget resolution therefore does not mandate immediate budget cuts.  This may seem like good news, but it only postpones the inevitable:  tax cuts of anything like the magnitude congressional Republicans are proposing are fiscally unsustainable and will inevitably lead to even deeper cuts to social programs than those that occurred under bipartisan deals during the Obama years.  As soon as the tax cuts are enacted, the flock of deficit hawks currently suffering an epidemic of laryngitis will recover and demand “shared sacrifice” to close the resulting hole.  Republicans have consistently opposed any net tax increases to reduce deficits, and the most that most Democrats have advocated has been an even split between spending cuts and revenue increases.  Even if the Democrats have miraculous success in the next two elections, this still spells deep cuts in vital domestic programs.  (Anecdotes of dubious spending of course can still be found, but any substantial, politically feasible excesses in domestic spending were eliminated years ago to pay for earlier tax cuts or in response to sequestration.)  The Center on Budget and Policy Priorities has written an informative set of papers illustrating the kinds of spending cuts this tax legislation is likely to yield.

     Although having a budget resolution containing “reconciliation instructions” protects Republicans from filibusters and from points of order for adding to the budget deficit during the ten years it covers, it does not eliminate all significant procedural problems with tax cuts.  In particular, 2 U.S.C. § 644(b)(1)(E) creates a point of order against any legislation that would increase the deficit during the decade following the period covered by a budget resolution.  Because the Act assumes that many rules affecting taxes and direct spending programs that exist in the final year of a budget resolution will continue, the only way to avoid a deficit increase in the second ten years is to sunset the tax cuts before the end of the first ten years.  Congressional Republicans did this in 2001 and 2003 with major tax cut legislation and largely won the resulting game of chicken with the Obama Administration when those cuts were due to expire. 

     Although some interest groups and Republican Members continue to denounce expiring tax cuts – claiming that expiration dates will deny business the certainty to make investments – it appears Republicans will have little choice.  At most, they may be able to make permanent a set of tax cuts that lose the same amount of revenue that their tax increases would supply.  Thus, interest groups lobbying for making their favoring tax cut permanent are pushing back hard against those trying to eliminate the SALT or 401(k) revenue-raising provisions of the legislation.

     Another problem Republicans face is that the ideas they have released would lose far more than the $1.5 trillion over ten years that the budget resolution allows.  They likely will close part of this gap by phasing in some of their cuts to conceal the cost during the ten years covered by the budget resolution. 

Thus, we could have provisions that slowly phase in, jump up to full force in the ninth year, and then are repealed completely in the tenth.  How this is supposed to stimulate business activity is far from clear.

     Part of the solution we are likely to see involves various forms of “creative accounting.”  They may include provisions allowing the affluent to pre-pay, at a steep discount, taxes that would otherwise become due outside of the ten-year budget window, moving revenues into the accounting period while actually increasing the fiscal irresponsibility of the legislation.  In addition, congressional Republicans have directed the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) to estimate tax legislation with “dynamic scoring”:  the unproven, indeed largely discredited, supply-side theory that lower tax rates spur increases in economic activity and largely pay for themselves with increased revenues from taxing that activity.  They also have installed leadership at both organizations that is receptive to their agenda.

     Yet Republicans seem to be trying to have it both ways on dynamic scoring.  On the one hand, they are claiming that they actually will not be increasing the deficit by $1.5 trillion because dynamic effects will eliminate most or all of the deficit increase.  Yet they also seem to be contemplating various schemes to reach the $1.5 trillion figure only by dynamically scoring a much larger revenue loss.  One possibility is to sideline CBO and JCT completely and have the Treasury Department estimate the effects of this legislation using the kinds of outlandish economic assumptions previously seen only from the Heritage Foundation.  Getting the Senate parliamentarian to accept this unprecedented contortion would be challenging, but she does serve at their pleasure.

     One side note illustrates the cynicism of claims that this legislation will stimulate the economy.  Roughly three-quarters of all non-military infrastructure spending in this country is financed by state and local governments.  Reducing or eliminating the deduction for state and local taxes will make raising revenues to pay for those activities considerably harder politically.  Bond ratings agencies have made clear that they regard any impediments to state and local taxation as substantially increasing the risk of bonds and will downgrade future issues accordingly.  Thus, this legislation seems on-track to significantly depressing needed, economically desirable, and job-creating domestic infrastructure spending. 

     The tax legislation’s prospects are unclear.  This legislation is a Republican priority, not by any means just a Trump priority, so even Members that are becoming skeptical of the President are likely to support it.  By including drilling in the Arctic Refuge in the plan for the bill, the leadership all but guaranteed the support of Sen. Lisa Murkowski (R-AK).  Although some Members feared that repealing the Affordable Care Act could provoke a voter backlash, virtually all Republicans expect that the failure of this tax legislation would cause important donors to sit out the coming election campaign and likely support challenges to the party leadership in both chambers.  The budget resolution passed narrowly in the House, but the leadership reportedly gave several Members permission to vote against it to assuage constituents after amassing sufficient votes for passage.  And Republicans have made clear that they intend to move this legislation very, very fast, before opposition has time to organize.  Finally, the deadline for raising the debt limit, which Democrats had hoped might give them leverage against tax cuts that would swell the National Debt, is now not expected to occur until the Spring. 

Thursday, October 26, 2017

Corrupting the National Book Award?

Andrew Koppelman

Has the National Book Award been corrupted by politics?

The Award committee has just shortlisted as a finalist Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, an expose of the Koch Brothers’ plot to undermine democracy.  The book is well written and a fast read.  It tells a story that is heartening to those who fear the Kochs’ growing power.  It is, however, full of errors and distortions, which have already been extensively documented.  The selection, in the face of these notorious problems, raises uncomfortable questions about what the committee is thinking.

Awards committees have occasionally recognized scholarship that later turned out to be badly flawed.  They can’t check sources.  Scholarship inevitably relies on norms of trust that are sometimes betrayed.  But this may be the first time that a work was honored with a nomination for a major award after the flaws were widely known.

Democracy in Chains has been testing the proposition that there is no such thing as bad publicity.  There has been an explosion of documentation that MacLean gets facts wrong, misunderstands her sources, and invents quotations or pulls them out of context to mean the opposite of what they said.  You can find all this easily if you just google the book’s title.

It is hard to avoid the inference that the book’s defects are outweighed, in the committee’s judgment, by the book’s eloquent denunciation of the Kochs.  Perhaps the committee so distrusts MacLean’s attackers that it has not bothered to look into their claims.  This development is bad news for the political left, which, until now, has prided itself on its ability to face inconvenient truths.

Read more »

Wednesday, October 25, 2017

Good Practices at Law Reviews

Mark Tushnet

This is a shout-out to the Washington International Law Journal, formerly the Pacific Rim Law and Policy Journal. Over the weekend I got a request out of the blue for a peer evaluation of an article they had received. (It's a quite good piece on problems that can arise when constitution-drafters defer important questions that they find it impossible to solve, to later resolution through ordinary politics.) I put off reading it for a while, thinking that it might eventually slip below my radar screen. But I did read it and sent them a short note with a brief positive evaluation. I've received requests to review articles from some first-line law reviews at T-15 law schools, and it's nice to see the practice spreading to a second-line journal. (Though I certainly hope that I personally won't get too many of these evaluation requests!)

Tuesday, October 24, 2017

The Fixed Term Convention

Gerard N. Magliocca

Today Senator Jeff Flake (R) of Arizona delivered a sharp attack against the President on the Senate floor. Since he "did not want to be complicit" in the behavior of the Trump Administration, Flake also said that he will not run for reelection in 2018. He did not, though, announce that he was resigning his Senate seat. Turns out he is willing to be complicit for another year or so--just not more than that.

Senator Flake's decision exemplifies a weakness in American constitutional culture. Unlike in Britain, officials here rarely resign on a point of principle. Instead, they serve out their term to the bitter end (or, in the case of Cabinet members, hang on until they get fired.) Why is that? Part of the answer is that the fixed terms written into the Constitution exert some pull against leaving early. While these terms state only maximum limits on holding a particular office, they may create the impression that there is a duty to complete the term no matter what.

A more persuasive explanation, though, is simply that scores of officials over the past two centuries have refused to quit when they really should have. I can think of few counterexamples. John Tyler resigned his Senate seat in 1836 after a constitutional dispute with the Virginia legislature and said:
I shall carry with me into retirement the principles which I brought with me into public life, and by the surrender of the high station to which I was called by the voice of the people of Virginia, I shall set an example to my children which shall teach them to regard as nothing place and office, when either is to be attained or held at the sacrifice of honor.


Tuesday, October 17, 2017

Trump's ACA Sabotage and the President's Constitutional Duty to Take Care that the Laws be Faithfully Executed

Abbe Gluck

Over at Vox, I offer an argument that Trump's ACA sabotage violates the Take Care Clause. I argue that, whatever scholarly divisions may exist about the Clause's application, this is the limiting case. The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it. An excerpt follows. Please click the link for the full argument.

Modern American history has never seen as full-scale an effort to sabotage a valid law as we have with President Trump and the Affordable Care Act — a law whose legality has been upheld twice by the US Supreme Court.

The president has a legal obligation, under Article II of the US Constitution, to “take Care that the laws be faithfully executed.” That means he must make sure that our laws are implemented in good faith and that he uses his executive discretion reasonably toward that end.
His agencies likewise have a legal obligation, under the Administrative Procedure Act — the statute that sets the rules for our entire federal regulatory apparatus — not to use their power to engage in arbitrary action.
The intentional, multi-pronged sabotage of the ACA that we have seen over the past nine months — reaching new heights since attempts by Congress to repeal the law failed — violates both Trump’s constitutional obligations and quite possibly the obligations of his Department of Health and Human Services.
Trump does not get to say that he can best help the law by killing it and thereby forcing Congress to start afresh. His obligation is to “take care” that the laws that are already on the books are carried out. Since he has flouted this obligation, lawsuits by individuals and states harmed by the damage he causes may now be in order.
To be sure, the Take Care clause is rarely invoked. Indeed, it does not appear ever to have been used successfully in modern times as an offensive tool against a president. Cases are rare because most experts agree that the president must have discretion with respect to how he enforces a law; drawing lines that separate when that discretion is exercised reasonably and, instead, when it changes too much of the law to be “faithful” to it (as the clause requires) is extremely difficult.

But whatever divides exist about invoking the Take Care clause, this is the extreme case in which it is clear-cut that the clause has been violated. Far from using his power to faithfully implement the ACA, the president is actively using his power to destroy it. He does not hide his motives.

Thursday, October 12, 2017

Voting With Their Feet

Gerard N. Magliocca

Advocates of states'-rights often point out that an advantage of federalism is that people can move from a state where they are dissatisfied with public policy to a state that they prefer. The prospect that people or businesses will relocate is often more effective at constraining majority opinion (say on tax rates or regulatory policy) than state constitutional provisions or internal political action.

In the case of Puerto Rico, we may see a different example of people voting with their feet. Citizens who are unhappy with the national response to their plight after a natural disaster could move to the mainland, where they will gain the right to vote in national elections. (This would not, of course, be the reason for their move--just a byproduct). And this diaspora may have a significant political impact depending on its size and destination (for example, Florida). You would think that the fear of such an exodus would provide an adequate incentive for the Trump Administration to provide assistance. The President of the Jets, though, may simply not want to help the Sharks.


Mark Tushnet

I just finished reading a draft of a superficially interesting but deeply terrible article taking issue with the current wisdom, associated with Daryl Levinson and Richard Pildes's article, "Separation of Parties, not Powers," on the contemporary inaccuracy of Madison's "ambition counteracting ambition" account of how separation of powers works to protect against tyranny. The article's flaws are too numerous to go into here (one indicator of difficulty is the article's characterization of statutes enacted in 1946 as "recent" -- the article's word, not mine.) The snarky reaction is the apocryphal, "This article fills a much-needed gap in the literature." Or, equally snarky, if published in anything like its current form, this article will result in a decrease in human knowledge.

But published it will be, and not merely because a law professor can find some place to publish essentially anything (the secondary journal at a tier-three law school is desperate to fill its pages). Rather, it will be published because it is satisfyingly contrarian. And, in many law school circles, being contrarian (as such) is seen as a positive attribute. (It certainly is at Harvard, where it is routine in discussions of candidates for positions that an advocate for hiring a specific person will assert that a positive feature of the candidate's portfolio is that s/he is a contrarian.)

Being a contrarian means, I think, taking a position against the conventional wisdom. And far be it from me to be a generic defender of the conventional wisdom across the board. The conventional wisdom is (often?) wrong, though sometimes right. Now, if the conventional wisdom is right, being contrarian is no intellectual virtue. And if the conventional wisdom is wrong, you have to be contrarian for the right reasons -- that is, you actually have to identify how the conventional wisdom is wrong. And then, your intellectual virtue lies in doing that, not in the fact that you're contrarian.

It's like shooting fish in a barrel to offer some examples -- climate-change deniers are contrarians, but nobody seriously thinks that that's a reason for hiring them at a university. The case of "law" broadly understood is trickier because we quite often don't have agreed-upon criteria for sorting arguments that are right from those that are wrong. But, sometimes we can see that the contrarian argument depends upon empirical claims that are either only weakly supported or (as in the example at hand) have only the loosest connection to the claim that the conventional wisdom is wrong. And when that occurs, I think we can fairly say we are observing contrarianism in a bad form.

Of course this isn't to say that we might be justified in suppressing contrarianism of the wrong kind; there are good Millian reasons -- sharpening our understanding of why the conventional wisdom is right, or at least hasn't yet been undermined -- for not doing that. Rather, the point is that contrarianism as such isn't an intellectual virtue.

Sunday, October 08, 2017

Not King Tut's Tomb, But . . .

Gerard N. Magliocca

(Cross-posted at Concurring Opinions)

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington's notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice's Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw "Corfield v. Coryell" as a heading followed by pages of notes about the case. (Over on Concurring Opinions, you can see a picture of the first of these journal pages.)

What do these notes tell us about Corfield? One revelation is that Washington's initial view with respect to privileges and immunities was the opposite of what the opinion ended up saying. Corfield concerned a claim that a New Jersey statute barring non-residents from harvesting oysters and clams in state waters was unconstitutional, among other reasons, for violating the Privileges and Immunities Clause by making a distinction between state residents with respect to a privilege. The Court rejected this argument, concluding that no privilege was involved. Washington's notes on the case, though, say "I am inclined to think that it [in other words, harvesting oysters and clams] is a privilege within the meaning of this article of the Constitution. If it be not, then the right to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state."

Another significant insight is that Washington's thinking was shaped by an 1812 New York case, Livingston v. Van Ingen, in which Chancellor Kent discussed the Privileges and Immunities Clause briefly. The notes state that Washington found this case persuasive on the point "that the citizen of each State shall within every other state have equal privileges or rights as the citizens of such state have the words all privileges of citizens being equivalent to equal privileges." The actual opinion in Corfield, though, does not cite the Livingston case at all.

I will have more to say as I work through other portions of the journal. I will also think about how to make this material available as widely as possible without treading on the interests of the Chicago History Museum. Anyone, of course, can go there and look at the journal.         

Thursday, October 05, 2017

A Primer on the DACA Rescission

Marty Lederman

By Adam Cox, Marty Lederman and Cristina Rodriguez

One month ago, on September 5, the Acting Secretary of Homeland Security, Elaine Duke, rescinded a June 2012 memorandum issued by her predecessor, Secretary Janet Napolitano, which had established the Deferred Action for Childhood Arrivals program, commonly known as “DACA.”  DACA was a program that enabled the so-called “DREAMers” to apply for temporary relief from removal and authorization to work in the United States.

Although the Duke memorandum announced that the “DACA program should be terminated,” it also declared that the Department will “execute a wind-down of the [DACA] program” and, in particular, “will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters.”  That “window” has widely (but not entirely accurately) been characterized as “extending” DACA for six months, until March 5, 2018, during which time Congress might consider whether to enact legislation to protect DREAMers and possibly even afford them legal authority to remain in the United States.  (We’ll have more to say toward the end of this post about how to understand the DHS “wind down” and the so-called six-month “window.”)

President Trump reportedly has begun discussions with congressional Democrats about a possible legislative proposal.  It’s not yet clear, however, what such legislation would look like or what its prospects for enactment might be.  On September 5, Trump tweeted that if Congress does not “legalize DACA” by March, he “will revisit this issue.”  As we explain below, however, his Attorney General and DHS have announced that there is no legal authority for DACA, a conclusion that complicates any “revisiting” of the issue, to say the least (see Part V below).

In the meantime, several sets of plaintiffs have filed lawsuits challenging the legality of DHS’s DACA rescission.  Most notably, New York and fifteen other states, and the District of Columbia, filed suit in the Eastern District of New York; and the Regents of the University of California filed suit in the Northern District of California, together with former DHS Secretary Napolitano, who is now President of the University of California.  More recently, similar suits have been filed by the States of California, Maine, Maryland and Minnesota; the NAACP; and a half-dozen individuals who are currently protected by DACA.

There are many confusions and misconceptions about what DACA is (or was); about the effects of DHS’s “rescission" and what the legal basis might be for that rescission; about what happens during the so-called six-month “window”; about the prospects that Trump might reverse course in March; and about the current litigation challenging DHS’s rescission.  In this post, we try to offer some specificity and clarification with respect to these matters.  A caveat is in order, however:  On some of these matters, our assessment is merely a best guess.  Because the Administration has not been entirely forthcoming about all of the details of its latest actions, or the legal basis on which it acted, the answers to some of the questions remain unclear or unsettled.

An outline of the questions we address in this post:

I.  What Did DACA Do?
            A.  Decreased Likelihood of Removal
            B.  Work Authorization
            C.  Social Security and Medicare Benefits

II.  Why and How did the Trump DHS Rescind the DACA Program?

III.  What Are the Effects of DHS’s DACA Rescission?
            A.  Social Security/Medicare Benefits
            B.  Work Authorization
C.  Constraining ICE’s Discretion to Remove DREAMers

IV.  How Do the “Wind-Down” and the Six-Month “Window” Work?
                        A.  Who’s Covered?
B.  What’s the Effect of “Wind-Down” Deferred Action (i.e., after September 5, 2017)?
C.  What’s DHS’s Legal Justification for Continued Work Authorization After September 5, 2017?
V.  Can the Administration Revive DACA After March 5, 2018, as President Trump Has Insinuated It Might?

VI.  What Are the Prospects for the Litigation Challenging the DACA Rescission?

Read more »

Tuesday, October 03, 2017

Our correction and apology to Professor Tillman

John Mikhail

Today our lawyers sent a letter to Judge Daniels acknowledging an error in footnote 82 of our amicus brief in CREW et al., v. Trump.  In addition to correcting this error, we would like to take this opportunity to apologize to Seth Barrett Tillman, to whom this footnote refers.  Although we acted in good faith, we now recognize that we were wrong to cite blog posts criticizing Professor Tillman’s research without undertaking more extensive due diligence to determine whether those criticisms were justified.  On the issue of Hamilton’s signature on the so-called Condensed Report, we now believe that Professor Tillman is likely correct, and his critics—including us—were mistaken.

In addition, we wish to acknowledge that footnote 82 makes several imprecise and unwarranted statements about Professor Tillman’s amicus brief.  First, we wrote that Professor Tillman’s brief “overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” when we should simply have observed that, in our judgment, his brief does not clearly identify a key archival manuscript that bears on its thesis.  Second, we wrote that a footnote (fn. 76) in Professor Tillman’s brief “incorrectly described the ASP print as ‘undated’ and ‘unsigned.’”  In fact, Professor Tillman’s footnote did not use the words “ASP print” or “unsigned” but instead characterized the “ASP document” as “undated” and the “document in ASP” as “not signed by Hamilton.”

Finally, we wish to apologize to Professor Tillman for the manner in which we took issue with his findings and arguments in our amicus brief.  Under the circumstances, a more appropriate way to proceed would have been to approach him directly and ask for clarification about his interpretation of the Condensed Report.  Each of us would hope for more generous treatment from another scholar who criticized our own work in this fashion, so it was unfair not show the same level of respect to Professor Tillman.

We regret these errors and extend our apologies to Professor Tillman, whose diligent research we admire. We appreciate his long-standing position on how to interpret the Constitution’s reference to “Office of Profit or Trust under [the United States],” regardless of who is holding the office of President, and we respect his commitment and creativity in pursuing that interpretation. We look forward to continuing to engage the many important historical questions raised by this lawsuit.


Jed Shugerman
John Mikhail
Jack Rakove
Gautham Rao
Simon Stern

The Authority of the Court

Joseph Fishkin

The Justices of the Supreme Court are nine of the most powerful people on the face of the earth.  Yet it seems to be their lot to be forever anxious that exercising their power might undermine it. Some Justices seem to fear—at least, in certain select sorts of cases, and more on that below—that they are still the weak third branch from 1789, hobbled by the lack of purse or sword.  But the Court has since obtained a thing arguably at least as good: the widespread belief among Americans—an unusually legalistic and litigious bunch—that the Supreme Court stands for justice, fairness, the Constitution, and the rule of law.   This widespread belief is precious and consequential.  But, perhaps the public is fickle, or so the worry goes; perhaps this belief is something the Court could squander by straying out of its lane into matters that are too “political.” And so, on a day when the Court sits at a historic inflection point, with a big decision to make about whether to police partisan gerrymandering as a justiciable violation of the Constitution, some Justices are worried.  As one Justice put it, “continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication”; this ought to lead us to view “with deep concern” a judicial intervention in how states draw their district lines.

That quote is actually from 1962.  Justice Harlan was dissenting from the Court’s decision in Baker v. Carr.  The Court’s dramatic intervention in that case into state redistricting practices would grow into what we now call the one person one vote doctrine.  Just as critics at the time feared, the new doctrine swept across the national landscape, invalidating the districting maps in nearly every jurisdiction in the United States.   It is not an overstatement to say that one person one vote revised and revitalized the entire American political order, and executed a dramatic power shift along a highly salient political axis: the divide between the rural hinterland and the growing urban centers.  (At that time, the major parties, especially the Democrats, were ideologically incoherent umbrella coalitions, and the South didn’t even have a second party.  Thus, the rural-urban axis along which the Court’s intervention was most deeply felt was arguably a more important and salient axis of political disagreement than partisanship itself.)  One person one vote was a profoundly politically charged intervention.  But it turned out Justices Frankfurter and Harlan had it exactly backward.   The authority of the Court emerged not diminished, but augmented.   One person one vote turned out to be an intuitive and popular form of democracy-reinforcing judicial review that bolstered the Court’s authority and further intertwined that authority with the general American reverence for law and the Constitution.

Still, perhaps there is something different and special about partisanship.  Perhaps it is especially dangerous for the Court to intervene directly in a high-profile partisan fight, with control of the government at stake.  As one Justice put it, the appearance of a Court split along partisan lines, voting “in a highly politicized manner” in a case that favors one party over the other in an extremely high-stakes conflict, “runs the risk of undermining the public’s confidence in the Court itself.  That confidence is a public treasure.  It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation.  It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We . . . risk a self-inflicted wound – a wound that may harm not just the Court, but the Nation.”

That quote is from 2000.  Justice Breyer was dissenting in Bush v. Gore.  His articulation of the worry is compelling.  At the time, and for years afterward, it seemed to me entirely plausible.  And yet—much as it pains me to say this—it turns out Justice Breyer, too, had it exactly wrong.  The Supreme Court’s “highly politicized,” ticket-good-for-one-ride-only intervention to stop the clock on an election recount and thereby decide a Presidential race in favor of the Republican candidate over the Democratic candidate left the public’s confidence in the Court not diminished but augmented.

Today at the oral argument in Gill v. Whitford, Chief Justice Roberts resurrected the worries articulated so well by Justices Frankfurter and Harlan—and in a different and even more explicitly partisan context by his colleague Justice Breyer.  If the Court intervenes in the widespread and increasingly sophisticated practice of partisan gerrymandering, Chief Justice Roberts said, “the intelligent man on the street” is going to hear about all this social science evidence and “say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans…. And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.” (oral argument transcript, p.37-38).

I have a simple and realist answer for Chief Justice Roberts and it is this.  That thing you are worried about, where the Court’s intervention is perceived as partisan and thereby erodes respect for the Court?  It is not going to happen.

Read more »

Sunday, October 01, 2017

Getting the 25th Amendment on the Record

Gerard N. Magliocca

On Friday, HHS Secretary Tom Price was thrown to the tarmac. This means that there are now two Cabinet vacancies, as DHS has been without a head since General Kelly left to become White House Chief of Staff. Cabinet secretaries come and go from every Administration, of course, but there is one special aspect of these vacancies in the Trump Administration.

Why? Because some people (with either buyer's remorse or seller's exasperation) think that Section Four of the 25th Amendment should be invoked to remove the President. While I think this is a terrible idea, when the next Cabinet nominee is before the Senate for a confirmation hearing, a perfectly appropriate question would be "What is your understanding of that provision?" or "What standard would you apply if asked, pursuant to Section Four, to declare the President incapable of performing his duties?" Perhaps the answer will reflect the pre-2017 view that Section Four was only meant to address clear physical illnesses, or perhaps the answer will be something else. But we might learn something, as all members of the Cabinet are part of the jury in that special case.

Saturday, September 30, 2017

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

David Super

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

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

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

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

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

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

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

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

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

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

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

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