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.  

Friday, September 29, 2017

Why the Court can't really solve the problem of fair representation

Sandy Levinson

Great hopes are being placed by many that the Court will help to staunch the cancer on American democracy that is partisan gerrymandering.  I certainly hope there are five Justices who agree that Wisconsin (and many other contemporary states) are acting unconstitutionally.  But it is a mistake to believe that even your favorite opinion (whatever that might be) would truly alleviate the problems posed by the House of Representatives.  It is doomed to be "unrepresentative" in many important ways so long as it remains within the stranglehold of the 1842 congressional act, reaffirmed in 1967, that requires single-member districts.  What is needed, in all states with more than, say, six representatives, is multi-member districts with candidates elected on the basis of proportional voting. This would not only go far to eliminate the ravages of contemporary partisan gerrymandering, but would also assure, say, that Republicans in LA would be able to elect a representative, just as Democrats in West Texas would finally get some genuine representation.

From one perspective, single-member districts doesn't present a "constitutional problem" at all, because they are the result of a congressional statute that could presumably be repealed, to be replaced with a requirement that states adopt multi-member districting and proportional voting.  But we all know that there are no conceivable circumstances under which the House of Representatives would ever vote for such legislation, even assuming the Senate and President would go along.  Nor, as a practical matter, can one envisage Congress proposing a constitutional amendment along these lines, for the very same reason.  (Now, it would take only 1/3+1 of House members to keep the status quo.)  Were the US like California or Nebraska (a decidedly non-crazy state), "we the people" could organize to support a constitutional initiative-and-referendum to reform our ever more indefensible system of "representative government."  But, of course, thanks to James Madison and his associates' fundamental mistrust of popular sovereignty, there is not a scintilla or an iota of direct democracy in the US Constitution, unlike 49 of the 50 state constitutions--Delaware is the once exception.  So, therefore, the only way to alleviate the problem in which conscious gerrymandering is only the very visible tip of an iceberg is through a constitutional convention.

My hunch is that at least some of you will agree that the House of "Representatives" is becoming ever more an oxymoron, and even that the proposal, advocated by FairVote, of multi-member districts and proportional voting, is a good idea.  BUT not via a constitutional convention.  So we are doomed to continue to be liked in the vise of an unrepresentative and undemocratic Congress because we are scared stiff of the kind of democratic politics that a constitutional convention would generate.  This is the present American dilemma.  Since most of us don't really believe in the genuine possibility of democratic government, which requires some degree of faith in "the people," instead we produce a market for unscrupulous demagogues, like our current President, whose only saving grace is his manifest incompetence as an actual governor.  But in the future, without basic constitutional reform, we'll get far "better" demagogues, as it were, who will learn from Trump's mistakes.  In any event, the last thing we should do is to continue believing that the Court will save us.  It could make things marginally better if it strikes down the pernicious Wisconsin gerrymander, and one should be grateful for small favors.  But that's all it would turn out to be in the absence of a national conversation, which we're simply not having, about what might constitute "representative government" in the 21st century in a divided country of 320,000,000 people where. more people live in each single-member congressional district than lived in the largest American state circa 1790.

More on Puerto Rico

Sandy Levinson

As part of the blog about our new book, Fault Lines in the Constitution, my wife Cynthia and I have just posted a discussion about Puerto Rico.  It doesn't add very much to Gerard's excellent post, save that we hope that at least some of our audience includes the teenagers to whom our book is directed and their teachers.  I do suspect that this will be a decisive moment in the relationship between the US national government and what is now the world's largest remaining colony (defined by the absence of any voting representation in the metropolitan government, unlike, for example, the French territories).  One can only imagine what would be happening if Puerto Rico, which is the same population roughly as Connecticut, had that state's two senators and five members of the House (not to mention seven electoral votes).  I would think, at the very least, that events of the past week have weakened the attraction of Commonwealth status, and I will be curious, should this turn out to be the case, if the defectors support statehood or independence (or, of course, independence should a bigoted Congress reject statehood because the dominant language of Puerto Rico is Spanish.  And, of course, it would be extremely interesting, to put it mildly, to see what the response of the US would be to a truly serious secessionist movement patterned after 1776.

The Supreme Court's New Term

David Gans

The Supreme Court is back, and its October oral argument calendar is chock full of blockbuster cases.  Even with the removal of the challenge to President Trump’s Muslim travel ban, it’s hard to remember a single month with so many important cases.  These October cases aren’t the only big cases on the docket this Term, but they will certainly define this year at the Supreme Court.    

This lineup of blockbuster cases comes at a critical juncture.  For much of the last two years, the Supreme Court has hobbled along with eight Justices, avoiding big cases and issuing extremely narrow rulings.  This Term, Chief Justice John Roberts is back at the helm of a fully staffed Court.  This may also be a big Term for Justice Neil Gorsuch, who joined the Court in April and quickly showed that he would be on the far right of the Court.  Given the cases on the docket this Term, Justice Gorsuch will face a series of huge tests whether he will follow the Constitution’s text and history, no matter where it leads.  

The term begins with a truly momentous case testing whether states may draw district lines that discriminate against voters on account of their political affiliation.  On October 3, the second day of the Term, the Supreme Court will hear Gill v. Whitford, a landmark case on constitutional limits on partisan gerrymandering, which could change how state legislatures draw district lines.  The stakes for our democratic system of government could not be bigger. 

Partisan gerrymandering is a cancer on our democratic system of government, turning on its head the fundamental principle that voters choose their elected representatives, not the other way around.  In Gill, the Justices confront a particularly grotesque set of facts: in 2011, after Republicans took control of the Wisconsin state legislature, they met behind closed doors to devise new Assembly districts, drawing lines so that their party would wield political power far in excess of votes cast at the polls.  Taking advantage of new technology to manipulate the district lines for maximum advantage, Republicans in Wisconsin sought to entrench their party in power no matter what happened in future elections. 

In Gill, the Supreme Court will decide whether the government may, consistent with the Constitution’s guarantees of freedom of speech, freedom of association, and equal protection for all persons, act to subordinate members of a political party because of their views and degrade the effectiveness of their votes.  The Court should strike down Wisconsin’s extreme partisan gerrymandering, making clear that, under our Constitution, states cannot rig the electoral process to entrench the governing party in power. Striking down Wisconsin’s brazen gerrymander would not end all gerrymandering, but it would send a powerful lesson: courts will step in when legislators seek to perpetuate themselves in power. 

In Gill, all eyes will be on Justice Kennedy, who almost certainly will cast the deciding vote.  Over the course of three decades on the Supreme Court, Justice Kennedy has issued a long list of landmark First Amendment rulings, defending the special role that free speech and association plays in our democracy and making clear that the government may not regulate speech and association “based on disapproval of the ideas and perspectives” expressed, “which is the essence of viewpoint discrimination.”  The question in Gill is whether Justice Kennedy will carve out a redistricting exception to these principles, permitting the government to subordinate persons because of their political views and affiliation.  

Justice Kennedy’s record in past gerrymandering cases is mixed, but he has previously recognized that the First Amendment may be a specific limit on partisan gerrymandering by the states.  As he has written, “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.”  If Justice Kennedy votes to give state legislators a green light to gerrymander and degrade the voting rights of their political opponents, it would be a black mark on his First Amendment legacy.  
Corporate accountability will be another big theme of the Court’s October cases —and likely the Term as a whole.  The Supreme Court under the leadership of John Roberts has, year in and year out, rewritten the law to make it harder for workers, consumers, and others to hold corporations accountable in the courts for their wrongdoing.  As Adam Winkler has observed, “one thing remains constant on a dynamic Supreme Court: corporations and business interests win.”  The Supreme Court Term opens with two blockbuster cases in which corporations are urging the Court to close the courthouse doors to those injured by corporate abuse of power.

On October 2, the Court will hear an important case about whether employers can force their employees to give up the right to bring class actions in court to hold corporations accountable and make their employees arbitrate their cases before a decisionmaker handpicked by the company.  In Epic Systems Corp v. Lewis, a slew of corporations, backed by the Chamber of Commerce and the Trump Administration, argue that employees can be forced to waive their right to file class-action lawsuits against their employers and submit to binding arbitration, even though federal law explicitly guarantees employees the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”  On October 11, in Jesner v. Arab Bank, the Supreme Court will consider whether corporations can ever be sued under the Alien Tort Statute, a Founding-era federal law designed to ensure that foreigners can sue for a violation of the law of nations.  The Alien Tort Statute does not limit at all who may be sued, and, for centuries, it has been well settled that corporations may be sued for corporate wrongdoing.  But the Arab Bank, whose New York branch allegedly financed international terrorism, insists that it cannot be held accountable. 

Epic and Jesner pose a key test for Justice Gorsuch, whose very first opinion for the Court insisted that “it is . . . our job to apply faithfully the law Congress has written,” making clear that courts should not “rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.”  “The business of enacting statutory fixes,” Gorsuch wrote in another opinion, is “one that belongs to Congress and not this Court.”  The question now is whether Justice Gorsuch will abide by these principles or try to find a way to rewrite the law to close the courthouse doors on injured workers and others.                   

Trump’s travel ban won’t be argued in October—at least for now—but other important immigration cases remain on the docket.  Last Term, the Supreme Court had two major immigration cases on its docket—Jennings v. Rodriguez and Sessions v. Dimaya—which it was unable to resolve.  Both will be reargued in October.        

It is a basic constitutional principle that whenever the federal government acts, it is bound by constitutional limits on its power.  Deference to the political branches, as Chief Justice John Roberts put it in the health care decision of 2013, “can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.”  The question for the Justices this Term is whether this basic principle applies when the federal government regulates immigration, or whether immigration is a Constitution-free zone in which the usual rules don’t apply.

In Jennings, the Justices will consider whether immigrants held in prolonged, indefinite detention—up to several years in some cases—pending their deportation are entitled to a bail hearing to ensure protection of their fundamental liberty.  In Dimaya, the Court will determine if immigrants can be subject to mandatory deportation under vaguely-worded federal statutes.  In both cases, the U.S. government—as it has in the travel ban cases—is urging the Court to apply a watered-down version of constitutional protections in the immigration context.

After a relatively quiet 2016, the Supreme Court has a long list of blockbuster cases on tap for 2017.  What happens in the first month of the new Supreme Court Term will go a long way to defining the Roberts Court in the Trump era.    

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History 

Tuesday, September 26, 2017

Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Sandy Levinson

It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times.  Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me.  I confess I am very pleased about that.  But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution.   As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting."  Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program.  I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power.  Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself.  We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.

Everyone knows that the hardest achievement is to get from 0 to 1 with regard to a public issue.  For years now, the number of mainstream pundits willing to engage in serious discussion about constitutional defects has been zero.  Now we have one, and my fervent hope is that Ms. Goldberg will spark the long overdue discussion that we are so desperately in need of.  My conservative friend Seth Lipsky just posted a welcoming editorial about Goldberg in the New York Sun website (again, for some reason I can't link to it), in which he takes issue.  So perhaps the number in one day has gone from zero to two.  

As usual, I'm willing to allow comments, but I fervently hope that everyone will first log on to the NYTimes site and read Ms. Goldberg's column before commenting.  Let me say, incidentally, that I was heartened by the comments to Gerard's very important posting on statehood for Puerto Rico.  Almost uniquely, I felt that everyone was genuinely in conversation with one another and not simply attempting to score cheap (and completely predictable) political points.  Puerto Rico presents really difficult issues, which are almost certainly going to get every more complicated.  Will the response of Puerto Ricans to mainland indifference be to encourage a switch of "commonwealth's" to supporters of statehood, in order to get some genuine political clout that they now lack, or, instead, will it promote support for secession from the American Empire a la 1776, and would we allow it?  Would Republicans in fact support statehood, whatever their platform says, given the high likelihood that it would result in two Democratic senators and five Democratic representatives?

Ms. Goldberg, incidentally, is also courageous enough to treat the issue of secession with some seriousness, interviewing Gov. Jerry Brown about potential developments in California.  It will be really interesting to see where she chooses to focus on in the future, but her debut, from my perspective, was auspicious in every conceivable way!

Introducing the Emerging Threats Essays—A Series of Papers About New (or Newish) Challenges to the Freedoms of Speech and the Press

David Pozen

Jameel Jaffer and David Pozen

The First Amendment’s free speech and free press clauses, and the values they stand for, have been the subject of intense controversy in recent years.  Events in Charlottesville have reinvigorated old debates about the proper response to hateful speech.  President Trump routinely vilifies the news media and constitutional libel law.  Critics on the right decry what they describe as a growing culture of close-mindedness on university campuses.  Critics on the left decry a “Lochnerian” turn in judicial doctrine, as the courts have come to rely on the First Amendment to limit regulation of economic activity.  On the Internet, new threats to political discourse—from “fake news” to increasingly subtle forms of governmental and nongovernmental censorship made possible by digital technologies—appear to be mounting.

Against the background of these formidable challenges, we are excited to announce that the Knight First Amendment Institute at Columbia University will commission and publish a series of essays that grapple with newly arising or intensifying structural threats to the system of free expression.  These threats may be caused by changes in the forms and applications of technology, in the means and economics of communication, in the norms and practices of politics, or in legal doctrine itself.  The Emerging Threats papers explore ways to address these threats and thereby preserve features of democracy essential to healthy open societies.

We launch this series today with the publication of a provocative essay by Tim Wu, professor at Columbia Law School and author of The Attention Merchants.  In “Is the First Amendment Obsolete?” Wu observes that some of the forces that undermine contemporary political discourse—such as “troll armies,” “flooding,” and propaganda robots that aim to distort or drown out disfavored speech—may be beyond the reach of the First Amendment as traditionally interpreted.  To secure the expressive environment against these threats, Wu explores a range of possible responses, including new uses of “accomplice liability” and “captive audience” doctrines under the First Amendment and new laws that would broaden criminal liability for online intimidation of members of the press.  We asked two leading legal scholars to reflect on Wu’s arguments.  Geoffrey Stone of the University of Chicago identifies historical parallels to the threats Wu spotlights and urges caution, while Rebecca Tushnet of Harvard Law School considers possible extensions of Wu’s ideas in areas such as compelled speech and public education.

In future Emerging Threats essays, authors including Matthew Connelly, Justin Driver, Lina Khan, Kate Klonick, Frederick Schauer, Amanda Shanor, and Olivier Sylvain will examine the legal and policy implications of fake news, hostile audiences, privately owned online platforms, government secret-keeping, economic concentration in the media and related sectors, online conduct that harms historically subordinated groups, and other phenomena that are raising profound challenges for the system of free expression.  We don’t expect to offer simple or uncontroversial solutions to any of these challenges, but we hope that the series will deepen certain existing First Amendment debates and spark some new ones.

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