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Tag: "constitutional interpretation"

Giving Away the Show

[ 8 ] January 10, 2012 |

The Supreme Court was right yesterday; campaign expenditures are not the equivalent of other kinds of political speech.   Now. if it would only apply this logic to other campaign finance cases…


Nobody “Chooses” Not to Participate in the Health Care Market

[ 22 ] January 9, 2012 |

I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:

The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.

Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.

Big Sky Defiance

[ 15 ] January 5, 2012 |

Dahlia Lithwick is good on the Montana Supreme Court’s rejection of Citizens United.    It probably wouldn’t save it from being overturned anyway, but the angle I would take in the same situation if I wanted to join the majority (I would probably have joined Nelson’s dissent) would be to pretend to take Kennedy’s logic seriously.   “OK, campaign expenditures by corporations entirely independent from campaigns get the same First Amendment protection as individuals.   Since ‘entirely independent’ has nothing to do with how any known PAC operates, the campaign finance restrictions in question are therefore upheld.”

Supremes To Take Arizona Immigration Case

[ 9 ] December 13, 2011 |

And it’s far from clear to what’s going to happen. Thomas, ordinarily the staunchest states’ “rights” justice, is different in preemption.   And elite Republicans don’t have monolithic views on immigration enforcement (in particular, you have to think that Kennedy might see auto executives getting detained in Alabama and think it might be time to put the brakes on.)   But the Supreme Court always likes a chance to overrule the 9th Circuit and while Noonan — one of the 9CA justices who voted to strike the law — is a conservative his views on federalism are comparable to Breyer’s, so it doesn’t really tell us anything.

Another possibility I didn’t discuss in the Guardian piece is that the Supreme Court could follow the 9CA dissenter, who voted to uphold some but not all of the law.   Carlos Bea would have struck down only the provision that would have made it a state crime not to carry papers and the clause that makes it illegal for an undocumented immigrant to seek work, while upholding the rest (including the crucial “show us your papers” arbitrary search provision.)     I could see that appealing to Roberts in particular.   But it’s hard to read the tea leaves on this one, particularly for such a potentially important case.

PoliSci, the Courts, and the ACA

[ 32 ] November 23, 2011 |

Michael Bailey and Forest Maltzman have a piece up at the Prospect arguing that the best political science modelling suggests that the Supreme Court will uphold the ACA. I don’t necessarily disagree with their conclusion, but I’m skeptical about some aspects of their specific argument. To summarize, 1)I don’t really buy the argument that Kennedy is particularly likely to feel constrained by precedent, and 2)even if I did since he can get around precedents by interpreting them the way a majority of Republican federal court appointees have interpreted them rather than the way Laurence Silberman interpreted them it’s moot. (In addition, we don’t know how Silberman would have ruled if he was on the Supreme Court; one problem with framing this as a conflict between “law” and “politics” is that it’s not bad legal practice for Supreme Court majorities to overrule or narrowly interpret their own precedents, even if one assumes arguendo that Wickard and Raich compel the upholding of the ACA.)

In this specific case, I actually think that straightforward, less sophisticated attitudinal measures tell us the most; Kennedy is more moderate than his Republican-appointed colleagues and is more likely to vote to uphold the ACA than they are, but there are enough competing imperatives that it’s impossible to predict his vote with any confidence. More complex strategic factors may well influence the final vote count and how the opinions are written, but I don’t think they will have much influence on the bottom-line outcome.

The Court and the ACA

[ 33 ] November 14, 2011 |

As Paul mentioned, as expected the Supreme Court will be hearing the case. Perhaps the most interesting thing is that the Court will be having a longer-than-usual argument about the severability issue alone. I think this should make clear that there is a very real chance that the Supreme Court will strike down at least part of the bill, and also that the possibility of striking down the whole bill is in play.

The stakes of this issue are huge — I believe you would have to go back to the New Deal to find a central part of the domestic agenda of a new President struck down so quickly. More thoughts on this tomorrow.

...typically valuable summary by Liptak.

Scalia and the Reactionary Mind

[ 16 ] October 20, 2011 |

I promised to say more about Corey Robin’s assessment of Antonin Scalia in The Reactionary Mind, some of which is excerpted here. Before I get to that, I should say that it’s an excellent book I strongly recommend. And one initial complaint notwithstanding, the Ayn Rand chapter (“St. Petersburg in revolt gave us Vladimir Nabokov, Isaiah Berlin and Ayn Rand. The first was a novelist, the second a philosopher. The third was neither but thought she was both…”) is particularly good. Since Bernstein uses both the “could you do better?” and the “but Rand sells lots of books!” arguments, I suppose this goes without saying. You think Dan Brown is a hack? Sorry, but unless you’re Alice Munro I’m afraid you’re not allowed to say it.

On Robin and Scalia, a few reflections:

  • Paul has also discussed this recently, but the relish Scalia often takes in getting things to come out wrong is a particular trademark.   As Robin says, one of the things that make Scalia a more interesting figure  (as well as a marginally better Supreme Court justice) than Alito is that he doesn’t always relish unpleasant results in a conservative direction.   His confrontation clause jurisprudence is another good example.  There is a certain conservatism inherent in Scalia’s distinctive preference for struggle and tough choices based on clear rules, as John Holbo’s classic review of Dead Right reminds us vividly.  But sometimes it actually constrains what we might expect are his policy preferences.   (Just as, for that matter, Frum is a lot more interesting that Bill Kristol.)
  • It should be noted, however, that there are distinct limits to Scalia’s duresse oblige.  This is most visible is most visible in his Fourteenth Amendment jurisprudence, which is a complete mess even if we leave Bush v. Gore out of it.  (Which we shouldn’t; as Robin says Scalia’s telling people to “get over it” as if his lawless expedience represented a tough choice required by law is a defining moment.)     When the amendment that defines the post-Civil War constitutional order is concerned, Scalia makes sure everything comes out right — in the sense of preserving traditional racial and gender hierarchies.
  • To the extent that I have a different take, then, it’s that I don’t think that originalism is very important to Scalia’s jurisprudence at all.  Tradition, yes, but not originalism.   Scalia’s dissent in U.S. v. Virginia has a lot to say about how discrimination against women is deeply rooted in American political culture (and is, therefore, constitutionally self-justifying) but very little to say about the text, structure, and purpose of the Fourteenth Amendment.   Like most  “originalists,” Scalia has rarely shown a deep or sustained interest in constitutional history.   Even the law-office history in Heller isn’t all that common to his jurisprudence.    Much more instructive is his conduct in the follow-up case McDonald v. Chicago, in which both at oral argument and his separate opinion Scalia was contemptuous of Thomas’s arguments that the Court should try to correct the hash the Court made of the privileges and immunities clause in the Slaughterhouse Cases.
  • To put it another way, Robin argues that “Scalia’s philosophy of constitutional interpretation — variously called originalism, original meaning, or original public meaning — is often confused with original intention.”   As I’ve argued in more detail before, I think that in practice this is meaningless distinction; essentially, “original meaning” involves consulting the same sources of evidence and making the same types of arguments as “original intention.”   The only difference is that the former is superficially more plausible.   It’s relevant only because 99% of the time invocations of originalism are a rhetorical strategy — a way of implying that opponents are just ignoring the Constitution — rather than a grand theory that governs judicial interpretation.   Scalia — who gets credit for being a principled originalist even though originalism doesn’t have a lot to do with his actual jurisprudence — is a case in point.

At any rate, almost any part of the book inspires a lot of thought, so it’s definitely worth checking out.

More LRA

[ 8 ] October 17, 2011 |

My views on this are basically the same as Rob.    I don’t mean to sound like Nino Scalia, but I actually do believe that the president is bound by the statutes Congress actually enacted, not by the legal principle of What Would Russ Feingold Do?  Second, I think that unilateral presidential power is a serious constitutional issue, but I don’t believe that this means that every deployment of forces requires a declaration of war.    The explicit authorization by Congress in this case clearly satisfies long-established constitutional norms.

4CA Rejects Cuccinelli/Falwell Lawsuits

[ 3 ] September 8, 2011 |

Neither majority decided on the merits; they were rejected on standing and ripeness grounds, respectively.

Much more about this later, although for know I’ll say that I was happy to see Judge Motz correctly rule that the mandate is also within the federal government’s power to tax.

6CA Rejects Radical Challenge to the ACA

[ 24 ] June 30, 2011 |

It’s a bit of an upset, but good to see the 6CA panel do the right thing. It should be noted that while both majority opinions do an excellent job of attacking the bad commerce clause arguments underlying the challenge to the ACA, James Graham’s dissent does a good job of self-refutation. Consider this passage:

Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. The mandate forces law-abiding individuals to purchase a product – an expensive product, no less – and thereby invades the realm of an individual’s financial planning decisions. (“Neither here nor in Wickard had the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.”). In the absence of the mandate, individuals have the right to decide how to finance medical expenses. The mandate extinguishes that right.

Graham starts off with policy arguments that are irrelevant — the fact that the ACA “brings an end to [some] state experimentation and overrides the expressed legislative will of several states” means nothing in itself, since all kinds of valid federal legislation does so, and the stuff about state legislatures suggests that Graham stopped reading the Constitution before he got to Article VI. But the real key is the last sentences, which suggest that what’s at issue here is not really federalism but a desire to return to a radical Lochner-era liberty of contract — a state mandate, after all, would also “invade the realm of an individual’s financial planning decisions” and “extinguishes the right to decide how to finance medical expenses.” And at this point, the whole shaky edifice collapses, because in fact Lochner hasn’t been good law for many decades, and as Graham concedes the federal government could clear create a more centralized and government-controlled system than the ACA does, opening up the frightening possibility that the U.S. could cover more people for less money like every other major liberal democracy.

The quality of the opinions arguing against the constitutionality of the ACA we’ve seen so far have been remarkably bad, but in part that’s because the argument itself is inherently weak. The only coherent argument against the ACA requires reading quasi-libertarianism into the Constitution, a long-discredited project that has vanishingly tiny amounts of political support.

The Civil Libertarian Split

[ 4 ] June 28, 2011 |

Jeff Rosen makes some good points in his piece about the divisions within the Supreme Court’s conservative bloc. But I think he misses an important one: the way in which the George W. Bush-appointed “minimalists” are substantially worse on civil liberties issues than Scalia and Thomas. Precisely because they have (an admittedly sporadic) interest in broader legal theories, on issues of less central importance to them Scalia and Thomas have a libertarian streak that Roberts and especially Alito never have.

An excellent example was visible last week in another confrontation clause case. Bullcoming v. New Mexico applies the principles established two years ago in Melendez-Diaz. The latter case established the principle that the Sixth Amendment experts who submit evidence on behalf of the state are required to testify in court if called upon by the defense, and the former found that simply sending an analyst who wasn’t involved in the testing is insufficient. On the merits, I think both cases are correct — it’s unclear how a constitutional right “to be confronted with the witnesses against him” doesn’t include people who produce forensic evidence for the state, and complaints that it will prove too costly are 1)as Scalia says in Melendez, probably overstated and 2)prove too much, since the enforcement of all rights costs money. Scalia, in particular, has always been good on these issues, while Alito and Roberts have been standard-issue Republicans.

For our purposes, what’s interesting about these cases is the lineup: Scalia and Thomas were in the majority with Ginsburg and either Souter/Stevens or Obama’s appointees, while the W. Bush appointees were (of course) in dissent along with Kennedy and Breyer, the most statist Democratic appointee. In addition to providing further evidence that Alito and Roberts are the very worst justices on the Court from a progressive standpoint, they’re also examples of how Kennedy’s alleged “libertarianism” is overstated somewhat by Rosen; it’s very erratic in criminal procedure cases.

The Entrenchment of the Right to Privacy

[ 16 ] June 10, 2011 |

I have some reflections on the anniversary of Griswold v. Connecticut. The focus of the article is that conservatives have managed to turn the phrase “penumbras and emanations” into a punchline even though it expresses an idea that is 1)perfectly logical and that 2)everyone agrees with. Douglas’s much-maligned opinion is actually very good. (His concurrence in Roe‘s sister case makes an excellent companion.)

The other key point is that whether Supreme Court decisions become entrenched depends on political and public acceptance, and on this level the right to privacy has become an entrenched norm of American constitutionalism. The last Supreme Court nominee to deny its existence was resoundingly defeated, and we’re not going to see one argue that Griswold was wrong again.

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