Monday, October 12, 2015

The Supreme Court Should Grant Cert in the Texas Abortion Case

by Michael Dorf

Whole Woman’s Health v. Cole is perhaps the most closely-watched petition for a writ of certiorari currently pending before the Supreme Court. It poses the question whether the U.S. Court of Appeals for the Fifth Circuit erred in upholding two provisions of a restrictive Texas abortion law--one that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of where the abortion is performed and another that requires that any facility at which abortions are provided satisfy the standards for "ambulatory surgical care" centers. Pretextually written so as to appear to promote the safety of abortions, the provisions have the purpose and effect of making it (more) difficult for women to obtain abortions in Texas.

In my view, the Court ought to grant cert and, after briefing and argument, reverse. As Linda Greenhouse and Reva Siegel argue persuasively in a forthcoming article in the Yale Law Journal, the challenged provisions of the Texas law are flatly inconsistent with the fundamental distinction the Supreme Court drew in 1992 in Planned Parenthood v. Casey when it reaffirmed the “central holding” of Roe v. Wade: Although the Court allowed that laws that aim to inform a woman’s decision whether to have an abortion would be judged under a somewhat looser standard than in the post-Roe pre-Casey era, laws that only impede that decision—as the ambulatory surgical center requirement and the admitting privilege requirement do—are, ipso fact, unconstitutional undue burdens.

There are nonetheless three sorts of obstacles to the Court’s granting cert. As I shall explain, however, none of them should stand in the way of a cert grant.

The first obstacle is mostly psychological. Abortion is a divisive issue for the Justices, in much the same way as it is for the American people. They don’t like hearing abortion cases because such cases raise the level of inter-personal tension among them. It is much easier for the Justices to agree to disagree on matters where the emotional stakes are lower (such as the dormant Commerce Clause, say).

The fear of inter-personal tension is not, however, a good reason to deny cert in an abortion case (or any case). Moreover, this is hardly the only subject area that makes the Justices testy. Recent years have seen barely disguised fits of pique (mostly but not exclusively by Justice Scalia) on questions involving the Affordable Care Act, immigration, race-based affirmative action, voting rights, and more. Chief Justice Roberts has largely failed in his effort to reduce the temperature at the Court. An abortion case might make matters worse, perhaps, but only marginally.

Second, both conservative and liberal Justices may be fearful that granting cert will lead to the “wrong” result because they are uncertain how Justice Kennedy will vote. Presumably this is a bigger worry for the liberals in this case, as denying cert would leave the Fifth Circuit’s upholding of Texas’s restrictive law in place. But the liberal Justices oughtn’t to be fearful.

To be sure, Justice Kennedy parted with the liberal wing of the Court in the two post-Casey “partial-birth” abortion cases: Sternberg v. Carhart and Gonzales v. Carhart. But neither of those cases involved the core of Casey. They concerned the standard for evaluating medical necessity and issues of vagueness, not the meaning of undue burden. And perhaps more importantly, they involved second- and third-trimester abortions, whereas the Texas law restricts all abortions. As Greenhouse and Siegel explain, fidelity to Casey’s core requires the invalidation of the Texas provisions, and nothing in the last 23 years indicates that Justice Kennedy has reconsidered Casey’s core.

Third, a tremulous law clerk writing a cert pool memo might worry that he or she would look foolish if, after successfully urging the Court to grant cert, there turned out to be a “vehicle problem”—i.e., that some procedural peculiarity of the case prevented the Court from reaching the merits. The Court might then have to “DIG” (dismiss as improvidently granted). Here, a superficial examination of the Fifth Circuit opinion might give the appearance of a vehicle problem, because the appeals court treated claim preclusion as an alternative ground for the ruling.

Yet there is no vehicle problem. On the contrary, as argued in an amicus brief on behalf of civil procedure/con-law/federal courts professors Yours Truly, Helen Herskoff (NYU), Gillian Metzger (Columbia), Neil Siegel (Duke), and David Strauss (U Chicago), far from containing a vehicle problem, Whole Woman’s Health presents a vehicle opportunity. The case provides the Court with the opportunity to clarify the interaction between claim preclusion and facial challenges.

The Fifth Circuit made a fundamental error that is perhaps understandable (but an error nonetheless) in light of the sloppy language that one sometimes sees around facial challenges. Having first adjudicated the plaintiffs’ pre-enforcement facial challenge to two provisions of the Texas law (including one that is now under challenge, the admitting provisions requirement), the appeals court treated that earlier judgment as forever barring any additional facial challenges, even to a provision that was not challenged in the first case (the ambulatory surgical center requirement).

In some sense, that's a familiar move. Unlike issue preclusion, which only bars relitigation of issues actually litigated, claim preclusion has a use-it-or-lose-it quality: Claims that could have been but weren't raised in the initial litigation may be lost on that ground. But the fact that a provision appears in the same statute as a provision challenged in an earlier lawsuit does not necessarily mean that a challenge to one must include a challenge to the other--especially when a legislature enacts a complex regulatory scheme. As we argue in our brief: "Omnibus legislation does not require omnibus litigation." It would be perverse to hold otherwise, as lawyers would feel obliged to challenge provisions that they thought they might, at some future time, wish to challenge, for fear of losing the ability to do so.

There are other difficulties with the Fifth Circuit's preclusion analysis as well, as discussed in our brief and in the petition itself. Here I'll conclude by noting that the Fifth Circuit may have been misled by a common but mistaken picture of facial litigation as akin to the sort of pre-enactment "abstract" review that some European (and other) constitutional courts conduct of statutes as a whole. There is no such power in Article III courts and facial challenges are not even the closest thing we have to a rough approximation of that power. The closest thing we have is the anticipatory challenge for either injunctive or declaratory relief after a law is enacted but before it goes into effect. An anticipatory challenge can be facial or as-applied (or both). Further, a facial challenge can be based on a factual record.

In general, as my work, the work of Harvard Law Professor Richard Fallon, and the work of others aims to show, facial challenges are not that sharply different from other kinds of lawsuits. The Supreme Court case law in the last several decades has sometimes usefully noted that the main distinction is remedial and that even there the distinction isn't that sharp. But enough confusion exists that the Court ought to take the case to clarify.

And that's not even counting the main reason the Court should grant cert: Because the Fifth Circuit wants to allow the nation's second most populous state to deny thousands of women their constitutional right to abortion.

Friday, October 09, 2015

The "Uber Economy" is Devolution

by Michael Dorf

Because I live in a small town where I either walk, bicycle, or drive my own car wherever I go, I don't have occasion to use Uber (or one of the similar services, like Lyft) when home. A couple of years ago I downloaded the Uber app, thinking I would use the service when traveling but on each of my trips to major cities in the last couple of years I've ended up using mass transit or conventional taxis. Accordingly, I haven't felt a need to look deeply into the question whether the supposed advantages of such services over conventional taxi services are built entirely on their evasion of conventional regulations or whether they provide a genuinely different service. My friends who use Uber regularly--including some who consider themselves progressive on regulation and labor matters--claim that Uber is actually better for drivers without undermining useful regulation, but that could just be motivated reasoning.

In a post back in April, Prof. Buchanan laid out the case for thinking that Uber really is just a means of dodging regs and taxes that apply to taxis. As I noted in a comment then, some of the Uber advantage in places like NYC, which artificially restricts the number of taxis with a requirement of purchasing a medallion, is that Uber drivers--as livery services rather than taxis--don't need a medallion. That's an advantage over what is probably a foolish monopoly. We don't require one of a limited number of medallions to operate a bodega, a sporting goods store, or most other businesses; we allow any individual or firm that complies with the applicable regulations to operate such a business, with the number of such businesses operating being determined by the intersection of the supply and demand curves. But if Uber's great value is that its drivers don't need medallions, this advantage will either be eliminated by the market--as the price of a medallion gets driven down by competition from Uber drivers--or get eliminated (or perhaps phased out) for everyone.

Put differently, there is simply no good economic reason why people selling rides in their own cars are at a competitive advantage over people selling rides using dedicated equipment. In Prof. Buchanan's April post he noted but disagreed with the ostensible theory behind the Uber advantage: that it utilizes the excess capacity of private cars when they're not being used by the owner for getting herself from point A to point B. But this isn't really excess capacity. Cars are not like empty buildings. If you use a car when you otherwise were not going to, you have added marginal cost that is roughly comparable to the marginal cost of using a dedicated taxi: gasoline, maintenance, wear and tear, and of course the labor input.

A recent segment on The Daily Show that was highly critical of Uber made the point that some of the expansion of Uber-style services seem downright dangerous--like Uber pilots. But the flaw in the Uber Economy is even easier to see with relatively simple goods and services. Simple modern goods--like toasters and hammers--are much more inexpensively provided by specialists than by spare-time tinkerers and miners of the various metals that go into making the component parts. Likewise with many services. You could develop an app for finding people to teach your children what you want them to learn. Various instructors in math, science, reading, etc., would then show up at your house or some central meeting place that you and some others have chosen, and they could teach your kids. But in so decentralizing and "democratizing" primary education or toaster production or hammer production or whatever, you would be running away from the bedrock of a modern economy: comparative advantage.

I can't deny, of course, that Uber, Airbnb, and like services have enjoyed some success to this point. Perhaps there is even evidence that they would be profitable and popular even without the unfair advantage over more conventional businesses that comes from their falling within regulatory gaps. And I certainly wouldn't claim that conventional taxi businesses--which charge drivers high fees for the use of their vehicles and, where applicable, medallions--do well by their drivers.

Rather, my point is simply that the Uber or "sharing" economy that has been heralded as a new stage in capitalism made possible by advanced technology is in fact devolution to a form of economic organiztion that pre-dates the craft economy, which at least took advantage of specialization. The "new" Uber economy is barely more advanced than barter. Perhaps such devolution is what people want. But the fact that it utilizes a smartphone app does not make it revolutionary.

Thursday, October 08, 2015

Think Tanked

by Neil H. Buchanan

My new Verdict column, "Budgetary Nonsense Across the Republican Landscape," uses the Trump candidacy as an excuse to talk about the Republicans' uniformly crazy attitudes about deficits and the national debt.  I quote extensively from Trump's appearance on "The Late Show with Stephen Colbert" on September 22, in which Trump's series of laughable statements included this bizarre assertion about the federal debt: "You know, when you get up to the 24 trillion . . . 23 . . . 24, that’s like a magic number . . .  They say . . . Can I tell you what? They say it’s the number at which we become a large-scale version of Greece, and that’s not good. And we’re very close to that number. Not good."

I had never heard anyone make this "magic number" claim before, which is yet further proof of the bizarre anti-genius that is Trump.  Yet we have all heard Republicans -- presidential candidates and otherwise -- make similarly uninformed statements.  At this point, it resembles a nervous tic, with Republicans blurting out, "We owe 18 trillion dollars!" almost at random.  Context?  No thank you.  Defensible claims about exactly why that is bad?  No way.  Consideration of the trade-offs that would be necessary, if we did decide to reduce that number?  Please.

Instead, as I note later in the column, we find that the alternatives to Trump, the supposedly serious and sober guys whose fortunes will soar as soon as Trump begins to implode, all sound as bad or worse.  In particular, Ohio governor (and former Gingrich lieutenant during the Contract on America years) John Kasich is being touted as the kind of serious, experienced guy that we should all be happy to see the Republicans nominate.  Who cares that his big issue -- the issue that he used to launch his candidacy, but that has not yet come up in the mosh pit of the pre-primary campaign -- is a call for a constitutional convention to pass a balanced budget amendment?

What is amazing about all of this -- even setting aside the separate insanity of trying to accomplish this through a constitutional convention, which even Justice Scalia has rejected -- is that a balanced budget amendment is exactly the kind of unserious, content-free proposal for which Trump is famous.  "Hey, Trump, how are you going to stop illegal immigration?"  "I'm going to stop illegal immigration, because you have to stop illegal immigration, and people are going to love me for it!"  "Hey, Kasich, what's your policy on federal debt?"  "I'm going to stop debt from growing, because you have to stop debt from growing, and people are going to love me for it!"

OK, so we know that the Republican presidential field is unimpressive.  And the less said about the Republicans in Congress, the better.  But surely there are impressive, serious statesmen who no longer have to worry about re-election but who remain engaged with policy.  They have answers, don't they?

As I noted in today's column, there are a lot of former politicians who stay in Washington and spend their time trying to put lipstick on the "debt is going to destroy us" pig.  Because far too many Democrats have bought into this idea, the group is depressingly bipartisan.  Certainly, the kings of bipartisan budgetary nonsense are Bowles and Simpson, who even to this day are given reverent attention by the Beltway press and other would-be serious people, notwithstanding their utter lack of seriousness.

Unfortunately, Bowles and Simpson are hardly alone.  In fact, their shtick has long been institutionalized in Washington, in the form or various lobbying organizations that masquerade as think tanks.  There is so much of this nonsense out there that, earlier this year, I coined a catchall name for such groups: The Generic Deficit Hyperventilation Committee (GDHC).  Being completely interchangeable, I saw no need to pick on any particular GDHC (or to increase its trackback numbers) by naming it.  Much like the extra-crazy House Republicans who pushed John Boehner out of the House, GDHC's are a pack of undifferentiated zealots.

In a July post, I revived the GDHC concept, and a frequent reader of this blog asked playfully on the comment board: "Why not name names?"  He noted in particular that it appeared that the Heritage Foundation fit my description, based on the news of that moment.  As I described above, my general policy of not naming the particular GDHC to which I respond on any given day is based on the belief that to treat them as separate entities is to give them credit for independence of thought, which they clearly lack.  However, it actually is important to be clear that there are different types of think tanks in DC, and Heritage is actually not a GDHC, even though it often parrots their lines.

Any description of the DC think-tank world must begin with Brookings, which has a mostly deserved reputation for leaning left, although it (like a lot of center-left types) takes great pains to prove that it is not biased.  Brookings is huge, and it sponsors research on virtually every public policy topic.  In my area of policy research, Brookings covers the map by working jointly with the Urban Institute to sponsor the Tax Policy Center (TPC).

The success of Brookings on the center and center-left encouraged imitators on the right and far right.  The most well-known of these groups are the American Enterprise Institute (AEI), the Heritage Foundation, and the strictly libertarian Cato Institute.  Each of those organizations has tried to maintain a nonpartisan veneer, although Heritage pretty much dropped that masquerade over the last decade or so, throwing off all pretenses when it brought on former Senator Jim DeMint to head the group.  Although AEI tries to be the respectable right-wing alternative to Brookings, it still toes the party line and houses people who are anything but respectful of divergent views (although they might be good at pretending not to be extremists).

All of those think tanks are essentially one-stop-shopping destinations, the virtual department stores of the policy wonk world.  They are surrounded by a universe of think tanks that focus on specific areas of policy.  In my corner of the world, the economics/tax/budget-oriented think tanks include the left-leaning Center on Budget and Policy Priorities (CBPP) and the Economic Policy Institute (EPI).  There is another group called Third Way, which holds itself out as the ultimate bipartisan shopping center, but its approach is essentially warmed-over Clintonian triangulation of the style of the Democratic Leadership Council during the 1980's and 1990's.  (There are right-leaning groups, too, of course.)  Each has a slightly different approach, and they succeed in producing work that is (of necessity) not of academic quality but is respectful of the norms of reasoned debate and evidence-based argumentation.

Although all of the groups that I have discussed above issue documents relating to deficits, and although some of those documents (but certainly not all, especially not those from CBPP and EPI) repeat the nonsense on debt that I have described above, they are not GDHC's.  The genius of the GDHC world is that it mimics the form of the think tank world, with none of the content.  As I have noted in previous posts, much of the GDHC world was created by an obsessed billionaire (who is also a former Commerce Secretary under President Nixon).  These groups most prominently include the Committee for a Responsible Federal Budget and Fix the Debt.  The Bipartisan Policy Center is slightly different, but it probably belongs in this group.

These groups have deep ties to Republicans and what used to be called Blue Dog Democrats, some of whom got the GDHC concept rolling years ago by creating the Concord Coalition.  Fix the Debt has notable ties to Wall Street, and it has tried to create astroturf campaigns among college students, in an attempt to make it appear that the anti-debt campaign is not a front for a bunch of out-of-touch business types who want to dismantle Social Security, Medicare, and Medicaid.

In short, there is a multi-layered world of organizations and people in Washington who are using the national debt as a Trojan horse to roll back the New Deal and the Great Society.  That world surely includes people who mistakenly think that the debt is intrinsically bad, but that merely makes them useful to the people who know what they are really trying to accomplish.  It is not a conspiracy.  It is, instead, a very well financed campaign to distract people by making us think that we are all going to become Greece by being fiscally profligate.  That none of that is true means nothing to them.

Wednesday, October 07, 2015

From the Debt Ceiling to Abortion: Justified But Regrettable Decisions

by Michael Dorf

In yesterday's post, Prof. Buchanan took note of two arguments that we have been hearing for characterizing a debt-ceiling impasse differently from the way in which we have been characterizing it. Both of those arguments aim to avoid the conclusion that should Congress fail to raise the debt ceiling, anything the president might do in response--including nothing--would be unconstitutional. Under each, tools of statutory interpretation would be used creatively to find that Congress somehow has tacitly instructed that in the event of such a scenario, the president should prioritize some spending over some other spending. As Prof. Buchanan explained in reliance on our earlier jointly published work, these arguments fail. Here I'll examine the psychology underlying their appeal and then connect it to my latest Verdict column.

Conventional wisdom in Washington says that should the drop-dead date pass without a debt ceiling increase, the president will have to "cut spending." As Prof. Buchanan noted, this conventional wisdom is partly based on a very strained analogy to prior government shutdowns (which involved failure to appropriate funds, not failure to authorize borrowing to cover the difference between revenue on hand and recent legally binding appropriations). But another part of the appeal of the moves Prof. Buchanan described, I think, is simply the herd instinct. The leadership class in Washington thinks that the rest of the leadership class thinks that the president would have to "cut spending" (or, in our view, default) in a debt-ceiling crisis--and that this is likely the intention of Congress. Even if that's true as a matter of the subjective intent of some members or perhaps even a majority or blocking minority in the House, it doesn't follow that this is the law. Any number of cases could now be cited for the proposition that the subjective intentions and expectations of our lawmakers do not control--especially where (as Prof. Buchanan noted yesterday), we are discussing their intentions and expectations with respect to the absence of legislation.

Into this mix I would add an additional motive. Some of the resistance to the Buchanan/Dorf analysis of the debt ceiling problem comes from what I would call a psychological need for rationalization. Whatever course the president must (or can) take, the psychological mindset goes, is, ipso facto, legal. People dislike our conclusion that the best (or, as we would have it, least bad) option could still be unconstitutional. In our first debt ceiling article, we explained why in both the debt ceiling context and other contexts, having only unconstitutional options is a conceptual possibility, but we also explored an alternative approach in which, after one determines that a certain path is the least unconstitutional, one labels that path constitutional as a consequence. We concluded that this approach is both conceptually clumsier and affirmatively dangerous because it tends to minimize the risk of embarking down a path that will lead to only unconstitutional options in the first place.

Nonetheless, as a matter of human psychology, there is something attractive about saying that if a course of action is, all things considered, the best (or least bad) course under the circumstances, then this course of action must be good. And in the context of constitutional law, a course of action that is unconstitutional cannot be thought good--even if it is less unconstitutional than all the other paths. This leads me to think that at least some of the resistance to the Buchanan/Dorf approach is rooted in cognitive dissonance: People don't want to admit that they may find themselves in a situation in which a course of action is, all things considered, best, but still unconstitutional.

The debt ceiling article pushed back on this psychological disposition by drawing on Oren Gross's work on torture, William Styron's novel Sophie's Choice, and Michael Walzer's discussion of the "dirty hands" problem of warmaking even in the fighting of a just war in accordance with jus in bello. But we did not deny that it is a real disposition.

Now let's shfit gears in what will seem like a non sequitur, but I promise to tie it all back together. My Verdict column discusses the #ShoutYourAbortion movement, in which women who have had abortions are encouraged to tell their stories in order to destigmatize abortion. I explain how the approach is similar to the process of coming out as gay or lesbian but I also argue that #ShoutYourAbortion is unlikely to be nearly as successful in changing public attitudes.

The organizers of and participants in #ShoutYourAbortion have responded to pushback that women should not be "bragging" about abortions by saying that "shouting" an abortion does not mean bragging. Instead, the idea is that our social norms forbid women from stating publicly that they have had abortions. "Shouting" is a metaphor for neither remaining silent nor whispering.

Maybe that's true for some but it's easy to see how one could draw a different conclusion. For example, here is what #ShoutYourAbortion co-founder Lindy West recently wrote in The Guardian: "There are no 'good' abortions and 'bad' abortions, because an abortion is just a medical procedure, reproductive healthcare is healthcare, and it is a fact without caveat that a foetus is not a person. I own my body, and I decide what I allow to grow in it."

That strikes me as at best confused. Whether a fetus (American spelling) is a "person" depends partly on normative criteria. It is not simply a "fact"--with or without caveat. There are feminist arguments to the effect that even assuming a fetus is a person with interests and rights, those interests and rights do not justify overriding a woman's interest in making fundamental decisions about her own body. I find those arguments persuasive, but it hardly follows that there are no "bad" (in the sense of immoral) abortions. Suppose that a woman decides in the 26th week of pregnancy that she wants an abortion of an otherwise healthy fetus because she has come to realize that the baby that would be born would be dark-skinned (perhaps because she had previously made a mistake about who the father of the pregnancy was). Certainly that is a bad reason for an abortion even though one might think (as I do) that the law oughtn't to forbid women from having abortions for bad reasons. Still, it is not "just a medical procedure."

Now the vast majority of abortions occur earlier in pregnancy (when by my lights, they don't raise the serious moral issue of killing a sentient being) and women generally have abortions for better reasons than racism. But even then, it's not so clear that an abortion is a morally neutral act.

Let's take a case that seems straightforward to everyone but the hardest core pro-lifer. Suppose a woman in the later stages of pregnancy will die without an abortion (and that there is no way to deliver the fetus/baby prematurely without killing the woman). Most people would say that a woman who decides to save her own life at the expense of the fetus has not acted wrongly. Nonetheless, the abortion is an occasion for moral regret even though it was legally and morally justified, because it resulted in the death of the fetus. One can make an all-things-considered best decision and still recognize that the decision was tragic. Killing in justifiable self-defense is another example. So is killing in accordance with the laws of war in a just war. In each case we can say that the act is justified and that the person has reason not to regret committing the act, even as she regrets having been (even if through no fault of her own) in the situation that gave rise to the tragic choice.

To say nonetheless that a woman ought to "shout" her abortion even in circumstances in which the abortion was an occasion for moral regret--even if she has good reason not to regret the choice, all things considered--is to succumb to the same psychological phenomenon as besets the debt ceiling trilemma-deniers. A choice--whether by the president to issue bonds in violation of the debt ceiling or by a woman to have a lifesaving abortion that kills a sentient fetus--can be the least bad (or even call it "best") choice under the circumstances, but still an occasion for sorrow.

Tuesday, October 06, 2015

How Could We Know What Congress' "Real" Spending Priorities Are?

by Neil H. Buchanan

What I have called the "drop-dead date" is the day on which, if Congress does not increase the debt ceiling, it will be impossible for President Obama to pay all of the nation's obligations without issuing more debt (or collecting more taxes) than Congress has authorized.  That date is, strangely enough, not the date on which the country hits the statutory limit on debt.  If it were that simple, the debt ceiling would have had to be increased on March 15 of this year, when a prior congressional enactment ended a temporary suspension of the debt ceiling and reset the limit at exactly the amount of debt that existed on that day.

Instead, Treasury has to guesstimate when it will have used up all of its "extraordinary measures," at which point new borrowing becomes necessary to prevent a first-ever government default.  As I noted in my Dorf on Law post this past Friday, the latest guess from Treasury is November 5, which is now less than a month away and about a month earlier than the previous guess.  With the latest spending bills (technically continuing resolutions) having funded the government through December 11, and Speaker Boehner leaving office on October 31, the debt ceiling is the next big budgetary/fiscal issue that Congress must address.  Of course, this means that the crazies who seem to run the show in the House (and who also have significant representation in the Senate) are licking their chops to prevent the debt ceiling from being increased.

With the debt ceiling again becoming a source of public fascination-cum-revulsion, I have been having some interesting conversations, with reporters and with fellow academics, about what might happen if the debt ceiling is not increased in time to prevent the president from facing a trilemma.  Two ideas in particular caught my attention during some conversations yesterday, both of which purport to make it easy for the president to justify defaulting rather than issuing enough debt to pay the nation's bills.  Neither idea works, but they are interesting in their own ways.

First, the question has again arisen whether plain old-fashioned rules of statutory construction might resolve the matter.  In particular, is it possible that the "last-in-time rule" could make this go away?  The idea is that, if Congress has refused to increase the debt ceiling, then it will have made clear that it views the debt ceiling as a more important law than the appropriations laws, so the president would then be required to treat the debt ceiling as having modified Congress's enactments regarding appropriations.

Professor Dorf and I discussed this issue at some length in our first Columbia Law Review article in October 2012, but it certainly bears revisiting here.  The last-in-time rule becomes problematic very quickly, because it is so tempting to view congressional inaction as meaningful in the analysis.  That is, in the argument as I described it above, the president is apparently supposed to say, "Congress ignored my repeated requests to increase the debt ceiling, so they must really not want me to issue more debt.  Now, I must start figuring out who the unlucky losers are who will not be paid."

But the action/inaction distinction is particularly important here, because in this scenario Congress also will not have changed its spending laws to avoid the trilemma, even though doing so was very much an option, and it similarly will not have changed the tax laws.  By contrast, the last relevant bill that Congress will have actually passed is the continuing resolution on September 30, which requires the President to spend money on so-called discretionary programs (defense and domestic).  It is true that the laws that appropriate money for non-discretionary spending (such as Social Security benefits and interest on Treasury debt) were passed earlier than the last debt ceiling law, however, so at best this becomes a rule by which the president must prioritize discretionary over non-discretionary spending.

Given that even House Republicans have recently tried to pass a law prioritizing Social Security payments and interest on the debt, it would be particularly odd to reach the conclusion that discretionary spending is sacrosanct, that the debt ceiling must be honored, and thus that the spending that Congress has seen fit to place above the vicissitudes of the annual budgeting process must be sacrificed.

I should also note a further argument from a subsequent Buchanan-Dorf article that, even if one were to somehow view Congress's inaction as having indirectly authorized the president to pick winners and losers, the non-delegation doctrine requires Congress to provide some intelligible principle to guide the president's choices.  It will have provided none, however, because it is not possible to include an intelligible prioritization principle as part of a law that was never passed.

The second interesting possibility, however, suggests that Congress actually has put out enough bread crumbs to allow the executive to know how to prioritize payments during a debt ceiling crisis.  This argument, which can stand on its own or work in conjunction with the previous argument, essentially says that "everyone in Washington knows" what Congress's true priorities are, and the White House would be required to follow those priorities, even though there is no written record of them.

What could this possibly mean?  One suggestion is that the nation's unfortunate experiences with government shutdowns provides insight into what Congress really wants.  For example, we know that the federal government does not completely shut down in those situations, because Congress has said that emergency services, border patrols, law enforcement, and so on constitute "essential functions" that must be allowed to operate even during a political food fight over spending.

Here, we are talking about laws that Congress has passed to keep the government running even in the absence of appropriated spending.  The question, then, is not whether we are going to pay those people for work that they have already performed, but instead whether we want to promise them timely payment in the future for work that they will do at Congress's request.  By contrast, if a president decides that the debt ceiling forces him to stiff some people and companies who are expecting to be paid for services performed in the past, he is not choosing between keeping some functions of government running while shutting others down.  He is choosing which people with valid legal claims shall be told to wait.

At best, therefore, the suggestion here is that the president should figure out which obligations are owed to people who "matter less" than other people on the to-be-paid list.  And the way to decide who really matters is apparently to analogize to Congress's priorities during shutdowns.  Those supposed priorities, however, are notably incoherent and fluid.  For example, a few days into the 2013 shutdown, then-Secretary of Defense Chuck Hagel simply announced that all defense-related activities are essential, and he then called all of his employees back to work.  No one complained, and those workers were ultimately paid in full.  In fact, all workers ended up being paid in full, because Congress later decided that government workers should not be penalized for the shutdown.  So who matters less, the people who were called to work and paid, or the people who were given a paid vacation?

More to the point, this entire exercise attempts to read tea leaves about what Congress really wants, when in fact Congress has said loudly and clearly what it really wants through the appropriations laws and the continuing authority to spend money on permanent programs.  We are then left to ask, "Congress said that it wants this much money spent on each of these priorities, but it really didn't mean it because it also cares about the debt ceiling.  What are its real priorities?"

This merely leaves us back where we started.  Professor Dorf and I have argued that Congress has the ability to undo a presidential "mistake" when he issues additional debt, that is, when the president's reading of the tea leaves leads him to issue more debt than Congress really wanted.  If Congress really does not want the nominal debt to have gone up by, say, the extra $50 billion that the president might borrow in 2015 to pay all of the nation's bills in full and on time, then Congress can reduce the deficit (or increase the surplus) in 2016 to make that $50 billion of debt go away.  But failing to pay people in full and on time is a bell that can not be un-rung, because of the collateral consequences of default.

Even if one were to disagree with our analysis on that particular point, however, it at least demonstrates that it is surpassingly arrogant to suggest that there is an implicit "not really" hiding in the appropriations laws but not in the debt ceiling law.  We have never defaulted on our obligations, so we have no experience with Congress speaking to the question, even after the fact, of how the pain should be distributed.  Argument by analogy is often useful, but this particular analogy is so inapt that it tells us nothing about the issue at hand.

Monday, October 05, 2015

The New SCOTUS Term: What's Law Got to Do With It?

By Eric Segall

The Supreme Court’s new Term starts today and it promises to be a blockbuster. The Justices have already agreed to hear important cases on affirmative action, public sector unions, and the death penalty, with abortion and voter ID cases likely to also be on the agenda. But, perhaps the most important case this term, or maybe any term since Bush v. Gore, is Evenwel v. Abbott.

In this case, the Supreme Court will wrestle with a fundamental political issue: for purposes of redistricting in state and local elections (and probably federal as well), do states need to count all the people who live in the districts or just eligible voters? The answer has major practical implications for each political party and for our country as a whole. It also raises a difficult and core issue of political philosophy: whom do our elected leaders represent?

For much of our history, states were allowed to carve out their electoral districts without judicial interference. The Constitution is silent on the question and, in fact, the right to vote in state elections is not even mentioned in our foundational document.

After World War II, with the vast migration of African-Americans to the North and Mid-West, as well as the development of urban areas in the South, civil rights groups challenged electoral districts that gave far more power to rural voters (mostly whites) than city voters (more people of color). The Supreme Court rebuffed all such attempts, holding that, in light of the textual silence in the Constitution, as well as the essentially political nature of the questions raised by redistricting, it had no legal standards to evaluate such claims.

The Court’s reluctance to interfere in how states drew up their voting districts ended with the Warren Court. In the early sixties in Baker v. Carr and Reynolds v. Simms, the Justices announced (there is no other word for it) that the Equal Protection Clause of the 14th Amendment required electoral districts to abide by a “one person, one vote” rule. This decision resulted in far more political power for people in high population areas such as cities than for people in rural counties. Chief Justice Warren was fond of saying that Baker v. Carr was the most important case ever decided by his Court.

The Court has never resolved the issue whether the appropriate metric is people or eligible voters and, until now, has refused to hear such cases. As Adam Liptak of the New York Times reported, if the Court says that all people, including children, prisoners and aliens must be counted, urban areas which tend to vote Democrat will be helped, but if only eligible voters count, then rural communities with more GOP voters will benefit. The Roberts Court has not been shy about deciding important voting cases, and it apparently will do so again this term.

Currently, most states comply with the one-person-one-vote rule by counting everyone (not just eligible voters) pursuant to numbers provided by the U.S. Census. The plaintiffs claim that Texas is violating their constitutional rights by diluting their votes because districts with far fewer eligible voters but more people have more influence than districts with more eligible voters and fewer people.

There are respectable policy arguments on both sides of this question. On one hand, our elected leaders are supposed to represent all the people in their districts, not just those allowed to vote. On the other hand, voters are supposed to hold the ultimate power (subject to constitutional limitations) in our democracy. If districts with large numbers of ineligible voters have the same power as districts with larger numbers of eligible voters, then the power and influence of those eligible voters is reduced. There is no doubt that this case presents a difficult conundrum.

The United States Constitution says nothing about this issue. Theoretically, if states carve up their districts intentionally to disadvantage people of certain races, religions, or genders, the Equal Protection Clause is certainly there as a backstop. The plaintiffs in Evenwel, however, aren’t really making that kind of claim.  Moreover, although the choice to count people or voters has dramatic implications in many states, including Texas, for the two major political parties, the Supreme Court has never overturned a redistricting plan solely on the basis that it helped or hurt one political party.

Texas currently takes all people into account and the plaintiffs are trying to obtain a Court decision saying Texas is violating the Constitution by doing so. On what basis could the Court say the Constitution requires states to count either all people or only eligible voters? There is no text, history, or case law that provides a persuasive answer and both conclusions are rational. Any Court decision, therefore, other than the states are allowed to choose for themselves, would simply amount, as so much of constitutional law does, to the Justices replacing the decisions of one set of politicians with the choices of another set (the Justices themselves).

There may be strong reasons for us to have a Council of Revision staffed with independent governmental officials with the power to overturn the decisions of elected officials. The separation of powers is furthered by a third-party referee with authority to resolve the kinds of fundamental questions raised by the many difficult problems of electoral districting. But, should the Court step into this quagmire and require Texas, and all the other states, to abide by its decision on who counts, let us not pretend that decision has anything at all to do with law, lawyers, or judges. It would simply represent the Justices overturning the value choices of state officials based on their own values all the way down. In other words, with apologies to the great Tina Turner, law will have nothing to do with it.

Friday, October 02, 2015

Thanks for Nothing, John Boehner! Will He Leave Behind a Budgetary Mess?

by Neil H. Buchanan

The United States government did not shut down yesterday.  That is good, of course.  Apparently, Republicans in the House would have shut it down if Speaker of the House John Boehner had not announced his resignation before cutting a deal with Democrats to fund the government through December 11.  In that way, as Professor Dorf noted earlier this week, Boehner showed that he was tactically moderate, at least compared to the very low standard set by the most radical members of his caucus.

I will say that, although I completely agree with Professor Dorf's overall argument in that post, I cannot "imagine having a rational conversation with Boehner about government spending and taxes."  I really cannot.  Boehner has never said anything substantive about budgetary policy (or, come to think of it, about anything) that struck me as intelligent or even coherent.  (Remember "the Boehner Rule"?)  Boehner's perceived moderation is both a matter of a fat guy standing next to even fatter guys in order to look thin by comparison, and (as Professor Dorf argued) his non-nihilistic attitude about the government.  That is to his minimal credit.

Before I move on to my larger point that even the minimally defensible government-respecting meme about Boehner does not ultimately hold up to inspection, I offer a question to our readers in the form of an observation.  The current party breakdown in the House is 247 Republicans and 188 Democrats.  The reports of Boehner's demise suggested that a group of two to four dozen hyper-conservative members made it impossible for Boehner to govern, and they were going to oust him from the Speaker's chair if he had allowed a vote to fund the government without de-funding Planned Parenthood.  Thus, the story goes, Boehner had to fall on his sword in order to avoid a shutdown.

Let's say that this story is right, and thus that there are about 200 Republicans in the House who would not join the rebellion.  I have not seen any explanations of why one-sixth of the Republican caucus could bring down the Speaker.  Yes, the Speaker needs 218 votes to be Speaker, but what is the process by which the withholding of votes for Boehner would serve the purpose of the radical Right?  I am genuinely curious.  If the final vote has to be a plurality, the final vote with be: 200 Boehner, 187 Pelosi, 47 Gohmert/King/Yoho/McHenry/whoever.  If the vote needs to be a majority, what happens then?  Was there no scenario in which Boehner could make a deal with Democrats to supply the necessary votes, in exchange for cooperation on other matters?  Is the concern that this would drive off some of the remaining 200?  Why would these people -- who, by assumption, are not the institution-busting radicals who oppose Boehner -- not be willing to build a coalition simply to keep the government open and to put the 47 or so super-nutcases in the corner?

Again, there might well be perfectly reasonable explanations for how parliamentary realities prevent such a thing from ever coming to fruition.  I sincerely encourage readers to educate me about this point on the comments board.  At the very least, however, it is not obvious why a group that might include as few as 24 Republicans could form a blocking coalition, nor is it obvious why Boehner was unquestionably stuck between choosing to capitulate or to walk away.

For the remainder of this post, however, I am willing to stipulate that there is a procedural explanation for all of this, which I have simply missed.  For present purposes, therefore, let us assume that the soon-to-be-former Speaker truly had no other option than stepping down, in order to foil a group of people whom Gail Collins once described as "a herd of rabid ferrets."  Should we cheer him, even half-heartedly?

The editors of The New York Times noted earlier this week that Boehner could use his remaining month in office to revive immigration reform, finally bringing to a vote a bill that the Senate passed in 2013 (formerly championed by the now-pandering Marco Rubio, among others).  The editors are surely right to include that goal on a wishlist, but we do not even have to leave the budgetary arena to find some important work for a departing, purportedly heroic statesman to undertake.

What, after all, did Boehner really do?  The government did not shut down, because (with a few hours to spare before the fiscal year ended on September 30) Boehner allowed a vote on a continuing resolution to fund the government for 72 additional days, at levels that are clearly arbitrary (think "sequester") and inadequate in most domestic programs.  And what happens as we approach December 11?  The post-Boehner speaker, who will surely have pledged fealty to the rabid ferrets, will be forced -- where "force" here assumes, as above, that there is no possibility of a bipartisan coalition -- to shut down the government because of Planned Parenthood (or whatever the next issue is that sends them around the bend).

Moreover, when Boehner made his big announcement, the best estimate was that the drop-dead date on the debt ceiling was also on or about December 11.  This means that Boehner's selfless act involved aligning the debt ceiling deadline and the government shutdown deadline, which worked ever so well in October 2013.  The last thing we need is another fracas in which no one (certainly not the political media) even understands the difference between a shutdown and a default, and in which the hostage-takers have two bombs to strap to their chests.

As it happens, news broke yesterday that the drop-dead date is going to arrive sooner than expected, perhaps as early as November 5.  Boehner had nothing to do with that, of course, but at least we will now deal with the problems one at a time.  But why would anyone imagine that this will go well, in the post-Boehner era?  We now do not even have 72 days of peace.

Interestingly, the article in The New York Times that reported the new drop-dead date also described nascent talks between the White House and Boehner toward a possible two-year budget deal, and even possibly an agreement to increase the debt ceiling.  Unfortunately, the article made it clear that all of this is a longshot.

But why?  There are many ways to package a solution to the debt ceiling issue that do not require anyone to vote for a "clean" debt ceiling increase.  For example, Boehner could agree to pass (with mostly Democratic votes) a statutory version of the so-called Gephardt Rule, in which all future appropriations bills would include authority to borrow all funds necessary to pay for the spending included therein.  Any non-obstructionist Republican could say: "I did not vote for a debt ceiling increase, now or in the future.  I voted to force us -- and all future Congresses -- to understand the consequences of our decisions to spend money."

Maybe something like that could still happen.  Maybe these semi-secret talks between Boehner and Obama will lead to a true resolution to the budgetary insanity that has done so much damage for so long.  And if that does not happen, maybe it will not be John Boehner's fault, because the Republican Party is not really being led astray by a small minority of extremists but is in fact a party of extremists.  We will find out soon.