Monday, April 27, 2015

Does Anti-Commandeering Compensate For Broad Commerce Clause?

by Michael Dorf

Last Thursday I posted on the oddity that the Idaho legislature appears to have the power to prevent the United States from entering into a multilateral treaty governing transnational enforcement of child support obligations. As I explained, the state's veto power is a product of the anti-commandeering doctrine that the U.S. Supreme Court announced in two 1990s cases, forbidding Congress from requiring states to enact or enforce legislation. In the course of addressing the question of whether the commandeering prohibition applies to treaty obligations and statutes implementing treaty obligations, I noted that I think the anti-commandeering doctrine--which is not based on any express provision of the Constitution--is misguided. In particular, I approvingly summarized the historical argument made by the dissenters in the anti-commandeering cases as follows:
Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.
I have setup Twitter to automatically tweet a URL and title for each of my blog posts and shortly after Thursday's post went up, Prof. Randy Barnett tweeted to me about it. He raised what I regard as an interesting set of questions that are not usefully discussed in 160-character snippets, so, after reproducing our exchange, I'll elaborate at some greater length. Here's our exchange:
BARNETT: How about returning to original scope of Congress's powers? Then less need for anti-commandeering doctrine. Deal? 
DORF:  If we return to the economic conditions that prevailed at the Founding, I'll take that deal! 
BARNETT: That's cheating. You don't get to rely on Articles of Confederation, etc. then. Can't have it both ways. 
DORF: AoC shed light on orig understanding. Changed circumstances bear on how it applies 2day. Follow-up post nxt wk. 
BARNETT: Dorf in short: follow original understanding when it suits you? And expansive reading of Congressional power is another change in circumstances. Can everyone play? 
DORF: L Lessig proposed that idea in 1995 Sup. Ct. Rev. 125. It's not crazy but I disagree. I'll discuss Monday.
It is now Monday, and thus, as promised, I shall discuss. I'll begin by unpacking exactly what is going on in the foregoing, somewhat cryptic, exchange.

Barnett's proposed "deal" rests on the tacit acknowledgment that the anti-commandeering doctrine is not rooted in the Constitution. However, he also thinks the Court erred by departing from the Founding-Era understanding of the Commerce Clause--which, he believes, was much narrower than the current understanding. Thus, he is willing to trade away a made-up constitutional limit serving to limit the national government in favor of the states for a genuine but abandoned constitutional limit.

My initial response challenged Barnett's equation of the original understanding with the contemporary implications of the Commerce Clause. I noted that the expansive view of the Commerce Clause in the modern era is justified as a response to changed circumstances. Barnett then cried foul. If I was going to rely on a historical argument about the meaning of the Constitution that rested on juxtaposing it with the Articles of Confederation, then I was "cheating" by trying to "have it both ways," or as he concluded, to follow the original understanding only when I chose to. Herewith, my objections to Barnett's assumptions and arguments:

(1) Barnett misunderstands what I was saying. Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point. In the anti-commandeering cases, the majority (authored by Justice O'Connor in New York v. United States and by Justice Scalia in Printz v. United States) offered a historical, i.e., originalist argument for the anti-commandeering principle. Accordingly, the dissenters--who offered the counterargument that begins with the Articles of Confederation--were responding that the originalist argument for the anti-commandeering principle fails on its own terms. Neither they nor I said or assumed that one must always be bound by the original understanding, regardless of intervening changes in the world. Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else.

(2) To be sure, Justice O'Connor's New York opinion also offered a functional argument for the anti-commandeering rule: She said that it promotes accountability by ensuring that the people of each state know which government to hold responsible for unpopular actions. But (for reasons I won't detail here because they're tangential) I find that argument unpersuasive and, in any event, there is a powerful functional argument that goes in the other direction, as I noted at the end of the post. To wit, forbidding the federal government from commandeering creates incentives for greater federalization, not less, and so the anti-commandeering rule ends up undermining the interests of the states. One can disagree on the functional point, but the fact that I was making a functional argument should have been a clue to the fact that I wasn't resting my opposition to the anti-commandeering principle on purely originalist grounds. And thus there is no hypocrisy in my rejection of a strictly originalist understanding of the Commerce Clause.

(3) Moreover, I deny that the modern understanding of the Commerce Clause is inconsistent with the original understanding, at least if by "original understanding" one means what Barnett himself typically means when he talks about the original understanding, namely the original semantic meaning of the language rather than the concrete expected applications. The argument for the proposition that the scope of regulable activity has been enlarged even as the meaning of interstate commerce has remained the same is very familiar in constitutional jurisprudence, and it's exactly the one I invoked by referring to "changed circumstances." The movement from a craft-based economy to one of mass manufacturing that began in the middle of the 19th century made the notion of purely local economic activity untenable; thus, even if one retains the original semantic meaning of interstate commerce as commerce that concerns more than one state, in the modern world that means just about all economic activity. And that is in fact how every Justice to sit on the Supreme Court in the last 75 years--excepting only Clarence Thomas--has understood the modern doctrine. Barnett can resist this conclusion by equating the meaning of the Commerce Clause with the framing generation's concrete expected applications, but then he would be a "new" originalist when it suits him and an "old" originalist when that suits him.

(4) Fun though it is to execute a jujitsu move and show that Barnett is the real hypocrite here, I won't play that game. Barnett can escape the charge of inconsistency by claiming that the original semantic meaning of "Commerce . . . among the several States" included trade rather than manufacturing. I would say he's wrong or that, if he's right, the interconnectedness of modern supply chains enable Congress to regulate manufacturing and the like under the Necessary & Proper Clause, but that's a bigger debate that I'm not interested in having. I'll leave it to the liberal originalists like Jack Balkin to fight the likes of Barnett on his own turf.

(5) I want to turn instead to Barnett's apparently sarcastic suggestion that if changed circumstances justify a broader construction of the Commerce Clause, that broader construction is itself a changed circumstance that justifies the Court in creating the anti-commandeering doctrine. I don't read Barnett to have been making this as a serious argument. He seems to have meant it as a way of mocking what he took to be my position, although it's hard to tell exactly what anybody means on Twitter. In any event, even if Barnett meant the point as a reductio, it is in fact an idea worth considering.

(6) And indeed, Larry Lessig proposed exactly this idea 20 years ago in the pages of the Supreme Court Review in an article titled Translating Federalism. (The article is available via JSTOR but you need a subscription or to pay.) There Lessig suggested that, in light of the changed economic conditions that rendered the enumerated powers a failure as a means of preserving the balance between state and national power, the Court might be justified in making up other means of limiting the federal government in favor of the states, and that the anti-commandeering doctrine could be such a means.

I think Lessig's basic move is sound, as his core example illustrates. At the Founding, the Fourth Amendment was thought to protect privacy via a no-trespass rule. Absent an invasion of a property interest, there was no "search." But modern eavesdropping technology gave the government greater capacity to invade privacy without invading property, and so Lessig thinks that Justice Brandeis was right in his dissent in Olmstead v. United States to treat electronic eavesdropping as a Fourth Amendment search, even absent a property invasion. It's possible to reach that result via semantic originalism, I suppose, by treating the "meaning" of "search" as quite plastic, so that the property rule is only part of the "construction," not the meaning of the constitutional text. But Lessig, writing before the full flowering of semantic originalism, instead chose the metaphor of translation. His idea was that to give effect to the core purpose of the Fourth Amendment, the modern interpreter must move beyond the original understanding.

As I said, I think this view is sound in principle. My quarrel is with the suggestion that an anti-commandeering rule really does implement principles of federalism. I would also quarrel with the idea that the modern Court ought to worry much about ensuring that principles of federalism receive robust judicial protection, both because political safeguards are largely up to the task and because I read the Civil War and the Reconstruction Amendments as a sufficiently important break with the Founding Era understanding of the proper balance between state and federal authority, that any post-Reconstruction effort to preserve a state-federal balance should strive to preserve one that tilts much more to the federal side than it did at the Founding.

But, as I said, these are disagreements with how Lessig carried out the enterprise that Barnett now (apparently and tacitly) ridicules. The basic enterprise itself makes sense.

Friday, April 24, 2015

Pummeling the IRS Instead of Actually Simplifying the Tax System

by Neil H. Buchanan

In my new Verdict column, published yesterday, I describe the political strategy that Republicans have been using for the last generation or so, wherein they set the IRS up for failure, watch it fail, and then use that failure as an excuse to cut the IRS's budget even further, setting up the next round of failure.  Obviously, I did not imagine that I am the only person to have noticed this pattern, but after I wrote the piece, I was surprised to discover that my column's title ("The Republicans’ Cynical Tax Game: Undercut the IRS, Blame the IRS, Repeat") was eerily similar to a sentence in a column in Forbes magazine last December ("It is a cynical recipe for a self-fulfilling disaster: Give the agency more and more work. Cut its budget. Blame it for failing to do its job. Repeat.")  Not as surprised as I was to see that Forbes would publish such a column, but still surprised.


My column also ran through three of the common right-wing arguments about why people should hate the U.S. tax system -- which, to be clear, need not and should not be an excuse for beating up on the agency that tries to administer that tax system.  I show that the overall level of taxes in the U.S. has not been going up (in fact, it has been amazingly stable since the end of the World War II), that the U.S. remains one of the lowest-tax countries in the developed world, and that the U.S. tax system is barely progressive and thus is not engaging in a makers-to-takers redistributive plan.  Not that there would be anything wrong with that!


As it happens, the Republicans were pouring more gasoline on the anti-IRS fire at almost exactly the same time that I was writing my column.  The majority staff of the House Ways & Means Committee (now chaired by Rep. Paul Ryan) issued a report earlier this week claiming that the IRS "deliberately" allocated its budget in a way that harmed customer service.  Now, therefore, the claim is that the IRS does not just do its job poorly, but Republicans would have us believe that the IRS's leadership is deliberately making matters worse.  I am working on a new column to debunk those claims, which I hope to publish soon on Verdict.


In this toxic environment, it is difficult to believe that the Republicans would be interested in trying to make the IRS work better.  The political advantage lies in keeping the IRS wounded, and making people think that it is the Democrats' fault that things are not working smoothly.  Even so, there are very sincere people who have offered helpful ideas that could truly make a difference, and whose honest efforts I admire.

For example, tax professors Jon Forman and Roberta Mann (of the law schools at the universities of Oklahoma and Oregon, respectively), have a working paper up on SSRN, "Making the Internal Revenue Service Work," that says, in essence, "Well, if Republicans are not going to fund the IRS at its previous levels, here are some good ideas about how to make things work better in a lower-budget environment."  Similarly, at the recent Critical Tax Conference at Northwestern (see my recent Dorf on Law post here), Professor Danshera Cords of Albany Law School offered some useful ideas about how to improve matters at the IRS.  During Q&A, I said to Professor Cords what I will surely also say to Professors Forman and Mann when they present their paper at the Law & Society conference next month in Seattle: "The declining performance of the IRS is not a problem that the Republicans want to fix.  The whole point is to gum up the works, to accomplish tax reduction for the rich by deliberately reducing and diverting the resources needed to enforce the tax laws, and to undermine public support for tax collection."

The grandaddy of all good-faith efforts to improve average Americans' experience with taxes, however, is a still-not-completely-abandoned effort, led by Professor Joseph Bankman of Stanford Law School, to make it unnecessary for the vast majority of taxpayers to fill out tax returns at all.  The idea is that the IRS already receives from your employer and your financial institutions the information that you are required to enter into your tax forms.  Why not have the IRS send you a pre-filled tax form, containing that information and performing the necessary calculations, and allow you to avoid all of the aggravation that makes people hate the IRS?  All we would have to do is create a way for people to contest any errors and to provide any additional information, but even the people who interacted in that way with the IRS would end up doing less work than everyone currently does when filling out these utterly unnecessary forms.

Professor Bankman actually oversaw a pilot version of his idea, Ready Return, in California in 2005.  The program was hugely popular.  Unfortunately, the makers of tax preparation software packages, especially Intuit, have engaged in a lobbying blitz that successfully killed the program in California, and no other state government has even considered fighting that fight ever since.

Last week, the technology writer for The New York Times wrote an interesting piece about Bankman's idea.  Tellingly, however, the title of the article was "Would You Let the I.R.S. Prepare Your Taxes?"  Despite the article's fair reporting, and its extensive quotations from Professor Bankman (and from UC Davis Professor Dennis J. Ventry, Jr., who is also engaged in this admirable battle), the tone was unmistakably about not trusting government bureaucrats to do anything right.  (I was especially surprised a few years ago when Professor Bankman told me that the State of Maryland -- with all of its DC suburbs filled with government workers, who would hardly be a good audience for anti-government rhetoric -- had dropped all plans to run a state Ready Return program.)

Again, "Would you let the IRS prepare your taxes?" is a non-issue.  The IRS already computes your taxes.  That is why it would be so simple for it to send people pre-filled forms.  Even so, one can imagine reasonable questions being raised.  At the end of the article, the reporter notes that some people have objected that people would not dare challenge the IRS's computations.  After accurately reporting Bankman's argument that "the IRS might include tax breaks that taxpayers wouldn't have otherwise found," the reporter offered this parenthetical: "Critics of the I.R.S., which revealed in 2013 that it had targeted conservative groups for special scrutiny when determining tax status, scoff at this idea."  Yes, the non-scandal scandal is now (as I suspected when the story broke) simply a conservative touchstone in any debate about the IRS, no matter the reality.

Beyond the odd invocation of the non-scandal scandal, however, there is simply no reason to scoff at the idea that the IRS would ever do anything to help a taxpayer.  Indeed, in two of the last four years, I have received extra refunds from the IRS, after internal cross-checking revealed that I had made errors that overstated my taxes.  These were not, moreover, transcription errors, but a matter of having failed to note my eligibility for lower tax rates on certain categories of my income.  (Yes, even tax law professors make mistakes on their tax returns.)  In both cases, the IRS generated corrected forms, sent me those forms along with checks for the overpayments, and provided me with further explanations of what to do in the future.

Moreover, Congress always has the ability to require the IRS to err in the taxpayers favor.  I do not think it would be wise to do so, but Congress could certainly set up a Ready Return-like program in any way that it liked, including setting up default rules that would make it more likely that taxpayers would be happy with what the IRS calculates.  In other words, there is nothing about this system that need be stacked against the taxpayer.  Congress, not the IRS, ultimately decides how complicated and difficult the system is.

Again, however, that is really the point.  Back in the 1990's, then-House Majority Leader Dick Armey (who until recently ran a conservative super-PAC) proposed eliminating tax withholding from people's paychecks.  His argument (directly echoing conservative icon Milton Friedman) was that paying taxes should be as painful and difficult as possible, and withholding makes paying taxes easy and painless.  I do not know whether Milton Friedman would have extended his argument to suggest that we should deliberately make a government agency as dysfunctional as possible, but his political acolytes have certainly embraced that idea.

Thursday, April 23, 2015

Treaties and Commandeering

by Michael Dorf

Yesterday's NY Times carried a story that, I imagine, was baffling to most readers. It noted that a committee of the Idaho legislature had voted to kill (for now) legislation designed to bring that state into line with provisions of a multilateral treaty governing the transnational enforcement of child support obligations. The U.S. signed the treaty in 2007 but full ratification depends on the enactment of legislation in all 50 states.

To which the moderately well educated reader might well have reacted "huh? I thought the Senate gave its consent to treaties in order for them to become binding." The very well educated lawyer, however, will understand what's going on here. The treaty imposes affirmative implementation obligations on the governmental authorities in each signatory nation, which with respect to family law in the U.S. means state governments. But under the Supreme Court's "anti-commandeering" doctrine as set forth in New York v. United States and Printz v. United States, Congress cannot force a state to enact or enforce federal law. Congress can "bribe" the states to do so by attaching strings to federal funds--so long as those conditions are not too coercive. And as noted in the Times story, that's what the federal government has done here, but, as with the Medicaid funding, it appears that anti-Washington don't-tell-us-what-to-do sentiment can sometimes trump self-interest on the part of the states. (Note, however, that in this instance it's not anti-Obama sentiment, as the Bush II Administration signed the treaty.)

Here I want to briefly reflect on the wisdom of applying the anti-commandeering doctrine to treaties. I'll begin by saying that I don't like the anti-commandeering doctrine in any context. It strikes me that the dissenters were right in New York and Printz. Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.

But assuming that the anti-commandeering rules properly apply to exercises of most of Congress's powers, are there reasons to suppose that they don't apply to self-executing treaties or to statutes that implement non-self-executing treaties? Although some commentators have argued that Congress (or in the case of a self-executing treaty, the President plus 2/3 of the Senate) should have the power to commandeer pursuant to a treaty, I think the logic of New York and Printz pretty much precludes this result. If commandeering is not a necessary and proper means of carrying out Art. I, Sec. 8 powers, it's hard to see why it would be necessary and proper to carrying out a treaty.

That's unfortunate because modern multilateral treaties (from which the U.S. and its nationals derive reciprocal benefits) sometimes call for actions that, in our federal system, can only be taken at the state level.

Or maybe not. Under Missouri v. Hollanda treaty may give Congress powers it would otherwise lack, i.e., powers that are otherwise reserved to the states. Thus, one could imagine that a somewhat different version of the Child Support treaty could empower Congress to enact national legislation and take federal executive action with respect to child support, even though there is no enumerated federal power governing family law. (I say this would only arise under a different version of the treaty, because the actual treaty allows for action at the state level in federal nation-states.)

Would the Supreme Court go for that? I doubt it. Although the Court's ruling in Bond v. United States last year avoided the question of whether, and to what extent, Holland is good law, I have difficulty imagining five Justices of the current Court thinking that a treaty could empower Congress to create federal family law, absent some Article I, Sec. 8 power. (The power to regulate interstate and foreign commerce would authorize some aspects of federal law governing child support, but probably not a comprehensive code.)

The irony here is that the only reason that Congress (or in the case of a self-executing treaty, the President and the Senate) would need to resort to the radical step of federalizing family law is that the Court itself has cut off commandeering as an option. That observation is a variation of the dissenters' point in the anti-commandeering cases: Commandeering is often less intrusive of the prerogatives of the states than federalization, which is why subsidiarity is seen as a protection for state sovereignty in Germany and the EU.

Wednesday, April 22, 2015

What's at Stake in Next Week's SSM Oral Argument?

by Michael Dorf

In my latest Verdict column, I take the occasion of next week's oral argument in the same-sex marriage cases to reflect on some broader questions about the relation between social change and judicial rulings. I make a number of points, including these: (1) Progress on LGBT rights has been very rapid in recent years but partly that's a tipping-point effect that disguises the long steady progress; (2) in general, majoritarian politics lends itself to tipping points, because just below 50% support for some legal change means that the status quo likely remains, whereas just above 50% means that it can change rapidly; (3) the courts play an important role in this dynamic, although hardly the primary one; (4) because legal change follows rather than leads social change, the worst abuses of minorities and others will typically occur before they have legal protection; but (5) it does not follow that progress in the social and political realm should prevent rights claimants from having their claims recognized. Too cryptic? Read the column.

I presented a version of the foregoing, along with other thoughts on the SSM cases, to a constitutional law workshop at UC-Berkeley Law School on Monday. A lively discussion ensued. Here I'd like to focus on one aspect of that discussion: What, if anything, is at stake in the case?

The "if anything" may sound jarring, but I ask because I continue to think that there is virtually no chance that the SCOTUS will rule against the plaintiffs/petitioners. As I have noted on numerous occasions (e.g., here), if the Court were to unexpectedly hold that there is no right to SSM, then the only people who got married in reliance on lower federal court rulings that there is a right to SSM who would certainly be entitled to remain married for state purposes would be those who were actual parties to the litigation. The thousands of others who were married over the objections of state officials could find themselves retroactively de-married, a fate as cruel as it would be confusing. The Justices must have been aware of these realities when they permitted the interim marriages to go forward, and so, either the matter is a foregone conclusion or the Justices have lost their minds.

I shall proceed on the assumption that the Justices have not lost their minds. What, then, is at stake? At least the following:

(1) Anti-LGBT discrimination in other contexts

Even if the Court finds a right to SSM, it might be possible for states and their sub-divisions to discriminate on the basis of sexual orientation and gender identity as to employment, benefits, etc. Much depends on how the Court reaches the result. The best approach, in my view, would be to find that discrimination on the basis of sexual orientation triggers heightened scrutiny. That would still leave private anti-LGBT discrimination unregulated, of course, but the suspect and semi-suspect classifications for constitutional purposes often serve as a model for local, state, and federal statutory protection. A clear ruling by the SCOTUS on this point would carry considerable persuasive weight with legislators. To be sure, as David Schraub noted in the Q&A, there is a risk that heightened scrutiny for sexual orientation could end up doing more harm than good for LGBT Americans because the Court's "symmetry" principle means that then laws advantaging them would also be subject to heightened scrutiny. That's a real risk, but a small one, I think: There is very little need for affirmative action or the like for LGBT Americans, so more to gain than to lose from suspectness or quasi-suspectness.

(2) Doctrinal Order

Each of the leading gay rights cases in the SCOTUS to this point has been authored by Justice Kennedy, and each has been doctrinally unorthodox. In Romer v. Evans, the Court invalidated Colorado's Amendment 2 because it "defie[d]" conventional scrutiny, applying neither rational basis scrutiny nor heightened scrutiny, nor even exactly something in between. In Lawrence v. Texas, the Court used the structure but not the language of fundamental rights, but lower courts have sometimes construed it as merely applying rational basis scrutiny. And United States v. Windsor blended equality, dignity, and federalism concerns in a way that gave people of various commitments the chance to claim victory. These departures from the conventional doctrine have been a great source of fun for academics and while I think that there is much to be said for Justice Kennedy's unorthodox approach (as I noted here), the doctrine in this area has often felt like it was not done evolving. The SSM cases provide the Court the opportunity to say whether the cases to this point have been a kind of way station en route to treating sexual orientation as a suspect or quasi-suspect classification or whether they herald something new: either a sui generis approach to sexual orientation (but why?) or, more intriguingly, the end of the old structure of tiers of scrutiny as a general matter.

(3) The Legacy of the Other Conservative Justices

Another question posed during the Q&A, this one by Jesse Choper, was whether CJ Roberts might join the liberals and assign the opinion to himself in order to keep it fairly narrow. My answer--which was pretty rank speculation--was that even if the Chief Justice joins the liberals plus Justice Kennedy for a 6-3 ruling, he would likely assign the opinion to Justice Kennedy if Justice wants to write it, as he probably would.

More important than who ends up writing is how the Chief Justice votes. His Windsor dissent could be said to box him in as opposed to a constitutional right to SSM, but Justices routinely vote against a decision and then accept it as precedent. And so, if CJ Roberts reads the writing on the wall and wants to end up on the right side of history, there is wiggle room for him to join the liberals. A 6-3 decision would also make the Court look less political. This too is speculation but my gut instinct tells me that at some level, the Chief Justice wants to vote in favor of the plaintiffs but that he may not be able to bring himself to do so.

Meanwhile, I have very little doubt that Justices Scalia, Thomas, and Alito will vote for the state respondents. The highest stakes here may be for Justice Scalia. His dissents in Romer (decrying gay political power) and Lawrence ("Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home") contain culture war language that was inappropriate then but is downright embarrassing now. Justice Scalia's Windsor dissent was much more measured.

I cannot imagine Justice Scalia joining the Court in finding a right to SSM, but for his sake, he ought to write a dissent that is, in tone, more like Judge Sutton's Sixth Circuit ruling--more in sorrow than in anger, and focused on what he regards as the appropriate roles of legislators as opposed to judges. If he really wants to protect or enhance his legacy he would follow the course laid out by Justice Thomas in his Lawrence dissent (which Justice Scalia did not join, even though Justice Thomas joined Justice Scalia's Lawrence dissent). There, Justice Thomas stated that he would vote to repeal a same-sex sodomy ban were he a legislator but that he didn't think he had the authority to invalidate the ban as a Justice. It was a cost-free gesture that showed a certain magnanimity.

Even so, I doubt Justice Scalia will follow suit now, mostly because I don't imagine that he would vote to repeal a SSM ban if he were a legislator. But at the very least, for the long-term good of his own reputation, he should keep his rhetoric in check.

Tuesday, April 21, 2015

Are Lies About SSM, Abortion, and Economics Different?

by Neil H. Buchanan

Yesterday's Washington Post included an op-ed by Dana Milbank, "The New Argument Against Gay Equality: Same-Sex Marriage Kills," which describes and effectively dismantles an especially loopy new argument from someone named Gene Schaerr, who was a losing lawyer in Utah's SSM case.  (Schaerr is no minor player or local rube, by the way, having clerked for Justice Scalia.)  That the argument is nutty does not, of course, mean that it will lead to any embarrassed distancing by other people on the right; and, in fact, the Heritage Foundation held an event earlier this week in which Schaerr laid out what one might generously call his argument.

Here, I will briefly describe that non-argument.  This will be fun, in its way, but it is not difficult.  Indeed, Milbank does a great job on his own mocking Schaerr's claims.  Even so, Milbank missed one big possible defense by Schaerr.  After describing (and ridiculing) that possible defense, I will tie this argument back into my recent musings about lying and dishonesty by right-wing politicians in this country.  Although my earlier writings focused on arguments about taxes, it turns out that there is an interesting connection between these various deceptions.

Schaerr makes his argument in the form of a statistical claim: "nearly 900,000 more children of the next generation would be aborted as a result of their mothers never marrying."  Notwithstanding his decision to put a numerical estimate on the number of abortions, Schaerr admitted to Milbank that his argument "is still too new to do a rigorous causation analysis using statistical methods."  So, it is not really a numerical claim, but Schaerr is willing to say that the effect will be big, so big that he can put a big number on it with no factual underpinning.

Lacking actual statistical analysis, how does Schaerr get from SSM to that supposed increase in abortions -- especially given that, as Milbank points out, married gay couples are likely to adopt children, plausibly reducing the number of abortions?  (I am not saying that this cause-and-effect has been tested, either.  But we are now talking about hypotheses only.)

Schaerr's chain of illogic goes like this: gay marriage causes fewer opposite-sex marriages, which leads to more out-of-wedlock pregnancies, which leads to more abortions.  Sure, that sounds insane.  However, it does have the advantage of claiming to be evidence-based.  Even the most out-there statistical claims can be tested, and if the evidence turned out to be suggestive of unexpected connections, those connections would be worth pursuing.  No such luck, however, for Schaerr's desperation play.

There seem to be two statistical claims floating around Schaerr's argument.  He now asserts that U.S. states in which same-sex marriages have been legal have seen declines in marriage rates.  This is a replacement for a claim that was part of the State of Utah's arguments in its federal legal proceedings, that birth rates had fallen in states with SSM.  As Milbank points out, birth rates have been falling nationwide for some time, and the birth rates in Utah and Texas have actually fallen faster than birth rates in Vermont, Massachusetts, and Connecticut.

Milbank gathers similar statistics to debunk Schaerr's claims about marriage rates: "The national marriage rate declined to 6.8 per 1,000 in 2012, from 8.0 in 2002, before Massachusetts became the first state to legalize gay marriage. The Massachusetts rate dropped from 5.9 in 2002 to 5.5 in 2011, while Connecticut went from 5.7 to 5.5 and Vermont went from 8.6 to 8.3. But Texas and Utah, free of same-sex marriage, dropped from 8.4 to 7.1, and from 10.4 to 8.6, respectively."

Let us leave aside the complete failure to connect decreases in birth rates to increases in abortion rates.  Let us also ignore the many unstated and unsupported statistical connections between declines in marriage and increases in abortions.  (And, of course, let us not fail to note that Schaerr's argument has the effect of causing the discussion to rush past his central claim, equating abortion and "killing.")  What Milbank fails to consider is the miraculous power of all bad things to affect everything around them, in the past, present, and future.

A core argument from the likes of Schaerr, after all, has been that simply knowing that same-sex couples are marrying degrades the value of marriage among heterosexuals.  Surely, state borders are not enough to block the dispiriting knowledge that SSM is on the march nationwide, or to prevent that trend from upsetting people in red states.  Maybe straight people in Utah and Texas are so distressed by what is happening elsewhere, and so worried about SSM coming to their home states, that they began shunning marriage in anticipation of the inevitable.

Of course, this argument also has the virtue of explaining any declines in marriage and/or birth rates before even Massachusetts allowed same-sex marriages: People knew for years that this was coming, and so the lack of apparent cause-and-effect in real time is really a matter of people anticipating future events.  After all, given that people on the right continue to rage against "the Sixties," maybe the Beatles' "Revolution" and "Lucy in the Sky With Diamonds" somehow set this all in motion.  (No comment needed regarding the Rolling Stones' "Let's Spend the Night Together.")

We have, in fact, recently heard a version of this very argument.  After the mid-term elections last Fall, when the economic reports began to show that the economy had been improving for months, notwithstanding the supposedly ill effects that President Obama and Senate Democrats were having on the country, rising Senate Majority Leader Mitch McConnell had a ready answer: The economy started to improve earlier in 2014, because people suspected that the Republicans were going to do well in the November elections!

As I noted at the beginning of this post, the illogic of Schaerr's argument provides fresh insights into the arguments that I have made in three of my most recent Dorf on Law posts (here, here, and here).  In those posts, I have described deliberately misleading statements as "lies," "deceptions," "distortions," and similar terms.  Two of my examples have been Republicans' invention and repetition of the terms "IRS Code" to describe the tax code that Congress enacted (diverting public anger toward the agency that tries to administer Congress's mess), and "death tax" to describe the federal estate tax.

As always, calling out any particular deception has brought forth some halfhearted defenses.  "IRS Code" is not really misleading, I am told, because everyone knows what it means.  Similarly, I should see that"death tax" is not exactly a lie, because it is a tax that is collected at death.

It is true that some lies are more bald-faced than others, but that does not make them any less deceptive.  If anything, the whole point of dressing them up is to make them more deceptive.  For example, Milbank quotes a Heritage staffer claiming that "every nation and every state that have redefined marriage have seen their marriage rates decline by at least 5 percent after that redefinition, even as the marriage rates in the rest of the states remain stable."  I have not looked at whatever data to which he might be referring, but I recognize weasel words like "stable" when I see them.

When I enrolled in law school, I was a literalist when it came to lying.  My attitude was not George Costanza's famous "it's not a lie if you believe it" line from "Seinfeld," but rather that so long as one says nothing that is, in isolation, a literal falsehood, then one is not lying.  "Sorry that I cannot go to your party.  My car broke down again."  How clever not to add that the car has already been fixed!

As I have noted in various places, law school had the counter-intuitive effect of making me less likely to rationalize lies with half-truths.  If I really did not want to go to a party, and I did not want to tell the host why not, I realized that there was really no moral high ground to saying, "Well, I didn't actually lie."  That is why rules for perjury, standards for "good faith and fair dealing" in contracts, and professional ethics rules are written more broadly than "no literal falsehoods allowed."  Even the familiar courtroom witness's oath to tell "the truth, the whole truth, and nothing but the truth" captures the need to prevent serious arguments from descending into absurd gamesmanship.

Similarly, legal standards often include an inquiry into whether a party "knew, or should have known" how his statements would be understood.  Regarding the estate tax, I have written in the past (e.g., here and here) why "Well, it is a tax at death" and similar arguments do not work.  My point here is simply that even political arguments can and should be held to a standard higher than "not literally a bald-faced factual falsehood."  Notwithstanding our cynicism about "lies, damned lies, and statistics," defaulting to the lowest standards is no better than having no standards at all.

Monday, April 20, 2015

What is Neutrality With Respect to Religion?

by Michael Dorf

With Religious Freedom Restoration Acts (RFRAs) much in the news lately, it may be worth recalling the piece of religious freedom that did not need to be restored, even after the SCOTUS weakened protection for religious freedom in the 1990 case of Employment Division v. Smith. There the Court held that a law that does not single out religion does not implicate the Free Exercise of Religion, even if, in particular cases, it substantially burdens the exercise of religion by particular people--as Oregon's general ban on peyote burdened the exercise of religion by Native Americans wishing to participate in the peyote ritual.

But even after Smith and before the enactment of the federal RFRA, the Supreme Court made clear that a law that actually targets a religious practice because it is a religious practice does implicate--and presumptively violates--the free exercise of religion. The case so holding was Church of Lukumi v. Hialeah, which unanimously invalidated a local ordinance forbidding ritual animal sacrifice even though, as Justice Blackmun emphasized in a concurrence joined by Justice O'Connor, a general law forbidding cruelty to animals might well be sufficiently compelling to overcome any religious objections to complying with it under the pre-Smith law, which Justices Blackmun and O'Connor would have continued to apply.

Whereas RFRA enjoyed widespread support when enacted, it has now become controversial, as religious conservatives increasingly turn to RFRAs to resist liberal legislation (such as mandating contraceptive health insurance and antidiscrimination laws). However, Lukumi apparently remains uncontroversial. Politicians, judges, and scholars across the ideological spectrum seem to agree that laws may not single out religion or any particular religion for adverse treatment.

But a recent controversy from India may indicate that the consensus that Lukumi is correct trades on an ambiguity concerning what it means to say that a law serves a religion-neutral purpose. Writing in yesterday's NY Times, Manil Suri explores the motivation behind the Indian State of Maharashtra's expansion of its ban on slaughter of cows to cover bulls and oxen, and the adoption of a law banning the sale of beef.

Suri portrays the new law as motivated by something like either Hindu supremacy or anti-Muslim animus. Either way, it seems of a piece with the broader ethno-religio-nationalist policies of Indian Prime Minister Narendra Modi.

But note that, unlike the Hialeah ordinance, which singled out ritual animal sacrifice for prohibition while permitting more or less the same practices when conducted for other purposes, such as to obtain animal-based food and clothing, the Maharashtra law is general. It forbids the sale of beef and the slaughtering of cows, bulls, and oxen, regardless of the religious or nonreligious purpose for which such sale or slaughter occurs. In that sense, the law is neutral.

Except that in another sense it isn’t. The motivation is pretty clearly religious. The law cannot reasonably be understood as advancing a religion-neutral purpose, such as preventing cruelty to animals. It applies only to cows, bulls, and oxen, which are holy to (many) Hindus. Even then, it does not target cruelty or even the killing of these animals. Traditional Hinduism permits the drinking of cows’ milk; indeed, it even celebrates drinking cows’ milk. (The god Krishna was fostered by cowherds and later cavorted with milk maids). Yet to produce milk, cows must be repeatedly impregnated, their calves taken away and slaughtered, and they themselves slaughtered when their production drops.

To be sure, some Hindus, Hare Krishnas, Jains, and others attempt to consume only “ahimsa milk,” taken from cows who are permitted to retire rather than be slaughtered, and whose male offspring are put to work rather than turned into veal. But this practice is extraordinarily costly and has a greater adverse impact on the environment than even the very substantial adverse impact of conventional dairy farming. Moreover, India—the world’s leading producer of dairy—obtains the vast majority of its dairy products using conventional (i.e., cruel) means. The Maharashtra law does not forbid the consumption of all non-ahimsa dairy products.

But suppose that it did or, better yet, suppose that a state of India forbade the purchase and consumption of all or nearly all animal products. Would that law serve a secular purpose? It is easy to imagine how such a law could have a secular purpose in a U.S. state, a majority of whose citizens had come to see veganism as a moral obligation independent of any religious belief. But in a majority-Hindu state of India, things would not be so straightforward. Perhaps the (hypothetical) legal prohibition on the consumption of animal products would be traceable to the belief that all sentient beings are or could be the vessels for the reincarnated souls of human beings. If the voters’ concern for animal wellbeing were the product of this prophylactic concern for the souls of humans rather than for the wellbeing of the animals for their own sake, would that render the motivation impermissibly religious under Lukumi or the Establishment Clause? Obviously, Smith, Lukumi, and RFRA do not apply in India, but the Maharashtra law nonetheless sheds light on how we might want to think about such questions.

My inclination would be to distinguish between, on the one hand, laws that facially draw distinctions based on religion (as in Lukumi itself) or are motivated by animus against members (or non-members) of some religious group and, on the other hand, what we might call second-order religious motivation—i.e., circumstances in which people have religious views that motivate them to hold moral views that they in turn translate into law, where the moral views could nonetheless be supported on secular grounds alone.

Even if the only reason that a majority of some political community supports a law banning murder is that their holy book proscribes murder, the law banning murder should be regarded as religion-neutral. Likewise, I would want to say that in the hypothetical world in which a majority-Hindu political community supports legally mandated veganism on ultimately religious grounds (relating to reincarnation), they should be entitled to impose that law on religious dissenters, so long as the secular reasons for such a law are sufficiently compelling, as I believe they are but as most people apparently do not (yet) believe, to override the dissenters' objections.

Finally, it is worth emphasizing that even in my highly stylized hypothetical case, and especially in the real case, the problem is in some sense intractable, because of the tendency of religious views to overlap with moral views. The minority of Muslim, low-caste Hindu, and other citizens of Maharashtra who want to eat, buy, or sell beef or to slaughter cows, bulls, or oxen will not see any moral imperative behind the law that forbids them from doing so, and would not see the imperative in my hypothetical. They will see the law as simply imposing the majority’s religious beliefs on them (and in the actual case they will almost certainly be right about that). To bring the point home to the U.S., whether under Lukumi or RFRA, it will not be the people seeking to practice their religion in the face of a legal prohibition who judge whether the prohibition is justified. Whether there is a "compelling" interest sufficient to override the religious objection will almost invariably be determined by judges who hold views that align with the religiously influenced moral views of the majority.

Sunday, April 19, 2015

Charles Davenport, Rest In Peace

by Neil H. Buchanan

Chuck Davenport died last week.  I admired him greatly.  Chuck was the senior tax law professor at Rutgers-Newark when I was on the entry-level market for legal academics.  When I visited Newark for my job talk, Chuck came to the small dinner the night that I arrived, and I immediately knew that I had met a kindred spirit.  It was clear that we were politically similar (for example, he positively compared my thinking with that of John Kenneth Galbraith -- a generous compliment that would turn anyone's head!), but that was not what really mattered.  Chuck was just so easy to like.

Upon my joining the Rutgers faculty, Chuck agreed to be my official senior faculty mentor.  He had already become my mentor unofficially, so this really changed nothing.  Even so, it meant that he was willing to put his considerable reputation behind my emerging career, which changed things quite a lot.  After I left Rutgers, Chuck and I stayed in touch, getting together for a few lunches and dinners over the years.  He always asked to read the drafts of my latest work, insisting modestly that he probably would not understand it, but then offering extremely helpful insights.

Remembrances of departed law professors often focus on descriptions of high-impact scholarship, important cases argued and briefs filed, and so on.  This is important, especially when celebrating people who have devoted their lives to improving the world through that kind of work.  As important as that is, however, I will leave it to others.  The most important thing to remember is that the departed were first and foremost people.  Chuck was a person, a human being, a mensch.  He cared deeply about social justice as a legal and academic matter, but he also cared about being kind, friendly, and helpful.  He was understated and funny, with a dry sense of humor and a twinkle in his eye that always let people know that he was happy to be spending time with them.  He never took himself or the world too seriously.

Charles Davenport mattered in people's lives.  Wherever he was involved, he made things better.  He was modest, and he helped others.  He was a good man, and I wish that he was still in our world.