Wednesday, April 01, 2015

Cassell and Dershowitz to Settle Grudge in MMA Match

by Michael Dorf

Legal scholars and tabloid readers alike have been waiting for months to see what would come of a contretemps between two legal titans who, in early January, traded heated accusations of serious misconduct. Yesterday's news provided a partial answer. Emeritus Harvard Law Professor Alan Dershowitz stunned the blawgosphere when he announced on his Twitter page that he would go "mano a mano w/ soon-to-be-disbarred-hack Cassell in Caesars MMA match."

MMA stands for "mixed martial arts," sometimes known as "ultimate fighting" because the rules permit a variety of fighting techniques drawn from boxing, wrestling, and various martial arts such as karate, judo, and taekwondo. The fight will be held in Caesars Palace in Las Vegas on April 21 and televised on pay-per-view.

The immediate reaction was, naturally, eager anticipation, with commentators disagreeing about who should be considered the early favorite. "Although scrappy by anyone's standards," opined UCLA criminal law expert Eugene Volokh, "Dersh is over a decade older than [University of Utah Law Professor and former federal Judge Paul] Cassell. Plus, this is practically a home game for Paul. I mean Vegas is less than a one-hour plane ride from Salt Lake."

Still, it would be foolhardy to bet against Dershowitz. DoL caught up with his longtime Harvard Law School colleague Charles Nesson in a coffee shop in Amsterdam. "Alan is a fighter," he said, then paused for several minutes while staring intently at the backs of his hands. Professor Nesson finally added, "Alan is a fighter . . . dude."

NYU Law Professor Barry Friedman also expressed admiration for Dershowitz but disappointment that the fight will not occur in Madison Square Garden--which he called the "natural home of no-holds-barred pugilism." (Friedman has sued to invalidate New York State's MMA ban as a violation of the First Amendment.)

Already some observers are comparing the impending match to Ali-Frazier III (the "thrilla in Manilla") or, more ominously, to Hamilton versus Burr. But the matchup is nearly unprecedented.

Nearly. Harvard Law School Dean Martha Minow, who insists that she had no advance knowledge of Professor Dershowitz's plans for the match, explained that her predecessor now-Justice Elena Kagan would "from time to time wrestle faculty members" who were unhappy with their teaching schedule. "But only a few times," Minow hastened to add. "After Elena pinned [critical legal studies pioneer] Duncan [Kennedy] only 30 seconds into the match, people pretty much got the message that you teach your 9 am class and shut up or you could find yourself in the hospital." Asked whether Dershowitz might have gotten the idea for the MMA match from Kagan's approach to difficult faculty, Minow declined to comment further.

Likewise, neither Professor Dershowitz nor Professor Cassell could be reached for comment but nearly everyone with whom I spoke assumes that the MMA match arises out of the legal battle that erupted when Cassell, acting as an attorney, filed papers in a federal lawsuit seeking to vacate a 2008 plea agreement that Dershowitz negotiated for his client Jeffrey Epstein. In the course of arguing on behalf of one of the victims that Epstein's punishment was too light, the papers aver that Epstein forced minor girls to have sex with Dershowitz. Professor Dershowitz emphatically denies the allegations. (More of the backstory can be found here.) Because the accusations were made in court-filed documents, they could not be the basis for a defamation lawsuit by Dershowitz, but after Dershowitz publicly accused Cassell and his co-counsel of lying, they sued Dershowitz for defamation, providing him with his day in court.

The wheels of justice spin slowly, however, so that day will be a long time coming. Meanwhile, the MMA match provides for the possibility of instant closure. Indeed, according to a rumor that could not be verified before this post went up, the loser of the match will issue a public apology to the winner.

It is not clear why either man believes that victory in the MMA match would bring public vindication, given the circumstances of the apology it would occasion. University of Michigan Emeritus Law professor Yale Kamisar slyly speculated that Cassell--a persistent critic of the Supreme Court's landmark ruling in Miranda v. Arizona--might "think that kicking or punching an apology out of a 76-year-old law professor doesn't vitiate its probative value."

So far as Professor Dershowitz is concerned, victory--or even defeat--could bring some measure of satisfaction. As one of his junior colleagues who spoke with DoL only on condition of anonymity explained: "The MMA match can't fully restore Alan's personal good name but it will bring him something he values almost as highly: publicity."

Tuesday, March 31, 2015

Well That Was Fast: Kant; Bulgaria; Green Bag

by Michael Dorf

Yesterday I noted that Professor Orin Kerr had responded to the challenge posed by CJ Roberts and written the definitive article on The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria. Professor Kerr now informs me that this landmark paper will be published in The Green Bag. Readers familiar with the lightheartedness of that publication will recognize that this is a particularly appropriate placement, but they would be mistaken in thinking that Professor Kerr's article is unserious. It truly is the last word (albeit also the first word) on the influence of Kant on evidentiary approaches in Eighteenth Century Bulgaria. Congratulations to Professor Kerr on a job well done.

Does It Matter Whether Jeb Bush Is Pandering or Sincere?

by Neil H. Buchanan

A national controversy has erupted over Indiana's recent adoption of a state-level version of the Religious Freedom Restoration Act (RFRA).  Apple CEO Tim Cook, who recently came out as gay, wrote an impassioned op-ed in The Washington Post, describing the Indiana law as part of a "wave of legislation" nationwide that "would allow people to discriminate against their neighbors."  Cook described the law (and a similar one in Arkansas) as "say[ing] individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law."

The political comedian Andy Borowitz has been especially strong on this issue, penning fake news reports with the headlines "Indiana Defines Stupidity as Religion" and "Indiana Governor Stunned by How Many People Seem to Have Gay Friends."  The defensive response from Governor Mike Pence and his supporters has amounted to the claim that "there's nothing to see here," asserting that this is merely a law that would protect religious belief from intrusion by the state.

The satire just keeps coming, however, as The Onion published "Indiana Governor Insists New Law Has Nothing To Do With Thing It Explicitly Intended To Do," which concluded with a mock quote from Pence: " 'I want to reassure Hoosiers of all backgrounds that this law will never be interpreted in the way it was unambiguously designed to be from the very beginning.'  Pence further clarified that the act’s sole purpose was in fact to safeguard the free exercise of religion it was in no way whatsoever created to protect."

Pence, moreover, could not help but somehow try to connect this to the Affordable Care Act, which he claims "renewed concerns about government infringement on deeply held religious beliefs."  Given that the infamous Hobby Lobby decision should have put any such fears to rest (no matter how ridiculous or insincere those fears might have been), it is hard to see how this is anything but an "Obamacare tic," a default move by Republicans to somehow connect everything to a law that they are sure everyone hates (but is actually working quite well).

It is clear that Indiana's new law (and others like it now under consideration in Republican-led states nationwide) is designed to do something, and that something is quite obviously to provide business owners with legal cover to refuse to serve gay people.  It is heartening to see the strong national reaction against the Indiana law, with businesses and other groups (including the NCAA, which is based in Indianapolis) coming out strongly against Pence and his disingenuous defense of the law.

In the remainder of this post, I want to focus on the reaction among Republican politicians, in particular soon-to-be-presidential-candidate Jeb Bush, to the Indiana controversy.  Bush, of course, is the supposed moderate in the race, and he is apparently trying to win the nomination not by pandering to the seething right-wing base of his party (contrary to Scott Walker, Ted Cruz, and in fact almost every other potential candidate) but rather by expanding the range of people to whom his party could appeal.

A month or so ago, Linda Greenhouse wrote about how establishment Republicans have been privately happy that gay marriage is becoming politically passé, and that they are in fact looking forward to the Supreme Court's inevitable decision later this Spring in favor of same-sex marriage.  The thinking, apparently, is that Republican politicians can still, when necessary, mutter a few negative comments about activist courts and the sanctity of marriage, even as they are privately delighted that Republicans will not have to be publicly on the wrong side of history for much longer.  The thought is that the party can then begin to appeal to young people on other issues (although I honestly cannot figure out what those issues would be), as the old white people who constitute the party's base move on to their reward.

Greenhouse was incredulous: "You have to admire the chutzpah of party operatives whose national platform calls for limiting marriage to opposite-sex couples, and for whom denouncing 'judicial activism' is usually as natural as saluting the flag, lining up right behind the justices who they hope will relieve them of the pesky problem of choosing sides in a fast-fading culture war."

The point of Greenhouse's column, however, was that these Republican leaders were dreaming if they really thought that gay rights issues would fade away, because it was already clear that the crazy base was hard at work.  She described the Elane Photography case as "just the leading edge of a pipeline’s worth of cases in which florists, bakers and owners of wedding venues are invoking claims of conscience to shield them from having to do business with gay men and lesbians."

At this point, no one can predict just how far the crazies will push this issue and others like it.  And national Republicans will not be able to ignore what is going on.  As Greenhouse put it: "[I]t’s safe to predict that politicians will be confronting these issues under the glare of a public spotlight.  Republicans who expect the Supreme Court to give them a pass from having to take a stand are in for a rude surprise."

Which brings us to Jeb Bush.  My first thought was that Bush was precisely the person whom Greenhouse was describing, someone who would find the Indiana situation "a rude surprise," and who would do everything possible to change the subject.  Bush's "brand" supposedly requires him to avoid stepping into exactly this kind of quicksand.

Yesterday, however, Bush caved, reportedly telling a conservative talk radio host that the new law is "simply allowing people of faith space to be able to express their beliefs."  Weirdly, Bush claimed that "[t]here are many cases where people acting on their conscience have been castigated by the government," which is probably a dog whistle for some category of right-wing grievances of which I am blissfully unaware.  In any case, Bush tried to finesse the issue by describing this as entirely a matter of being "tolerant" but allowing religious people to practice their religion.

Again, this is all rather surprising.  Why would Bush weigh in at all?  Even if he was directly asked the question by a conservative interviewer, surely Bush has the political savvy to say something noncommittal.  What was he thinking?  Three possibilities come to mind.

(1) Bush genuinely believes that this law is a good idea, and that it is necessary to pass such laws to protect religious people from persecution.  Much has been made of Bush's conversion to Roman Catholicism, and perhaps he is much more of a religious zealot than his faux-moderate image suggests.  In that case, his handlers have a problem, because his viability as a candidate in the general election explicitly is predicated on his not being a religious extremist.  The more it appears that he is just as extreme as the other Republican candidates, the more difficult it will be to deny that his political strategy involves using his name and connections to strong-arm the nomination, denying it to people with whom he actually agrees on hot-button, divisive (and broadly unpopular) issues.

(2) Bush does not think that laws like Indiana's are a good idea, but he thinks that supporting them is a small price to pay to get the nomination -- a price that does not risk undermining his image as the one non-extremist in a field of extremists.  If that is his thinking, then he would have to imagine that neutralizing this kind of thing in March 2015 will allow him to move onto other issues, leaving behind the divisive culture war stuff.  As Greenhouse's analysis suggests, however, such a hope on Bush's part is based on the expectation that cauterizing this bleeder will be the end of the problem, whereas the one thing we know for sure is that the Republicans who run about two-thirds of the state governments in the country are only getting started.

(3) Bush understands that this is a terrible and unnecessary law, and he is privately imagining the horrible things that he would like to do to Governor Pence (who, after all, was one of the most "out there" cultural conservatives when he served in Congress, in the same category as Steve King, Michele Bachmann, and Louie Gohmert).  Bush might, however, simply now understand that the establishment wing of the party has a tiger by the tail, and that even he has no choice but to adopt positions that are rejected by corporate CEOs, chambers of commerce, and other groups that are long-time allies of the Bush family.

Back in the Spring of 2011, when it had become clear that the then-new Republican majority in the House was willing to threaten economic Armageddon in the pursuit of anti-government extremism, I wrote a post here on Dorf on Law titled "Is This Why They Bought Congress?"  I suggested there that the businesspeople who poured money into Republican coffers must surely have been dismayed by the recklessness of the congressional majority that they had so happily purchased.  Four years later, it is difficult to believe that Jeb Bush or anyone else could really be surprised that the party's base is willing to push every extreme measure that they can imagine.  But it is at least possible that Bush is in the early stages of learning that there really is no way both to win the nomination of his party and still win the general election.

In any event, if I were a Democratic political advisor, this would be one of those weeks where I really loved my job.

Monday, March 30, 2015

The State SSM Respondents Double Down on Narrow Tradition

By Michael Dorf

The state briefs in the pending SSM cases have been filed by the representatives of KentuckyMichigan, Ohio, and Tennessee. They include a predictable mix of three arguments: (1) restricting marriage to heterosexuals serves the rational, non-animus-y interest in addressing the evils of accidental procreation; (2) changes in the institution should come, if at all, through democratic means; and (3) the traditional institution of marriage does not encompass same-sex couples. Needless to say, I'm not persuaded, and I very much doubt that the SCOTUS will be. But prompted by the particulars of the state briefs on point (3), I want to note a very brief follow-up to my March 16 post  regarding the brief that Professor Tribe and I submitted, in which we argue that, in addition to striking the challenged laws on equal protection grounds, the Court ought to strike them on the ground that they violate the fundamental right to marriage.

All four of the state briefs cite Washington v. Glucksberg for the proposition that the Court must be careful in how it defines the fundamental rights it recognizes. That's fair enough, I suppose. Not only Glucksberg but other cases as well describe the enterprise of recognizing fundamental rights as rooted in history and tradition. But what the state respondents apparently mean is something more radical: That the plaintiffs' claim should be rejected because the right to marriage traditionally did not include the right to same-sex marriage.

Glucksberg does not authorize the maneuver attempted by the state respondents in the SSM cases. In Glucksberg, the plaintiffs sought a right of the terminally ill to assisted suicide. The Court rejected that formulation as too narrow, substituting instead a broader formulation (which the Court then rejeted). Chief Justice Rehnquist wrote: "the question before the Court is more properly characterized as whether the 'liberty' specially protected by the [Due Process] Clause includes a right to commit suicide which itself includes a right to assistance in doing so." That is nearly the opposite of the move the state respondents urge in the SSM cases: characterizing the right as too broad, substituting instead a narrow formulation (which they urge the Court to reject).

The idea that the asserted right should be narrowed and then compared with historical traditions was expressed most clearly by Justice Scalia, but only for himself and the late CJ Rehnquist, in footnote 6 of Michael H. v. Gerald D. The Ohio brief cites that footnote once for another proposition and also cites another footnote of Michael H., carefully avoiding expressly relying on footnote 6--but the care is unavailing because it's obvious that Ohio and the three other state respondents in fact are making the footnote 6 argument. That argument has been repeatedly rejected by the full Court, as Professor Tribe and I note in our brief.

But we're hardly the only ones to note in the context of marriage that the Court's precedents reject reliance on tradition narrowly defined. As Judith Schaeffer explained on Slate last week, then-Judge John Roberts said the same thing at his SCOTUS confirmation hearing.

Prof Kerr: Consider Yourself Halfway to a Laudatory Mention

by Michael Dorf

Last December, in the course of reporting on the anti-intellectualism of various members of the Article III judiciary (both liberal and conservative), I promised a "laudatory blog post for anyone who gets a U.S. law review to publish an actual article on Kant's influence on 18th Century Bulgarian evidence law." Professor Orin Kerr has now written the (understandably extremely short) article, but so far as I know, has yet to have it accepted for publication in a law review. I'll update with the full laudatory mention if and when that happens. (And no, this is not an early April Fool's post.)

Pregancy Discrimination

by Michael Dorf

Last week's SCOTUS decision in Young v. UPS featured an interesting disagreement about the scope of the Pregnancy Discrimination Act (PDA) between the majority--Justice Breyer, writing for himself and Justices Ginsburg, Roberts, Sotomayor, and Kagan, with Justice Alito concurring in the jugdment--and the dissent-- Justice Scalia, writing for himself and Justices Kennedy and Thomas. At issue was the second clause of the PDA. The first clause defines discrimination on the basis of preganancy as sex discrimination, and everyone agrees that this clause bars intentional discrimination on the basis of pregnancy. The second clause adds: "and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . .  as other persons not so affected but similar in their ability or inability to work . . . ." The dissenters thought that this provision merely clarifies the anti-discrimination norm, whereas the majority thought it went beyond, requiring accommodations even absent discriminatory singling out of pregnant women in some circumstances.

My view, for what it's worth, is that in some sense both the majority and the dissent are right. The second clause clarifies, but what it clarifies is that some job criterion can be discriminatory against women or pregnant women even though the criterion doesn't neatly place everyone into either the male or female category, or the non-pregnant or pregnant category.

As both Justice Breyer's majority and Justice Alito's concurring opinion illustrate, the fact that discrimination can be a matter of degree rather than simply on/off calls for some difficult judgments. What happens when, as in Young itself, the employer provides accommodations to some people who are similar in their ability or inability to work as pregnant women, but doesn't provide accommodations to other pepole who are similar, and doesn't provide accommodations to pregnant women, albeit on the basis of some broader supra-category that includes pregnancy but is not pregnancy itself. (UPS accommodated workers with lifting restrictions who were injured on the job, who were entitled to an accommodation under the Americans With Disabilities Act, and those who had lost their Dept of Transportation certificates, but not other workers with lifting restrictions.)

It's worth noting how Young provides an echo of the circumstances that gave rise to the PDA itself. We have a PDA because of the mid-1970s Supreme Court's extreme formalism with respect to the relation between pregnancy discrimination and sex discrimination. In 1974's Geduldig v. Aiello the Court ruled that under the Equal Protection Clause discrimination on the basis of pregancy is not tantamount to sex discrimination because the former distinguishes between "pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes." In 1976, the Court applied the same "logic" in General Electric Co. v. Gilbert to hold that pregnancy discrimination is not sex discrimination for federal statutory purposes. Because Geduldig was a constitutional holding that has not been overruled, it remains the law, but Gilbert was superseded by the PDA.

The argument accepted by the dissenters in Young provides an echo of Gilbert because it too sounds in formalism. UPS isn't discriminating on the basis of pregnancy, the company argued and the dissenters agreed, because UPS distinguishes not between pregnant and nonpregnant persons but between, on the one hand, those pregnant women with lifting restrictions and other workers with lifting restrictions due to circumstances that do not fit within the three favored categories, and, on the other hand, workers with lifting restrictions due to circumstances that do fit within the three favored categories.

To say that the dissenters echo Gilbert is not to say that they are necessarily wrong (although I do think they are wrong). Even the majority Justices were unwilling to say that disadvantaging pregnant women relative to any other workers with similar disabilities--what Justice Breyer called a "most favored employee" apporach--is required by the PDA. But just because the disadvantaged group is part of a larger disadvantaged group that is not defined by pregnancy does not mean that the employer hasn't violated the PDA.

The majority in Young says that a PDA violation will be found under the second clause of the PDA where--in response to a prima facie case by the plaintiff--the employer fails to come forward with a pregnancy-neutral reason (other than cost or convenience) for failing to give pregnant employees the same accommodation as non-pregnant employees who are similarly situated w/r/t their ability or inability to work. To my mind, this is a sound result but the point I would emphasize even more than that is that the majority, like the dissent, ends up reading the PDA's second clause as an elaboration of the anti-discrimination principle articulated in the first clause.

However, the majority has a more expansive conception of discrimination and how one proves it than does the dissent. Indeed, in prior opinions both for the Court and for himself Justice Scalia has strongly resisted any suggestion that an anti-discrimination norm can be advanced by any notion of disparate impact. Note too that while Justice Breyer's majority opinion in Young distinguishes between disparate-treatment and disparate-impact causes of action per prior case law, the actual holding inevitably posits a relation between the two.

Friday, March 27, 2015

Gridlock and Purposivism in Statutory Interpretation

by Michael Dorf

On Monday, Justice Kennedy sent the blawgosphere into a bit of a tizzy when, in the course of testifying before the House Appropriations Committee, he answered a question about statutory interpretation by saying the following:
We routinely decide cases involving federal statutes and we say, "Well, if this is wrong, the Congress will fix it." But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes . . . . That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of . . . government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.
That statement was tizzy-inducing because it can be read as bearing on King v. Burwell, in particular, to an exchange between Justice Scalia and Solicitor General Verrilli. In response to the suggestion by Justice Scalia that Congress can always fix the ACA if it turns out that reading it to make subsidies unavailable on federal exchanges, SG Verrilli expressed extreme skepticism that "this Congress" would do so. Justice Scalia, either feigning or displaying ingenuousness, then indicated that any Congress would fix a serious problem. Justice Kennedy may not have been referring to King but if he was, that looks like bad news for the Obama Administration.

To be sure, as I have previously noted, there are at least four ways to get to a government win--none of which requires making any assumptions at all about gridlock. The Court could find that: (1) based on the overall language and context, the ACA as a whole is best read to allow subsidies; (2) the statute is unclear but the Administration gets Chevron deference; (3) the statute is unclear and thus fails the clear statement requirement for conditional spending under South Dakota v. Dole; or (4) the statute is unclear and thus the canon of constitutional avoidance should be invoked to prevent a construction that would potentially violate the constitutional limits on conditional pre-emption. None of these paths depends at all on any view about the consequences of gridlock for statutory interpretation.

Moreover, even if the Court were to give some weight to the fact of gridlock in construing unclear statutes, such a consideration would not likely be more powerful than considerations (2), (3), and (4) listed above. And for that reason neither the government nor its amici affirmatively invoked gridlock as a reason why the Court ought to rule for the government. Put differently, Justice Kennedy might think that gridlock is an insufficient basis for ruling for the government but that one of the other grounds is sufficient.

But even if not, it's worth noting that the view underlying Justice Kennedy's statement actually supports a win for the government in King. Assuming that Congress is well functioning and committed in good faith and with good will to solve problems is practically the credo of purposivist statutory interpretation. As Hart & Sacks famously put the point in the 1950s (with the sexist language of the era): "The statute ought always to be presumed to be the work of reasonable men pursuing reasonable purposes reasonably, unless the contrary is made unmistakably to appear."

As an aside, it's worth noting that although this language is frequently quoted as reflecting the views of Hart & Sacks, it appears in a list of propositions about statutory interpretation, with the entire list prefaced by the following question for the reader: "Are the following conclusions well founded?" But I pass over the point here because I'm less interested in elaborating the views of Hart & Sacks than in describing purposivism.

The crucial point is that someone who assumes that Congress was acting reasonably would look at the ACA as a whole and would find therein no unmistakeable evidence that Congress wanted to send state private health insurance markets into a death spiral. Thus, to the extent that Justice Kennedy was articulating a general philosophy of statutory interpretation, it's one that supports the government's position.

But suppose that Justice Kennedy concludes either that the statute unmistakably requires the unreasonable conclusion that there are no subsidies on federal exchanges or that he thinks that such a result is not in fact unreasonable. What about his further claim that the Court ought not take account of gridlock? To put the question as provocatively as I can: If the Court is willing to assume, sometimes counterfactually, that Congress was acting reasonably when the Justices try to make sense out of the statutes Congress enacted, why shouldn't the Court also assume, sometimes counterfactually, that Congress will act reasonably by enacting new legislation to correct any problems created by a judicial interpretation of the existing law?

The answer, I think, is that the counterfactuals are of a different character. Assuming that Congress consists of reasonable people when it in fact includes a considerable number of maniacs is a way for the Court to show respect for a coordinate branch and thus for the democratic process. By contrast, one need not assume away gridlock in order to show respect for Congress because gridlock is a structural feature of our constitutional system, rather than simply a product of bad faith and partisan hackery. As I discussed in my column and post on Wednesday, gridlock is a consequence of having multiple "veto players" who can block legislation.

Thus, one can make respectfully counterfactual assumptions with respect to Congress and still take account of gridlock.

Let me elaborate by juxtaposing two possibilities. An honest opinion along the lines Justice Kennedy may have been hinting at might go like this: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because Congress is controlled by Republican ideologues who would rather see millions of people lose their health insurance than improve a law that they associate with a Democratic president who they (and/or much of their core constituency) regard as a socialist-atheist-Muslim-dictator-traitor. Thus, we must creatively construe the ACA to protect the country against a calamity that our crazy, craven Congress would welcome.

One can see how such an opinion would be less than fully respectful of a coordinate branch. However, it would also be possible to write the opinion in the following, more respectful way: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because the Constitution, by deliberate design, makes lawmaking difficult, and there are deep divisions among elected officials that render it unlikely that a coalition would emerge for a legislative fix. Thus, we must construe the ACA according to the reasonableness assumption in order to preserve and protect the output of the arduous lawmaking process.

Thursday, March 26, 2015

You Can't Fix This Stupid Law

by Neil H. Buchanan

In my new Verdict column, published today, I continue a discussion that I began two weeks ago in a Verdict column and its associated Dorf on Law post.  In those earlier pieces, I discussed whether the debt ceiling statute, and the constant threat of a constitutional violation that the mere existence of the debt ceiling creates, requires a president to engage in executive actions designed to delay as long as possible a potential drop-dead date.  The politically salient part of the analysis was that those executive actions would most definitely include large increases in tax collections, which is hardly what the Republicans who love to use the debt ceiling for bargaining leverage would find appealing.

Today's Verdict column begins by noting the various ways in which a president would be compelled to act, if he wished to avoid being guilty of failure to prevent a default or other constitutional violation.  The new, main point of the column is that these executive actions are not merely politically unappealing to the party of "no new taxes," but that they would remove an important aspect of modern legislating, an aspect on which both parties have long relied: regulatory gap filling.  Congress, for good reasons and bad, finds it difficult or impossible to anticipate every possible situation that could arise under a law, which leads it to write laws in a way that the executive branch can later interpret via regulatory guidance (and, inevitably, prosecutorial discretion).

All such executive actions, however, have revenue and spending implications.  If the president must avoid/delay a debt ceiling crisis by doing everything possible to spend the minimum and collect the maximum dollars authorized by Congress's laws, then he has effectively lost the discretion that Congress otherwise would seem to have bestowed upon him.  Every executive action, under this line of thinking, would need to be deficit-minimizing, even if doing so were wholly inconsistent with congressional intent or simply good policy making.

Of course, one way for Congress to avoid these unintended consequences would be to stop writing laws that grant executive discretion in the first place.  In some circumstances, I think that would be a good idea.  For example, the Dodd-Frank financial reform act left far too many aspects of the law to be filled in by executive rule-making, an arena in which Wall Street has far too much influence.  More than four years later, there are still important regulations under that law that have not been promulgated.  Even so, there is nothing in the Dodd-Frank experience that says that it is generally desirable -- or even possible -- for Congress to write laws in a way that calls for no further executive discretionary actions.

But the other way for Congress to ensure that the debt ceiling statute does not create perverse results and unintended consequences is ... wait for it! ... to repeal the law.  To paraphrase Chief Justice Roberts: "The way to stop having debt ceiling crises is to stop having a debt ceiling."  In today's Verdict column, I argue that there is nothing good about the debt ceiling, responding to those who claim that the statute has been a "useful" way to focus Congress's attention on deficit and debt issues.  My argument there was that the downside risk is simply too horrific to justify whatever mind-focusing benefits debt ceiling standoffs might provide, especially because the annual budgeting process already gives Congress ongoing opportunities to achieve whatever changes in fiscal policy that it wishes to achieve.

The next step of the analysis, however, would be to ask whether there are ways to "mend, not end" the debt ceiling that would somehow preserve the purportedly good things about the debt ceiling without threatening global economic collapse.  As it happens, one of the many astroturf deficit-scold groups has used the recent return of the debt ceiling to propose various ways to change the debt ceiling, so that it could help the world fight the oh-so-awful deficit/debt situation in the United States.  Because this group is indistinguishable from any of the other astroturf deficit-scold groups that litter the DC landscape, I will not use its official name here.  Instead, I will simply refer to it as the GDHC, for Generic Deficit Hyperventilation Committee.

Most of these groups, and certainly the GDHC are directly or indirectly funded by one obsessed billionaire, who has spent years and millions of dollars sowing deficit panic to justify attacks on Social Security and Medicare.  That these groups insist on ignoring reality about the U.S. fiscal situation, and in particular that they reflexively reject all good news on the subject, is a symptom of that obsession.  But I digress.

Notwithstanding the GDHC's obvious bad faith, I have to give them credit for acknowledging just how bad it has been for Republicans to threaten default via debt ceiling showdowns.  The problem is that they seem to think that it is possible to fix an unfixable law.  What is especially interesting about their list of proposed fixes is that each of them either relocates the same problem to a different, but equally damaging point, or they amount to implicit repeal of the debt ceiling.

On the latter point, consider the suggestion to "[i]ncorporate the debt limit into Congress’s fiscal decision making," which they suggest can be achieved in three different ways. Yet each of those suggestions -- "Automatically increase the debt limit upon passage of budget resolution," "Require reconciliation instructions to increase the debt limit to accommodate debt levels in the budget resolution," and "Require legislation with significant net costs to include an increase in the debt limit" -- are merely variations on the so-called Gephardt Rule, which simply negated the debt ceiling statute by making the limit comport with the borrowing implied each time that Congress enacted spending and taxing laws.

The other suggestions, whatever their other merits, simply miss the mark.  For example, GDHC suggests that the debt ceiling be tied to "more meaningful economic measures" by either "[s]ubject[ing] debt held by public instead of gross debt to the debt limit," or "[i]ndex[ing] the debt limit to GDP growth, effectively capping debt-to-GDP."  Although I have frequently commented on the particular absurdity of using gross debt as the target in the debt ceiling statute, neither of these solutions solves the real problem.  Even if the ceiling were set as a matter of debt-to-GDP, there will still be times when that limit would be reached.  In fact, if we were at that limit when any kind of adverse fiscal shock happened along, the legally required result would be to engage in measures that would make the economic downturn worse.

Easily the worst idea, however, is to "[a]pply the debt limit to future liabilities and unfunded obligations."  Last year, in a series of posts here on Dorf on Law (last post here, with links to the earlier posts therein), I noted the craziness involved in so-called Generational Accounting.  Even if one were to disagree with some of my particular critiques of that infinite-future-term accounting method, we know for sure that the state of the art in long-term forecasting is nowhere near good enough to provide a meaningful guess about future liabilities and unfunded obligations.  In fact, the guesstimates offered by proponents of that method of accounting jump around constantly, changing by trillions of dollars in response to changes in various assumptions about economic variables.

Perhaps the most generous thing that one can say about the GDHC's list is that they could be providing a fig leaf to allow Republicans to back away from the debt ceiling law without admitting that they are doing so.  There will surely never come a day when Republicans in Congress will vote simply to repeal the debt ceiling, so if merely relabeling the Gephardt Rule the "new-and-improved end of debt for the good of future generations debt limit statute," then maybe they will vote for it.  Based on the GDHC's track record (and that of its sibling organizations), I doubt that they are thinking about it in that way.

In any event, nothing on the GDHC's list suggests that there is a good version of a debt ceiling statute, or even a better version.  The only good things on their list are tantamount to repeal.  Which is precisely the point.

Wednesday, March 25, 2015

How Biased Towards Libertarianism is the US Constitution?

by Michael Dorf

My latest Verdict column discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner.

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.

I suggest at the end of the column that all is not lost for liberals, however, because multiple veto gates make it difficult to change the status quo, so that when progressives do manage to secure legislation that advances their agenda, conservatives will have a difficult time repealing it. And indeed, as I note in the column, that is how things have worked out over the last 35 years or so. With the exception of AFDC—which was “reformed” by a Democrat—the key elements of the social safety net adopted by the Democratic coalition during the New Deal and Great Society periods—Social Security, Medicare, and Medicaid—remain.

But I do not want to appear Panglossian. The fact of multiple veto players in the U.S. constitutional system does not merely exert a status quo bias. It exerts an anti-regulatory bias. The reason is that much of what progressives want requires annual appropriations and executive energy. It is notable that each of the programs mentioned in the last paragraph is an “entitlement” in the sense that Congress need not vote for new funding each year in order to sustain it. And while there is some bureaucracy associated with these programs (e.g., to determine eligibility for Social Security disability or to oversee reimbursements), the basic role of the federal executive for each is cutting checks.

However, much progressive legislation does not take the form of entitlement spending and is thus vulnerable to the anti-regulatory bias of multiple veto players. For example, a determined conservative Congress--or just a conservative blocking coalition in Congress--can severely undercut statutes aiming at environmental protection or preventing and remedying housing discrimination without repealing those statutes simply by failing to fund the relevant enforcement mechanisms annually. Likewise, a determined conservative president can exercise prosecutorial discretion and otherwise enforce regulations less than fully vigorously.

In recent years, non-defense discretionary spending has been about 17% of all federal spending, whereas entitlements have accounted for about half of federal spending. Or in crude terms, that means that about three out of every four "progressive" dollars the government spends is largely protected against the libertarian bias of our multi-veto-player system. Actually, the fraction is substantially larger even than that, because much of the non-defense discretionary spending is on things like transportation, international relations, and other matters that are not regulatory at all, much less progressively regulatory. We need not get bogged down in accounting conventions, however, to say with confidence that a very large majority of progressive federal dollar spending is in entitlement programs that are largely immune from the multi-veto-player libertarian bias.

That would be generally good news for progressives if the only point of government were to provide a social safety net. But of course the goods produced by different kinds of government programs are often not substitutable in any meaningful sense. Yes, (somewhat) progressive tax rates and Social Security get locked in by the multi-veto-player nature of the U.S. government, but so does protection against needed regulation for politically well-connected multi-billion-dollar industries.

Indeed, focusing on the veto-player-protected entitlements misses the fact that the smaller dollar figures at stake for non-defense discretionary spending are themselves partly the product of the veto-player phenomenon. In our system, it is extremely difficult to generate and sustain the political will necessary to regulate, rather than simply to tax and transfer. Of course, I'm not saying that it's easy to enact tax-and-transfer programs. But given that such programs have staying power, it is easy to see why progressives have tended to focus what political power they have on enacting such programs.

Finally, this analysis suggests that criticism of President Obama for "wasting" so much of the first half of his first term on the ACA is short-sighted. A Democratic president who wants to do lasting good sensibly focuses his domestic policy agenda on enacting or expanding entitlements. Whether Obama ends up having succeeded will depend ultimately on a factor beyond his control: Whether the SCOTUS--which, in truth, is yet another veto player in our system, guts the ACA in King v. Burwell. (I discount the possibilty that a future Republican president would be able to undo the ACA by purely executive action, although that would be a live issue were the Court to uphold federal subsidies in King via Chevron deference, as I've noted before.) 

Tuesday, March 24, 2015

Discussing U.S. Debt in Putin's Newspaper

by Neil H. Buchanan

Having frequently complained about the low quality of the U.S. media (as recently as four days ago, in fact), it is worth pondering whether the media from other countries are equally bad, or worse.  My best interviews have been on the BBC and Al Jazeera, whereas easily the worst interview I have ever seen -- much less participated in -- was on CNN.  (The CNN interview was so bad, in fact, that it was never aired, because the reporter simply did not understand the issue well enough even to ask coherent follow-up questions.)

That most definitely does not mean that all foreign news sources are of equally high quality.  Vladimir Putin apparently imagines the day when a Russia-based news agency will be a significant force in international news coverage.  I was recently contacted by something called Sputnik News.  A very cursory search on the web suggests that this is a recently renamed news agency (formerly RIA Global, or something like that), which clearly intends to hold itself out as a professionally run news source.  It is, however, a creation of the Russian government, so far as I can tell.  For example, when I checked their website a few moments ago, the banner across the top read: "West needs puppet in Moscow to free up Russia's natural resources."  Draw what conclusions you will.

In my case, the issue at hand was not something that Russia or Putin (the two of which might now be functionally the same thing) would seem to care about: the U.S. debt ceiling.  A few days ago, apparently in response to news of the reawakening of the debt ceiling statute,  I received a list of questions from a very nice Sputnik News reporter.  I responded, and some of my answers were included in "Raising US Debt Profitable Economically, Unfavorable Politically - Experts."  It is a very short piece.  For entertainment purposes, if nothing else, I highly recommend reading it.

I should not be too hard on the Sputnik News reporter.  English is not her first language, and she appears to be rather new to her job.  She did not appear to bring any bias to the piece, but rather she had picked up the usual confusions about the debt ceiling. So, for example, after asking, "What are the possible consequences of US Congress not raising US debt ceiling?" her next question was: "Is another shut down looming?"

That confusion is hardly unheard of in the U.S., of course.  Indeed, because the debt ceiling deadline was looming during the October 2013 government shutdown, I ended up writing two Dorf on Law posts (here and here) untangling the differences. (Revealingly, the first of those posts was titled: "What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling?")  Although the difference between a debt ceiling showdown (constitutional catastrophe) and a government shutdown (policy mess) could not be more stark, even U.S.-based reporters get that one wrong all the time.

The next move was similarly familiar, but more jarring.  After asking about the "extraordinary measures" that the Treasury is now using to avoid default and other reasonable questions, I was surprised that the reporter ended the questions with these two: "What should the US government do to decrease the debt? Is it possible to decrease it at this point altogether?"

Because the level or growth of the debt are really not what is at stake in the debate over the debt ceiling, these questions are really beside the point.  Therefore, I responded by explaining why there is no good reason for the U.S. government (or, for that matter, any well-run business) to try to eliminate or even reduce its debt.  Again, that argument would be the same even if there were no debt ceiling statute, but in this context, it was a point that obviously needed to be made.

To her credit, the reporter responded by changing what was apparently going to be the focus of her story.  What she wrote is really a story about whether debt and deficits are good or bad, not about the consequences of Republican hostage-taking via the debt ceiling, or about President Obama's options if the Republicans fail to increase (or suspend, or repeal) the debt ceiling this summer.  The title of the article itself makes this clear: "Raising US Debt Profitable Economically, Unfavorable Politically - Experts."

What is especially interesting, however, is what the other "experts" said about debt.  After accurately quoting my comments, the reporter quoted an applied economist for the proposition that, "[p]olitically, it is not a good thing to be running up debt on a sustained long-run basis."  Why?  While not quoting her source directly, the reporter descibed the source as saying that raising the federal debt limit is "malpractice."  Note that, if this is an accurate quotation, the source himself confused "debt limit" with "debt," which is a rather revealing error.

But in any event, why would increasing long-run debt amount to political malpractice?  "[B]ecause it allows the political class to borrow and invest funds at present that are not being timely paid for."  Then another direct quote: "They [US government] are getting something supplied but they are not having to pay 100 percent. Somebody else in the future is going to pay for it."

The third "expert" was a spokesman for a right-leaning DC think-tank.  Although his comments were more measured, he argued that it is "probably not" fiscally responsible to increase the debt limit.  Saying that debt accumulation is a bad thing, this supposed expert then said, "We are spending this year, for instance, a half trillion dollars more than we are bringing in in revenues, and that is problem."

The Sputnik News reporter can certainly be excused for not knowing enough about U.S. fiscal policy to follow up on these blatant misrepresentations, but these quotations do tell us that the state of understanding among supposed American experts is shockingly bad.  The quoted economist uses the debt ceiling to rant about "the political class," falling back on the most tired claims about future generations having to pay for the debt.  "They" (the political class) are getting something for nothing.  It is not even, mind you, the recipients of the government programs that are financed by borrowing who are benefiting, but the politicians themselves.  And, of course, it is not even conceivable to the supposed expert that the government can invest funds in a way that pays those future generations in higher incomes and higher revenues.

Meanwhile, the think-tank guy acts as if a $500 billion deficit is still a big thing, when the 2015 deficit (actually projected at $468 billion) is only 2.6% of GDP.  The numbers have come down so dramatically in recent years that the deficit-scold organizations have been frantically issuing press releases saying, as Jonathan Chait described it last fall, "Pay no attention to the falling deficit!"

I pity anyone who tries to understand the U.S. fiscal debate, given how much nonsense is out there.  Economics continues to be used as a way to dress up the most crass anti-government prejudices, and numbers can always be quoted out of context to twist reality.  I guess I will have to satisfy myself that I am on the record saying this: "There is no good economic reason why the debt should not go up."  Well said, Professor Buchanan.  Sure, it is a double negative, but well said.