Friday, December 31, 2010

Thursday, December 30, 2010

Premature Bipartisan Proclamations

By Mike Dorf

It is tempting to view the modest but real accomplishments of the lame-duck session of Congress as heralding a new era of bipartisanship.  And sure enough, both center-right and center-left pundits (e.g., Ross Douthat and Thomas Friedman of the Times) have recently succumbed to just that temptation--with each adding that it's easier to compromise on cutting taxes and spending money than on raising taxes or cutting budgets.  I think this view misreads the core dynamic at work in the lame-duck session.

Given the obvious parallel between the mid-term elections of 1994 and 2010, the Obama White House has been looking to Bill Clinton's example as a roadmap to governing and to winning re-election in 2012.  It is hard to know exactly what aspects of the Clinton playbook the Administration will borrow, just as it is hard to know to what extent the Republican leadership will deviate from the quite unsuccessful Gingrichian approach.  But here's an important point to keep in mind amidst all of the triangulating, calculated confrontations, and compromising: The Republicans' most aggressive moves against President Clinton occurred after his 1996 re-election, at a point at which the failure of the Gingrich strategy was already obvious.  What is the evidence that Republicans have reassessed?

One possible answer is that John Boehner is not Newt Gingrich.  Quite the contrary, Boehner was one of a small number of Republicans who tried to oust Gingrich from the Speaker's chair in 1997, having seen how poorly his style had played.  Boehner undoubtedly believes that he long ago absorbed the lessons of the Clinton/Gingrich confrontation and will not repeat Gingrich's errors in dealing with Obama.

Perhaps, but color me skeptical.  For one thing, although Boehner is clearly part of the Republican establishment, he and the GOP more broadly cannot afford to alienate the incoming Tea Partiers, for whom compromise with Democrats is largely anathema.  For another thing, even the pre-Tea Party GOP was strongly inclined towards confrontation with--or at least rejection of nearly everything favored by--Obama.  They didn't have the numbers in the House to make a difference but in the Senate they played their weak hand very effectively, albeit cynically: voting no on cloture, then accusing Democrats of not accomplishing anything despite their majority status.

So, what do we make of the breakdown of that strategy during the lame-duck session?  To my mind, it is probably not a harbinger of greater bipartisanship but more likely the opposite: The remaining GOP moderates saw the lame-duck session as their last chance to enact desirable measures before the arrival of a very conservative Congress with virtually no inclination towards bipartisanship.

Wednesday, December 29, 2010

What Matters Most?

-- Posted by Neil H. Buchanan

This is my final post of 2010. Reflecting on the year, I am genuinely surprised by how much of my time here on Dorf on Law (as well as on FindLaw) was spent discussing government budgetary issues. Yes, that is my main area of professional interest; but even I would never have imagined that there could have been so much to say about these issues. Unfortunately, there is no shortage of misunderstanding (and worse) about the government's finances; and during a time of severe economic upheaval, the craziest and silliest ideas can gain a foothold in the public's mind. It seemed necessary to respond ... and respond, and respond.

Even so, in the spirit of end-of-year musing, I have recently wondered what, among the issues that I write about, truly matters the most. If I could be the proverbial "king for a day," what is the one thing that I would change or fix? One way to answer that question is to engage in a simple exercise in revealed preference: What I write about most must be what I care about most. Upon reflection, however, I do not think that is true. Allow me to explain.

The single issue about which I write most often is Social Security. In addition to my DoL/FindLaw writings and my other articles on the subject, I have spent a lot of time in 2010 developing two law review articles: "Social Security is Fair to Future Generations," and "Proposed Changes to Social Security Would Be Unfair to Future Generations." I hope to finish the first article early in 2011, and the second later in the year. I have also toyed with the idea of writing a book about Social Security. (Now that's original!)

Obviously, I would not write so much about Social Security if I did not think it was extremely important. It is the most successful social program in history, a triumph of the much-maligned idea of good government. Opponents of the system consistently misunderstand and/or misrepresent the finances of the program, putting the program at constant risk of being fatally altered. The demise of Social Security -- that is, the demise of a system of shared responsibility for retirement -- would be a huge setback to the ever-declining fortunes of the middle and lower classes in this country.

It is tempting, therefore, to put Social Security at the top of the king's to-do list.

Health care reform is another candidate for regal action. While the finances of the Social Security system are far too often wrongly characterized as being in crisis, health care really is a financial disaster -- for government, for business, and especially for real human beings. Tens of thousands of people die in the U.S. each year because they lack health insurance. Our accidental non-system of financing medical care encourages unnecessary care that actually makes people sicker, while denying care that would both be cheaper and improve the public's health.

Part of the problem in my musings lies in deciding just how much power the king can wield. "Fixing" Social Security is easy, because it is not broken. To do any long-term good, however, one would want to somehow fix people's misconceptions about Social Security, to put it safely out of the reach of both anti-government demagogues and confused reformers. Similarly, while the most obvious fix for the U.S. health care mess would be the adoption of a single-payer system, it is necessary to give the king enough power to keep the system in place for a number of years, and to successfully fend off the inevitable freak-out that would come from such a big change.

If we are really talking about changing fundamental attitudes, however, why not go to my most obvious area of disagreement with the current conventional wisdom: the federal deficit? If it were possible to get people to think more sanely about deficits and debt, a huge number of problems could be avoided. Social Security and health care would both be on much more solid political ground, because people would finally understand that Social Security is not part of any deficit problem, and they would see that fundamental health care reform is a path to improve fiscal outcomes. More broadly, it would be possible to invest in public goods in a way that is currently impossible. Education at all levels, clean energy technologies, modernized infrastructure, and so on, could all be responsibly supported in a world where people no longer viewed deficits as per se signs of the Apocalypse.

Nonetheless, I do not think that I would put improved understanding of government finances at the top of my list, either. Instead, the single most important issue is one about which I write only once each year: animal rights. I believe that the most good could come from changing the public's attitude about killing, torturing, exploiting, and eating animals and their secretions.

Again, this thought exercise is complicated by the question of how much power the king holds. If, after all, the king has the power simply to change human attitudes, these musings would simply devolve into the non-thought that "it would be nice if people stopped being mean." If one could stop people from being willing to harm animals, could one not also get them to stop murdering, raping, stealing, and doing everything else that makes the world fall so far short of Paradise?

Fair enough. Even so, there is significant good that could come from much more imaginable changes in policies regarding animal exploitation. Paul Krugman's column from earlier this week, for example, noted (almost in passing): "As more and more people in formerly poor nations are entering the global middle class, they’re beginning to drive cars and eat meat, placing growing pressure on world oil and food supplies." This is a rather depressing idea, suggesting that the desire to end human poverty is inextricably connected with the increased misery of billions of sentient beings.

This is also a rather simple demonstration of the fact that being a vegan is over-determined. That is, even if one can put the unthinkable cruelty involved in exploiting animals out of one's mind, economic concerns alone would be more than sufficient reason to move to a vegan world. And even if economic concerns are not persuasive, environmental concerns would be. Half of all climate changing emissions, after all, derive from the exploitation of animals for meat and dairy production. But even if the environment is not your "thing," then concerns over human health should be more than enough to push you into the vegan camp.

Which brings us back to health care, the deficit, and so on. Because the damage from exploiting animals is so vast and pervasive in our lives, even small changes (such as ending -- or merely reducing -- subsidies for meat and dairy production) would make an enormous difference to our health, our economy, and our environment.

Although debates regarding retirement, health care, and government finances are obviously hugely important, the inescapable fact is that a world that was even marginally less cruel to animals would see remarkable improvements in nearly all of the things that make life worth living.

Happy New Year.

Tuesday, December 28, 2010

Senator Specter's Notice Pleading Parting Shot

By Mike Dorf

In the waning moments of the recently-concluded lame-duck session of Congress, and in the waning moments of his remarkable Senate career, Senator Arlen Specter introduced a new bill to restore notice pleading in the federal courts.  Readers may recall that shortly after the Supreme Court's decision in Ashcroft v. Iqbal, Senator Specter proposed a bill that would have restored the pleading standard of Conley v. Gibson.  I was generally supportive of legislatively overruling Iqbal (and Bell Atlantic v. Twombly, known collectively among proceduralistas as "Twiqbal"), but I criticized the original Specter bill because I thought that Conley itself was unclear.

As Senator Specter graciously acknowledged in a statement in the Senate last week, he was persuaded to change his approach by the criticisms and suggestions passed along to him by myself and 13 other lawyers and law professors.  I am not confident that the substitute bill is the best approach, but I certainly agree that enacting it would be preferable to the status quo of Twiqbal.

Under the new proposal, the law of pleading would be restored to its pre-Twombly state, with courts further advised not to apply a heightened pleading standard, pending further action by the Rules Advisory Committee.  I would have preferred for Congress to specify the pleading standard for the same reason I was concerned with Senator Specter's original proposal--the ambiguities in the pre-Twombly law that permitted lower courts to apply a de facto heightened pleading standard, while purporting to follow existing precedents.

My objection seems moot, however, because the Specter bill has virtually no chance of being enacted by the incoming Congress.  The GOP leadership has long favored imposing additional obstacles on lawsuits.  For example, incoming House Speaker John Boehner has referred to defensive medicine in response to fear of litigation as "the biggest cost driver" in health care inflation.  This is almost certainly false.  The best estimate I have seen of the costs associated with the medical liability system puts it at about 2.4% of annual health care costs--not trivial, to be sure, but hardly the biggest cost driver.

The actual numbers don't matter, however, because attitudes towards litigation are so strongly ideological that it is simply inconceivable that the Republican leadership would permit passage of anything resembling the Specter bill.  Indeed, it was clearly a low priority even when Democrats were in the majority.  Perhaps the cloture/filibuster math in the Senate made the Democratic majority useless on this issue, because even the moderate New England Senate Republicans are anti-plaintiff when it comes to the politics of lawsuits.

Monday, December 27, 2010

The Setoff Problem

By Mike Dorf

An article in Saturday's NY Times called attention to a seeming perversity in the legal system, especially in New York State: Indigent persons confined in mental hospitals who are the victims of serious torts committed by the State may win a damages judgment but end up having their award substantially reduced or collecting nothing because the State offsets the judgment award by the value of the care which the State has provided gratis.  The Times story recounts some truly horrific stories--including the rape of a patient in a Staten Island facility, who ended up losing more than 40% of her $250,000 judgment this way (and that's before accounting for attorney fees).  Here I want to unpack what exactly is objectionable in this phenomenon.

In principle, there is nothing wrong with counterclaims and setoffs.  Suppose A owes B $10,000 to compensate him for work that B performed to improve A's property.  A acknowledges the debt but doesn't have the liquidity to pay it off.  Then B accidentally crashes his car into A's car, causing $10,000 in damage.  Clearly the right result now is to call it even (ignoring insurance).  That principle applies in court as well.  If B sued A (or A sued B) for the debt (or for the tort), then B (and A) would be entitled to a net recovery of zero.

So what is the problem in the cases described in the NY Times story?  One might think that the problem is the clawback.  We could have a system in which long-term mental health care, along with medical care more broadly, were simply an entitlement of the poor.  If we did then anyone who was unable to afford to pay for medical care would receive it, and if at some point in the future, one or more such people came into money, that could affect their eligibility for free State care in the future but would not entitle the state to claw back the value of services already provided.  I could see the merit in such an approach but it hardly strikes me as fundamental principle of justice.  As between X, who has substantial financial resources at the time he needs mental health or other medical care, and Y, who lacks them at that time but later acquires them, is it obvious that justice requires that Y but not X be required to pay for the care out of his own lifetime resources?

The real problem, to my mind, is that when the State sets off prior costs of medical care against a new tort judgment, it robs the tort system of its ability to deter unlawful conduct.  Interestingly, in these cases the State is acting a bit like indigents might act (or at least in the way that economists worry that indigents might act) in most other contexts: People with no money are not subject to the deterrent effect of the prospect of having to pay tort damages.

How might the legal system respond to that broader problem of the undeterrability of the indigent?  We could adopt draconian measures like debtors' prison, but we have (mercifully) abandoned that sort of project.  Instead, the legal system has concluded that people who are judgment-proof will nonetheless accrue debt for their torts and unpaid contractual obligations so that if they some day come into money, they will then have to pay their old debts out of their new money.  But this is mostly unrealistic and often perverse.

It's unrealistic to suppose that someone who is living on the street or in a mental hospital (and thus perhaps not even competent to be held responsible for debts and torts) is going to be deterred by the prospect of having to pay out of money he may some day acquire.  Meanwhile, to the extent that this logic does actually operate, it disincentivizes the very poor from taking steps to get out of poverty.  Personal bankruptcy is supposed to be a means for people to get a fresh start free of past debts, but the population under consideration will typically lack the wherewithal to file a successful bankruptcy petition, and in any event, using restrictions in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, courts have recently been increasingly skeptical of personal bankruptcy claims (even as the Great Recession has led to an overall uptick in personal bankruptcies.)  In any event, the notion that keeping a "tab" for institutionalized indigent mental patients will deter their excessive spending or tortious conduct is far-fetched, bordering on preposterous.

But the keeping of a tab does have one very predictable effect, as memorialized in the NY Times story: It turns the State itself into an undeterrable indigent, or at least substantially reduces the deterrent effect of tort law on the state.  Vis-a-vis an indigent who owes the State hundreds of thousands or millions of dollars for past care, the State itself is a kind of indigent--in the sense that it will never see that money, and so can commit torts up to the value of that care without worrying about any real out-of-pocket cost.  Unlike the logic that seems to justify allowing setoffs against the indigent institutionalized mentally ill, this effect is more than hypothetical.

Friday, December 24, 2010

Boo Hoo for the rest of us

By Mike Dorf

Because I teach a one-semester constitutional law course, I don't spend much time on the Free Exercise or Establishment Clauses of the First Amendment (just one class on each).  One of the things I barely mention in that short time is the question of how to identify genuine religious beliefs.  Over-simplifying the doctrine in this area, I usually tell my students that the courts generally credit testimony that someone sincerely holds a set of religious belief.

To be sure, there are rare instances of a judge finding--as an issue of fact--that someone does not in fact hold the religious views she professes to hold or that a system of ritual and belief that has the form of a religion is not in fact a religion.  My favorite example is the 1968 case of United States v. Kuch, in which a Georgetown woman claiming to be the "Primate of the Potomac" in the "Neo-American Church," and thus responsible for supervising the "Boo Hoos" in her region, offered the sacramental nature of drug use in the church as a defense against marijuana and LSD possession, sale, and distribution charges.  Under the then-operative doctrine, District Judge Gerhard Gesell undertook to decide whether the church, and thus Kuch's affiliation with it, were genuine.  In the course of doing so, he listed some of the church's characteristics.  He wrote, quoting the church's literature:

In order to join the church a member must subscribe to the following principles:
‘(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;
‘(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone;
‘(3) We do not encourage the ingestion of psychedelics by those who are unprepared.’
Building on the central thesis of the group that psychedelic substances, particularly marihuana and LSD, are the true Host, the Church specifies that ‘it is the Religious duty of all members to partake of the sacraments on regular occasions.’
A Boo Hoo is ‘ordained’ without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a ‘spiritual crisis,’ administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called ‘Catechism and Handbook’ that ‘it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists.’ In the same vein, this literature asserts ‘we have the right to practice our religion, even if we are a bunch of filthy, drunken bums.’ The members are instructed that anyone should be taken as a member ‘no matter what you suspect his motives to be.’

After discussing the historical role of hallucinogens in various religions, the court concluded:
While there may well be and probably are some members of the Neo-American Church who have had mystical and even religious experiences from the use of psychedelic drugs, there is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated because of any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one's daily existence. It is clear that the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.
That was probably true in 1968 and sadly, the Neo-American Church is now defunct.  But all religions probably have odd origins.  The ones that began in relatively recent times are simply at a disadvantage because people remember those origins.  Think of the cargo cult of John Frum in Vanuatu or note that the official Scientology website does not hide--indeed proudly trumpets the fact--that its founder, L. Ron Hubbard, was a pulp fiction writer.

And then there's Festivus.  Begun as a joke, it was recently invoked successfully by an inmate seeking a religious ground for getting better-tasting food than the standard prison fare.  A Festivus miracle, you say?  Perhaps, but consider that according to a relative of mine who is an amateur historian and a rabbi, were it not for the requirement that adult male converts become circumcised, Judaism, and not Christianity, would have become the official religion of Rome when the luster of Jupiter, Apollo, et al began to fade.

Happy holidays!

Thursday, December 23, 2010

Bad News, Good News, and Really Bad News for Social Security's Political Future

-- Posted by Neil H. Buchanan

All of the signs point to 2011 being an important year for Social Security. The Obama Administration seems intent on taking some hacks at the program, with the President's temporarily-forgotten Deficit Commission providing cover for those who want to cut Social Security. (Their mission statement did not even include Social Security reform, but the commission nonetheless decided to weigh in on the program's future. And the Administration applauded.)

Some in the Congressional leadership also seem to want to go after Social Security. Last week on C-SPAN, I caught a few moments of an appearance by Steny Hoyer, the current House Majority Leader. Someone posed a question that was essentially what I would have asked: With the Social Security shortfall not even being a sure thing, and with any problem lying decades in the future, why spend time now on Social Security? Hoyer basically admitted that there was no meaningful connection between any proposed changes to Social Security and substantial long-term deficit reduction. Even so, he simply repeated the assertion that now is the time to address the program's supposed long-term shortfall. I did not watch the rest of the event, so he might have addressed the question more directly. At least his initial answer, however, was simply non-responsive. Moreover, he was not saying anything that we have not heard frequently from fiscal hawks for years. Despite a nonexistent case for doing so, there is an eager constituency among some Democrats for beginning the process of undermining Social Security.

Until a few weeks ago, I thought that this state of affairs meant that something bad would surely happen to Social Security soon. Obama seemed ready to triangulate, and the mainstream press could be counted upon to praise him for his "pragmatism" in dealing with the new Republican majority in the House. What has changed, I think, is that the unsuccessful revolt against the recent Obama-Republican tax bill raises the serious possibility of a full-on rebellion among the Democratic base, should Obama make a move against Social Security. As nasty and condescending as Obama was about the negative reaction to the tax deal, he has to have noticed that the majority of his party is really, really angry with him. Yes, some good things happened this week that will restore some goodwill; but there seems to be at least a strong possibility that the political calculus has changed. I hope that this will cause the White House to steer away from Social Security entirely. I suspect that the odds are still in favor of a sell-out, but those odds have changed (in a good way).

On the other hand, the tax cut deal itself will create some room to mess with Social Security that was not there before. Many analysts have (correctly) noted that the cost of the tax bill will play into the conventional wisdom about deficits, resulting in arguments that big-ticket items like Social Security must be cut. My concern, however, is with the temporary reduction in the payroll tax for Social Security in 2011. The 2% reduction will save a $50,000/year earner $1,000, with a total loss to the system of almost 1/6 of its non-interest revenues. The question is, how will that lost revenue be accounted for within Social Security?

Because Social Security has a dedicated tax source, FICA taxes are supposed to go entirely into Social Security's coffers. The accounting distinction between Social Security and the rest of the government is thus statutory, rather than economic, which means that next year's loss of Social Security tax revenue can either result in less money being credited to Social Security, or in general revenues being used to replace the lost Social Security revenues. The change in the federal government's overall deficit is no different in either case. However, because the tax holiday would otherwise change the projected depletion date of the retirement trust fund, it is politically necessary to enact the tax holiday without formally costing Social Security any money. That means that the non-Social Security deficit must be increased, to pay for the 2% Social Security tax cut.

As much as I applaud both the effort to target a tax cut to the lower ends of the income scale, and to do so in a way that does not change Social Security's funding picture, there is a larger danger here. Earlier this year, there was a big stink about the short-term change in the path of Social Security's annual surplus or deficit, with the Great Recession turning a few years of projected small surpluses into small deficits. This was all very unimportant, but it provided an opening for people to describe the long-planned transition from annual Social Security surpluses to annual deficits as proof that Social Security is fundamentally bankrupt.

The correct response to this argument is that Social Security really should be thought of as a separate system, because the decades of annual Social Security surpluses (memorialized in the trust fund) can only be credited meaningfully to the system by allowing benefits to be paid both from annual payroll tax collections and general revenues. Again, however, this only makes sense if we treat the payments from general revenues as a repayment to the system for all those years in which Social Security taxes were higher than was needed to pay for concurrent benefits.

The 2011 tax holiday, however, makes this programmatic separation much easier to attack. As easy as it is for Social Security's opponents to try to distort the debate with half-truths about the "empty" trust fund, the public continues to be comfortable with the idea that the system will be solvent at least so long as the annual flow from general revenues is tied directly to the repayment of accumulated credits in the trust fund.

We now, however, have enacted a much more blatant transfer of funds between these two tubs of money. We are using general funds to make Social Security whole, even though the tax cut is specifically a break for those who are paying into the system. This is not compensation for previous (or future) overpayment; it is a simple matter of using general revenues to support a system that is supposed to be (in the aggregate, over time) independent of the rest of the federal government.

There is a very real danger that this will change the debate for the worse. There are plenty of legal fictions that have very practical consequences in the real world. The corporate form of business comes to mind. If people were to start treating that legal fiction as non-binding, our system would be shaken to its core. The legal fiction of Social Security's separate financing is also extremely important to maintain. This year's tax cut compromise may fatally undermine that distinction.

Wednesday, December 22, 2010

Massive Prison Release and Least Restrictive Alternatives

By Sherry Colb

In my column for this week, I discuss the case of Plata v. Schwarzenegger, in which the Supreme Court is reviewing a three-judge federal district court's order that the California prisons reduce their overcrowding from 200% of capacity to 137.5% of capacity, within two years.  If the Supreme Court affirms the order, then California will probably have to release approximately 40,000 prisoners (though it can, in theory, build more prisons or pay for prisoners to be transported to facilities outside the state prison system).  The underlying constitutional violation, to which the overcrowding reduction measure is addressed, is a state of medical care that is so deficient that it violates the Eighth Amendment prohibition against cruel and unusual punishments.  Because other approaches to the problem have failed, the California federal court concluded that the only way to remedy the problem is reduce the overcrowding substantially.

In my column, I discuss the default assumption of our criminal justice system that massive incarceration is a necessary and appropriate response to crime, whether or not the crime is violent in nature.  In this post, I want to suggest that the sort of "mental set" that treats prison as the default is not unique to the criminal justice context.  In this particular context, of course, we have a system that treats non-incarceration as a "last resort." Here, depriving a person of her fundamental right to be free from physical confinement is presumptively the right thing to do about crime, and we must be cautious and try everything else with little or no success before releasing someone who has been so confined.  This is so, despite how violent and destructive a place we know prison to be, not to mention how extremely expensive it is.

The mental set prevents us from realizing that we have given the extreme measure of incarceration an elevated and presumptively valid status.  Since the California case is about prison health care, I thought it would be useful to consider the area of health care more generally, another context in which we have massive spending and a peculiar default.

When a person visits the doctor with symptoms of heart disease, for example, the number one killer of both men and women in this country, the common instruction is to take medication, undergo surgery, or both.  What doctors rarely do is to counsel their patients to go on an oil-free and vegan diet, a diet that actually reverses heart disease.  By contrast to surgery, which addresses specific symptoms but leaves the disease largely to take its course, a switch to an oil-free and vegan diet is the one way in which extremely sick heart patients have successfully regained their cardiovascular health.

Dr. Caldwell Esselstyn, a medical doctor who authored the book Prevent and Reverse Heart Disease, has demonstrated persuasively that the misery, death, and expense associated with heart disease in the United States is almost completely unnecessary.  The key to solving the heart disease crisis, however, is to eat differently rather than to spend more money on state-of-the-art surgical interventions.

The analogy to prison is straightforward.  We treat incarceration as the default solution, where one must demonstrate a very good reason for deviating from it (as though continuing incarceration is truly a "less restrictive alternative").  And similarly, we treat bypass surgery as the least restrictive alternative.  When doctors advise their heart patients, they typically push surgery and pharmaceuticals and then, as a side note, suggest minor alterations in diet that they do not even expect patients to make (and that fail completely to address the destructive impact of animal-based food, even of the fat-free variety).

When confronting a particular person I know, who was told to undergo triple-bypass sugery, I said "Why not try an oil-free vegan diet for ten days, at a resort with doctors who will help you learn and adjust, and then have the surgery aftewards if you still want to?"  His response?  "That's too radical."  He preferred, in other words, to sit and wait to have his chest opened up, with all of the pain, disability, and risk associated with such surgery, than to try to eat a healthy diet for ten days first.

The reason?  Our society has come to view heart surgery as a normal and inevitable part of life after sixty or seventy years old.  The suffering associated with such surgery is not highlighted.  By contrast, the simple changes one can make in one's diet are treated as extreme, radical, and nearly impossible.  The person I know with heart disease essentially wanted a less restrictive alternative than eliminating animal corpses and secretions, as well as added fats, from his diet.  His less restrictive alternative -- being sliced open -- was comparable to the least restrictive alternative of incarcerating non-violent offenders.

As in the case of imprisonment, where some people simply cannot be left free to inflict violence on the populace, there are people who truly need and will benefit from surgery -- those, for example, who suffer from a congenital heart abnormality or other conditions that are not responsive to nutritional improvement.  For so many others, however, all we need to do is to think outside the box and realize that such things as imprisonment and heart surgery are not the least restrictive, but the most restrictive alternatives.  If we can manage to escape our mental sets, we can thereby save ourselves immense amounts of money and misery.

Tuesday, December 21, 2010

Cloture New Math

By Mike Dorf

Amidst the justified celebration of the repeal of Don't-Ask-Don't-Tell (DADT), we might pause to marvel at the fact that two Republican Senators--Richard Burr (R-NC) and Ensign (R-NV)--voted against cloture but for repeal.  That is unusual, and potentially ominous, in that it suggests that at least for some Senators, the threshold for filibustering a bill is now lower than the threshold for opposing that bill.  Should that inversion broadly take hold, it will become even more difficult that it is now for legislation to pass the Senate anytime the President's party has less than 60 votes.

Until the relatively recent past, a filibuster was a rarity.  A Senator who opposed a pending bill or a nominee but did not feel that the issue was overwhelmingly important would vote for cloture and then against the bill or nominee on the merits.  As we have seen beginning some years ago but with greater frequency during the first two years of Pres. Obama's term, the threshold for a filibuster has lowered to the point at which opposition to a bill or nominee almost automatically translates into opposition to cloture.  That is why people now routinely say that it takes 60 votes to get anything done in the Senate.

But it is still quite uncommon to see someone voting no on cloture and then yes on a bill's merits.  That combination cannot be explained by measuring intensity of opposition.  It must reflect something else.  What?

In the case of Senator Burr, we have an explanation.  He told reporters that he thought now was not the time to be deciding to repeal DADT because we're fighting two wars, but that once the cloture vote was a done deal, he voted the merits of the policy, which he opposes.  Apparently Senator Ensign said something similar.  This strikes me as more than a bit peculiar as an explanation.  If one thinks that now is not the time to eliminate DADT, then shouldn't one vote against changing the policy now?  Don't get me wrong.  I'm grateful for Senator Burr's and Senator Ensign's votes on the merits.  I just think that there may well be something else going on here.

What is that something else?  Here are two possibilities.  First, I wonder whether the real timing issue isn't the lame-duck timing.  I could see a Republican Senator thinking that any major policy changes should await the swearing in of the new Congress in January.  On that ground, one would vote against cloture for just about every non-emergency measure that would likely come out differently in the new Congress.  If that's what was really going on with Senators Burr and Ensign, then it strikes me as principled, but small potatoes.

The second possibility is more ominous.  We may be entering an era in which Senators (or at least Republican Senators) believe that they owe greater party loyalty on cloture votes than on merits votes.  Here the idea would be that once there is cloture, a Senator is free to vote his conscience--or at least his perception of his own interest, rather than strictly the party line.  The idea here would be that voting for cloture enables the President and the majority party to claim a political victory, and so party loyalty demands that one vote against cloture whenever one's party leaders want to deny the President's party a victory.

If that's what's going on, then we can foresee near-permanent gridlock, because any time the minority party in the Senate wants to deny the President's party a victory, it only has to insist on party loyalty in the cloture vote.  In this cloture "new math," it would take not just 60 votes on an issue to get legislation passed or a nominee approved but a standing 60-vote majority.  I don't think we're there yet, but at least on one reading, the DADT pair of Senate votes is a step in that direction.

Monday, December 20, 2010

Don't Ask Don't Tell, Hardwick, and the Seventeen Year Itch

By Mike Dorf

Seventeen years after the Supreme Court decided Bowers v. Hardwick--finding the claim to a fundamental right of consenting adults to engage in same-sex sexual intimacy "at best, facetious"--the SCOTUS reversed course.  In Lawrence v. Texas the Court repdudiated Hardwick and, with it, the homophobia that underwrote the decision.  Now, seventeen years after Congress codified the prohibition on military service by openly gay and lesbian men and women, Congress has voted to repeal that prohibition.  I don't go in much for numerology but I think there may be a lesson in that numerical coincidence.

To begin with the obvious, in law and politics, seventeen years is a long time.  Both Hardwick and Don't-Ask-Don't-Tell ("DADT") were heavily criticized from day one. Momentum for their overturning built slowly however.  There were quite possibly the votes on the Supreme Court to overrule Hardwick as early as 1996, when the Court decided Romer v. Evans.  Despite a provocative dissent by Justice Scalia arguing that the decision was inconsistent with Hardwick, the Romer majority opinion of Justice Kennedy did not even cite Hardwick, much less argue that the result was consistent with Hardwick.  And yet it took another seven years before Hardwick would be swept into the ashbin of history.

Meanwhile, by 1996 support for DADT had also eroded.  According to a chart provided by, at just around the time that the Court was deciding Romer, a majority of Americans for the first time came to favor permitting openly gay and lesbian men and women to serve in the military.  Support for that view would eventually grow to about 75%, where it stands now. But whereas it would take another seven years from 1996 for the Justices to undo Hardwick, it would take twice as long for our sclerotic legislative process to undo DADT.

These facts take on some urgency when one considers that both Hardwick and DADT were reactions against the gay rights movement.  Hardwick could not have been decided twenty years earlier than it was because no claim for a constitutional right to same-sex intimacy would have made it to the Supreme Court.  But Hardwick (the plaintiff) won in the Eleventh Circuit, and he almost won in the Supreme Court.  Almost.  Almost capturing Justice Powell but then losing 5-4, the case made bad law that lasted for seventeen years.

Meanwhile, the American military had excluded gay service members for as long as anyone can remember.  Yet the political opposition to relaxing the ban was cemented by President Clinton's ill-fated attempt to redeem a campaign promise to undo the policy.  And as we have seen, the resulting compromise of DADT has been remarkably sticky, only now giving up the ghost despite its unpopularity for roughly a decade and a half.

Thus we come to my worry: With same-sex marriage litigation now before the 9th Circuit and the Defense of Marriage Act before the First Circuit, we can and should worry that getting to the SCOTUS just a little too soon could do a lot of damage.  Using our seventeen-year figure as the lodestar, a SCOTUS decision coming out of Perry and rejecting same-sex marriage in 2012 (which is when I would anticipate the case being decided) would stick until 2029.  To be sure, the Court could swing the other way, and if it did, I do not see how one could possibly get a 2/3 vote in both houses of Congress to propose a constitutional amendment banning same-sex marriage, absent a double-dip that results in a Republican landslide in 2012 (and if that happens we've got all sorts of problems).  But there are no guarantees.

I also have an anti-worry: Proceeding by litigation versus legislation doesn't seem like such a dangerous course.  Juxtaposing Hardwick with DADT, we see that a premature push--whether via litigation or attempted legislation--can prompt backlash on roughly the same scale.  So if I were advising the LGBT legal/political activist community (as I actually do from time to time) I would say: "Go for it on all fronts."  Yes, I'm nervous about how all of this could end up, but both Plan A (legislation/referenda) has at least as much risk as Plan B (litigation), and Plan C (do nothing) is not an option.

Friday, December 17, 2010

The Trouble With Lefty Commentators

-- Posted by Neil H. Buchanan

In my FindLaw column this week, I describe the worrisome opportunism of some of the leading progressive commentators regarding the politics of deficits. With the Obama-Republican tax bill becoming law, it has become all too tempting for people like Rachel Maddow and Keith Olbermann to become committed deficit hawks. And really, if you were looking for a good situation in which to oppose a policy's effect on the deficit, the tax cuts for the rich (both income taxes and estate taxes) are Exhibit A. There really are bad ways to increase the deficit, and this is a great example.

My problem is that this short-term fun -- not only attacking the bad policies, but pointing to the Republicans' utter hypocrisy about deficits -- feeds the narrative that deficits are bad, bad, BAD. Not just these deficits, but all deficits. And that is not just false, but it is false in a way that completely undermines the progressive agenda. Public investment and counter-cyclical policies require deficit spending. Saying, "Look, everybody! The Republicans are doing a bad thing by increasing deficits," is self-defeating.

It is not, however, always a bad idea to point to the other side's hypocrisy. The idea of "judicial activism" has been effectively defanged by pointing out that Republicans love judicial activism, as long as it is hyper-conservative judicial activism. Saying as much does not feed a narrative that uniquely undermines the Democrats' long-term interests. A good liberal can defend Roe v. Wade and condemn Alden v. Maine with equal vigor, and there is nothing lost in that debate by all sides agreeing that there is something bad about judicial overreach. Those who like Roe can argue that it was not overreaching, and those who like Alden can make their arguments. Calling the other guys hypocrites is fun, and it does no strategic damage to either side.

Not so with deficits. In my FindLaw column, I mention a recent segment on Rachel Maddow's show, in which she tied the Chinese government's boycott of the Nobel Peace Prize ceremonies (a boycott currently being joined by something like 18 other countries) to China's supposed power over countries that owe money to China. She concluded that it was "intolerably gross" for the U.S. to owe money to China. The next night, after I wrote my FindLaw column, Keith Olbermann had a segment on his show in which he also talked about how bad it is that we are running deficits financed by the Chinese government. (Apparently, there is also a move afoot to determine how much of the debt is held by the Saudis. Yeesh.)

Much to my surprise and delight, however, Olbermann's interviewee Chris Hayes (of The Nation) pointedly disagreed with that narrative, pointing out that China holds less than one trillion dollars of the thirteen trillion in gross debt. Wall Street banks, in fact, hold the largest chunk of the federal debt. This is still not the real point, but it was at least nice to see someone put the numbers in perspective. The bigger issue is that owing another country a trillion dollars does not give them power over us. They can threaten to dump bonds on the open market, but the Fed could buy them up and stabilize the market overnight. The Fed would not even have to buy the entire amount of bonds held by the Chinese government, because the Chinese would have no reason to continue to dump the bonds if their putative goal of destabilizing the US economy was not being achieved. Even more importantly, the Chinese have no good reason to harm our economy: We are their best customers.

But back to the issue of lefty commentators going astray on economic policies. "The Daily Show" recently ran a piece on the evils of creating money "out of thin air," and all that nonsense. Keith Olbermann also sat attentively through an interview with David Stockman in which Stockman made the same ridiculous argument.

I realize that Jon Stewart claims not to be in the same game as Olbermann and Maddow, but he is frankly deluded about that. His show does exactly what the MSNBC shows do; but he has better jokes. When he peddles patently inane arguments about economics -- like the idea that creating money is illegitimate -- that is a problem. (He also has a blind spot about federal spending, with a peculiar inability to say the world "trillion" without making it seem like an unimaginably large -- and dangerous -- number.)

In the past, I have criticized Democratic politicians for this very sin. Listening to Obama talk about the importance of "fiscal responsibility" -- and making it clear that he is using that phrase as a synonym for deficit reduction -- makes my skin crawl. Yet the pundits are different from the politicians. Obama and his party need to worry about re-election, after all. (These days, Obama really needs to worry about re-election.) As much as I find it regrettable, political reality does require Democrats to make anti-deficit noises. I do believe that they could do so in a more careful way, identifying the problem as "bad deficits," not all deficits. Still, they clearly have strong reasons to be worried about violating the conventional wisdom.

This is also true of the pundits, I suppose. They need to be seen as credible; so they would risk something if they were to adopt positions that are viewed as simply loopy. That constraint, however, does not require anyone to do what Stewart, Maddow, et al. are doing. There is nothing forcing them to make stupid comments about China, or to attack the new tax bill from an orthodox perspective. They could easily take the time to deal with nuance, or at least to avoid bumper-sticker arguments that are simply embarrassing.

Part of the problem is that none of these people actually know what they are talking about, when it comes to most economic issues. Smart non-economists like Stephen Colbert and Keith Olbermann are ultimately flailing when they get to these issues. Economics training is neither a necessary nor sufficient condition to get these things right. (Former Senator Phil Gramm, after all, had a Ph.D. in economics.) Still, one cannot help but suspect that economics coverage from these progressive commentators suffers from their presumption that they can fake it. Clearly, they cannot.

Thursday, December 16, 2010

Another December, Another Exam

By Mike Dorf

Continuing in a tradition I began a little while back, I offer the exam I recently gave for my first-year Con Law students.  They had 8 hours to complete it.  Because grading the real exams is work enough, I won't comment on any readers' comments.  There are three questions of equal weight.


Question 1

            Under the individual mandate provisions of the Affordable Care Act (sometimes called “Obamacare” by its detractors), a person who does not otherwise have health insurance is required to purchase such insurance if he or she can afford to do so.  Based on the definitions in the Act, that means that any otherwise uninsured person who can purchase health-care insurance for no more than eight percent of his or her monthly income and is above the poverty line, must purchase such insurance.  Beginning in 2016, failure to do so will result in an annual federal tax liability of the greater of $695 or 2.5 percent of income.
            As you may know, attorneys general in several states have challenged the individual mandate in court.  Those cases are currently pending.  Meanwhile, Tennessee state General Assemblyman James “Jimbo” Delahuntmanson has an idea for “knocking out Obamacare.”  According to a bill proposed by Delahuntmanson, “effective in 2016, any person whose federal income tax return shows payment of the Obamacare fine for failure to comply with the unconstitutional individual mandate shall receive a state income tax credit equal to exactly the amount of his or her federal tax liability.”
            For winter break, you have been fortunate enough to obtain a position as an unpaid intern in the Justice Department.  One late night while you are at your desk reviewing deposition transcripts from a mail-truck accident case, a very tired-looking man wanders by your cubicle muttering to himself.
            “Hey you!” says the tired-looking man.  “Have you seen this?”  He shows you the language quoted above from Delahuntmanson’s bill.  After you read it, he tells you to write a memo addressing the question of whether the Delahuntmanson bill, if enacted, could be enjoined as pre-empted by the Affordable Care Act.  The proposed injunction would issue from a federal court following a lawsuit filed by the Justice Department.  The tired-looking man is U.S. Attorney General Eric Holder.  Write the memo.

Question 2

            The federal statute codified at 10 U.S.C. § 654, and commonly called “Don’t Ask Don’t Tell” (hereafter “DADT”) provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the service member is able to demonstrate that he or she has no propensity to engage in “homosexual conduct.” Under the law, “homosexual conduct” includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex.  President Obama campaigned for office on a pledge that he would seek the repeal of DADT, but has thus far been unable to secure passage of a repeal bill.  To this point his Administration has defended DADT against legal challenge in the courts but he has recently had a change of heart.
            The President now believes that DADT unconstitutionally denies equal protection and accordingly, has issued an executive order to the armed services directing that DADT be treated “as a legal nullity.”  The executive order invokes the President’s powers “as Commander in Chief during a war in Afghanistan that was authorized by Congress and ongoing military action in Iraq, also authorized by Congress.”
            Lemuel Joseph Schnizelbacher, a.k.a. “Joe the Sailor,” is a 20-year-old unemployed heterosexual high-school graduate who has sworn in an affidavit that he was planning to join the Navy until President Obama issued the executive order. Schnizelbacher further states that he now will not join the Navy because he fears the non-enforcement of DADT violates his right to privacy.  He has filed a lawsuit against Secretary of Defense Robert Gates and Navy Secretary Ray Mabus.  Schnizelbacher's complaint seeks an injunction ordering the enforcement of DADT and/or “damages to compensate for the Navy salary and benefits that would have accrued to plaintiff from joining the Navy.”  The complaint alleges that so long as DADT remains on the books, the President has a constitutional duty to enforce it.
          Because you did such a good job with the Tennessee case, Attorney General Holder has asked you to write a memo assessing the constitutional issues raised by Schnizelbacher’s lawsuit.  Write the memo.
Question 3
            Having completed your internship with the Justice Department, you decide to take a vacation in Florida.  While relaxing on the beach, you get a frantic phone call from your college friend Sally Wunnel, who attends a law school in which constitutional law is not taught in the first semester of the first year.  She is working as an unpaid intern for the City of Tallalando, Florida.  She tells you the following facts.
            The City of Tallalando, Florida, experienced rapid development and a housing boom that extended into mid-2007.  Since the peak of the market, however, Tallalando housing prices have fallen by 80% and numerous single-family homes have been foreclosed.  Of those foreclosed homes, approximately 20,000 are currently unoccupied. With so many vacant properties, crime is on the rise in Tallalando.  Gangs of squatters occupy substantial swaths of the city, including many of the foreclosed homes.
            To combat the gangs, the state of Florida has stationed over 500 state militia troops throughout the city.  Unable to afford to provide these troops with housing, the state has authorized the troops to camp in any otherwise unoccupied foreclosed house from which they have first cleared squatters.  Troops were given instructions to prioritize clearing squatters suspected of gang affiliation.
            Ginormic Bank (a Delaware corporation) owns approximately 5,000 unoccupied foreclosed homes in Tallalando.  Although the presence of state militia in Ginormic-owned homes (and in other homes) in Tallalando will almost certainly increase the value of the Ginormic homes, Ginormic has nonetheless sued the Governor of Florida in federal district court, seeking an order that the state remove its troops from the Ginormic-owned homes.
            Sally thinks that Ginormic is suing because it stands more to gain than to lose from the decrease in property values in Tallalando.  That’s because, in addition to owning the foreclosed Tallalando properties, Ginormic also owns a very large hedging portfolio that takes a short position on synthetic collateralized debt obligations based on other properties throughout Tallalando.  Thus, the more property values in Tallalando decline, the more likely it becomes that additional outstanding loans will stop performing, and thus, the more money Ginormic stands to earn by not having to pay its co-parties on the synthetic CDOs.
            Sally has been asked by her boss to write a memo addressing the constitutional issues raised by Ginormic’s lawsuit.  The only basis for relief asserted in Ginormic’s complaint is “the Third Amendment of the U.S. Constitution, as made applicable to the states via the Fourteenth Amendment.”  What should Sally write in her memo?


Wednesday, December 15, 2010

Taking Rights Away

By Mike Dorf

In my latest FindLaw column and my post on Monday, I took issue with the framing of the relevance of Romer v. Evans as standing for the proposition that taking a right away is necessarily constitutionally problematic.  Of course, during the oral argument in Perry, the panel understood that rights can sometimes be taken away.  Judge Reinhardt made the point in his colloquy with attorney Charles Cooper.  The judge acknowledged that in general the people of a state can amend their constitution, even taking away rights, but he went on to suggest that this power is limited by Romer, and one question in Perry is whether that limit applies in this context.  As I explained Monday, I don't think Romer stands for the proposition that some rights can't be taken away.  I won't rehash that argument today.  Instead, I want to ask whether, quite apart from Romer, there are rights that can't be taken away.  Think of today's post as addressing the question of whether there is a constitutional endowment effect.

It strikes me as implausible to say that there are any rights that can never be taken away.  To be sure, some constitutions make it impossible to take a right away.  For example, Article 79 of the German Basic Law forbids any amendment that would change the protection afforded for human dignity (Article 1) or the democratic character of the German state (Article 20).  But the U.S. Constitution does not have this kind of permanent entrenchment, except with respect to the Senate (a provision also paralleled by the German Constitution).  So when I say that I'm interested in whether there are limits on taking away rights I mean I'm interested in whether there are rights such that it is harder to take them away than never to grant them in the first place; I'm not asking whether there are rights that are impossible to take away once granted.

Framed that way, we can connect this question to the broader question of when it should be hard to change the law.  Typically, interests in reliance, planning, and stability for its own sake are invoked to justify rules--such as the presumptive weight given to stare decisis--that entrench the status quo.  None of this quite maps directly onto our question.  For one thing, stare decisis applies across doctrines, not just to rights.  For another, horizontal stare decisis is a doctrine about a court preserving its own previous judicial decisions.  Here I'm interested in the question of whether a legislature or court should be externally bound for having "gratuitously" recognized some right.

The set of constitutional doctrines that seem most promising here are procedural due process and Takings law.  Under procedural due process, for example, a state that need not grant welfare benefits at all cannot grant them through legislation but then deny them to a particular individual without affording adequate procedures.  But this is not a perfect analogy because the legislature retains the power to abolish the entitlement wholesale.  Takings is a somewhat better fit: Where government has created a property interest, it cannot destroy it--even with full procedural protection or even by legislation--without paying just compensation.  Thus, limitations on regulatory takings do seem like a pretty good example of rights that once granted, cannot be taken away (absent something dramatic like a constitutional amendment).

More broadly, I would note that a certain view of originalism conceptualizes rights in general as reflecting the you-can't-take-it-away impulse.  In particular, Justice Scalia contends (at pages 40-41 of Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997)) that the whole point of a Constitution is to prevent backsliding on rights (and other matters).  Of course, Scalia's view--and on this point I think his view is widespread--would say that only those rights that are entrenched through some extraordinary process of adoption (such as the super-majoritarian process for Constitution making and Constitution amending) get anti-backsliding protection.  So I doubt that he would endorse the can't-take-rights-away approach with respect to a right that was only recognized by a (controversial) judicial decision, as in California with respect to same-sex marriage.  But there is nonetheless a sense in which everybody endorses the notion that the whole idea of rights is that they can't be taken away without something extra beyond what is normally required to change the law.

Tuesday, December 14, 2010

Judge Hudson's Misguided Focus on "Activity"

By Mike Dorf

In striking down the individual mandate provision of the Patient Protection and Affordable Care Act, Judge Hudson reached a conclusion that I think is pretty clearly wrong, as I've noted before and as I'll unpack a bit more below.  But first I should say that en route to that conclusion, Judge Hudson did get something important right: He rejected the federal government's argument that because the Act was challenged on its face, it had to be upheld unless, pursuant to United States v. Salerno, the Act would be invalid in any set of circumstances to which it might be applied.  Judge Hudson cited the Supreme Court's decision in City of Chicago v. Morales for the proposition that the Salerno no-set-of-circumstances test is not generally the law.  (Morales and other opinions by Justice Stevens in turn cite my 1994 Stanford Law Review article for this proposition.)  Even more importantly, Judge Hudson pointed out the oddity of judging the question of whether a law falls within the powers of Congress by how it affects particular individuals in particular cases.  I believe he is right on this point too, although he did not really address the fact that the Supreme Court sometimes treats questions of Congressional power on an as-applied basis.  (Consider, e.g., Tennessee v. Lane.)  So while I commend Judge Hudson for his logic in rejecting the federal government's attempt to apply a narrow facial standard here, I don't think he adequately dealt with the (somewhat confused) Supreme Court case law on how to evaluate facial challenges to Congressional power.

On the merits, Judge Hudson's analysis of the Commerce Clause issue strikes me as profoundly mistaken.  He seized on the fact that prior precedents--especially the Lopez and Morrison cases--talked about federal power to regulate "economic activity," treating "activity" as a constitutional requirement. The federal government had argued that the right focus for analysis is not, as Virginia claimed, discrete decisions not to purchase health insurance, but each person's overall set of decisions, over the course of a lifetime, about how to fund his or her healthcare: whether by purchasing private insurance, finding a job that provides health insurance, receiving govt health insurance, or by simply imposing costs on the system by periodically walking uninsured into an ER.  The government said that each of us--including those who, for discrete periods, are uninsured--is engaged in economic activity involving health care and health care costs in the aggregate.

That strikes me as a good argument but it struck Judge Hudson as a bad one.  Nor did Judge Hudson consider what I regard as a still stronger argument for sustaining the mandate: There is no constitutional prohibition on Commerce Clause regulation of inactivity, at least where that inactivity is economic in nature.  Judge Hudson accorded talismanic significance to the fact that prior cases had used the phrase "economic activity," without ever pausing to explain why the government cannot regulate inactivity that is in its nature economic.  Consider, in this regard, the provisions of federal labor law and federal antitrust law that have been construed to forbid secondary boycotts .  A boycott, of course, is economic inactivity--a refusal to purchase goods or services from the target--in exactly the same way that the non-purchase of health insurance is economic inactivity.  Under Judge Hudson's analysis, such prohibitions are constitutionally invalid, even though no one even thought to question them on these grounds during the decades they have been enforced.

But doesn't the case law require that the underlying predicate for regulation be some sort of affirmative activity?  The short answer is no.  Although the cases talk about "economic activity," that's only because the predicate for regulation in the prior cases happened to be activity rather than inactivity.  Consider a quite closely related question.  In Gonzales v. Raich, the Supreme Court for the first time defined the "economic" aspect of "economic activity," borrowing from Webster's dictionary: "the production, distribution, and consumption of commodities."  Does this mean that the purchase of services is not economic activity for Commerce Clause purposes?  Of course not.  The Court in Raich had before it a case involving a commodity (marijuana) and so it chose a definition that focuses on commodities.  In a subsequent case involving services the Court will undoubtedly say that they are included too.  In the meantime, it would take a particularly obtuse district court judge to think that because of the definition in Raich, services are not covered by "economic activity."  Likewise, the use of the term "activities" must be understood as a product of the context of the cases in which the term was used, rather than any consideration of the constitutional difference between activity and inactivity.

At best, the question whether Congress can regulate "inactivity" is an open one--and thus one would have expected that Judge Hudson would have offered some functional explanation why regulation of economic inactivity is beyond the scope of Congressional power.  But he did not, simply relying on the language of the earlier cases taken out of context.  One could make a libertarian argument against Congressional power to regulate inactivity, but it's hardly clear that the Commerce Clause incorporates strongly libertarian views, and even if it did, for reasons I have previously laid out, the libertarian objections to the individual mandate are weak.

Finally, I should say that I found Judge Hudson's tax analysis utterly unpersuasive but nonetheless defensible.  He invokes Lochner-era cases that narrowly construe the ability of Congress to impose taxes that have a regulatory purpose, and then he goes on to say that because the Act calls the tax a "penalty," it is not within Congress's taxing power.  This view has been superseded by more recent cases that uphold taxes imposed for clearly regulatory purposes, so long as the law had some revenue-raising purpose, even a very modest one.  But I find Judge Hudson's analysis here defensible nonetheless because the older cases have not been formally overruled, and as I have noted recently in discussing the Prop 8 litigation and Baker v. Nelson, lower courts have very little freedom to say that an old Supreme Court case is no longer good law.  Still, because Judge Hudson should have sustained the Act under the Commerce Clause, he shouldn't have had to reach the taxing power question.

Monday, December 13, 2010

All or Nothing Equality

By Mike Dorf

One of the most intriguing aspects of the Prop 8 litigation concerns the question of whether California (and other states with similar laws) made it more likely that its law would be found unconstitutional by extending the benefits of marriage to same-sex couples without the word marriage.  The competing views go as follows:

On the one hand, having (more or less) extended all of the tangible benefits of marriage to same-sex couples, California has lost the ability to claim certain government policies as rationally supporting its decision to withhold the term "marriage."  For example, suppose the government claims that children do best (other things being equal) if raised by two parents of the opposite sex.  I happen to think this claim is false, and even if it were true, I don't think it would be a sufficient basis for denying same-sex couples the right to raise children (either those biologically connected to one or both of them or adopted children)--but under traditional rational basis scrutiny, it is a sufficient ground for a policy that a lawmaker could rationally think that the predicate facts for the policy exist.  So one could well think that state lawmakers would have a rational basis for restricting marriage and the right to raise children to opposite-sex couples.  Yet if that rationale is available to support Florida's refusal to recognize same-sex marriage because Florida also has draconian adoption laws, it's unavailable in California.  Accordingly, if the right standard of review is rational basis scrutiny (about which my latest FindLaw column has more to say), then California, in withholding only the label "marriage," acts irrationally in a way that Florida does not.

On the other hand, that result seems perverse.  Can it really be true that California, which is much more LGBT-friendly in its policies overall, including with respect to civil unions, has acted unconstitutionally, whereas Florida has not?  And if so, doesn't that give states the perverse incentive not to take substantial strides towards equality for fear of opening themselves up to the charge that in doing so they did not go far enough?  These issues were raised (but hardly resolved) during the 9th Circuit oral argument last week.

Here I simply want to note how common this phenomenon is in constitutional law.  Consider free speech doctrine.  Suppose a local government obtains a parcel of property by bequest.  It could sell the parcel to a private developer, in which case the public would have no right to go on the property, except as invitees of the property-holder.  Or the government could use the property as an office building or other "nonpublic forum," in which case the public would have a somewhat greater right of access and any government restrictions on expression on the property would have to be both reasonable and neutral with respect to viewpoint.  And if the government decides to turn the property into a park or public square, the public would have nearly complete access and the government could only enforce content-neutral time, place or manner restrictions on speech.  To put the point differently, the more the government does to open the property up, the more it constitutionally obligates itself to do relative to people who want to use the property for expressive activities.  That's the same "perverse" result as in the comparison between California and Florida, but the "perversity" is not a sufficient ground for discarding the doctrine.

It's tempting to say that all of equal protection doctrine has this character.  State and local governments have no federal constitutional responsibility (per the DeShaney case) to provide police protection, but if a government does undertake to provide police protection, it can't systematically deny such protection to any class of persons.  Of course, the difference between that general proposition and the marriage/civil unions question is that in the police protection example we are comparing what the government is doing for one class of persons with what it is doing for another class, whereas in the marriage/civil unions example we are comparing how much equality different jurisdictions are giving the same class of persons.

Perhaps tort law is a good comparison.  In most jurisdictions, there is no duty to rescue a stranger, but if you do undertake to rescue a stranger, you can't just quit in the middle--even though persons in peril may well be better off with a half-effort (e.g., a good Samaritan who performs the Heimlich maneuver and CPR for three minutes but then leaves to catch a train) than no effort at all.  The conventional justification for liability for abandoning a non-obligatory rescue is that once the rescuer undertakes the rescue, he diverts other potential rescuers.  But it's hardly clear that this will be true more often than false.  And in any event, whether the rule is justified or not, I'm interested here in the fact that it has the same basic structure as the supposedly perverse logic in the Prop 8 case.  Here, as elsewhere, the greater power to deny something entirely does not necessarily include the lesser power to grant it in part.

Friday, December 10, 2010

The Obama/GOP Deal

-- Posted by Neil H. Buchanan

This week's news has been dominated by discussion of the deal between President Obama and Congressional Republican leaders on taxes. In the current state of affairs (as of roughly 10pm last night, which is the last time I checked), House Democrats have announced near-unanimous agreement that they will not vote for the current version of the deal, and still-Speaker Nancy Pelosi will not bring such a bill to the floor. No one is saying what will have to change before the House Democrats go along.

Herewith, a few strands of thought on matters economic and political:

-- One way to view the deal is to simply add up the numbers and compare which party's priorities received more money. The (generally excellent) economics writer for the New York Times, David Leonhardt, summarized it this way: "Of its estimated $900 billion-plus cost over two years, roughly $120 billion covers the high-end tax cuts and the estate tax cut, $450 billion covers Mr. Obama’s wish list and $360 billion covers the tax cut extensions both parties favored." Thus, one could argue that Republicans "liked" only $480 billion of the $900 billion price tag, while Democrats should "like" $810 billion. Democrats win, right?!

Two problems with that framing immediately jump to mind. First, this assumes that the alternative was for the Democrats to get none of the $810 billion that they wanted, and Republicans would have gotten none of their wish list, either. This is clearly false. No one can credibly argue that, for example, the extension of unemployment benefits was only possible in this deal (and no other). It is true that the ultimate deal could have been worse, especially if the issue was delayed into the next Congress. With unemployment now at 9.8%, however, it is not at all difficult to imagine an alternative reality in which benefits would have been extended anyway. (And even under the deal as it stands, the long-term unemployed are still cut off.) Most of the things that Democrats are supposed to like (and certainly the things that both parties like) could have been achieved in any event. As others have pointed out, for example, Obama incorrectly asserted that some of the middle-class-oriented tax cuts were unpopular with Republicans; so his claim that these were concessions by Republicans was simply wrong.

The number of dollars spent on Demcrats' priorities in the alternative reality might (or might not) have been lower than $810 billion, but they were definitely well above zero.

Second, the two-year numbers are only part of the likely consequences of this deal. Obama and his people assert that they'll really, really take this fight to the Republicans in the next presidential election, guaranteeing that the tax cuts for the high end taxpayers -- both the lower rates for the $250k+ group, and the (absurd) watering down of the estate tax from even its degraded state in 2009 -- will definitely end in two years. Definitely.

The recent election suggests otherwise. In an election season in which the Democrats were casting about for winning issues, and even though they held a very popular position on tax progressivity, they chose not to even allow a vote on the extension of the Bush tax cuts. Their story was that they did not want to risk being viewed as "tax hikers." It is difficult -- not impossible, but quite difficult -- to see how this political dynamic will be different in 2012.

If it turns out that this is all just prelude to permanent extension of the regressive Bush tax laws, with the rest of the elements of the deal being temporary (appropriately, given that they are policies that liberals view as situation-specific), then the computation of who won and who lost changes pretty radically.

-- Some have argued that the deal is essentially a "mini-stimulus" plan. There is some truth to this, in the simple sense that some of the money is likely to result in increased spending. Paul Krugman estimated (here, under "The Deal" on December 7) that the best one could hope from this plan is for the unemployment rate to fall by something like 3/4 of a point in the next two years, with the effect weakening in the second year. Of course, no one should underestimate the importance of any decrease in unemployment. However, the major problem with the original stimulus plan was that it was too "mini"; so heralding the Obama plan as being stimulative merely sets up the future narrative that stimulus didn't work again. The misunderstood condition regarding fiscal stimulus is that it needs to be large enough to kick-start the economy, not just give it a weak push.

Also remember that the estimated decline in unemployment is measured against a completely impossible counter-reality: no extension of any of the Bush tax cuts, and no payroll tax holidays, or other extensions of unemployment benefits, etc. This is a lesson from False Comparison 101.

-- On the politics, Obama's supporters claim that the Democrats in Congress are now taking a position that is untenable. There is no way that the Republicans are going to give the Democrats what they really want -- even with public opinion polls so strongly in the Democrats' favor on these issues -- both because the year is even closer to being over and because the Republicans will not now move away from a position that they have negotiated with the leader of the Democratic Party. All true, probably. This is, however, a variation on the venerable "I killed my parents, so please have mercy on a poor orphan" defense. Obama's actions are what made it impossible to take a harder line, so he really cannot take credit for getting the best deal possible under the circumstances. He changed the circumstances, after all, in a way that undermined the position that he claims actually to support. Of course, that bell cannot be un-rung; but arguing that the current landscape precludes some outcomes that might have otherwise been possible is not the same thing as saying that there is now no better outcome possible.

-- Regular readers of this blog know that I was an early deserter from the Obama bandwagon. The hope during the 2008 campaign was that Obama's short record and vagueness on policies would turn out better than Hillary Clinton's guaranteed center-right policies. Once Obama's economic team was announced (to say nothing of his choice of Rahm Emanuel as Chief of Staff), however, it was rather starkly clear that we were going to get the same economic mismanagement that we would have seen with Clinton. What is now even more obvious is that Obama has become Clintonian in his political tendencies as well as in his policies.

The big spin at this point, after all, is that the House Democrats' opposition to Obama will simply make Obama look good to independent voters. In other words, we are now seeing Triangulation: The Sequel. I am not aware of any indications that this was actually Obama's plan in cutting this deal -- he seems to be genuinely surprised by the ferocity of the reaction by Democrats -- but he now seems more than happy to run against his own supporters by painting them as crazy "purists" who cannot be trusted to govern. This strategy won Bill Clinton a second term; and it might do the same for Obama (although I doubt it). What seems certain is that a strategy in which a Democrat tells people not to trust Democrats is not a winner for Democrats.

It is also worth remembering that Clinton's most energetic legislative battle was in favor of NAFTA, over the opposition of most of his party. The White House staff "went to the mattresses" for that one, setting up a "war room" and publicly attacking fellow Democrats who disagreed with Clinton on that issue. We have been waiting for Obama to become energetic. Like Clinton, he suddenly finds his inner caveman when he is attacking his supporters from their right.

-- Many commentators have noted Obama's nastiness and condescension in his public comments this week. The self-pitying attitude is rather difficult to stomach, of course. In addition, however, it is notable just how far off his game he has become in terms of actually making arguments. For example, in his press conference on Tuesday, Obama made the obvious comparison to the health care debate, noting how disappointed many Democrats were when the "public option" was dropped. He then mocked those Democrats for failing to see that the public option, which he said would only help 3 million people, was a minor loss in the context of a bill that would help more than ten times as many people. This is like saying that a town's fire department is no big deal, because how many houses have caught fire lately, really? If Obama really thinks that the only effect of a public insurance option would have been on the people who would have been its direct customers, then he is much less intelligent than we thought. Of course, the more likely explanation is that he knows better, but he is becoming sloppy -- or worse -- in the heat of this battle.