Monday, December 30, 2013

Can a Federal Court Provide "Grandfather" Status to Utah Same-Sex Marriages If the District Court Ruling Is Later Reversed on Appeal?

By Mike Dorf

In my blog posts on Tuesday and Thursday of last week, I explained that I thought a stay of the SSM judgment in the Utah case might be warranted because a federal court lacks the authority to provide "grandfather" protection for the couples who married while the district court ruling was in effect, in the event that the merits ruling was eventually reversed.  That statement was partly based on the concurring opinion of Justice Stevens in Edgar v. MITE. There, in the context of addressing whether a case was moot, Justice Stevens said that even if a federal district judge issues a preliminary or final judgment declaring that the plaintiff has a constitutional right to act in violation of a state law, if the plaintiff does just that, but the judgment is later reversed on appeal, the plaintiff may be prosecuted for the conduct--even though the conduct had been declared lawful at the time it occurred.  It might be helpful, Justice Stevens said, for federal courts to be able to immunize conduct even if their judgments are later reversed, but the federal judicial remedial power does not extend that far.

To be sure, Justice Stevens was writing in a concurrence to address an issue that the majority did not purport to address.  And Justice Marshall, joined by Justice Brennan, took exactly the opposite view: They said that a preliminary injunction against enforcement of a state criminal law should be presumed to provide permanent protection against prosecution of the plaintiff for violations of the law that occurred while the injunction was in place.  Furthermore, as the editors of the 6th edition of the Hart & Wechsler Federal Courts casebook point out at page 1120, Justice Marshall might have cited
Oklahoma Operating Co. v. Love in support of his view.  There, Justice Brandeis wrote for a unanimous Court that if a party challenging state rates as conficatory succeeded in obtaining a permanent injunction from a district court, then even if the injunction is reversed on appeal, "a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite."

So, does a federal district court injunction that is later reversed on appeal provide immunity for acts taken during the pendency of the injunction?  I should say that I prefer the position of Brandeis and Marshall to that of Stevens.  One might think this is simply a matter of due process notice -- i.e., that it's unfair to prosecute people for actions they took while they were told that those actions were lawful. However, notice is a potentially circular concept.  If it were clear that the Stevens view was the law, then litigants would be on notice that violating a law even while it was enjoined by a district court decision carried the risk of subsequent prosecution if the district court decision was reversed.  So for me, the better reason for allowing a subsequently-reversed injunction or declaratory judgment to immunize conduct pendente lite is that such a rule encourages people to go to court to test their rights rather than simply violating the law.

Having said all of that, I nonetheless think that if the 10th Circuit or the Supreme Court eventually rules that the Utah ban on same-sex marriage is valid, the people who got married in the interim would not be entitled to have their marriages "grandfathered" as valid.  At most, the Brandeis/Marshall view would support the conclusion that their marriages be treated as valid during the period when the law was held invalid.  Grandfather clause protection would mean giving permanent effect to a (by-hypothesis) subsequently reversed decision--and there really is no authority for that.

Meanwhile, of course, much has happened since the district court and 10th Circuit declined to grant a stay.  In particular, as of yesterday, about 900 Utah same-sex couples had taken advantage of the ruling to marry.  That, to my mind, changes the equities considerably.  A Supreme Court stay of the district court ruling that undid those 900 marriages would work the very harm that I thought could be avoided by the immediate granting of a stay--the creation of a class of marriages that are granted then taken away.  The Court could, I suppose, grant a stay of enforcement for further marriages pending final resolution of the case, but that seems much less urgent now, and would itself create an awkward situation in which same-sex couples who rushed to marry are treated as married but those who waited a few weeks are not.

Accordingly, I now think that the right result for the SCOTUS, when faced with Utah's emergency stay application, is to deny, based on a lack of probable success on the merits and the balance of equities.

Thursday, December 26, 2013

Utah SSM Case Headed to the SCOTUS But Only For a Short Stay?

By Mike Dorf

Adam Liptak reports in the NY Times that Utah will indeed ask the Supreme Court to stay the district court judgment invalidating the state's same-sex marriage ban.  The article, which quotes me and my most recent blog post on the topic, focuses on the incredibly rapid pace of change with respect to SSM since the Supreme Court's decisions in June in Windsor and Perry.  Those changes suggest that if the Supreme Court could manage to avoid deciding the issue for just another couple of years, the case will be a mopping-up operation like Loving v. Virginia rather than a controversial decision on an issue that deeply divides the country, like Brown v. Board or Roe v. Wade.

In my earlier post I explained why I think that a stay is probably warranted, even though I think the district court decision was correct.  Here I'll add one other consideration that is not, strictly speaking, a legal consideration.  Ideally, the Court will either grant or deny a stay in a way that ensures that the case remains in the 10th Circuit for at least another couple of months.  Then, if the Supreme Court grants cert, the case won't be heard until next Term, which would delay a SCOTUS ruling until around June 2015.  Given the incredibly rapid pace of change, it's quite possible that by then SSM will be lawful in a clear majority of states, so that a SCOTUS ruling requiring SSM throughout the country could be greeted with a yawn.

It's not at all clear to me that the Court's decision whether to grant or deny a stay in the Utah case will affect the timing of the 10th Circuit litigation.  Indeed, I think just about anything the Court does--short of the unlikely and extraordinary step of granting certiorari immediately--will keep the merits out of the Court until next Term.

That said, if the Court denies a stay, that will be a pretty strong signal that five Justices are prepared to find a right to SSM; by contrast, if the Court grants a stay, that will not necessarily signal much of anything, especially if one of the Windsor majority Justices (I nominate Justice Sotomayor, as the Circuit Justice) writes a concurrence explaining the difference between a stay to preserve the status quo and a decision on the merits.

Tuesday, December 24, 2013

Was the 10th Circuit Correct Not To Stay the District Court SSM Ruling?

By Mike Dorf

This being Christmas Eve, I'm only going to put up a very short post on this very important topic.

The 10th Circuit has denied the State of Utah's emergency motion to stay the district court judgment invalidating Utah's ban on same-sex marriage, with the consequence that Utah now has SSM.  The state could seek (and by the time you read this perhaps already will have sought) emergency review by the Supreme Court. The ordinary procedure would be to seek relief from the Circuit Justice--in this case Justice Sotomayor--who, in a case as important as this, would likely refer the application to the full Court.

In my view, this is one of those rare cases in which the correct moral outcome is also the correct legal outcome, but is still wrong.  I should explain.

Permitting marriages to go forward is correct morally for the innumerable reasons why it is simply unfair, unequal and unjust to deny people the right to marry based on sex or sexual orientation or the fact that they are unlikely to produce children accidentally or whatever other stupid rationalization is now being offered to support a policy that, at this point, must be recognized as simply a product of prejudice.

Permitting marriages to go forward is the correct legal outcome because one of the necessary conditions for extraordinary relief is that the party seeking such relief--here the state of Utah--be able to show a substantial likelihood of success on the merits.  Given Windsor (the DOMA case), as explicated by the district court opinion, the state has not done so.

Nonetheless, I think that the district judge should have stayed his judgment and that, once he failed to, the 10th Circuit ought to have stayed his judgment because only a fool can confidently predict exactly what the Supreme Court will do in this case. I think the Court will probably affirm--leading to legalized SSM nationwide--but it's pretty clear that even the five Justices who are sympathetic to SSM would rather take a few years before getting there.  If their hand is forced, as it now will be, it's impossible to say with certainty what they'll do.

Thus, there is a real chance--less than 50/50 but I would say above 10%--that either the 10th Circuit or the Supreme Court will say that Utah is not obligated to permit SSM.  If that happens, then the Utah same-sex couples who married in the interim will find that their marriages have been voided, leading to heartbreak and chaos.  And by contrast with California after Prop 8, the Utah Supreme Court probably will not "grandfather" those marriages.

That would be a truly awful result--and one that can be avoided if the district court ruling is stayed for the months or even year and a half it will take to fully litigate the case.  I realize the oddity of arguing for an outcome that I regard as both morally odious (because justice delayed is justice denied) and legally wrong (the standard being what it is), but in this case that is where I find myself.

Perhaps my concern would be sufficiently mitigated if all of the couples who are now marrying in Utah were told that their marriages might not last.  I doubt very much that they will be given such a warning--but maybe, just maybe, they don't need one.  Maybe these couples are marrying as a form of political activisim, in much the way that SF couples married pursuant to Gavin Newsom's 2004 decree.  If so, then I recant and I applaud the district court and the appeals court for following the law.

Tax Hackery From a Self-Styled Impartial Referee

-- Posted by Neil H. Buchanan

In my post here on Dorf on Law this past Friday, I offered one possible answer to the question: Why Do Anti-Tax Zealots Resort to "Envy" and "Vengeance" as Explanations for Calls for Redistribution? (I will offer a different, complementary answer in a future post.)  There, I returned to my occasional discussion of the puzzling and empty rhetoric that conservatives have long used to attack progressive taxation.

The odd self-victimization involves the wealthy and their flatterers professing to believe that it is all about jealousy, with "losers" simply wanting to take things from "winners" out of spite.  And I do mean it when I say that the wealthy see themselves as victims: Recall the leading anti-tax militant's comparison of progressive taxation to the Holocaust, which has become a standard meme on the crazy right.  Under this view, the 99% are using their extreme numbers to hijack democracy and take from the beleaguered 1%.  It is all so unfair and mean-spirited!!

A related rhetorical device involves comparing taxes to punishment.  The idea, apparently, is that having tax rates rise as income (or wealth) rises is not a matter of recognizing ability to pay.  Instead, it is simply part and parcel of the envious masses' desire to bring vengeful harm to their betters.  This framing has been around for at least a generation, if not longer, but it has generally been confined to the same conversations in which people toss around the word "socialism" without any sense of what it means.

Imagine my surprise, then, when I read an op-ed in yesterday's New York Times by the former Executive Editor of that newspaper, Bill Keller.  Keller, who richly earned a spot in 2011 on Alex Pareene's must-read annual "Hack List" (which was especially great this year), decided to pretend that he is not really a center-right Clintonite Third Way apologist, by writing "Inequality for Dummies," where he pretended to assess fairly the two sides of the Democrats' intramural debate (which, after some pretense of balance, he finally calls "the near left and the far left") regarding inequality.

A response to most of that piece will have to wait for my upcoming Verdict column that addresses President Obama's call to deal with inequality.  For now, however, I will note that Keller actually appropriated the vengeance framing for taxation, as an argument from a supposedly moderate viewpoint.  Describing with great sympathy the views of "the center-left," Keller writes: "Yes, you can raise taxes on the rich, but you don’t want to punish success."  Yes, he actually said that.

Why is that framing especially outrageous?  Well, consider that he immediately follows that absurd statement with this quotation from a center-right economist (whom Keller gently describes as one "who aligns more with the center than with the populists"): "You want to increase social mobility by providing an opportunity for the bottom to become rich, not forcing the rich to become poor."

Progressive taxation, even at highly progressive marginal rates, does not "force the rich to become poor."  People who earn more before-tax income will still end up with more after-tax income, under every progressive tax plan that any American politician has ever proposed.  Keller is, after all, talking mostly about incoming NYC Mayor Bill de Blasio and U.S. Senator Elizabeth Warren as the vanguard of his dreaded "far left."

Nowhere in anything that either of those people (or their allies) has said or written can you find a tax plan that would make rich people's after-tax income lower than poorer people's.  The intended result is to compress the after-tax distribution, but the people who receive more gross income do not end up poorer than people who receive less gross income.

The standard use of the argument that Keller is pushing is that a person who is considering becoming richer ("Gee, I have an opportunity to invest in this project and earn $5 million, but would it really be worth it?") will be somehow punished for improving his position.  At a 50% rate, he would end up $2.5 million richer, but he would still be richer.  And he surely would not be poorer.

Of course, for the people who are already rich, and who are not planning to do anything in particular to get richer, their high after-tax incomes will be less high under a de Blasio tax system.  Maybe that's the "punishment" that Keller fears, but if so, he can rest assured that the rich will still be richer than everyone else.  They just will have to settle for being fewer multiples richer than their lessers.

The only way the argument that progressive taxes create poverty makes any sense at all is if one adopts the standard trickle-down theory of economics, under which higher tax rates on the rich will cause them to stop being "makers" and simply shut down job-creating enterprises and retire on their piles of cash.  Everyone knows that this is a plausible argument at extreme rates approaching 100%, but we also know that there is a large area of uncertainty within which the economic evidence is extremely weak, at best, in support of the idea that increasing rates by a few percentage points on the wealthy will harm everyone else.  The best recent research indicates that you can have rates on the rich in the 70-80% range without making anyone poorer.

So what is the argument that Keller is pushing?  He does not literally say that the Far Left is pushing for tax increases that are large enough to make everyone (or, at least, the rich themselves) poor.  He just says that the opponents of the Far Left want to prevent rates from being set so high that they "punish success."  Not that anyone else might be suggesting such a thing.  It is just that the center-left "sees the problem and the solutions as more complicated."  As opposed to the Far Left simpletons who just do not understand that real life is difficult.  Get it?

Keller has been missing from Pareene's Hack List for the past two years.  He is well on the way to returning to his former glory in 2014.

Monday, December 23, 2013

Festivus Versus Satan

By Mike Dorf

Today is Festivus--at least as celebrated in the Seinfeldian tradition.  Dan O'Keefe, the Seinfeld writer whose father celebrated Festivus before it was Festivus, reports that the early Festivus had no fixed date. I shall take this occasion to write a follow-up to my Festivus reporting (on the blog and in my Verdict column) last week.

Readers will recall that when last I reported, the government officials in charge of the Florida Capitol Rotunda had permitted a Festivus Pole to be erected as one of the private displays in what was treated as a public forum.  Soon thereafter, those same authorities denied permission to a group called the Satanic Temple, deeming its proposed display "grossly offensive."  As of the most recent press reports, the Satanists asked for, but had not received, an explanation of what was deemed offensive about their display.  The brewing controversy presents some interesting First Amendment questions.

1. The basic rule for a public forum goes like this: Government may enforce content-neutral time, place and manner restrictions, so long as they leave open ample alternative means of communication. In an area that is not a traditional public forum but has been designated by one through government action (as here), the government may also enforce subject-matter limits to ensure that the forum remains a forum for its designated purpose.

2. Florida does not appear to be justified in keeping out the Satanists on subject-matter grounds. Like the others, theirs is a holiday display.

3. A rule that protects the sensibilities of minors might be deemed permissible as a time, place or manner restriction.  However, that rule has to be about the display itself in some way. For example, if the government objected that the Satanic Temple's display was sexually explicit or especially violent, then that would be a valid ground for denying permission. Neither of those criteria appears to be satisfied, however.

4. "Offensiveness" is not, standing alone, a permissible ground for censorship. To be sure, offense is part of the justification for the permissibility of banning obscenity, but again, the Satanic Temple's display is not obscene in the legal sense of appealing to the prurient sexual interest.  It has no sexual content at all.

5. Without a fuller explanation from the Florida authorities, one cannot be sure what it is that they find offensive, but I think the best case that could be made for exclusion would go something like this: Satan worship indicates a commitment to do evil, which government may legitimately oppose.  Note that this view relies on a particular conception of Satanism which may not be shared by self-described Satanists.  Knowing next to nothing about Satanism, I googled it and found myself directed to the Church of Satan website.  Those Satanists would not qualify for censorship under this theory, as they do not advocate evil; instead, the Church of Satan appears to blend elements of paganism, atheism and hedonism.

6. But suppose that there really were a proposed display by Satanists of the sort I'm imagining, i.e., people whose religion celebrates murder, rape, etc.  Even then it's not clear that their message could be excluded from a public forum.  After all, the leading cases say that abstract advocacy is an insufficient basis for censorship. Only incitement--defined in the case law as words that are reasonably calculated to bring about imminent violence--suffices.  Hence, a display that merely describes Satan as a fallen angel (as the rejected Florida display would), or even one that endorses Satan worship, cannot be a basis for censorship.

If the Satanic Temple pushes their case, they have a decent chance of succeeding. That, in turn, may change the calculus for government officials going forward. In my column, I explained that state officials might have found the public forum approach attractive as a means of avoiding taking responsibility for religious displays. But that responsibility may look like the lesser evil, compared with an obligation to permit Satanic displays.

Saturday, December 21, 2013

Maybe Justice Scalia Just Can't Stop Himself

By Mike Dorf

When the Supreme Court decided Lawrence v. Texas in 2003, the majority opinion included language disavowing implications for same-sex marriage.  In invalidating the Texas law forbidding "homosexual sodomy," Justice Kennedy wrote for the Court, the majority did not say that the government was obligated to grant official recognition to same-sex relationships (through marriage or otherwise).  In dissent, Justice Scalia objected that, notwithstanding the Court's disclaimer, the logic of the case implied that there is a right to same-sex marriage.

Subsequent events largely proved Justice Scalia right.  Before the end of the year, the Massachusetts Supreme Judicial Court ruled in the Goodridge case that the state's constitution guaranteed a right to same-sex marriage. Although the opinion did not cite Justice Scalia's Lawrence dissent, in repeatedly citing the Lawrence majority, the Massachusetts SJC made clear that it agreed with his logic.

Did Justice Scalia learn his lesson? Hardly. Earlier this year, when the Court invalidated Section 3 of the Defense of Marriage Act in United States v. Windsor, CJ Roberts wrote a dissent in which he argued that the majority's holding not only did not entail the invalidation of state laws banning same-sex marriage, but that it strongly pointed in the opposite direction, insofar as it relied on principles of federalism.  But whereas Roberts was engaged in damage control, Scalia did not hold back.  He let loose with the following:
the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Yesterday Justice Scalia's chickens came home to roost, at least in Utah.  In a thoughtful 53-page opinion in Kitchen v. Herbert, federal District Judge Robert Shelby invalidated Utah's state constitutional amendment banning same-sex marriage.  In support of his view that the 14th Amendment is best read to protect a right to SSM, Judge Shelby twice invoked Justice Scalia.  First, he said that he "agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law." Later in the opinion, Judge Shelby approvingly quoted the portion of Justice Scalia's Lawrence dissent in which he said that Lawrence entailed a right to SSM because, as Judge Shelby noted, it "removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals."

Justice Scalia must have seen this coming.  So why didn't he join CJ Roberts in the latter's dissent that attempted to limit the damage (from their perspective) in Windsor and why didn't he write something to similar effect in Lawrence?  Let me offer three possibilities.

First, it's possible that Justice Scalia acted out of principle.  Sure, it might be expedient to characterize the majority opinions in Lawrence and Windsor as leaving laws banning SSM untouched, but, in this view, Justice Scalia is a man of deep principle.  It would be dishonest for him to say anything other than what he thinks--which is that the Court's opinions in these cases imply a right to SSM.  If that means that there will be a right to SSM sooner (a result Justice Scalia thinks wrong as a matter of law), then so be it.

Second, it's possible that Justice Scalia would have joined the Roberts dissent or written one like it in Lawrence if he thought it would do any good, but he is enough of a legal realist to understand that whether and when we get a constitutional right to SSM will not in any way depend on how he words his dissents. Accordingly, he may as well be honest (per "First", above).

Third, maybe he just can't stop himself.  Perhaps Justice Scalia thinks (contra "Second"), that language in a dissent has at least a marginal impact on subsequent legal developments. But these gay-themed cases just get him so mad that he can't think or act strategically, and so he lets loose.

These possibilities are not mutually exclusive.  I leave for readers to assign relative weights to the foregoing and/or other factors.

Friday, December 20, 2013

Why Do Anti-Tax Zealots Resort to "Envy" and "Vengeance" as Explanations for Calls for Redistribution?

-- Posted by Neil H. Buchanan

A colleague recently forwarded a quotation from a 1976 U.S. District Court decision (Freedman v. Barrow, 427 F.Supp. 1129, 1136 (S.D.N.Y. 1976)), which included the following remarkable paragraph (emphasis added):
To understand these incentive programs, their effect and purpose, some general observations may be helpful. The larger, more profitable American corporations which have achieved their success against overwhelming international competition, have done so through the efforts of highly skilled, experienced managerial and executive personnel who generally have little or no ownership of the business and no share in the customary rewards of shareholders. Keeping the high level of motivation of these employees, retaining their loyalty in the future, and protecting their skills, experience and specialized knowledge from raids by competitors or others, is the biggest single responsibility of top management, which naturally is also interested in its own compensation. Vengeful, progressive income taxes directed against the managerial class have made it impractical to motivate and reward solely with large salary payments. Their net effect after taxes soon becomes marginal, costing the corporation more than it brings to the executive. Also, other incentives costing less may be more effective than mere salary, or may be tied in more directly with such matters as corporate earnings, and stock market performance.
It should be noted that this is a decision from the Southern District of New York, which decides a large number of Wall Street-related cases.  That might explain the anti-tax tilt of the opinion, but it also is surprising that the bias would be so naked.  Notably, the case is not even about taxes!  It is about the Securities Exchange Act, "short-swing profits" (whatever those are), and other obscure matters.  Nevertheless, the court in its wisdom decided to offer "some general observations" about "[v]engeful, progressive income taxes directed against the managerial class."  (I return below to the "vengeful" question, but I cannot let pass the claim that progressive taxes are "... directed against the managerial class."  Given that progressive taxes also applied at the time to the shareholders that the judge differentiated from the managers, that is a truly odd claim.)

In some ways, however, the most interesting aspect of the angry digression is that it is from 1976.  As some analysts have noted, the term "Tea Party" is simply a re-branding of what has always been the core constituency of the Republican Party, making it unsurprising that the judge's statement long pre-dates the panicked reaction on the right to Barack Obama's presidency.  And given that this was written by a judge on one of the most prestigious courts in the United States, this is not the work of some "regular guy" who lacks legal training.  Claiming that taxes are based on envy and vengeance is one of the most important places where elite and on-the-street opinion meet on the right.

In any event, we have before us a nice, vintage version of a familiar anti-tax argument: It is apparently all about "vengeance."  Are we to understand that people in lower tax brackets wish to punish richer people (or again, in this judge's imagination, "the managerial class") for something?  What are they punishing them for, exactly?  Perhaps for not sharing their bounty with others through public charities, and instead accumulating more and more things, while the less fortunate watch their children die of preventable diseases?  Perhaps for having gained their riches through means that are legal only because these same people manipulate the political process to prevent Congress from passing meaningful financial, corporate, and labor laws?

I doubt that that is what people like this federal judge are thinking (even though both of those arguments seem like pretty good reasons to be angry).  The fear that he is expressing is apparently a free-floating sense that the masses are trying to exact vengeance against success, punishing society's winners because everyone else is a loser.  (Note especially the cable news rant that is credited with birthing the Tea Party movement, discussed here, that pointedly used the word "losers" to describe people who were in danger of losing their houses to foreclosure.)  It is not clear, however, why we should assume that the response to others' success would be to take revenge upon them.  Why would I think, "Professor Dorf wrote a really good post on Wednesday. ...  He must SUFFER!"?

The answer, I think, is that this argument connects "vengeance" to "envy" and "jealousy."  The reason that the supposed losers in society take vengeance upon successful people, we are told quite often, is because they are simply envious of their betters.  Almost exactly two years ago, and almost exactly two years before that, I wrote posts here on Dorf on Law that noted the conspicuous persistence of the idea on the anti-tax right that redistributionist policies are motivated by jealousy.  Similarly, just a few days ago, I happened to see an article (no link available) on a prominent right-wing website that attacked former Labor Secretary Robert Reich for supposedly promoting "the politics of envy."

As I commented in that 2011 post, this is in some ways merely an adult application of the timeless advice from mothers to children: "Don't worry about what the other kids say about you, because they're just jealous."  More to the point, if one's worldview is based on the idea that taxes are a form of punishment, then others' envy must surely have been the basis for the vengeful taxes that the losers are imposing upon society's winners.  Even framing it that way, however, exposes the defensiveness of the pose: "I didn't do anything wrong!  You should stop punishing me."  Someone needs to respond: "Dude, we're not doing this because you did something wrong -- or right.  It is not about you as a person at all."

What is it about?  Volumes have been written about this very question, so my answers here are hardly exhaustive.  Even so, it is fair to say that redistributive policies are, and always have been, a matter of trying to undo the extremes of market outcomes.  Not because the "winners" did anything wrong (necessarily), but because the consequences of allowing the "losers" to suffer the full weight of the "free" market's consequences ultimately hurts everyone, sometimes even the rich.  Notably, when we try to mitigate (partially) the consequences of "luck," it is not a personal statement of envy -- "Oh, you were just lucky!" -- but a recognition that all market outcomes are contingent on matters far beyond the control of any individual.

Even though my explanation in the paragraph immediately above is incomplete (at best), the point is that one need not be envious or vengeful in order to support redistributive policies.  Yet the anti-tax right's go-to move, year after year and decade after decade, is to decry "class warfare" and all of the other caricatures of arguments that progressives never actually make.  Why the persistence?  This group of influential people has nothing of substance to say, so they turn it into a false morality play and scream about the unfairness of supposedly being judged for being bad human beings.  That defensiveness is more than a bit revealing.

Thursday, December 19, 2013

News Dumps and the Debt Ceiling (and more confused news coverage)

-- Posted by Neil H. Buchanan

The 2014-15 budget deal will soon be signed, sealed, and delivered.  I discussed the content of the deal in my Dorf on Law posts last Thursday and Friday, noting the extreme austerity that the Democrats accepted as part of this supposedly middle-ground compromise.  As I also noted in the Thursday post, it was not immediately clear whether the Republicans intended to make another stand on the debt ceiling when it is revived early next year.  I did note that there was no reason to think that they would not rally around even more absolutism, to prove to their base that they are still true believers.

It did not take long for Republicans in Congress to confirm my prediction.  In my Verdict column today, I offer quotes from Paul Ryan and Mitch McConnell, both of whom are breathing fire about the debt ceiling.  No "clean increase," they promise.  They are going to "get something" from President Obama in return for increasing the debt ceiling, they vow.

Even so, the news coverage has been notably forgiving, even by the low standards of the modern U.S. media.  Yesterday's front page article in The New York Times carried a sub-headline that said that the deal is no "Washington Cure-All, but It Clears the Air."  Yes, it clears the air to allow Republicans not to trip themselves up on another government shutdown, so that they can completely devote themselves to demagoguing the debt ceiling, pretending that they can reduce the debt without actually voting to reduce spending or increase taxes.  Great.

Even more notably, that Times "news analysis" article was co-written by the same reporter who wrote the weird line that I quoted in last Thursday's post: "But both parties sought to preserve their ability to force another showdown over fiscal matters; the government’s statutory borrowing authority will lapse as early as March, another potential crisis."  He was back at it again in yesterday's 22-paragraph article, where the debt ceiling finally made its appearance in paragraph 21.

The need to increase the debt ceiling next year, the authors wrote, "could renew the wars or, possibly, prove a useful deadline to produce the next bipartisan agreement, a more sweeping deal on tax and entitlement program changes."  The article ends by approvingly quoting Mitch McConnell as follows: "Debt-ceiling legislation is a time that brings us all together and gets the president’s attention."  So, a Republican stand on the debt ceiling is not necessarily a declaration of war, but is instead a useful opportunity for compromise and slashing Social Security and Medicare!  If only President Obama will show a willingness to engage in bipartisan compromise, the Republicans can work with him to undermine the Democrats' most proud accomplishments.

Back on planet Earth, the question is what the President will do when the Republicans do again throw down the gauntlet on the debt ceiling.  We know, at least, that the White House learned its lesson from 2011 (which led to the sequestration cuts), and will not be taken in by the Times reporters' delusions.  If it does not change its more recent strategy, the President's team will simply say, "No negotiations," and we will be back to more last-minute insanity within a few months.  Even if the President gets the Republicans to blink again, the road to that point will be extremely rocky.

Therefore, in my Verdict column, I develop an idea that Bruce Bartlett suggested to me the other day.  The Democrats' bottom-line argument against the Buchanan-Dorf "least unconstitutional option" has never been on the substance, but on the politics.  Refusing to elevate the debt ceiling over the appropriations laws is, the Obama apologists tell us over and over again ... Just. Too. Risky.  Well, as Bartlett noted, that is what people said about the changes to the filibuster rule.  Maybe, just maybe, Democrats can conclude from the big yawn that accompanied the filibuster changes that the Nervous Nellies in the party overestimate the horrors that will follow from a bold stand on the debt ceiling.

I understand, of course, that the voices of caution will draw the exact opposite lesson.  They will say that the Democrats should thank their lucky stars that all Hell did not break loose after the filibuster was changed, and that they should now assume that they have even less running room than before.  There is always a reason to surrender.

If, however, Obama were to ignore the voices of defeat, and consider trying to avoid the agony of another debt ceiling fight (and another, and another), what might he do?  As I have argued before, the President's position will only be strengthened by moving earlier, rather than following his existing strategy, which by its nature requires that he wait until the last minute.  Why is moving sooner better?  Because it will give everyone -- pundits, politicians, and financial markets -- time to hyperventilate, get it all out of their systems, and then deal with the new reality.

The more times the White House has the opportunity to say, "We will never default on this nation's legal obligations," the better.  The more times it can parade actual human beings in front of news cameras, describing how the payments that those people have been legally promised might be canceled by obeying the debt ceiling, the more obvious it will become that the debt ceiling is not about debt at all.  A paraphrase of my father-in-law's line captures it best: "My wife and I don't like owing people money, so we decided not to pay our bills."  That is the lunacy that Obama could expose, over and over again.

In the meantime, the Republicans will threaten impeachment, and the Democrats can castigate them for wasting everyone's time.  Democrats can also point out repeatedly that the Republicans would also try to impeach the President, even if he obeyed the debt ceiling and defaulted on our obligations.  Meanwhile, after a few days of right-wing business pundits saying that "no one will ever buy the government's illegal bonds," the technical people on Wall Street will announce the price that they would be likely to be willing to pay for the new bonds.

My point, in other words, is that the relative political probabilities now seem to have shifted in favor of following the Buchanan-Dorf approach.  That is not at all a statement that the risks have been reduced to zero, but only that someone who was leaning against our approach two months ago could reasonably conclude that things have changed sufficiently to counsel a different course of action.

A further advantage to acting now is related to a concept known as the "news dump."  In recent years, it has become common for politicians to use late Friday evenings to release information that they might find embarrassing or simply difficult to explain.  With the news cycles ended for the week, the hope is that the bad news will either be ignored entirely, or that it will seem like old news when the weekend is over.

Similarly, it is common to try to bury information by releasing it when some other huge story is dominating the news.  I would not be surprised if many news stories were strategically released, for example, in the immediate aftermath of the Boston Marathon bombing earlier this year.  Distraction works.

Right now, there is no big story dominating the news, but everyone is looking forward to the next two weeks of holiday-related travel, vacations, and so on.  One reason for the positive coverage of the Murray-Ryan budget deal, in fact, is that its passage meant that everyone could go home.  Unlike the last two years, when Congress (and, therefore, the press) was held in session because of political gridlock, everyone this year is breathing a sigh of relief.

The White House could take advantage of this.  As I write in today's Verdict column, the President need only say: "I vow that the United States will never default on its obligations."  He does not have to say, "I now believe that Neil Buchanan and Michael Dorf were right all along, and I am going to commit an unconstitutional act, but only because it is less unconstitutional than any other act that I could commit."  All he has to say is that the country will always pay its bills.

This will not go unnoticed, of course.  But there could be no better time than tomorrow to put this in motion.  The Republicans would still freak out, but time would be on the White House's side.  I have never agreed with the people who say that, even though the Buchanan-Dorf approach is analytically correct, the White House could never dare try it.  But even if they were right before, they are less likely to be right now.

Wednesday, December 18, 2013

The War on Festivus

By Mike Dorf

My latest Verdict column discusses the news that the Florida Capitol now sports a Festivus Pole.  I explain how the Supreme Court's Establishment Clause jurisprudence led to this unexpected result: Because of the legal uncertainty surrounding government-sanctioned religious displays, governments increasingly treat the sites for displays as "public fora" where anyone can make whatever point he or she likes.  (I gloss over the power of government to control the subject matter, but not the viewpoint, of what is said in a so-called "designated" forum for speech.) And once governments open up space to the public, it's hardly surprising that people who object to religious displays on public property would use the opportunity to make that point--by erecting deliberately silly monuments, such as the Festivus Pole.

Predictably, once the story hit the national news, the rightwingoverse went nuts, treating the Festivus Pole as just one more front in the made-for-FoxNews War on Christmas.  Here's a nice account of the FoxNews reaction from Stephen Colbert:

At the risk of stating the obvious, let me just . . . well . . . state the obvious: People who argue that the display of a Festivus Pole in addition to a Nativity scene is part of a War on Christmas cannot really claim to be objecting to the supposed purging of religion from American public life. Indeed, the Festivus Pole is included out of a government attitude that says that anybody can say pretty much anything he or she likes--including mainstream religions, fringe religions and even joke religions. So in treating the Festivus Pole as part of the War on Christmas, FoxNews reveals that, at least in their version of the story, any moves to make our public life more inclusive of non-Christian views--even if they are not accompanied by any exclusions of Christianity from public life--are a threat.  In the guise of fighting a war to defend Christmas, they are actually going on the offensive in their War on Festivus.

Meanwhile, at least judged by one news story I heard, the reactions of the people who actually put up the Nativity scene in the Florida Capitol were much more measured.  I suppose that it's not really my place to give advice to religious conservatives, but in case they're interested, I would urge them to study the reaction of the Mormon Church leaders to the scatalogical but hilarious musical, The Book of Mormon. Members and leaders of the Church of Jesus Christ of Latter Day Saints have been incredibly good sports about the ridicule, perhaps because they realize that there's no way to win a serious debate with people whose prior credits include a musical featuring sex-crazed muppets and South Park.

I'm not sure where the Mormons came upon this bit of wisdom, but it could have been the 1979 debate over Monty Python's The Life of Brian, as excerpted and discussed below:

The idea that Malcolm Muggeridge and Bishop Mervyn Stockwood could win a debate against John Cleese and Michael Palin is, or should have been, so absurd, as to warn the religious duo off of the enterprise.  But even if the actual religious Christians who erect Nativity Scenes are taking the Festivus Pole in stride, FoxNews and the rest of the rightwingmediaverse will not, because outrage over this sort of thing is their brand.  And that outrage will only fuel more Festivus displays.  The War on Festivus will be a long war.

Tuesday, December 17, 2013

Con Law Exam 2013: Obamacare Meets Must-Carry

By Mike Dorf

In keeping with my recent tradition, I'm posting my latest constitutional law exam here.  As always, I will not grade readers' answers. I'm omitting the instructions, other than to say that it was an eight-hour, open-book, take-home exam.  (Note that the exam question refers to a mass shooting.  It was administered early last week, before the Newtown anniversary and before the latest school shooting in Colorado.  It was/is not intended to make light of such events, although it was/is intended to ridicule the policy reaction in some quarters.)

The following facts pertain to all questions:

            In late December 2013, a virus infects the computers that operate the federal and state health insurance exchanges, as well as the computers of the companies that offer insurance on these exchanges. As a consequence, all records of persons who enrolled for health insurance on the exchanges are lost and the centerpiece of the Affordable Care Act is widely regarded as a disaster. At a press conference in October 2014, White House spokesman Jay Carney suggests that the computer virus was maliciously created and introduced by Republican "dirty tricksters", but by then it is too late to repair the political damage. Republican candidates win the 2014 midterm Congressional elections in a landslide, dramatically increasing their margin in the House of Representatives and winning all but one of the Senate races, including races in traditionally strongly Democratic states. Following the election, four moderate Democratic Senators switch to the Republican Party. The result is that Republicans hold over three quarters of the seats in the House and over two-thirds of the seats in the Senate.

            Then, in February 2015, a mass shooting in a suburban shopping mall leads to the deaths of twenty-seven people, including eight children.  The act is perpetrated by Steven Pepper, a former Sergeant in the U.S. Army who was dishonorably discharged in 2011 for assaulting his commanding officer.  Videos on the news and YouTube show several unarmed security guards valiantly attempting to apprehend Pepper, who mercilessly guns them down. Just before armed police arrive at the scene, Pepper shoots and kills himself.

            The shooting leads to polarized political reactions.  Democrats call for tighter gun control measures, while Republicans blame the shooting on the fact that the security guards and the general public did not carry firearms. Republicans win the vote in Congress and in March 2015, they pass a bill--the Securing America From Enemies at Home Act--aka the SAFEatHome Act. President Obama vetoes the bill, but Congress overrides his veto and SAFEatHome becomes law.   In relevant part it provides:

Sec. 101.  This Act is enacted pursuant to any or all of the following powers of Congress: to lay and collect taxes; to regulate interstate commerce; to arm the Militia; to enforce the Fourteenth Amendment; to make laws that are necessary and proper to carrying out its enumerated powers; any other power or powers that may supply the authority for the enactment of this law.

Sec. 102.  (a) Unless they have a good excuse, all male U.S. citizens 21 years of age or over who reside in the United States and who have not been convicted of a felony and who are not currently incarcerated must at all times have within their possession and carry with them in public a fully loaded assault rifle in good working order. (b) Notwithstanding any other provision of federal, state or local law, any female U.S. citizen 21 years of age or over who resides in the United States and has not been convicted of a felony and who is not currently incarcerated may at any time have within her possession and carry with her in public a fully loaded assault rifle in good working order.

Sec. 103.  Within sixty days of the enactment of this Act, the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") shall promulgate rules which shall have the force of law specifying what constitutes a good excuse and what weapons qualify as assault rifles.

Sec. 104.  Failure to comply with this Act shall be punishable by a tax of up to one year in prison, or a tax of up to $10,000, or both.

            Following the enactment of SAFEatHome, the Attorney General and President Obama jointly announce that ATF will not be promulgating regulations implementing SAFEatHome because, in the words of their statement, "it is blatantly unconstitutional."

            It is now June 2015 and you have secured a job as a summer associate for the Dallas, Texas law firm of Smidt & Westin. The firm has been retained by eccentric billionaire Louis "Tex" Richman, who wishes to challenge ATF's failure to promulgate rules interpreting the SAFEatHome Act.  Richman owns a Soviet-era AK-47 in good working order and says he is uncertain whether it counts as an "assault rifle" or whether instead, he must purchase and carry an American-made weapon such as the M-16.  In the event that the AK-47 does not qualify under the Act, he wants to know whether the fact that he is 88 years old and suffers from failing eyesight amount to a "good excuse." Richman would also like the firm's view about whether the SAFEatHome Act is constitutional because he is upset that the President has thus far refused to implement it.

            Write the analysis and conclusion portions of a memo to partner Betty Smidt addressing the following questions:

1) If Richman sues ATF or an executive official in federal court seeking an order to compel ATF to promulgate rules, would his case be justiciable?

2) Did Congress have the affirmative power to enact the SAFEatHome Act?

3) Does the SAFEatHome Act unconstitutionally delegate power to ATF?

4) Does the SAFEatHome Act violate the Second Amendment?

5) Does the SAFEatHome Act violate the Fifth Amendment?

6) Do the foregoing five questions encompass all of the most substantial constitutional objections that might be raised to the SAFEatHomeAct and/or the President's decision not to promulgate rules? If not, identify other substantial objection(s) and discuss.


Monday, December 16, 2013

Is Santa Claus Whiter Than Dumbledore Is Gay?

By Mike Dorf

In 2007, J. K. Rowling outed Dumbledore as gay. I used the occasion to write a column--Harry Potter and the Framers' Intent--that inquired about authorial intentions in literature and in constitutional interpretation. I want to do something broadly similar with Megyn Kelly's recent statement that Santa Clause is white.

I'll admit that it's tempting simply to ridicule Kelly's statement, and The Daily Show did a pretty good job of it, as seen in the clips below.  (Email readers should follow this link and this link if you don't have the embedded video.)

For a more scholarly takedown, I recommend this piece on Slate by Aisha Harris, whose original comments somehow set Kelly off in the first place.

Meanwhile, Kelly, in damage control mode, now claims that her insistence on the whiteness of Santa Claus was tongue-in-cheek. Based on the actual clip, this seems implausible, unless Kelly has an incredibly subtle deadpan delivery in which the joke is conveyed by deliberately avoiding any of the conventional signs of humor. Accordingly, I'll address the Megyn Kelly who appeared to assert in all seriousness that it's "just a fact" that Santa Claus is/was white. (If it turns out that Kelly was really joking, well, then think of this as a response to a fictional Kelly -- perhaps one who pilots a sleigh pulled by flying reindeer.)

As discussed in the second Daily Show clip above, one version of the Santa-is-white theory rests on the claim that Santa is based on the 4th Century Saint Nicholas.  Jon Stewart et al point out that Nicholas was probably quite swarthy, not white, but one might make a second criticism: whiteness is a social category, not a scientific one.  Even if we had a true-color photograph of the historical Saint Nicholas or a time machine, we would not know just by looking at him whether he was "white" or "black" or whether these categories even had meaning in his cultural context.  Whiteness, in other words, is not "just a fact" about a person in the way that bipedalism is.  (And yes, I realize that bipedalism itself may be deconstructed.  Is a wheelchair-using person bipedal? What if her disability is temporary?  Etc.)

Perhaps the better defense of the claim that Santa Claus "just is" white would refer to the character of Santa Claus rather than to the historical St. Nicholas.  It is possible for a fictional character to have a determinate race, just as it is possible for a fictional character to have a sexual orientation.  My objection to Rowling's outing of Dumbledore was not that Rowling couldn't have written the Potter books in a way that made it clear that Dumbledore was gay; my point was that Rowling didn't write the books that way and, having failed to do so, she cannot control her creation post hoc, merely because she was the author.

Likewise here, if "Santa Claus" referred to a character in a particular well-known work of fiction, it would be possible to say that "Santa Claus just is white."  Perhaps the book--call it He Knows If You've Been Naughty or Nice--contained the following sentence: "Santa's alabaster skin was as white as the snow that fell on the rooftop of his North Pole workshop."  Well, then it would be accurate to say that the Santa of the book "just is white."  Of course, even then, we might think that a person of color depicting Santa Claus in a film would be true to the general story.  (Harris usefully gives the example of a black actor depicting James Bond or Spider-Man.)

In any event, there is no single book or other work that gives rise to the Santa character.  He is instead an amalgam of various myths and legends that evolved and merged over hundreds of years.  The "author" of the stories that contain the contemporary notion of Santa Claus is an even more diffuse inter-temporal, inter-geographical collective than is the "author" of the U.S. Constitution or any part thereof.

How should one go about discerning the "truth" about a fictional character created in the way that the American Santa Claus was created? When Kelly says that Santa "just is" white, she may mean only that most Americans today think of Santa as a white character, and so he "just is" white in that narrow sense.  This is a kind of meaning-is-use approach. Someone who says that Santa is black (or red or yellow or blue for that matter) would be making a kind of linguistic error.

I think that's probably the best case that can be made for the view that Santa "just is" white, but it's still a pretty weak case. It's enough to hold off wacky, idiosyncratic claims like "Santa is actually the Big Bad Wolf in the story of the three little pigs" or "Santa is actually Krishna come to Earth in human form."  But given the evolution of the Santa character over time, it is hardly clear that whiteness is an essential element of his character -- in the way that his being neither a wolf nor Krishna is, at least heretofore, an essential element of his character.

Friday, December 13, 2013

Harsh Moderation

-- Posted by Neil H. Buchanan

The next possible government shutdown date is October 1, 2015, instead of January 16, 2014.  That is true because the Republican leadership of the House of Representatives managed to pass the Murrary-Ryan budget agreement, which I discussed  yesterday here on Dorf on Law.

What was the price paid to change the next date on which Republicans could self-destruct?  The acceptance of some (although admittedly not all) of the sequestration-related cuts in domestic spending, the end of unemployment benefits for well over a million people in less than three weeks (and a very high risk that those benefits will never be restored, while hundreds of thousands more people will lose their benefits), and the continued validation of the idea that Republicans can refuse to allow any but the most minor and hidden (and regressive) taxes to be included in a budget deal.  This, ladies and gentleman, is moderation today.

The larger picture, however, was captured perfectly in Paul Krugman's NYT op-ed this morning.  Even more than usual, that column is a must-read.  In particular, he make two essential points.  First, this budget deal -- even as it is being decried by the lunatic right, and celebrated by Beltway pundits as a victory for reasonableness and compromise -- is merely part of a bigger picture in which the conservative attack on government has been wildly successful.  Although even some liberal pundits have approvingly described the final deal as almost literally a split-the-difference agreement between the Senate Democrats' plan and House Republicans' plan, that is a seriously distorted view of what counts as the middle of anything.  Senate Democrats started by giving away the store, so that "compromise" ended up essentially endorsing the shrunken government that Republicans have extorted over the last three years.

Second, Krugman points out that nearly all of the so-called moderate cuts that conservatives have succeeded in extracting from Democrats have come from government spending programs that invest in the future.  Hundreds of thousands of teachers have been laid off, worker retraining programs have been cut, and infrastructure spending has been cut so deeply that we are actually disinvesting by failing to rebuild and replace our assets as they decay and fall apart.  Regular readers of this blog know that I am a bit obsessed with how today's policies affect future generations (among a plethora of examples, see Dorf on Law posts here and here, and law review articles here, here, and here).  This new mockery of moderation guarantees a poorer future for the children of everyone but the wealthy, and it does nothing to reverse the trends toward greater inequality that will tilt most future increases in prosperity toward those fortunate few.

Perhaps the most amazing aspect of the response to the Murray-Ryan bill, however, is the completely unmerited elevation of Rep. Paul Ryan to the status of "reasonable guy."  Here is Chuck Schumer of New York, the third-ranking Democrat in the Senate (and a man who is often bizarrely described by the Beltway's centrism-obsessed pundits as a prime example of unacceptably extreme liberal Democrats), speaking after yesterday's House vote: “The benefits of this agreement will go far beyond the actual agreement itself.  What we have seen in the Senate over the last several months, and now in the House, led by the courage of Congressman Ryan, is mainstream conservatives standing up to the hard right and saying: ‘This is no good for America. This is no good for the Republican Party. We’re not going to follow the Tea Party, like Thelma and Louise, over a cliff.’ ”

I understand that, in the aftermath of a legislative accomplishment, it is de rigueur to praise one's opponents, even to the point of excess.  But when one does that, it is also a good idea at least not to completely ignore reality.  In what world is Ryan not a member of the "hard right," or an ally of the Tea Party?

Ryan, after all, is fervently committed to the no-new-taxes nonsense embraced by his fellow Republicans, especially taxes that are in any way progressive.  He wants to eliminate the Social Security and Medicare programs, replacing them with "market-based" systems based on his devotion to a philosophy that he found in a novel that he read in college.  He decries the Fed's attempts to use monetary policy to do anything but fight non-existent inflation.  He believes that efforts to help the poor are evil liberal dependency traps, such that his explanation for long-term poverty is that it is all the government's fault for making people satisfied to rely on the government's "hammock."  And he does this all while pretending to be a budget wonk, when in fact he literally just makes up numbers to provide fake support to his preferred ideological agenda.

And that is only on the economic side of the ledger.  Although Ryan, a Roman Catholic, is willing to flout the Church's teachings on economic policy, he takes a back seat to no one when it comes to the social issues with which, according to Pope Francis, American Catholics have been wrongly obsessed.  Gay marriage, abortion, contraception, and all the rest of the craziness.  That is Paul Ryan.

But he permitted a percentage or two more spending than his ideological compatriots would have liked, which now magically makes him not "hard right."  The degradation of American political discourse continues apace.

Thursday, December 12, 2013

The Murray-Ryan Budget Deal, and the Strangest False Equivalence Yet

-- Posted by Neil H. Buchanan

The legislation in October that ended the government shutdown, and that put the debt ceiling back to sleep until early February, required House and Senate negotiators to reach a budget agreement by tomorrow, December 13.  That deadline was a bit difficult to understand, because the same legislation reopened the government through January 15, 2014, giving this month's deadline little more than symbolic significance.

To everyone's surprise, however, a "breakthrough agreement" was announced by some Congressional leaders earlier this week.  The two houses' budget chairs, Sen. Patty Murray and Rep. Paul Ryan, agreed in principle to a deal that they and others described as preventing budget brinksmanship for two years.  The details are somewhat unclear, but apparently Murray and Ryan agreed to overall budget numbers for fiscal years 2014 (which is already in its third month, operating for the time being on that "continuing resolution" that ended the shutdown on October 17) and 2015.

No more shutdown threats ... for almost two whole years!!  The Beltway conversation, which had been happily preoccupied with and various foreign policy matters, suddenly lurched back toward the budget wars.  And the consensus quickly emerged that this is a good deal, showing what real compromise looks like.

And what is that compromise?  Well, there is some additional revenue, in the form of a "fee" on airline tickets.  Showing his fealty to form over substance, however, Ryan led off the press conference by saying that the deal includes no new taxes.  More significantly, the mindless sequestration cuts in discretionary spending would be replaced with targeted cuts, preventing some of the worst looming effects on human-needs programs like Head Start, and allowing the Pentagon to plan with more flexibility.  The overall level of spending would be less than $20 billion higher than the levels that would have been reached had the 2014 round of sequestration-related cuts taken effect, which means that overall spending would still be down.  And the increase in 2015 is even smaller, which amounts to a spending cut in inflation-adjusted terms, and an even bigger cut when measured on a per-capita basis or as a percentage of GDP.

So, Republicans should love this, right?  They get the Democrats to agree to continue to shrink the government, hide one small targeted tax increase, and call it a "compromise where both sides gave up significant ground."  Of course not.  The hard-right immediately rejected it, both because of the revenue increase and because it allows spending to go up at all.  Senate Minority Leader McConnell announced that he very much likes the effects of sequestration, which puts the final nail in the coffin of the initial belief that sequestration would be equally unpalatable to both sides.

As of this writing (Thursday morning), I have not seen any further reporting about the scheduling of any votes, or whether the Tea Party's opposition has scuttled the deal.  No one, however, should be surprised if the deal is never consummated.  Either way, I offer here a few observations.

First, this is another example of the Democrats' repeated failure to press an advantage.  Last year at this time, the Democrats held a trump card in the looming repeal of all of the Bush/Obama tax cuts (part of the ill-named "fiscal cliff"), but they failed to exercise that powerful advantage, allowing the sequestration deadline and the debt ceiling deadline to be moved to times when the Democrats would have no negotiating advantage.

Here, the Democrats are letting Republicans off the hook again.  The big political lesson from the October insanity was that Republicans were blamed for the shutdown.  They have made it abundantly clear that they do not want another shutdown in January (or later), because "shutdown" and "Republican" are now inextricably linked in the public's mind.  Even so, Democrats have dropped their earlier hope that they could include an extension of unemployment benefits (in an economy that still has over 3 million long-term unemployed, looking for jobs that still do not exist).  Not to worry, say the Democrats, because they plan to bring up that idea in separate legislation.  Good luck with that.

Second, and much more importantly, the deal does absolutely nothing about the debt ceiling.  As a result of October's events, we now know that even a shutdown does not prevent a default crisis; but even if it did, this budget deal certainly implies an increase in public debt over time.  The increase is too slow to count as good fiscal policy, but any increase is enough to create another debt crisis, putting the President again in a "trilemma," forced to choose how (but not whether) to violate the Constitution.  The rough guesses that I have seen suggest that "extraordinary measures" will again allow the government to avoid defaulting on some of its obligations until roughly March 15, at which point we will be exactly where we were in mid-October of this year (just as we were in February of this year, and in July/August of 2011).

Even if the hardest right of the hard right party forces itself to choke down the Murray-Ryan deal, why would anyone imagine that they would allow a straight vote on the debt ceiling?  Although anything is possible, it seems the height of folly to reach any deal -- much less hailing that deal as a "breakthrough" that will end the budget brinksmanship -- while simply ignoring the debt ceiling.

Third, it is not at all surprising that the reporting on this deal has been rife with ill-informed silliness.  Regular readers of Dorf on Law know that I periodically decry the "false equivalence" that infects standard reporting on political matters in the U.S.  (See an example from this past April here, and one from a year ago here. I have even written about "False Equivalence About False Equivalence.")

The standard form of false equivalence is to "balance" a news report by describing some bad act or statement by a Republican with a description of a bad act or statement by a Democrat, even though the significance or degree of the two matters is grossly disproportionate.  During the 2012 elections, for example, reporters turned somersaults to try to balance the torrent of dishonesty from Mitt Romney and Paul Ryan with supposed fibs from Barack Obama and Joe Biden.  ("Ryan decries Obama's cuts in Medicare that Ryan himself has proposed, but Biden correctly described a study by an economist in a way that might or might not have not have given Romney's tax plan the full benefit of the doubt.")

On the Murray-Ryan deal, false equivalence of this now-standard variety is again in full flower.  For example, in a comedy bit on last night's "The Daily Show with Jon Stewart," NBC White House reporter Chuck Todd seriously claimed, as a counter-point to Republicans' refusal to consider serious tax increases, that Democrats "refuse to deal with entitlements."  What?!  The Republicans in 2012 screamed about the $750 billion in Medicare savings that were part of the Affordable Care Act, and Democrats regularly talk about the need to rein in health care costs.  Some Democrats, very much including the President, are eager to cut Social Security as well, even though that would be a terrible idea.  The notion that Democrats are to entitlement cuts as Republicans are to tax increases is a notion that is taken seriously only in the weird world of Beltway punditry.

Even worse than Todd's standard-issue false equivalence, however, was this gem from a news article (not an editorial) in The New York Times, describing the Murray-Ryan proposal: "But both parties sought to preserve their ability to force another showdown over fiscal matters; the government’s statutory borrowing authority will lapse as early as March, another potential crisis"?

In what universe do Democrats want to "preserve" the ability to force a showdown over the debt ceiling?  For all of my complaints about Obama's mishandling of the debt ceiling, one at least has to admit that he and his party are not trying to keep that issue alive.

But maybe the Times reporter is saying something much more interesting.  Maybe this heralds a decision by the President to engage in the "reverse psychology" that I suggested more than two years ago here on Dorf on Law.  Is Obama finally going to use the debt ceiling to inflict pain on the spending programs that Republicans love most?  Will he refuse to allow the debt ceiling to increase by threatening a veto, allowing the government to default in an effort to prove that he does not "want" a debt ceiling increase any more than Republicans should want one, if they care at all about the U.S. and global economies?

OK, I doubt it.  But if that is not the explanation, then this is the oddest reporting ever.  In the midst of a story that all but begs for an answer to the question, "Uh, does this bold breakthrough actually address the much more dangerous tactic that Republicans have engaged in for the past three years?" the answer is, "Well, no, and that could be a 'potential crisis.'  Both sides preserved that tactic, though."  As I find myself saying far too often: Yikes.

Wednesday, December 11, 2013

Heroin and the Test for Insanity

by Sherry F. Colb

In my Verdict column for this week, part 2 of a 2-part series of columns, I continue my analysis of Burrage v. United States, a case currently before the Supreme Court on the question of when a heroin dealer can be said to have caused the death of a customer who uses the purchased heroin.  For whatever light it might shed on the issue, I would like to consider competing tests for the definition of insanity.

Let me explain why I think this might be useful.  An arguably embedded premise of laws that attribute responsibility for a heroin-user's death in his dealer is the notion that even though a user is choosing to consume a dangerous substance, the user may not be entirely (or perhaps even partially) at fault for his own self-destructive behavior.  If the user is not the primary culprit, then the other (voluntary) actor in the scenario, the dealer, is the logical candidate for absorbing the blame. This is perhaps why a merchant who sells a product to a customer, without concealing the nature of the product and without otherwise providing false or fraudulent information, may find himself incarcerated for an extended period of time for killing that customer.

In American law, we ordinarily shy away from relieving people of responsibility for their own actions.  If the drug-dealer is not in any way compelling or tricking the customer, then why are we not simply saying that the customer effectively committed suicide or courted suicide by utilizing a dangerous drug?  (And if heroin is not sufficiently dangerous to merit such a statement about "suicide," then why doesn't that suggest a corresponding flaw in the attribution of "killing" to the salesperson?).

One answer that subtly emerged during oral argument (an argument before a Court that, to be fair, was not tasked with questioning the wisdom of the law itself) is the differential dangerousness of heroin for different users.  The question came up whether a fatal overdose is more likely to occur in a heroin addict or a heroin novice.  As it turned out, according to the answer the Justices received, it appears that a heroin addict is far less likely to overdose than is her novice counterpart.  Based on my limited academic study of addiction processes as an undergraduate majoring in psychology, I would guess that this difference may be a function of the fact that addicts are familiar with the amount of heroin necessary for them to, alternately, satisfy their withdrawal cravings, or produce a high, whereas new users must base their judgments on the reported experiences of friends who may have already developed a tolerance to heroin or may have a different body mass (or both).

The reason the Justices asked about who is most likely to overdose, I suspect, is that if the answer were that the addicts are, then it would seem logical to say that a dealer who sells to an addict is the proximate cause of the addict's death, while the dealer who sells to a non-addict is not.  This would seem logical because, if addicts were most vulnerable, then we could say two things about the addict who purchases heroin:  1) she is operating with a limited ability to control her impulses (because she is addicted); and 2) her death is foreseeable to the dealer, because it is more likely to occur than the death of a non-addict.  Unfortunately for the logic, however, the two factors turn out to point in different directions.

The inability or limited ability to control one's impulses is, of course, one of the tests for insanity as a criminal defense, though this "control test" has been largely in disfavor since John Hinckley successfully mounted an insanity defense after attempting to assassinate President Reagan.  The second test for insanity is a cognitive test, under which the insane defendant is either unable or has a limited ability to understand either the nature of the crime she has committed or the difference between right and wrong that she might have otherwise brought to bear on the decision to commit the crime.  I see a parallel between the two tests for insanity and the two sorts of vulnerability that the Justices were contemplating regarding the heroin user who dies.  The addict has limited control over her behavior and therefore may be relieved of responsibility for bringing about her own death by ingesting heroin, thereby paving the way for blaming the heroin dealer for the death.  On the other hand, the relative novice, who is not addicted but simply wishes to use heroin for fun, is unable to know, cognitively, how much heroin might constitute an unsafe dose for her.  By contrast to cognitive insanity, the heroin novice's cognitive disadvantage here is not a disability from which she suffers but simply a lack of knowledge that corresponds to her status as a heroin novice.  Nonetheless, the non-addict's relatively greater likelihood of suffering an overdose suggests a structurally similar decision to act in a manner that could cause death without appreciating the nature and quality of one's conduct.

It is tempting, in the face of either sort of inability -- control or cognitive -- to relieve the actor of some responsibility for the consequences of her actions, and this is especially true when those consequences are to cause serious harm to herself rather than to a third party (as would be the case in the criminal prosecution of a defendant who claims insanity as a defense).  And the obvious person to take up the responsibility slack is the dealer who sells the heroin.  The fact that both the addict and the non-addict/novice suffer from one or the other form of disadvantage may help account for a law that blames a drug-dealer for the death of a customer who simply takes the drug that she knowingly purchased from the dealer, regardless of where the user happens to fall along the continuum of heroin experience.

My view, as described in the column, is that users should ordinarily bear as much responsibility as dealers for purchasing decisions, absent coercion or actual disability.  I would accordingly be inclined to resist the temptation to blame the heroin dealer for the death of a consenting adult who uses the drug.  It may be inaccurate to describe drug use as a "victimless" crime, because people do die of overdoses (and suffer in numerous other ways because of the drug).  However, the existence of a victim does not necessarily imply a perpetrator.  Sometimes there simply are no perpetrators, as unsatisfying as that might be to the many of us who like to have an individual to whom to attach blame.

Tuesday, December 10, 2013

The King Amendment

By Mike Dorf

As reported on HuffPo over the weekend, a group of 14 law professors (including Prof. Colb and me) recently sent a letter to key members of Congress sounding the alarm about a provision of the pending House version of the Farm Bill, originally proposed as an amendment by Iowa Rep. Steve King (R), supposedly in response to a California measure governing the treatment of hens who produce eggs for sale in that state. What does the provision say? Here, look for yourself:


    (a) In General- Consistent with Article I, section 8, clause 3 of the Constitution of the United States, the government of a State or locality therein shall not impose a standard or condition on the production or manufacture of any agricultural product sold or offered for sale in interstate commerce if--
      (1) such production or manufacture occurs in another State; and
      (2) the standard or condition is in addition to the standards and conditions applicable to such production or manufacture pursuant to--
        (A) Federal law; and
        (B) the laws of the State and locality in which such production or manufacture occurs.
The letter makes several objections, among them that the King Amendment has a much wider sweep than simply targeting California's Prop 2 and related legislation (which regulate the eggs that can be sold in California).  The letter also notes that the King Amendment is so poorly worded that as a literal matter it would prevent a state from regulating the production of any agricultural product--even in its own state--if any state in the Union does not regulate that product as strictly.

I think that's probably not the best reading of the King Amendment (although a textualist-minded court might disagree), but even the most likely alternative reading is highly problematic. The alternative reading would say that a state may regulate production of an agricultural product in that state but may not impose the same conditions on similar products from out of state, even if they are offered for sale in the importing state.

Rep. King has asserted that the King Amendment merely "clarifies and reaffirms" what he describes as a background constitutional principle forbidding states to regulate extraterritorially.  But if he believes that, he either doesn't understand his own provision or doesn't understand the background law. It's true that a state cannot regulate wholly extraterritorial conduct, but every state has long had the authority to regulate the sale of products within the state, even if in doing so it uses as its regulatory criterion matters that occur in another state--so long as it does not violate the Dormant Commerce Clause.

Let me give an example of a state law that would clearly be valid under the Dormant Commerce Clause but invalid under the King Amendment.  Suppose that a certain kind of mushroom is potentially toxic if it is not treated in a particular way while it is growing, so State X has a law banning the sale of that kind of mushroom unless it has been treated that way while growing.  It is quite clear that this law would not violate the dormant Commerce Clause because it is neither discriminatory nor does it pose an "undue burden" on interstate commerce, in light of the health benefits of the regulation.  So State X would ordinarily be permitted to apply the law to ban the sale of untreated mushrooms coming from State Y, which, by hypothesis, has no such law. Rep. King's provision does not "clarify" or "reaffirm" anything. It imposes a dramatic new limitation on each state's ability to protect the health and welfare of its citizens.

Is the King Amendment constitutional? Maybe.  Certainly, there is federal power under the Commerce Clause to preempt much if not all state law governing the sale and production of agricultural products.  But the King Amendment is not a straightforward federal preemption provision. It also tells states that their laws are, in some circumstances, preempted by the laws of their sister states.  Is that permissible?

Some years ago I wrote a law review article addressing the circumstances under which one polity may validly "dynamically incorporate" the law of another polity--including some discussion of federal laws that dynamically incorporate state laws. (By "dynamic" incorporation, I mean that when the law of the incorporated jurisdiction changes, the law of the incorporating jurisdiction automatically changes as well.)  There are many examples of federal law dynamically incorporating state law, typically but not always as a matter of common law doctrine. So--although my article identifies genuine policy costs that arise out of dynamic incorporation--this sort of vertical dynamic incorporation (a kind of delegation downward) is not per se forbidden.

Thus it might be thought that the King Amendment, if read in the narrower (but still quite sweeping) way I have described just above, would be valid as a combination of the federal power to preempt legislation combined with the federal power to dynamically incorporate state law.  That is plausible, I admit, although it's a sufficiently novel form of federal legislation that I could also see a court finding it invalid as an unprecedented intrusion on state sovereignty.  Moreover, even when two elements of a law are each individually constitutional, their combination may be unconstitutional.  (An example from the Dormant Commerce Clause context is the combination of a permissible discriminatory subsidy with a permissible non-discriminatory tax: the combination of these two permissible laws was held unconstitutional in the West Lynn Creamery case.) In any event, even if the King Amendment is constitutional, it is so destabilizing of state regulatory authority, that it ought to be rejected on policy grounds--especially by lawmakers who care about federalism (and to their credit, some Repubicans have taken a stand against the King Amendment on just that basis).

Finally, although I was asked to sign the letter opposing the King Amendment because of my views about how humans treat other animals, my main concern is actually the legal form the provision uses and its implications for federalism generally. Indeed, as I have noted previously, I am ambivalent about many state animal welfare laws. I do not oppose them, but I doubt that they do much good and worry that some of them may even be counterproductive: by falsely assuring consumers that the animal foods they eat are the product of humane practices, animal welfare laws may entrench rather than dislodge existing practices and preferences (although as I noted last week, this is a complex empirical question).  The main point here, though, is that whatever one thinks about animal welfare laws, the King Amendment goes well beyond that topic and does so in a very bad way.