The "Defense of Children Act": Making More Sense of the Freestanding Federalism Argument in Windsor

By Mike Dorf

Thanks to readers for a lively debate on my post on the federalism argument in the DOMA case.  As I noted in the original post and in reply to various comments, I'm not persuaded by the federalism argument standing alone (as opposed to the argument that federalism issues knock out potentially otherwise-legitimate grounds for states barring SSM.  That seems to me a stronger argument, but I have a hard time evaluating it because I think the potentially otherwise-legitimate grounds do not in fact justify laws barring SSM).  However, some commenters suggested that the freestanding federalism argument is crazy or incomprehensible.  I don't go that far so I've been trying to think of a hypothetical example that might make the case for the freestanding federalism argument more forcefully.  I've come up with the following:

Suppose that, following United States v. Lopez, Congress enacted the "Defense of Children Act" (or DOCA).  DOCA defines marriage for purposes of federal law as excluding all marriages in which any children, grandchildren or great-grandchildren of either spouse attend a public or private school that is not protected by a state Gun Free School Zones Act.  Valid?

I think not.  Sure, other things being equal, Congress has the power to define the terms of federal laws, including marriage (or, following Justice Alito's suggestion, any term used as a substitute for marriage).  However, under McCulloch, Congress may not use that power pretextually.  And here that's pretty obviously what Congress is doing.  Under Lopez, Congress may not directly enact the Gun Free School Zones Act.  And under New York v. United States, Congress may not "commandeer" the states by requiring them to enact laws as a means of circumventing the limits on the affirmative powers of Congress.  So . . . it follows that Congress may not, under the guise of defining the terms of a federal statute, pressure the states adopt a law it could not directly require them to adopt.

What exactly do I mean by "pressure"?  If I were trying to come up with a test here, I think I'd simply borrow the test under the Spending Clause articulated in South Dakota v. Dole and applied to invalidate the Medicaid extension rules in the ACA case (even though I think the latter was a misapplication of the doctrine).  The idea would be that Congress may not use its power to define terms of federal statutes in order to "coerce" states into changing their laws.  My hypothetical DOCA appears to do just that.

Does the actual DOMA?  I tend to think not--and we have pretty good evidence of that fact: States have adopted same-sex marriage largely undeterred by the fact that in doing so, they are not penalized by DOMA; their same-sex couples simply don't get the benefits of being treated as married under federal law.  For similar reasons, I think a federal law extending marital benefits to same-sex couples regardless of state law--what I called the Defense of Same-Sex Marriage Act (or DOSSMA) in my last post on the subject--would be permissible.  So too, to use an example offered by a reader in a comment, would a federal law in the early Republic defining "property" under federal law to exclude slaves.

All of the foregoing is simply another way of affirming my view that the freestanding federalism argument against DOMA should fail.  But I don't think it's a slam-dunk, mostly because my understanding of DOMA as a failure to extend rather than a penalty depends on a fairly arbitrary baseline assumption.  At the margin, we can well imagine that DOMA would discourage states from adopting same-sex marriage, just as DOSSMA would encourage them to adopt it.

Moreover, it's not obvious that I'm right that the test for pretext should be equivalent to the test for coercion under the Spending Clause.  Maybe the federal government is simply forbidden from pursuing policies that are tied up in the exercise of the states' reserved powers.  In that case, DOMA, DOSSMA, and even the slaves-aren't-property law would all be invalid as beyond the enumerated powers.  In a time when the Constitution was widely regarded as protecting property in slaves, it would not have been so odd for Congress to be seen as lacking the power to de-property-ize slaves under federal law.  Immoral, sure.  But not necessarily odd.

Or perhaps the test is one of motive: When, as in DOMA, the language and context of federal law defining terms clearly pursues a policy with respect to a reserved power, it's beyond the scope of federal power.  That also wouldn't be crazy.  The very idea of "pretext" suggests some inquiry into motive.

Again, I want to be clear that I'm not persuaded by any of these arguments.  I think DOMA is invalid because I think it denies equal protection but I think that as a matter of federalism, the federal government otherwise has broad power to define the terms of its statutes.  But I continue to think the contrary argument is merely wrong, not crazy.

Vegan Wine (Cross-Posting with the Society of Wine & Jurisprudence)

By Mike Dorf

The leaders of the Society of Wine & Jurisprudence at Cornell Law School--yes, that is a real organization--asked me to write something for their blog.  I agreed to write about vegan wine.  Hence the following post appeared there a couple of days ago and I'm cross-posting here today.
----------------------------------------------------------------------------------------------------------

As an ethical vegan, I am often asked strange questions.  “Would you eat roadkill?”  “If you were in a lifeboat with a cow, a chicken and Dick Cheney, which one would you eat first?”  Etc.

These questions are not silly merely because they are hypothetical.  Lord knows that as a law professor, much of what I do is ask my students hypothetical questions, often quite bizarre ones.  I do so to test the principle that a court or a student has espoused (e.g., “the federal government lacks the power to regulate inactivity”) by exploring circumstances in which the intuition underlying the principle appears to break down (e.g., “can federal labor law forbid secondary boycotts?”).

I do not doubt that many of the strange questions I am asked have the same purpose.  My interlocutor hasn’t met a lot of vegans and is making a genuine effort to understand the ethical principle that motivates me.  I am always happy to answer questions asked in this spirit, even if I have answered them many times before.

Some of the questions I am asked appear to have a different purpose, however.  “Are your shoes leather?” is often a question designed as a trap.  If I say yes, the questioner can conclude that I am a hypocrite who can be safely disregarded.  If I say no, my questioner will conclude that living as a vegan is so demanding as to be impossible for anyone but a single-minded zealot.  (In fact, my belts, shoes, sneakers, boots, and all of my other clothes are made from man-made materials, and were quite easy to obtain.)  Nonetheless, I try to answer every question as though it were asked in good faith, in part because you never know when it really was.

For a comprehensive effort to answer the sorts of questions people frequently ask vegans, I highly recommend Professor Colb’s forthcoming book, Mind if I Order the Cheeseburger?.   But while you’re awaiting that book’s appearance in stores and online (in May), I want to discuss one of the few circumstances in which I find being vegan a bit of a challenge: purchasing vegan wine, beer and spirits.
But wait, you say.  Aren’t all wines, beers and spirits made from fruits and vegetables?  The truth is a bit more complicated.  Although wine, beer and spirits consist almost entirely of liquids derived from non-animal sources, the process by which the raw materials are converted into these liquids frequently uses animal products, most commonly to filter out impurities.  As one helpful website explains: “The most common animal ingredients used in wine making are isinglass (a very pure form of gelatine from sturgeon fish bladders), gelatine (extract from boiled cow’s or pig’s hooves and sinews), egg whites (or albumin) and caseins (a protein from milk).”

Now if one were a vegan purely for health reasons, one would not have reason to worry much about the use of animal products for filtering.  Occasionally, the filtering would leave a trace of some animal product, but not in sufficient quantities to make a noticeable health difference.  However, as an ethical vegan (who sees health as a beneficial side effect of veganism), my chief concern is to avoid consuming products that are made using processes that deliberately harm or kill sentient beings.  It’s not enough to avoid eating the animals.  I don’t want to eat (or otherwise contribute to the economic demand for) products that have been produced by harming or killing animals.

Many wineries, breweries and distilleries produce excellent wines, beers and spirits (respectively) using non-animal filtering agents.  The tricky part is that labels typically do not say whether a particular wine, beer or spirit has been produced with or without filtration through animal products.

Luckily, we live in an age of technological marvels.  The website Barnivore provides a great deal of information on numerous wines, beers and spirits.  And there’s an iPhone app called VeganXpress, which pulls in the latest info from Barnivore, in addition to listing information about food available in stores, movie theaters and chain restaurants.  (Did you know that the corn on the cob and the green beans at KFC are vegan?  I’m not recommending that anyone go there.  I’m just saying that if I were to find myself in a lifeboat run by KFC, I wouldn’t have to kill and eat Dick Cheney.)

Barnivore and other similar websites have a few shortcomings, however.  For one thing, these sites tend to focus on whether the wine (or beer or spirit) is vegan, not on whether it is good.  As a result, one needs to cross-index with some sort of quality rating.  If you’re ordering online, that’s easy enough, and a well-stocked store will typically have a wide enough selection that you can find a good wine that’s also vegan.  But if you’re at a restaurant, you may find yourself out of luck.

Part of the problem is that the listings aren’t fully comprehensive.  For example, Barnivore has no listing for Konstantin Frank, one of the better local wineries.  Understandably but sometimes frustratingly, Barnivore tends to list the largest commercial enterprises and those that specifically reached out to Barnivore.  Again, if one is buying for home, that’s not a problem.  But it does mean that one is sometimes left guessing at restaurants.

Finally, even when Barnivore has a listing, it is not always fully informative.  For instance, Barnivore lists Johnnie Walker Scotch whiskey as “vegan friendly” based on the following email it received from the company: “In regards to your inquiry, please do note that Johnnie Walker does not contain any animal by-products.”  That’s good to know but not quite enough.  One can imagine that each bottle of Johnnie Walker whiskey passes through a filter specially made for that one bottle from a chimpanzee brain.  If the brain left no residue in the whiskey, then it would contain no “animal by-products” but would be totally unacceptable to an ethical vegan (and, I imagine, totally unacceptable to most everyone else as well).  Now it happens that I know a little bit about the making of whiskey and so I have reason to think that it’s extremely unlikely that Johnnie Walker uses animal products at all (much less chimp brains).  But the information provided on Barnivore is not quite sufficient to support that conclusion.

Where does this all leave me?  Despite occasional frustrations at restaurants, I have no problem purchasing a more-than-adequate supply of high-quality vegan wine, beer and spirits.  In other words, if I have a drinking problem, the problem is not that I’m not drinking enough!

---------------------------------------------------------------

Postscript: The post above appears almost exactly as it does on the SW&J website but I wrote it a week earlier, not realizing it would run during Passover.  Some readers may now be wondering "can a wine be vegan and kosher for Passover?".  Fear not.  The answer is yes.  All Manischewitz wines are vegan!

Political Analysis From Deliberately Unqualified Sources

-- Posted by Neil H. Buchanan

In my Verdict column yesterday, I returned to the familiar territory of debunking conservative talking points about the federal budget deficit.  This week's column, therefore, complements my analysis in last week's Verdict column, where I focused on whether there is any content at all to the "principles" that Republicans claim guide them in their crusade against modern government.  Last week's column was about the lack of content in Republicans' attempts at substantive arguments about deficits, while this week's column was mostly about the absurdity of the political talking points that Republicans have been endlessly repeating.

My favorite such talking point -- and, because the Republicans have such tightly controlled "message discipline," you can find any number of members of Congress, think tanks, party organizations, and so on repeating these points -- is that "we can't borrow money that we don't have."  As I point out in yesterday's column, that statement is patently silly: What other kind of money would anyone ever borrow?  But at least that argument is more entertaining than the usual run of dishonest, empty nonsense about how "we owe the American people balanced budgets," or how "there is definitely going to be a debt crisis."

The facts remain that there is no good reason to focus on the deficit at all, that there is certainly no good reason to try to completely eliminate the deficit (ever), and that there is absolutely no good reason to try to balance the budget every year.  (Why not every month, or every week, or every minute?)  All of the arguments against deficits end up being arguments against something else (taxes, size of government, or something).  So arguing against anti-deficit arguments ends up being a frustrating exercise in trying to flush out one's opponents' real concerns.  (As I said in my blog posts last week, it would be helpful to know if there are any real principles that actually guide people like John Boehner.)

From my standpoint, therefore, it is often quite difficult to find something actually to argue against, when deficits become the political focus.  There is no there there, in the anti-deficit arguments, because there is really not supposed to be.  It is all about beating the drum, repeating the conventional wisdom, and reinforcing unexamined gut instincts about borrowing being bad.  That no one truly believes, upon even a moment's reflection, that borrowing is always bad does not matter at all to this political exercise.

In the course of tracking down quotes from Republicans regarding deficits, however, I found a nugget from an economist who advises many Republican candidates.  Douglas Holtz-Eakin is a standard-issue economist, trained in one of the top economics departments in the world, whose career arc led to the directorship of the Congressional Budget Office in the Bush II years.  There, he ran a scrupulously honest shop, issuing reports that did not support Republican talking points.  (For example, he disappointed Republicans by confirming that tax rate cuts do not pay for themselves.)  Unfortunately, he has long since destroyed whatever credibility he had managed to build up.

Holtz-Eakin was quoted in a recent NYT news article, defending the notion of balanced budgets as follows: " 'It is important to reduce the debt, and balancing gets you there faster,' ... 'That’s paramount.' He said a balanced budget is a goal everyone could understand. 'It gives Congress a way to say no,' he said. 'Transparency and political buy-in are important, and people understand balanced budgets. It has a lot of virtues.' "

This is nonsense.  Beyond what I discussed in my Verdict column (where I noted that there is nothing about "political buy-in" that requires balanced budgets, unless one wants to argue circularly that deficits are important politically because deficits are important politically), we could "transparently" commit to running deficits of exactly $500 billion (or, for that matter, $358.7 billion) per year, or to running deficits of 2% of GDP per year, or a surplus of 5% per year.  There is nothing about a zero annual deficit that is more transparent than any other openly proclaimed goal.

It is also notable that Holtz-Eakin engages in a similar kind of bait-and-switch that Justice Scalia tried to pull off earlier this week (as Professor Dorf described here).  Holtz-Eakin says that it is "paramount" to "reduce the debt," and "balancing gets you there faster."  Of course, if you care about the level of debt, a balanced budget not only does not get you there faster, it does not get you there at all.  In order to reduce overall national debt, it would be necessary to (foolishly) run annual surpluses.

So, what is Holtz-Eakin really saying?  If we actually were to run annually balanced budgets, and if (notwithstanding the contractionary effects that such extreme austerity would cause) the economy were to continue to grow, the ratio of debt to GDP would fall over time.  But that, of course, is not what "people understand" when you talk about balanced budgets.  He is, therefore, perfectly willing to use a statistical subtlety when it suits him.  In order to dumb it down for political purposes, he conflates debt and deficits, and then says that there are "a lot of virtues" for reinforcing people's misconceptions about deficits, in order to achieve what he thinks is really important (reducing the debt-to-GDP ratio).

He is, therefore, being deliberately non-transparent to suit his purposes.  If he were to argue out loud that he is not really against debt, but merely wants to reduce the debt-to-GDP ratio at a faster rate than, say, Paul Krugman would reduce it over the long run, then he would have to defend the slope of his curve against the slope of Krugman's curve (and his preferred end point -- which will be a positive number -- against Krugman's).  By saying that it is virtuous to tell half-truths, he undermines his own claims to transparency.

What is more broadly interesting about those comments, however, is the phenomenon of seeing an orthodox economist "commit politics."  That is, it is not merely that the training that we economists receive deliberately ignores political analysis, but our professional norms cause us (if we are not trained in other fields as well) to scoff at the very idea that understanding politics is important.  When some economists then find themselves in the political arena, they end up saying whatever comes to mind, and then justify their comments as being necessary to be "politically realistic."

This is not, moreover, limited to economists who support right-wing candidates.  Alan Blinder, a Princeton economist who was appointed by Bill Clinton to be Vice Chair of the Federal Reserve, is an absolutely top-flight macroeconomist, whose work is very much in the modern Keynesian mode that I generally find convincing (although I do have some strong reservations).  Even before his stint at the Fed, Blinder found himself trying to offer political explanations for balancing budgets.  In a book chapter from 1991 that I have often cited in my work (not available on-line, but the book information is available here), Blinder ran through six arguments against deficits, the first five of which were based on technical economic/financial/accounting concepts.

After showing that the standard understanding of deficits was nonsense, on all five of those technical arguments, Blinder then stepped outside of his training and argued that the best reason to reduce the deficit was to stop politicians from talking about the deficit.  In other words, even after having just shown that there were no good arguments to balance the budget, he opined that the political system would respond better if deficits could be taken off the table as a talking point.

Of course, Blinder wrote those words in the late 80's or early 90's, during the Bush I administration.  Even then, however, his political assertions struck me as naive, at best.  I am not sure whether the word "enabling" had yet entered the popular lexicon, but the concept certainly applied to Blinder's sincere assertions.  And the subsequent decades have, indeed, shown that giving ground on the deficit -- supposedly because it is too difficult for politicians and citizens to understand the truth -- has done nothing to make deficits disappear from the conversation.  Today, Blinder finds himself fighting to stop the political momentum against further austerity.

The point, therefore, is that we have a situation in which economists want to be "politically relevant," but because they have no expertise in politics, all too many of them (even the good ones) make it up as they go along.  I happen to agree with Blinder's politics, and disagree with Holtz-Eakin's, but what is fascinating is that they are both stuck floundering in political arguments that are either ex ante questionable (Blinder) or blatantly dishonest (Holtz-Eakin).  Either way, it remains true that we have never even tried to have an honest political discussion about deficits and debt.  Maybe someone should try.

Art Imitates Life, Life Imitates Art: Some Thoughts on DOMA

By Lisa McElroy

The best episode of the best series ever on television, way back on March 24, 2004 (pretty much exactly nine years ago, when only Massachusetts allowed gay marriage), came to mind today as I was reviewing the coverage of the DOMA arguments.  OK, I’ll admit it, I find pretty much any excuse to watch The Supremes, a fifth-season episode of The West Wing in which President Bartlet must fill a suddenly vacant seat on the Supreme Court.  I make my Supreme Court seminar students watch it every year when we talk about appointments, and now that my children are in middle school, I’ll probably subject them to it, too.

But this post is not about how much I wish that President Bartlet had really served our country as President, with Josh and Toby and CJ backing him up in advancing progressive causes.  It’s about how DOMA has been a much-talked about issue for many, many years, and how it is critical that the Supreme Court decide this issue now.

Let’s start by setting the scene – the scene in the 2004 West Wing, that is.  Josh and Toby come up with a strategy to fill the vacant seat that they call the “swapadeedoo.”  The idea is that the best debate on the Court comes from opposite ends of the spectrum, and that liberals can only get moderates confirmed because of the Republican-controlled Senate.  Therefore, (with the President’s blessing), they approach the “liberal lion” Chief Justice and ask him to step down.  Their plan?  To fill his seat with a liberal woman, and allow the Republicans to choose one of their own for the Associate Justice seat.

The potential female nominee (Evelyn Baker Lang) meets with the President first, while the conservative ideologue (Christopher Mulready) waits in a conference room.  Toby Ziegler starts chatting with Mulready as they wait.

TOBY ZIEGLER

I read your article on [gay rights] and I may be out on a fringe here, but I don't see how a family values conservative justifies denying committed couples access to the benefits of state sanctioned monogamy.

CHRISTOPHER MULREADY

Homosexual couples.

TOBY ZIEGLER

Couples.  A couple is a couple.

TOBY ZIEGLER

It's an equal protection violation.

CHRISTOPHER MULREADY

Homosexuals are not a suspect class.

TOBY ZIEGLER

Only one that denies access.

CHRISTOPHER MULREADY

No.

TOBY ZIEGLER

To over 1,000 federal protections.

CHRISTOPHER MULREADY

To what?

TOBY ZIEGLER

Survivor benefits under Social Security.

CHRISTOPHER MULREADY

$255.00?  I'll write you a check.

TOBY ZIEGLER

Hospital decision making.

CHRISTOPHER MULREADY

So, talk about power of attorney, not marriage.  Besides the fact is, DOMA doesn't restrict access to marriage.

TOBY ZIEGLER

Of course it restricts access. It restricts full faith and credit.

CHRISTOPHER MULREADY

So, Vermont gets to steer a nation on wide marriage legislation?  Vermont?

Baker Lang walks in after her meeting with the President and greets Mulready. 

CHRISTOPHER MULREADY

Mr. Ziegler was trying to convince me that the Defense of Marriage Act is unconstitutional.

EVELYN BAKER LANG

Oh, DOMA?!  He was trying to convince you? [chuckle]

TOBY ZIEGLER

What?

EVELYN BAKER LANG

He doesn't need convincing.

TOBY ZIEGLER

I wasn't doing it because...

EVELYN BAKER LANG

He was yanking your chain.  He would never uphold DOMA.  He may not love the idea of gay marriage, but he hates congressional overreaching, and Congress doesn't have the power to legislate marriage.  The issue isn't privacy.

CHRISTOPHER MULREADY

Or equal protection.

EVELYN BAKER LANG

It's enumerated powers.  He'll have an easier time knocking down DOMA than I will.

CHRISTOPHER MULREADY

Lack of imagination on your part, if I may be so bold.

My point?  President Clinton signed DOMA into law in 1996, believing even then that it was unconstitutional.  The popular media has been talking seriously about the issues with DOMA, explaining how and why both liberals and conservatives can agree that it is unconstitutional, much as we saw displayed in today’s oral arguments, since at least 2004.  And the time is now to declare that DOMA is unconstitutional, even if federalism and not equal protection is the basis for that decision.

Today, in front of the Supreme Court, protestors chanted, “What do we want?  Equality!  When do we want it?  Now!” And that’s because the injustice DOMA engenders occurs every day, or, according to Justice Ginsburg in today’s arguments, “[in]1100 statutes . .. [DOMA] affects every area of life.”  According to Solicitor General Verrilli, “What Section 3 does is exclude from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” 

Even with these kinds of stakes, Harvard Law Professor Vicki Jackson (appointed by the Court to make the argument, to be sure, but the very appointment signaling that the Court was considering this view) argued that the Court should not decide the case, even in light of the critical nature of the issue, saying, “While it is natural to want to reach the merits of such a significant issue, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question.”

According to Paul Clement (arguing for BLAG, a group from the House of Representatives seeking to uphold DOMA), we should “[a]llow the democratic process to continue.” But to let the wheels of justice turn slowly across these fifty United States disregards the notion that the rule of law affects attitudes, attitudes that may otherwise be resistant to change.  Without DOMA to look to for support, those opposing equal rights might have to consider reasonable arguments in favor of equality.  Even better, were the Supreme Court to strike DOMA down on equal protection grounds, it would signal to the country that discrimination on the basis of sexual orientation is not only unconstitutional, it’s really, really uncool.

The West Wing enunciated all of the arguments, and in only about three minutes, to boot.  DOMA is unconstitutional because the federal government should be out of the marriage business. DOMA is unconstitutional because the federal government is not free to treat straight and gay couples differently.

The Federalism Argument That Should Have Been Made in the DOMA Case

By Mike Dorf

The potentially crucial moments in yesterday's oral argument in United States v. Windsor came during two painful exchanges.  Under questioning from CJ Roberts, SG Verrilli appeared to say that the Justice Dep't was not denying that the federal government has the affirmative power to define the term "marriage," as used in various federal statutes, in a way that differs from how the states define it.  I say "appeared" because, after making the concession to the Chief Justice, SG Verrilli then took it back in response to a question from Justice Kennedy.  Justice Kagan then tried to help him out and the SG grabbed at the lifeline.  The SG finally said that the fact that the federal government lacks the plenary power to regulate family affairs in the way that states do, means that the federal government cannot advance all of the same sorts of interests to defend DOMA that a state may advance to defend a state law banning same-sex marriage--and therefore, that the federalism concern could be relevant to the application of the equal protection analysis.  But SG Verrilli did ultimately reaffirm the concession he had made to the Chief Justice: The United States does not take the position that DOMA is invalid on federalism grounds standing alone.

Accordingly, SG Verrilli abandoned the one argument that appeared most likely to appeal to Justice Kennedy.  And in fact, observing the flow of the oral argument, it was clear that this was the whole point of the exchange.  CJ Roberts was using SG Verrilli to argue to Justice Kennedy that there is no substance to the federalism objection.  Why didn't SG Verrilli resist that maneuver?

I can think of two explanations.  The first, uncharitable, explanation, is incompetence.  I don't think SG Verrilli is generally incompetent but he does have a penchant for showing up at extraordinarily important oral arguments without well-rehearsed pithy answers to difficult-but-foreseeable questions.

A second, more charitable explanation is that the DOJ was in a tight spot.  As the federal government's representative before the SCOTUS, the SG was understandably reluctant to say that any particular statute is beyond the power of Congress.  Especially given what five Justices were willing to say less than a year ago about the limits of the Commerce Clause in the Obamacare case, the SG and other Administration lawyers could well have concluded that it would be dangerous to press an argument that DOMA exceeds Congress's affirmative powers.  At the end of that road could lie the invalidation of the Endangered Species Act and God knows what else.

Let's be charitable and assume that the second explanation is correct.  That still left undefended the proposition that seems most likely to garner Justice Kennedy's critical fifth vote.  And that's because attorney Roberta Kaplan, arguing for the respondent Windsor, also failed to articulate the federalism argument.  In fact, her answers to the Chief Justice, Justice Scalia and Justice Alito suggested that she didn't really understand--and thus was totally unable to rebut--the argument that was advanced by Paul Clement for upholding DOMA as against a federalism challenge.

Kaplan said that the federal government doesn't issue marriage licenses because regulating marriage is a reserved power of the states.  So far so good.  But DOMA does not purport to authorize the federal government to grant marriage licenses.  DOMA defines marriage for purposes of over a thousand federal laws.  As long as Congress had the affirmative power to enact those laws,  Clement said, then Congress doesn't need any additional power.

For example, the federal law governing spousal Social Security benefits is an exercise of the Spending Power, and so as applied to such benefits, DOMA is an exercise of the Spending Power. Or take Windsor itself.  The federal law governing the taxation of estates and inheritance--including exceptions for testamentary transfers to surviving spouses--is an exercise of the Taxing Power.  And so, as applied to Windsor, DOMA is an exercise of the Taxing Power.

That's Clement's argument for rejecting any freestanding federalism objection to DOMA, and on the face of it, that's a pretty good argument.  It is thus unfortunate--and arguably the product of incompetent lawyering--that there was no effort by SG Verrilli or Ms. Kaplan to respond to this argument and thus to bolster Justice Kennedy's position.

In fact, there is something quite substantial that could have been said on the other side that ought to appeal to Justice Kennedy.  It goes like this:

Ordinarily, when Congress defines the terms of one or more statutes it has enacted, we can assume that Congress is attempting to specify how the powers backing those statutes are to be exercised.  But where, as in DOMA, Congress paints with such a broad brush as to touch on over a thousand, largely unrelated provisions of the federal code, and does so in language that so obviously betrays a substantive aim largely unconnected to any of those provisions, it is fair to infer that this blunderbuss approach has some other aim.  Here that aim is plain: Congress attempted in DOMA to use its other powers pretextually, as a basis for circumventing the 10th Amendment and enacting a de facto federal law of marriage.  But at least since McCulloch v. Maryland, we have understood that such a pretextual use of Congress's enumerated powers is not necessary and proper.  QED.

Is that a persuasive argument?  One might worry about (a variant on) the hypo that CJ Roberts offered.  Suppose Congress were to repeal DOMA and replace it with DOSSMA--the Defense of Same-Sex Marriage Act.  DOSSMA treats married same-sex couples and same-sex couples who have entered into civil unions in states that forbid SSM but permit such unions as married for purposes of federal law.  Perhaps it also permits same-sex couples in states that do not even acknowledge same-sex civil unions to apply for a federal certificate of marriage equivalence, and treats them as married for purposes of federal law too.  If there is a persuasive freestanding federalism objection to DOMA, then that same objection appears to knock out DOSSMA--unless the Court were willing to uphold DOSSMA as a permissible exercise of Congress's power to enforce the Fourteenth Amendment under Section 5 of that Amendment.  But the Court's cases narrowly construe the Section 5 power, except where Congress acts to enforce a recognized right, so the ability to distinguish DOSSMA from DOMA would depend on the Court also recognizing a right to SSM.  But if the Court were willing to do that, then we wouldn't need to worry about the federalism issue in the first place.  The DOSSMA hypo thus troubles me.

Nonetheless, the hypo probably doesn't trouble Justice Kennedy, who might very well be perfectly comfortable saying that both DOMA and DOSSMA are beyond the powers of Congress on federalism grounds.  Indeed, I read Justice Kennedy's exchange with Paul Clement as containing the germ of the italicized argument above.  It's too bad that the lawyers didn't articulate something like that argument under questioning.

Luckily, the relevant points were made pretty effectively in an amicus brief on behalf of self-described "Federalism Scholars."  Whether the argument works could be thought to depend on whether there is a satisfactory method for determining when Congress is using its powers pretextually.  Reasonable minds can differ on that question--and they have so differed.

For an enlightening look at the arguments on each side, I recommend that readers follow the links backwards from Nick Rosenkranz's most recent post on the Volokh Conspiracy.  Nick and some others are skeptical of the federalism argument; Randy Barnett and still other scholars are more enthusiastic.  I have nothing more to add to the merits of their disagreement but I will say that the relevant audience here is Justice Kennedy, and that today's argument pretty strongly showed that he is comfortable with it.

That's not surprising to me, because the pretext argument not only plays to his federalism instincts; it strongly resonates with his opinion in Romer v. Evans.  In both instances, the breadth of the exclusion bespeaks an illegitimate motive, whether the illegitimacy is a matter of equal protection (as in Romer) or of federalism (as in Windsor).  We scholars can argue about what test to use to detect an illegitimate motive, but Justice Kennedy knows one when he sees one.

Pretend friends, housekeepers, and nannies

By Sherry F. Colb

This week on Justia's Verdict, you can find Part 2 of my two-part series of columns examining the constitutionality of routinely sampling DNA from people who are under arrest.  In this post, I want to raise a related question -- the question of "pretend friends."  As I discussed in my 2002 Stanford Law Review article, What Is A Search?, the Supreme Court has long treated the sharing of one's privacy with a third party as tantamount to relinquishing that privacy, for various purposes.  I discussed some of the ramifications of that relinquishment in my last week's post here, Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine.

The Court's "pretend friend" cases include Hoffa v. United States and United States v. White.  In these cases, the Court held that the government may send an agent to insinuate himself or herself into your life and listen to (and record and electronically transmit) your confidential communications, without having to obtain a warrant or even have probable cause to justify the undercover operation.  The rationale?  You have no reasonable expectation of privacy in your friends.  When you invite a friend into your home and share secrets, you take the risk that the friend will betray you by repeating your secrets (or even by simultaneously transmitting them), and that risk relinquishes the Fourth Amendment reasonable expectation of privacy you would otherwise have had.

This judgment, in my view, reflects the Court's assumption that only "wrongdoers" are subject to such law enforcement tactics.  Oddly, of course, the Court's failure to classify these tactics as Fourth Amendment "searches" likely increased the odds that targets would in fact be innocent people.

As a thought experiment here, I want to consider the "assumption of risk"/"you can't trust your friends" rationale in a different context.  Rather than focusing on friends or co-conspirators, consider instead one's expectation of privacy in workers who commonly service the needs of upper-middle-class and wealthy individuals (of the sort who make up the personnel of the U.S. Supreme Court).  I am thinking here of housekeepers, whether in homes or hotel rooms, and of babysitters and nannies.

Imagine that the FBI becomes curious about Justice Scalia.  They do not have any evidentiary basis for suspecting wrongdoing, but they wonder whether there is something illegal going on in his life.  They accordingly send out a federal agent to apply for a job opening in the Scalia household -- as a housekeeper.  The applicant is able to gain employment (under false pretenses, as all undercover operations necessarily are).  (Alternatively, the agent could gain employment as a housekeeper at a hotel where Justice Scalia likes to stay when he travels to a particular city, thus providing him with even less control over the choice).

Imagine now that in the course of serving as Justice Scalia's housekeeper, Agent John Doe discovers a box of Cuban cigars (with a receipt) and other contraband under the Justice's bed.  Can this evidence, uncovered by the FBI, (or the agent's testimony about the evidence) be admitted in a prosecution against Justice Scalia?  Under the existing doctrine, the answer ought to be yes.  There is nothing to distinguish doctrinally between people invited into your home socially, who then turn out to be law enforcement officers, on the one hand, and people invited into your home to clean it, who then turn out to be law enforcement officers, on the other.

Yet I suspect that the Justices who might have otherwise rejected privacy claims in one's "friends" and associates would be inclined to regard Justice Scalia's hypothetical predicament in a different light.  They might very well balk at allowing federal agents to pose as domestic workers and thereby expose the private contents of an employer's home to government scrutiny.  For many upper-middle class and wealthy people, it would seem completely unacceptable to have to choose between employing a housekeeper and having privacy from governmental presence in one's home.  Privileged people (including the Justices) may enjoy a level of insulation from police insinuation into their groups of friends.  But how could someone like Justice Scalia insulate himself from a federal agent posing as a housekeeper?

At the oral argument in United States v. Jones,  the case about the constitutionality of using a GPS to monitor a suspect for a month, Chief Justice Roberts asked the Deputy Solicitor General whether it would represent a Fourth Amendment search  “if you put a GPS device on all of our [the Justices'] cars, monitored our movements for a month?”  The answer was essentially yes.  The government lost that case 9-0.  It may be that it would take this sort of vulnerability -- the sort that the hypothetical Justice Scalia experienced from the federal agent housekeeper John Doe -- to inspire the Court to revisit Hoffa and White.

When Did Laws Banning SSM Become Unconstitutional? What Ted Olson Might Have Said with More Time

By Mike Dorf

During today's oral argument in the Prop 8 case, Justice Scalia asked Ted Olson when it became unconstitutional to exclude same-sex couples from marrying.  Olson initially replied with a couple of questions of his own: when did it become unconstitutional for government to exclude interracial couples from marriage? And when did racially segregated schools become unconstitutional?  Olson thus tried to show that the tacit premise of Justice Scalia's question--that the meaning of a provision of the Constitution is fixed when that provision is adopted--has been properly rejected by the Court's cases.

But Justice Scalia replied that those practices were unconstitutional from 1868, the time when the Fourteenth Amendment was adopted, even though the Court's cases did not recognize it until 1967 (for interracial marriage) or 1954 (for segregation).  Justice Scalia thus dared Olson to say that same-sex marriage has been constitutionally obligatory since 1868 as well.  Olson did not go there but if he had, he would have called Justice Scalia's bluff.

What exactly did Justice Scalia mean when he said that the equal protection clause forbade anti-miscegenation laws and racial segregation all along, even if the Court did not so realize?  He did not--or at least he cannot in good faith--mean that the framers and ratifiers subjectively intended or expected that the Fourteenth Amendment would require legal interracial marriage and integrated public schools (and other facilities) in 1868.  And indeed, in his academic writings, Justice Scalia rejects the "old originalism" of "framers' intent" in favor of the "new" or "semantic" originalism.

So all that Justice Scalia can really mean when he says that equal protection forbade anti-miscegenation laws and de jure segregation from 1868 on is that the framers and ratifiers of the Fourteenth Amendment adopted a broad principle of equality and that this principle has all along imposed an obligation of equal treatment--even though it took the Court (and the nation) decades to understand what that obligation meant in practice.

But if so, then the same is true with respect to same-sex marriage.  From the very beginning, the equal protection clause meant that people had to be afforded equal access to fundamental rights and could not be divided into classes of citizens.  It's only very recently that we have realized that this principle entails the invalidation of laws barring same-sex marriage.

Put differently, we can see Justice Scalia engaged in what I have elsewhere described as an originalist bait-and-switch.  To reject the rights claims conservatives want to reject, they associate the meaning of the Constitution with the subjective expectations and intentions of the framers and ratifiers--and since, in this instance, we know that Americans circa 1868 were pervasively homophobic, it's preposterous to attribute to them the intention or expectation of requiring same-sex marriage.  Resort to a fixed constitutional meaning serves Justice Scalia's narrow goal here perfectly.  But when non-originalists respond (as Olson quite properly did) that the Court's cases rightly reject this method in other cases, Justice Scalia then shifts his ground, by arguing that those cases are consistent with semantic originalism and ignoring the evidence of the subjective intentions and expectations of the framers and ratifiers (who were, by our standards, quite racist).

It's perfectly understandable that in the context of trying to win over the winnable Justices, Olson did not call Justice Scalia on this move.  But those of us without such time constraints shouldn't be fooled into thinking that Justice Scalia had actually scored more than a rhetorical point.

The Case That Dare Not Speak Its Naim

By Mike Dorf

In Sunday's NY Times, Adam Liptak addressed the question of whether fear of another Roe v. Wade could influence the Supreme Court in its decision of the same-sex marriage cases.  It's certainly possible that one or more Justices will indeed have that fear, but Liptak's article suggests--incorrectly in my view--that this is a realistic fear.   As I wrote last week, I think that both the direction and the intensity of public opinion on SSM makes "massive resistance" to a decision recognizing a right to SSM quite unlikely.

The leading expert on backlash w/r/t SSM is Harvard Law Professor Mike Klarman.  In my post last week, I noted that in Klarman's 2012 book, he warns of the possibility of backlash but that it's possible that Klarman has softened (from an already-hedged position) in his calculation of the odds.  Liptak cites Klarman's book and quotes Klarman expressing the view that the intensity of opposition ot SSM is nothing like the intensity of opposition to abortion.  Interestingly,the very same day that Liptak's article appeared, so did a Los Angeles Times op-ed by Klarman himself, in which Klarman explains systematically why backlash against a Supreme Court decision recognizing SSM is unlikely.

To be sure, even if the Justices don't need to worry about backlash, they still might.  If they do, and if they also want to avoid writing an opinion that will come to be regarded as infamous, they will likely look for some way to decide the cases on narrow grounds.  There are two possibilities--what I labeled options (1) and (3) respectively in my post yesterday:

(1) No ruling on the merits because executive non-defense means no case or controversy; . . . (3) Plaintiffs win "small" in the sense that Prop 8 is invalid in California (perhaps because, following the 9th Circuit, the decision to take away marriage was rooted in animus) but the Court does not say that other states must recognize SSM, and, in Windsor, the Court relies on some DOMA-specific ground like federalism or the animus that motivated Congress . . . .

As I noted yesterday, I think it's easier to write an opinion for option (3) in Windsor than in Perry, but here I want to say a word or two about option (1).  I won't get into the underlying strength and weaknesses of the arguments for saying there's no standing, except to say that considered simply as a matter of standing law, I would favor a finding of standing in both cases.  It seems to me that the courts ought to reward an executive branch actor (whether at the state or the federal level) who decides that he will enforce-but-not-defend a law he thinks is unconstitutional, on the ground that this is a useful way of obtaining a judicial resolution of the matter.

But suppose that a majority either disagrees with my legal analysis of the standing issues or thinks that the standing questions are close enough that they provide sufficient cover for the Court to use to duck the direct question of whether SSM is constitutionally protected.  What kind of decision would that produce?

The closest parallel--as the intentionally punny title of this post suggests--might be Naim v. Naim.  You've never heard of Naim?  That's because it didn't decide very much at all. The Virginia Supreme Court had rejected a federal constitutional challenge to its anti-miscegenation law.  The case fell within what was then the U.S. Supreme Court's mandatory appellate jurisdiction.  Nonetheless, the Justices ducked the case by vacating and remanding to the Virginia Supreme Court for clarification of a jurisdictional point.  The Virginia Supreme Court then held that it lacked the authority to remand further to the lower state court and reaffirmed its earlier holding.  That was 1955. The U.S. Supreme Court would not address the merits of a challenge to an anti-miscegenation law until 1967, in  another case from Virginia, Loving v. Virginia.

Did Naim taint the Court's subsequent decision in Loving?  No.  But that doesn't mean that the Supreme Court could get away with a similar non-merits ruling in the SSM cases.  For one thing, Naim was mostly beneath the radar.  By contrast, the SSM cases are going to be the subject of full argument in the highest profile cases of the current Term.

Moreover, there's an important merits difference.  Naim came to the Court just a year after Brown v. Board, at a time when the South was already almost literally up in arms.  Private correspondence of the Justices--especially Felix Frankfurter--shows them worried that if the Court found a right to interracial marriage in 1955 it could spark a second Civil War.  And so waiting another decade to tackle anti-miscegenation laws made tactical sense as a means of avoiding backlash, even if the means used for ducking the issue were somewhat unprincipled.

By contrast, it has already been a decade since the Court's last major gay rights ruling--Lawrence v. Texas. And with public sentiment pretty clearly moving irreversibly towards favoring legal SSM, there is little reason to worry about major backlash.  In other words, even if the Court could get away with using jurisdictional grounds to duck a decision in the SSM case, there should be much less of a perceived need to do so here than there was in Naim.

SCOTUS SSM Bracketology

By Mike Dorf

If either team had an equal chance of winning each game in the NCAA basketball tournament, the odds  against filling out a perfect bracket would be one out of 2 to the 63rd power, or roughly speaking, a 9 followed by 18 zeroes. (I'm ignoring the play-in games.  If you count them, discount your odds by a further factor of 16).  What are the odds of filling out a perfect "bracket" for the Supreme Court's decisions in the same-sex marriage cases to be argued this week?  That depends on what we mean by a successful prediction, so let me make some simplifying assumptions.

There are nine justices and two cases--Perry (the Prop 8 case) and Windsor (the DOMA case).  In each case, there are arguably infinitely many possible outcomes, but we can group these outcomes into four basic possibilities: (1) No ruling on the merits because executive non-defense means no case or controversy; (2) Plaintiffs win "big" in the sense that the Court finds that laws barring SSM are unconstitutional; (3) Plaintiffs win "small" in the sense that Prop 8 is invalid in California (perhaps because, following the 9th Circuit, the decision to take away marriage was rooted in animus) but the Court does not say that other states must recognize SSM, and, in Windsor, the Court relies on some DOMA-specific ground like federalism or the animus that motivated Congress; or (4) the challenges are rejected on the merits.  If we assume that each Justice must choose among each of these options for each case, then a single Justice has 16 possibilities (1,2,3 or 4 in each case), and so the total number of possibilities for the Court as a whole is 16 to the 9th power or, equivalently (since 16 is 2 to the 4th power), 2 to the 36th power, or roughly speaking, 1 in 69 billion.  Those seem like slim odds, but not compared with the odds of filling out a perfect NCAA bracket.  You are about 134 million times more likely to get the SCOTUS prediction right than you are to fill out a perfect NCAA bracket.

But wait, there's more.  Your odds of filling out a perfect NCAA bracket are not quite as bad as mere chance would predict because you can predict most games more accurately than a coin toss would by looking at seeding, won-loss record, etc.  Sure, sometimes Florida Gulf Coast and Wichita State unexpectedly make the Sweet 16, but you still have the odds somewhat in your favor on any given pick.  So you might think that the difference isn't so stark.  Until you consider how much less random the Supreme Court is.

For one thing, there are correlations among the options that you don't see in basketball.  Harvard beating New Mexico did not make it any more or less likely that Syracuse would win its opening game.  But if you know that Justice Alito voted to find no justiciability in Perry, that increases the odds that Chief Justice Roberts voted the same way.  More broadly, for any particular Justice, the choice of option (2) (plaintiffs win big) in Perry will be highly correlated with option (2) (plaintiffs win big) in Windsor.

Likewise, just as it was very unlikely that Indiana was going to lose to James Madison, so it is very unlikely that Justice Thomas is going to vote for option (2) in either case.  (Insert James Madison/originalism joke here.)  Indeed, on the whole, the ex ante predictability of the SCOTUS is probably understated by the factor of 134 million times easier than picking a perfect bracket in the NCAA which you get by assuming randomness for both.  Put qualitiatively, NCAA basketball outcomes are more random than how any particular Justice will vote in the SSM case or any other case.

Just how predictable are the outcomes of Supreme Court cases?  Back in 2002, a group of scholars at Washington University Law School compared the results of predictions made by panels of experts with those made by a computer program that used a modified version of the so-called attitudinal model (which codes cases based on ideological factors).  The computer generally beat the experts but not by all that much, and the overall pattern showed a fair degree of predictability, certainly much better than chance for any given Justice in any given case.  (I published my take on the design and results of the forecasting project here.)

I've been asked by a number of reporters and others to predict the outcomes in Perry and Windsor, and so I have done so, but I don't claim to have any special insight.  Nonetheless, it's clear to me that people are interested in such things, so I'll take a crack at it in general terms.  I think that the most likely outcome in each case is a what I've called option (3)--a narrow win for plaintiffs that doesn't address the question of whether all state laws denying the right to SSM are invalid.  If the Court had only Windsor before it, I would predict that outcome with considerable confidence, because the federal interest in banning SSM from a state that has SSM is quite weak (in light of federal law's acceptance of state-by-state variations in the definition of marriage otherwise).

I do not make that prediction with great confidence, however, because I think the argument for option (3) in Perry is also weak.  Notwithstanding Judge Reinhardt's heroic efforts in the 9th Circuit to come up with a California-only rationale for invalidating Prop 8, I think it will be hard to persuade five Justices that it's unconstitutional to recognize then unrecognize SSM but permissible never to recognize SSM in the first place.  I understand and can make the Romer-based argument along these lines, but it strikes me that some number of Justices will think that the 9th Circuit rule discourages states from granting marriage rights to same-sex couples because doing so will be treated as a one-way ratchet.  If option (3) is effectively off the table in Perry, that makes option (2) more likely in Perry, and if the Court goes that route, then that result leads to option (2) in Windsor as well.  And the worry about moving too far too fast (which I don't share but some Justices might) could then lead some Justices to try to duck the case via option (1).  So there are potentially complex interaction effects between the cases.

People also wonder how particular Justices will vote, by which they mostly mean how Justice Kennedy will vote.  Here I'll say that in light of the fact that Justice Kennedy authored both Romer and Lawrence, I find it very hard to believe that if the case breaks ideologically, he would vote for option (4), i.e., against the plaintiffs on the merits.  And at least one case will break ideologically unless the Court votes to reject jurisdiction in both cases.  Accordingly, it strikes me that option (4) is very unlikely in Windsor and pretty unlikely in Perry.  But if you rely on these predictions to make investments or for any other purpose (like wedding plans), you do so at your own risk.

Is Pure Partisanship a Principle?

-- Posted by Neil H. Buchanan

Due to a timing glitch, my Dorf on Law post yesterday did not go out in a separate email.  Those subscribers who read DoL from an email feed, therefore, might have missed it.  The post, "Principles?" (link here), discussed my new Verdict column (link here).  In today's post, I will pick up on the larger theme that I discussed in those two pieces, which is whether there is any "principle" or set of principles that consistently drives the current (I dare not call it "modern"), radicalized Republican Party.

One way of looking at recent moves by national Republican leaders is, as I pointed out yesterday, that we are finally seeing what really matters to them.  They are toning down the culture wars stuff (although they are certainly going full-bore on anti-choice legislation at the state level), they have returned to their eternal intra-party struggle between isolationists and global militarists (a debate that was temporarily on hold during the Bush II years), and they seem to be getting the message that they simply cannot win elections going forward if they continue to espouse bigoted views on immigration.

Leaving aside their continued insanity about guns, the big remaining issue on which Republicans have actually become more extreme since the 2012 elections is budgetary policy.  They have taken their tax and spending proposals from the last two years -- which were already more extreme than I ever thought we would see in U.S. politics -- and run even further to the right.  My two pieces yesterday were mostly devoted to trying to figure out whether there is a principle that seems to guide the Republicans in their views on taxes and spending.

Although there is a certain flavor of federalism in their rhetoric, with the usual assertions about the evils of "overpaid bureaucrats in Washington running people's lives," the gestalt of the Republicans' statements on economic policy is much more anti-government than anti-federal.  It is difficult to imagine that they would not be just as upset about the substance of the policies they decry if carried out at the state level.  They do not merely dislike progressive federal tax rates; they hate progressive taxes.  They do not merely oppose spending on federal programs that supposedly cause people to become dependent; they want to cut everyone off.  The federalist move is merely a matter of strategy: turn federal programs into federally-supplemented state programs, then cut the federal supplements, then allow the states to cut the programs.  The point is to cut people off from government-run programs, not to choose the right level of government to run such programs.

Perhaps, therefore, the principle that guides the current Republicans is nothing more complicated than "You're on your own."  Viewed in that light, one way to understand the Republicans' recent changes in policies and public relations is that they actually are more elitist than they are bigoted.  That is, they are more willing to put up with gays and immigrants than they are to help people who fly in coach class.  This is an odd twist on famed conservative economist Milton Friedman's claim that bigotry was likely to be driven out of the economy by profit maximization.  That clearly is not true of U.S. society in general -- or, at least, it is taking an awfully long time for the invisible hand to do its work -- but as a way to understand Republican leaders' views, it does now appear that they care a lot more about protecting their economic interests than holding a firm line on other issues.

This idea that everyone is on their own is especially interesting when considering issues on which Republicans' views seem to contradict themselves.  On the comment board of my post yesterday, a reader mentioned that the "Support the troops!" imperative pretty quickly gave way to rather obvious failures to support the troops.  That observation is correct.  For example, the delays for processing disability claims for military veterans have reached scandalous levels -- averaging nine months, and in some areas routinely approaching two years.  The most obvious way to fix this would be to increase funding to the relevant agencies, allowing them to hire more workers to process claims.  But that runs up against the anti-bureaucrat, anti-spending imperative, and so the troops and their families are out of luck.  You're on your own, even if you sacrificed for the good of the country.

If that is right, then we could at least imagine a way to make the Republicans happy.  Many Democrats seem surprisingly comfortable at least moving strongly in the direction of shrinking government.  Maybe they would not move as far and as quickly as Republicans would prefer, but there are plenty of Democrats in public office who agree with Republicans that the government is too big.  The Clinton Administration made it a major talking point that they had shrunk the federal workforce to its lowest level since WWII, for example.

And as I have been noting repeatedly, on this blog and elsewhere, the Obama Administration often talks in liberal terms, but on economic issues, Obama started right of center and has been moving rightward ever since.  He has been practically begging the Republicans to let him undermine Social Security.  On health care, he simply adopted their plan to insure everyone through private policies.  (The "individual mandate" was, of course, originally conceived in a hyper-conservative think tank.)  He argued for far less stimulus than was obviously necessary.  Even those who argue that political realities forced him to do those things (a claim that I find doubtful, at best) can certainly see that Obama has given Republicans a lot of what they have said they wanted, and he has tried to give them even more.

This is why it is so important actually to understand the principles on which the Republicans so firmly claim that they will not compromise.  As enjoyable as it might be to point out their many hypocrisies, it might at least be useful to know where their stopping point is.  People on the left often talk about how the Republicans keep moving to the right, even as Democrats try to meet them in the ever-shifting middle.  If we could really see just where the Republicans would go, it might at least be possible to know if any of it might be acceptable.  Instead, the goal posts keep moving.

Republicans do not, after all, take yes for an answer.  In 2009, Republicans demanded a deficit-cutting commission, and then they hated it after Obama created it.  Similarly, they abandoned Romneycare when it became Obamacare.  The Washington Post's Ezra Klein, in an appearance on Rachel Maddow's show last night, pointed out that Republicans currently claim that they want five things on budget/tax policy: (1) Cut deficits further, (2) Protect defense spending, (3) Cut Social Security and Medicare, (4) Simplify the tax code, and (5) Reduce upper-bracket tax rates.  As Klein pointed out, Obama has repeatedly offered Republicans the possibility of getting the first four of those goals, but they say no.

It is, I guess, possible that the extra-deep principle to which the Republicans are adhering is that tax rates on the rich should be reduced.  It is difficult, however, to imagine them agreeing to anything that Obama might offer.  Which brings up a different possibility.  Perhaps the principle that Republicans hold most dear is that they hate Democrats.  Klein reluctantly agreed with Maddow's characterization, that Republicans are "post policy, even some things that seem like constants don't actually matter to them, it's pure politics, just positioning themselves vis-a-vis the President, and not interested in a particular outcome for the country."

Moreover, it does not matter who the President is, so long as he or she is a Democrat.  Although it seems clear that Obama's unpopularity among Republicans is intensified by his race, the ferocity of the hatred that they heaped on the Clintons (which many of us hoped in 2008 was limited to people actually named Clinton) was every bit as crazed as what we are currently seeing.  Current policy outcomes are worse, because Democrats have spent twenty years trying to compromise and move to the right, but the underlying hatred by Republicans of all things Democratic is the key constant.

Is there a limit?  If Obama came out tomorrow, agreeing to end all entitlements, to eliminate taxes on the rich, to shut down everything in the federal government except the Pentagon and corporate welfare, to outlaw abortion and contraception, what would Republicans do?  One wants to imagine that Maddow and Klein are wrong, that the Republicans actually have an outcome in mind.  The party's leaders certainly spend a lot of time talking about defending their principles.  Other than hating anything that Democrats say, however, it is difficult to figure out what those principles might be.

Principles?

-- Posted by Neil H. Buchanan

In my new Verdict column today, I discuss the claims by Republicans that they must stand up for their "principles," which has so far translated into their becoming even more insane about the federal budget.  By contrast, national Republican leaders have recently been toning down the culture-war craziness -- not abandoning it, by any means, but spending less time gay-bashing, and letting the wars over reproductive rights play out at the state level -- and many have even come out in favor of immigration reforms that they would have decried before the 2012 elections as "amnesty."

Where are the principles?  I seem to remember hearing Republicans ask, "What part of 'illegal' don't you understand?"  There is a core principle, they argued, in upholding the rule of law.  Now, however, that principle has given way to the reality that the fast-growing Latino population is turned off by the Republicans, with more than 70% voting for Democrats in 2012.  What part of "unprincipled" don't you understand?

The central argument in my column, however, is that the claims by Republicans that their budget proposals are guided by some high set of principles are difficult to take seriously.  I take direct aim at their claims that they are determined to make children better off (by resisting increases in the national debt), noting that the Republicans actually seem to be perfectly willing to harm children -- that is, children who lost the parental lottery and were not born into wealth -- in order to reduce taxes on the rich.  This "protecting the children and grandchildren" argument is thus clearly not a core principle, because it readily gives way to other policy priorities.

What other principles might be in play?  One argument that Republicans often make is that "debt is bad."  That, however, is not a principle.  It is an assertion that only makes sense if we understand what "bad" means.  Other than the future generations dodge, they have never really explained why debt might be bad.  We get a lot of claims that "we shouldn't borrow money that we don't have," but that merely restates the problem.

Moreover, as plenty of people have noticed, the Republicans do not really seem to have a problem with debt.  Even setting aside the usual (but still important) points about Republicans happily borrowing to pay for wars, prescription drug benefits, and so on, it is obvious that Republicans do not view debt as a bad enough thing to justify paying it off with higher taxes.  Consider this extreme hypothetical: If the Republicans actually succeeded in shrinking the government to the point where its budget was as close to zero as it could possibly be, would they continue to fund the IRS so that it could collect taxes to pay down the existing debt?

And even if one could imagine something like that happening -- or, as a more real-world alternative, running large annual surpluses, with a shrunken-but-still-functioning federal government -- where is the principle that tells us how long that should take?  At this point, after all, we have seen the Republicans pass budget resolutions in 2011 and 2012 written by their budget pseudo-wonk, Paul Ryan, which would have taken decades even to reduce the annual deficit to zero.  That means that the debt would rise every year (requiring, among other things, an increase in the debt ceiling, but I digress).

Now, in response to the beating they took at the polls, the Republicans told Ryan to change his budget to require a balanced budget within ten years.  That, of course, will harm still more children (and many adults).  More to the current point, however, we have never been given even a clue as to why it was principled to propose twenty- to thirty-year paths to balanced budgets before, whereas it is now absolutely required that the budget be balanced in exactly ten years.

Sure enough, it turns out that ten years is not good enough for some of the true believers.  In yesterday's New York Times, there was an amusing op-ed from Georgia Congressman Paul Broun.  Broun is best-known as the guy with a degree in medicine who said that evolution, embryology, and the Big Bang theory are "lies straight from the pit of hell."  Broun, who is planning to run for the Senate, is also bragging that he was the first to call President Obama "a socialist who embraces Marxist-Leninist policies."

According to Broun, Ryan's latest plan is just too wimpy.  Although he claims that everything has to be done NOW, his op-ed does not actually lay out anything close to a comprehensive set of principles, or a way to achieve immediate budget balance.  He trots out the usual anti-Washington arguments, suggesting that the Departments of Energy and Education are both places where money is wasted on federal bureaucrats' salaries.  (Did you know that Education Department employees have an average salary of $103,000, more than double the national average for teachers!?  Does it strike you that this is a meaningless statistic?)  He also complains that taxpayers have lost "millions of dollars" (yes, that is with an "m") because of Energy Department programs.

Broun's melange of policy suggestions, in fact, boils down to the familiar argument that much of what the federal government is doing should be done at the state level.  He argues that turning Medicaid and the Children's Health Insurance Program into block-granted state-run programs "would save approximately $2 trillion over 10 years by capping federal funding at 2012 levels for the next 10 years and giving states an incentive to seek out and eliminate waste, fraud and abuse. The government agency closest to the consumer can most efficiently manage taxpayer dollars."  That last claim is, of course, utterly belied by evidence.  Corruption at the state and local levels is endemic, and proximity makes it more difficult, not easier, to prosecute waste, fraud, and abuse.

But again, where is the principled argument that the federal government must run a balanced budget right away?  And where is the plan actually to do so?  At most, Broun offers warmed-over claims about overpaid bureaucrats and the virtues of local control.  The big principle, apparently, is that the federal government is bad and that state governments are good.  Except that state governments would be bad if they spent money on things that Broun does not like.  And what he and his colleagues do not like, as I discussed in my Verdict column, is spending on programs that help people when they need help.  Some principle.

"Oh, shut up."

By Craig Albert

Chief Justice Roberts and Justice Alito didn't exactly tell Justice Scalia to sit down and shut up yesterday, but they might as well have.  Scalia's partial dissent in Decker v. Northwest Environmental Defense Center is a twelve-page diatribe repeating familiar Scalian ideas regarding textualism and deference.  The first paragraph of substance -- the one after the obligatory one that spells out which parts of the lead opinion he joins -- is three words long: "Enough is enough."

Seven justices (including Thomas and excluding the recused Breyer) joined the Court's opinion; that lead opinion had nothing whatsoever to say about the dissenting polemic.  But Roberts and Alito were apparently annoyed enough with Scalia's exegesis that they went out of their way to say, in law-talk, "You may have a point, but this is neither the time nor the place."  Thomas's concurring silence speaks volumes to me.

Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine

by Sherry F. Colb

My column for this week, part one of a two-part series on Justia's Verdict, examines the case of Maryland v. King, in which the U.S. Supreme Court heard argument on February 26th.  The case asks the question whether taking DNA from people who have been arrested, in the absence of any individualized suspicion to support DNA sampling, violates the Fourth Amendment right against unreasonable searches and seizures.  One of the questions that arose (but went unresolved) during oral argument was whether the Fourth Amendment might impose requirements on the government if it has collected discarded DNA (from a cup that the suspect had used to drink water, for example) and wishes to analyze the DNA for some or all of the information contained within it.  The attorney representing Alonzo Jay King suggested that such an analysis of DNA would count as a Fourth Amendment "search" and would accordingly require justification.

In this post, I want to consider this question, because it has long had a very clear answer from the doctrine, but the doctrine may (appropriately) be in the process of changing.

In the case of California v. Greenwood, the question arose whether police could, without a warrant or probable cause, examine a suspect's garbage, left for collection at the curb in a sealed, opaque bag.  The U.S. Supreme Court said yes, police could examine such garbage, because -- among other things -- a person who leaves garbage at the curb for collection has voluntarily relinquished the garbage to a third party and has thereby given up any reasonable expectation of privacy in that garbage.  In another case, United States v. Miller, the Court held that the government may subpoena an individual's bank records without triggering any reasonable expectations of privacy, because a person with a bank account has voluntarily shared the information contained in these records with third parties -- the bank.  And in Smith v. Maryland, the Supreme Court said that police do not trigger the Fourth Amendment's requirements when they ask the telephone company to hand over the phone numbers that a customer dialed, because, again, a person with a telephone account necessarily shares the numbers that he or she dials with the telephone company and thus retains no reasonable expectation of privacy against its disclosure.

The basic rationale for each of these cases is that when people relinquish private property or private data to a third party, they simultaneously forfeit any privacy interest they previously had against the government's examining that property or data.  If this rationale applies to DNA, then police could thoroughly analyze everything contained within an individual's discarded DNA without having to offer any preexisting suspicion of the individual and without having to have any legitimate reason for analyzing his DNA.

In an article published in the Stanford Law Review in 2002, What is a Search: Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy, I argued that people ought to be able to share their private matters with selected third parties without thereby forfeiting an interest in the matters remaining private, for Fourth Amendment purposes.  In a concurring opinion in United States v. Jones, Justice Sotomayor hinted at the possibility that she might be ready to revisit some of the older cases, on a rationale that nicely tracks the arguments I made in my article, as I discussed in a two-part series of columns about Jones, here and here.  But even without this hint, there is some evidence in recent case law  that the "voluntarily relinquished" rationale is running out of steam.

Take, for example, the case of Kyllo v. United States.  In this case, the Supreme Court held that the Fourth Amendment prohibits police from using a thermal detection device to analyze the heat patterns emerging from a private home, in an effort to find out whether a suspect is growing marijuana inside his home.  Even though the device in question measured only heat waves that had already made it out of the private home -- waves that could accordingly be characterized as "abandoned" by the resident -- the fact that the device served to expose private matters that would otherwise remain undetected renders its use a "search" for Fourth Amendment purposes that must accordingly be justified.

Justice Stevens dissented in the case, noting that the device at issue did not perform any "through the wall" surveillance but only "off the wall" surveillance -- i.e., it did not actually penetrate the walls of the home but merely gathered heat discarded into the out doors.  Yet a majority rejected that argument and even implied that the distinction between "through the wall" and "off the wall" amounted to an exercise in sophistry and formalism.

And in the same year, in Ferguson v. Charleston, the Supreme Court held that police had "searched" women, for Fourth Amendment purposes, by asking medical professionals who were  delivering the women's babies to collect urine from their patients during delivery and then analyze the urine for the presence of cocaine, passing along the resulting evidence to the police.  Despite the fact that the women had plainly discarded their urine, the Court nonetheless regarded police analysis of the resulting data as an invasion of the target's reasonable expectation of privacy.  Though the women parted with their urine, they did not thereby relinquish their right to privacy from criminal law enforcement officials in the information contained within that urine.

Then in United States v. Jones, mentioned above, the Court held that using a GPS device to track the whereabouts of an individual's car on the public roads for a month triggers the protection of the Fourth Amendment right against unreasonable searches.  The majority relied on the trespass involved in placing the GPS device into the car.  However, at least five Justices (four in dissent, and one in a separate concurrence after joining the majority opinion) indicated their belief that what makes the use of a GPS a "search" has at least as much to do with the invasion of privacy involved in revealing all of the places where an individual has traveled in the course of a month, as it does with the (trivial) trespass involved in attaching the small GPS device to the suspect's vehicle.  In other words, even though a person voluntarily exposes himself to public viewing by driving on the public roads (and thereby relinquishes control of that information), the accumulation and analysis of data that becomes possible with a GPS nonetheless represents an unwarranted invasion of Fourth Amendment privacy.

In all of these cases, we see the shrinking of the previously-robust doctrinal distinction between physically gathering a piece of evidence (or physically invading private space to obtain information), on the one hand, and examining that evidence closely for all of the information it holds, on the other.  Returning to Greenwood, the garbage case, one might see Kyllo, Ferguson, and Jones as supportive of the argument that just because you have relinquished a bag of garbage does not mean that you have given up your legitimate interest in the secrecy of the personal facts contained within that garbage.  The legitimacy of the government's having custody of a bag of garbage, for example, because it has taken it from the curb, does not necessarily entail the legitimacy of rifling through that garbage.  And for similar reasons, "abandoning" one's DNA on a discarded water glass may not necessarily entail a relinquishment of one's interest in the secrecy of the information contained within that DNA.

Perhaps the Fourth Amendment's promise in the age of technology will reside in protection against the mining of data and the analysis of physical evidence, even when the law does not guard against the initial physical gathering of the data and physical evidence at issue.