Monday, September 30, 2013

Negotiating With a Gun to the Head

By Mike Dorf

As I write this post, the ball is back in the Republican-led House of Representatives, which seems intent on making some changes to the Affordable Care Act as the price of agreeing to any measure designed to avert a government shutdown.  Meanwhile, the emerging Democratic party line -- voiced by Illinois Senator Dick Durbin over the weekend and more or less repeated by President Obama today -- goes like this: We are willing to negotiate over budget issues as well as the terms of the ACA, but not (as Durbin put it) "with a gun to our head."  Thus far, Republicans aren't moving, due to some combination of: (1) the belief that in fact they have more leverage while holding the gun to the Democrats' head; (2) the failure to understand that the gun is pointed at their own heads to an equal or greater extent as it is pointed at the Democrats'; and (3) blind rage.

With events moving quickly, I thought I'd dash off a very quick observation and then perhaps weigh in again tomorrow if there's anything I have to add as the situation develops.  My observation is this: It would not be crazy for the Democrats to negotiate with the Republicans over the ACA in the context of a spending measure--if that were all that were involved.  Federal spending bills are inherently multi-issue compromises, and so it's hardly unprecedented for House Republicans to try to get something that is not strictly a budgetary matter through the budget process.  What makes the Democratic strategy necessary, however, is the entirely foreseeable consequence that if Democrats blink on anything--even the repeal of the Medical Device Tax, which apparently some Democrats favor--then Republicans will infer that their tactic "worked" and repeat it with the debt celing.

Is there a way out?  Maybe.  Here's a deal that I think would be worth making: Pass a supplemental that funds the government and puts the Debt Ceiling on ice until after the 2014 midterms.  In exchange, give the non-crazy portion of the House Republican leadership a symbolic victory in the form of the Medical Device Tax repeal, but insist that the Democrats are negotiating over the supplemental funding measure and NOT the debt ceiling, i.e., that the debt ceiling increase is "clean."

Will enough Republicans go for this to get it done?  Maybe not in time to avoid at least a temporary government shutdown, but if the politics of the shutdown go badly for the Republicans quickly, there may be enough time before the debt ceiling hits to get this deal done.

Does the New Jersey Same-Sex Marriage Ruling Raise a SCOTUS-Reviewable Question of Federal Law?

By Mike Dorf

The summary judgment ruling in Garden State Equality v. Dow raises interesting substantive questions but as a federal jurisdiction scholar, I can't help but find myself fascinated by a seemingly arcane procedural aspect of the case: If it is affirmed by the NJ intermediate appellate court and the New Jersey Supreme Court, will SCOTUS review be possible?  I think the answer is just barely yes, but for reasons that readers may find surprising.  The case implicates a very nice question of federal procedural law: When does a state court discussion of federal law create a case that arises under federal law within the meaning of Article III and the relevant federal jurisdictional statute?

Let's begin with the NJ background.  Back in 2006, in Lewis v. Harris, the NJ Supreme Court held that the NJ Constitution obligates the state either to recognize same-sex marriage or to create an institution that affords same-sex couples all of the legal benefits of marriage.  The NJ legislature responded by enacting a marriage-in-all-but-name civil union statute.  That was sufficient to satisfy the Lewis requirement until the Supreme Court's ruling this past June in United States v. Windsor, striking down the federal definition of marriage as only opposite-sex marriage.  In light of Windsor, the Garden State Equality plaintiffs said, NJ civil unions no longer afford same-sex couples all of the benefits of marriage: In particular, Windsor only applies to couples who are "married" under state law--and not to same-sex couples in civil unions.  Thus, said the plaintiffs, NJ's civil union law does not afford same-sex couples the opportunity to receive federal benefits as married couples.  The state defendants countered with two related arguments: First, Lewis only requires the state to extend equal state benefits to same-sex couples, so if the federal government denies those couples the benefits of marriage, that's not the state's fault; and second, Windsor, properly understood, should extend federal benefits to same-sex couples in civil unions, so again, if federal agencies aren't implementing Windsor that way, the plaintiffs should sue the federal agencies, not the state.  Judge Jacobson sided with the plaintiffs.

Under the applicable federal jurisdictional statute and longstanding precedent, the SCOTUS can only review state court rulings that decide federal questions where reversal on the federal question would affect the outcome of the case.  If a state court decision rests on an "adequate and independent" non-federal ground, then there is no SCOTUS jurisdiction.  So let's suppose that the NJ Supreme Court were to write an opinion that is identical to the opinion written by the trial court.  Would that be reviewable or would it rest on an adequate and independent state law ground?

Our first task is to locate a federal question.  The notion of a federal question for Supreme Court appellate review is somewhat broader than the notion of a federal question for original jurisdiction in the federal district courts (where the case must satisfy the "well-pleaded complaint" rule), but still, there are limits.  Here, there is only one possible candidate for a decided federal question: Post-Windsor, do civil unions count as marriages for purposes of federal law?  At first blush, it appears that the trial court resolved this question--saying they don't count--and that its resolution was essential to the outcome of the case: it is that not-counting that makes NJ civil unions no longer adequate to satisfy NJ equal protection requirements as articulated in Lewis.

In particular, there is language in the Garden State Equality opinion that indicates that Judge Jacobson thinks that Windsor doesn't apply to civil unions.  For example, she quotes the following language from Windsor for the proposition:  "This opinion and its holding are confined to those lawful marriages."  She also explains that it makes sense for federal law not to treat state civil unions as marriages because state definitions of civil unions differ among themselves.

Yet there is other language in the opinion indicating that Judge Jacobson's view of the best reading of Windsor is irrelevant to the outcome of the case.  This other language suggests that whether or not Windsor is properly construed to treat civil unions as marriages for federal purposes, many federal agencies have already concluded (and are acting on the conclusion) that civil unions do not count as marriages; thus, NJ same-sex couples in civil unions are as a practical matter, already being denied federal benefits in virtue of the fact that NJ fails to call their unions "marriages."

Is that a federal question?  Although the matter is not entirely free from doubt, I think the right answer is no.  An undisputed factual claim about how federal agencies are construing federal law is a proposition about federal law, but it is not a proposition of federal law.  And so, if one reads the NJ ruling as resting on the proposition that federal agencies are, rightly or wrongly, treating Windsor as inapplicable to civil unions, then the ruling (if affirmed as is by the NJ Supreme Court) would not be reviewable by the SCOTUS.  There would be no question of federal law that could be reversed by the Supreme Court to produce a different outcome.

Nevertheless, I think that as written (and if affirmed in terms by the NJ Supreme Court), the trial court ruling would be SCOTUS-reviewable, because it is not entirely clear to me that the opinion's factual analysis of what the federal agencies are doing is truly independent of its legal analysis of the federal question of whether Windsor properly applies to civil unions.  The opinion intersperses discussion of the two points in a way that suggests that the trial judge might have drawn a different conclusion with regard to the factual question if she thought the legal question were less clear-cut.

Thus, we come to Michigan v. Long.  In that 1983 ruling, the SCOTUS held that where a state court resolves a case in a way that is ambiguous as to whether non-federal grounds for the decision were independent of federal grounds, the SCOTUS will presume that the state court meant to rely on the federal grounds, and can take review.  I think the best reading of the trial court ruling in Garden State Equality makes the non-federal ground independent, but I think there is enough ambiguity in the opinion to trigger the Michigan v. Long presumption.

Going forward, the lesson of the foregoing analysis for the NJ intermediate appellate and Supreme courts should be clear: To make the ruling bullet-proof, be crystal clear in any opinion affirming the basic ruling of the trial court that the factual assessment of what the federal agencies are doing is an entirely sufficient basis for the conclusion that civil unions no longer satisfy Lewis.  Here is the language I would include at the end of any NJ Supreme Court opinion that ends up affirming the trial court ruling:

In summary, we hold that regardless of whether Windsor is best read to treat state civil unions as "marriages" for purposes of federal law, it is an undisputed fact that many federal agencies have already concluded that civil unions will not be treated as marriages for purposes of federal law.  In light of that fact, the State of New Jersey no longer satisfies its state constitutional obligation of equal protection under Lewis by affording same-sex couples the right to enter civil unions.  Only "marriage" now satisfies that obligation.

You're welcome, New Jersey.

Sunday, September 29, 2013

Update to the Update: eBooks and All That

-- Posted by Neil H. Buchanan

Thanks to a comment from a friend of Dorf on Law, I can now correct some information from Friday's short post regarding the methods for accessing and reading my ebook, The Debt Ceiling Disasters.

Amazon provides an app which allows Kindle books to be read on a computer.  The app can be downloaded here:

So, here are the three sources from which the ebook can be purchased:

 -- Amazon:

-- Apple iTunes:

--  Google Play:

Saturday, September 28, 2013

The Coalition Option

By Mike Dorf

Desperate times demand desperate measures and so I'm accelerating my Monday blog post to Saturday. No, that's just a little joke.  The real desperate measure I have in mind is what I'm going to call the "Coalition Option."  It rests on the assumption that Speaker John Boehner is one of at least 17 Republicans who are neither themselves believers in the Tea Party agenda nor so afraid of a primary challenge from a Tea Party candidate that they are willing to back the plan to shut down the government and/or default on U.S. obligations in order to take a stand against Obamacare and what they regard as unsustainable debt.  That is, I'm going to assume that Boehner and at least 16 other Republicans would be willing to join with the 200 Democrats to form a majority in favor of funding the government and paying the government's bills.  Doing so would violate the "Hastert Rule"--under which the Speaker only brings to the floor measures that enjoy the support of a majority of the majority party--but that's not a real rule anyway.  Boehner violated it in the so-called fiscal cliff deal, for Hurricane Sandy Relief and to reauthorize the Violence Against Women Act.  The Hastert "Rule" draws its force from the implicit threat by the majority of the majority that it will withdraw its support from the Speaker.

Is John Boehner willing to lose his Speakership in order to save the country from a wholly avoidable economic crisis?  Perhaps, but he doesn't need to.  Instead, he can maintain the Speakership if he and 16 Republicans join all of the Democrats in voting down any proposal to remove him from the Speaker's chair.

Would Boehner be willing to serve as Speaker under such circumstances?  Maybe not, but if he isn't then the alternative might be that no one would be Speaker.  The Democrats are in the minority and so they can't elect a Speaker without Republican support, while the Tea Party-affiliated plus Tea Party-frightened Republicans still don't constitute a majority of the House--or at least so I'm assuming for the purpose of this exercise.  (If the Tea Party faction is a majority of the House, then none of this matters; they will either depose Boehner and replace him with one of their own or retain him only on condition that he do their bidding.)

In discussing the possibility that Boehner retains his Speakership through a coalition of mostly Democrats and non-TP Republicans, I have been met with the following question: Why would Boehner want to be Speaker at the sufferance of the minority?  I can think of a few possible answers:

1) Because he cares about the country.

2) Because he has an ego and it's better to be a weakened Speaker than to be a backbencher.

3) Because he and his 16 or more non-TP Republicans would have considerable bargaining power with the Democrats, so he would be able to pursue a right-of-center (but not TP crazy) agenda.

To my mind, the real issue sticking point would be 2015.  Is there any way that the coalition I'm proposing enables Boehner to retain the Speakership after the 2014 midterms?  Obviously, if the Democrats take the House, then no, but that was going to be true no matter what--and Boehner might think that a government shutdown and the financial chaos from a default would make it more likely that the Republicans lose  control of the House in 2014.  But does Boehner retain the Speakership if the Republicans maintain control of the House?

Maybe.  Under the deal I'm envisioning, the Democrats agree that if the Republicans retain control in 2014, then the Democrats will join the non-TP Republicans in supporting Boehner for Speaker, so long as Democrats plus non-TP Republicans make up a majority of the body.

So, how about it?  Can this deal be put together?  I'll leave that out there as a suggestion for Speaker Boehner and Minority Leader Pelosi.

Friday, September 27, 2013

Book Update: The Debt Ceiling Disasters is Now Available in Multiple Formats

-- Posted by Neil H. Buchanan

My new book, The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back, was originally available only on Kindle.  It is now available also on the iTunes store, and on Google Play.  The latter format appears to be the only one that can be read on a standard computer (desktop or laptop), rather than Kindles or smartphones/tablets.  Enjoy!

UPDATE: Amazon provides an app which allows Kindle books to be read on a computer.  The app can be downloaded here:

The Prompt Payment Act, the Meaning of Obligations and Debts, and Default

-- Posted by Neil H. Buchanan

Given the strong possibility that Republicans will not increase the debt ceiling before the October 17 date when the government will be unable to pay all of its bills, many people have been trying to figure out just what the Treasury Department will do if the President decides not to issue additional debt at that point.  If Treasury cannot make good on some obligations, what are its choices?  Republicans claim that there is only a "default" if Treasury fails to pay interest on outstanding Treasury securities, and they say that there is more than enough tax revenue coming in to cover those obligations.  Apparently, those Republicans believe that nothing else would count as a default.  They are, of course, wrong.
 As Professor Dorf and I argued in our first Columbia Law Review article last October, the argument that the government's debt includes only principal and interest on Treasuries does not take its own logic seriously.  If "debt" only means money that the government currently owes, then only the principal -- but not the interest -- on Treasuries counts as debt.  That is because interest payments are, like all other government obligations, due at certain points in time, whereas the principal is an existing, ongoing debt until it is paid in full.

So, even though a given Treasury security carries with it a promise to pay $x in interest on a given future date (or set of dates), the Treasury's current debt does not include such future interest payments.  An interest payment is simply another future obligation to which the government has committed itself, when it carried out Congress's statutory order to issue interest-bearing Treasuries.  Similarly, when Treasury commits the government to pay, say, a contractor $y for services rendered on a date certain in the future, it also does so under statutory authority approved by Congress.  When the date comes on which the law says that such a payment must be made, that obligation becomes part of the debt of the United States.  On that date, we owe that money.

Given that no one has written a serious scholarly response to our article, it should come as no surprise that there has been no counter-argument to the argument that I just outlined above.  Even so, some people apparently find it "unpersuasive," or something.  As it turns out, however, there is further support for the idea that all government obligations are properly called "debts" when they come due.

Part of the reason that Treasury has rejected the broad suggestion that they can prioritize all spending, when faced with a trilemma, is that they are required by law to make payments on a day-to-day basis.  That is, even if they wanted to hold off on paying a lower-priority obligation that is due today, in anticipation of a higher-priority obligation that will be due tomorrow, they are required by law to pay for every obligation for which money is available, every day.  The relevant statute is the Prompt Payment Act, 31 U.S.C. 3901 et seq.

The main reason to worry about the Prompt Payment Act, as I noted above, is that it says that Treasury cannot prioritize.  But what if Treasury were to fail to make a payment on an obligation on the due date?  The Act specifies that interest on the unpaid obligation begins to accrue immediately, so that the would-be recipient of the money will be paid more than if she were to be paid on time.  Is that a big deal?

Note that the non-payment of an obligation is treated the same as the nonpayment of even the most narrow definition of "debt."  That is, when the government borrows money on the financial markets by issuing Treasuries, it commits itself to paying interest that accrues from the date that the money is borrowed.  In exactly the same way, failing to pay a contractor on time also commits the government to pay interest on the unpaid balance from the moment that it was due.  Effectively, Treasury has borrowed money from the obligee, and interest begins to accrue.

Even more tellingly, the statute actually uses the word "debt" to describe the unpaid obligations on which interest must be paid.  Section 3902(e) states: "An amount of an interest penalty unpaid after any 30-day period shall be added to the principal amount of the debt, and a penalty accrues thereafter on the added amount" (emphasis added).  That is, as soon as the obligation is unpaid, it becomes a debt upon which interest is owed; and if the interest is unpaid for thirty days, that interest becomes part of the debt, too.  Federal law, therefore, not only treats obligations as the equivalent of debts on the date that they are due, but it even calls them debts.

Interestingly, this analysis is not only relevant to the question of whether the government will be in default if the President fails to borrow money in order to pay obligations as they come due.  It also informs the analysis of the so-called Fourteenth Amendment Option.  Section 4 of that amendment states that "The validity of the public debt of the United States, authorized by law, ... shall not be questioned."  In our October 2012 article (and in prior blog posts), we argued that "debt" in that context had to mean more than simply the principal and interest on Treasuries.

In particular, we quoted language from a four-justice opinion in United States v. Perry (1935): "Nor can we perceive any reason for not considering the expression 'the validity of the public debt' as embracing whatever concerns the integrity of the public obligations."  Those who disagree with this interpretation of Section 4 have insisted that "debt" has a narrow meaning, limited only to Treasury securities.  The analysis above regarding the Prompt Payment Act, therefore, not only demonstrates that any non-payment of an obligation would be a default, but it also strengthens the case for rejecting the debt ceiling as Constitutionally defective.

As it happens, the Obama Administration unilaterally rejected the Fourteenth Amendment Option quite some time ago.  And Professor Dorf and I have gone to some pains to emphasize that the Buchanan/Dorf "least unconstitutional option" analysis, which pertains when a President faces a trilemma, is wholly independent of the Fourteenth Amendment option.

I continue to believe that the Buchanan/Dorf argument is stronger than the Fourteenth Amendment option, but it is nonetheless important to note that the latter argument is strengthened by the language from the Prompt Payment Act.  After all, if the Fourteenth Amendment Option is correct, there is not even an "impeachment trap" for the President.  He would not be choosing the least unconstitutional option by issuing debt in excess of the debt ceiling, because the debt ceiling is void as unconstitutional.  The President could then obey Congress's spending and taxing laws, as he should in any case, without even thinking about the debt ceiling statute.

In any event, if Congress passes a continuing resolution that stretches beyond October 17, but then fails to increase the debt ceiling as necessary, the President would cause a default on the debt of the United States by failing to pay what the spending laws require.  It is still true the "[a]n obligation is a debt that must be paid."

Thursday, September 26, 2013

Mean-Spirited Policies, and Meaningless Numbers

-- Posted by Neil H. Buchanan

In my new column on Verdict today, I argue that the reelection of Angela Merkel as Chancellor of Germany is bad news for everyone.  Basically, I argue that austerity and the euro are bad, and Merkel is the most powerful champion of austerity and the euro, so Merkel's reelection is bad.  Q.E.D.

I do allow for the possibility that Merkel could yet see the light, but I deem that unlikely.  I also note that she is hardly alone among German political and economic elites in her views on these issues, because the policy community there has learned the wrong lesson from the rise of Hitler.  They think that everything rides on preventing a return of hyper-inflation, and they are willing to inflict extreme pain (on other people, of course) to prevent placing even the tip of one toe on what they view as an impossibly slippery slope.  For some reason, they do not think that mass unemployment (especially when it is caused by powerful foreign governments) raises serious concerns about political extremism getting out of control in European countries.  It is scary to see German leaders blithely ignoring the neo-fascist movements that are rising in neighboring countries.

Beyond my now-standard argument against austerity, the column includes two arguments that I want to expand upon here.  First, I develop an argument that fellow Dorf on Law blogger Bob Hockett posted as a comment on my DoL post on December 12, 2011.  I had argued in that post that the Germans were imposing ruinous conditions on the poorer and weaker nations of the euro zone (especially Greece), and that this was short-sighted and cruel.  Professor Hockett pointed out that the Germans' holier-than-thou attitude was also simply absurd, because their economic success derived directly from the problems faced by the Greeks, the Italians, the Portuguese, the Spaniards, and the Irish.

How does that work?  Essentially, the Germans and their supporters (Finland, Austria, et al.) are saying, "We were virtuous, and we will not reward vice."  The implication -- actually, the direct statement -- is that the weak countries are weak because of their own inability to rein in their excesses.  Germany emerged from economic weakness "on its own" in the last decade or so, supposedly because the people were willing to work hard and not expect a handout.  Maybe they did not expect a handout, but as Professor Hockett's argument suggests, they were certainly willing to rig the game so that they could simply take food out of the mouths of their poorer neighbors.  Germany's exports are being subsidized by being priced in a currency that is weaker than a German-only currency would be.  Without the problems of Greece and the rest, after all, the euro would be stronger, and German exports less competitive.

In its way, this argument is a variant on what is now often called the Murphy/Nagel point, named for the philosophers Liam Murphy and Thomas Nagel at NYU School of Law.  The basic idea (which both authors readily concede precedes their writing on the subject) is that laws set the framework within which economic outcomes are determined, and different sets of laws will dictate different economic outcomes.  For example, if I live in a country with strong antitrust enforcement, economic outcomes will be different than they would be in a country with weaker or nonexistent antitrust laws.  In both cases, the respective economic winners will be tempted to declare themselves the virtuous examples of how hard work guarantees success, even though their success was made possible by the laws that their societies created and enforced.  In the case of the euro, the Germans not only benefited from the law, but they were mostly responsible for creating and enforcing it.  To call their self-congratulatory moralizing deluded is to put it mildly.

The second argument that I want to discuss here pertains to Merkel's "7/25/50" line.  Earlier this year, when I spent a month teaching in Austria, a scholar there approvingly mentioned to me that Merkel had been making the following argument: Europe has only 7% of the world's population, and produces 25% of the world's output, yet it accounts for 50% of the world's social spending, making it necessary to cut social spending.  I smiled and changed the subject, because I had to believe that the argument had been mangled in translation.  In fact, as I note in my Verdict column, that is exactly what Merkel says.  She somehow uses that concatenation of statistics to argue that European social spending is "unsustainable."

How meaningless is Merkel's claim?  I compare it to the silly "9/9/9" plan from Herman Cain, calling Merkel's claim "not quite as inane."  (I actually remembered Cain's plan incorrectly, calling it the "6/6/6" plan in my column.  I've decided not to have that changed on the Verdict site, because it is just too funny as a Freudian slip.)  Actually, however, Cain's plan was at least meaningful on one level, in that he was simply saying that he wanted to set three key tax rates at 9%.  It was a stupid plan, but the three numbers communicated something.  Another famous triplet, "Fo'! Fo'! Fo'!" succinctly communicated basketball great Moses Malone's prediction that the 1983 Philadelphia 76ers would sweep all three best-of-seven rounds of the playoffs and win the NBA championship.  (He was off by one, but "Fo'! Fi'! Fo'!" never took hold in the public imagination, for obvious reasons.)

Merkel's line, by contrast, tries to suggest that the first two numbers somehow expose the unsustainablity of the third number.  It echoes the claims by environmentalists regarding the disproportionate share of the Earth's resources used by rich countries.  (For example, "Americans constitute 5% of the world's population but consume 24% of the world's energy.")  But that juxtaposition, too, actually communicates something meaningful.  What is Merkel saying?  At best, her claim amounts to an argument that an economy cannot spend more on social welfare spending than other economies and still compete with them.  "If we keep allowing people to retire in dignity, and provide child care for working families, and so on, other countries will be able to charge lower taxes and out-compete us."

This, of course, is simply an argument for a race to the bottom.  Moreover, it ignores reality.  The countries with no social spending (which make Europe's share of social spending look so large) generally have not competed well with wealthier countries.  And the few countries that do have success soon face demands for more social spending.  If one gives Merkel the full benefit of the doubt regarding what her three numbers might be meant to prove, history has emphatically proved her wrong.

The essential point, however, is that Merkel is merely putting numbers next to each other and then acting as if she has done something profound.  Politicians, of course, do this all the time.  John Boehner argues that there has to be a dollar of budget cuts for every dollar of increase in the debt ceiling.  He even calls this "the Boehner Rule."  Again, he simply puts two numbers next to each other and acts as if they are somehow logically connected, even though the annual amounts of spending and the total amount of government debt are similar only in that they are measured by dollars.   (I have not bothered to work out whether there is a long-term equilibrium level of debt that would result from applying the Boehner Rule every year, but if there is one, it would have no economic justification behind it.)

Even so, this could be fun.  Republicans constitute 28% of registered voters.  Women currently hold just over 4% of Fortune 500 CEO positions.  Early child education pays off $16 every dollar invested.  28/4/16.  We all know what that means!

Wednesday, September 25, 2013

The Non-Paradoxical Role of the Supreme Court With Respect to Gun Control

By Mike Dorf

My latest Verdict column asks whether last week's mass shootings will lead to legislative action on gun control.  I suggest that the answer is no, not just because of the strength of the gun rights lobby but also because of the fact that gun rights supporters are more likely to be single-issue voters than gun control supporters are.  I then provide some analysis of the mechanism by which voter preference intensity translates into public policy.

Here I want to consider another factor: the role of the Supreme Court.  In particular, I'd like to offer a hypothesis about why the Court's pro-gun-rights rulings in DC v. Heller and McDonald v. City of Chicago did not strengthen the political position of gun control proponents.

Before coming to my hypothesis, however, I need to explain why one might have thought that Supreme Court defeats for gun control would strengthen rather than weaken the position of control proponents. After all, Americans often regard Supreme Court decisions as vindicating particular positions.

Often, but not always.  Sometimes a Supreme Court decision can spark backlash or serve as an effective organizing tool for the losing side.  One need not endorse the view that Roe v. Wade was on the whole bad for abortion rights (and I do not endorse that view) to recognize that Roe served this organizing function for the pro-life movement.

Moreover, with respect to guns there was another reason to think that the Supreme Court's rulings in Heller and McDonald might benefit gun control proponents.  For years, gun rights proponents argued against just about any gun control measure on the ground that it could lead down a slippery slope towards the confiscation of all guns.  Some people therefore thought that by recognizing an individual constitutional right to firearms ownership, the Court would undermine the slippery-slope argument.  In this view, the slippery slope argument would ring hollow because people would understand that the courts would invalidate very intrusive gun regulations, and thus they would be willing to support more modest gun control measures.

So far it hasn't worked out that way.  Why not?

I'm sure the answer is complicated but I'll hypothesize that the Supreme Court's decisions in Heller and McDonald have worsened what my column calls the "intensity gap" between gun rights proponents and gun control proponents.

My column proceeds on the assumption that gun control proponents do not, on average, support gun control as intensely as gun rights proponents support gun rights.  But maybe that's a simplification. Maybe gun control proponents would support gun control with greater fervor if the Supreme Court were to allow serious gun control.  The idea would be that someone who favors disarming the population supports somewhat stricter background checks than we now have but understands that given the widespread availability of guns in the secondary market, stricter background checks and similar measures will have a very limited impact, so she does not care about them with great intensity.

Meanwhile, on the other side, the persistence of slippery-slopism notwithstanding Heller and McDonald, means that proponents of gun rights oppose even modest measures with nearly the same zeal that they would display in opposing more serious gun control efforts, in the event that the Supreme Court would allow such efforts.

I want to be clear that this hypothesis is just that.  Moreover, it's partial.  And it may even be wrong.  We can test the hypothesis that Heller and McDonald played a substantial role in sapping the strength of the gun control movement by taking serious gun control off the table by looking to see whether the gun control movement had greater intensity before Heller and McDonald.  I haven't done the research but I'd be surprised if that were true.  So I'm left with a hypothesis that appears to fail the best seat-of-the-pants test of it that I can devise.

Nonetheless, I think there is something going on here.  At the very least, it's interesting that the legislative response to Roe by the pro-life movement has been to pass any and all manner of laws that chip away at Roe, and quite a few that clearly violate it, while so far the legislative response to Heller and McDonald by the gun control movement has been so timid.  Intensity of viewpoint strikes me as at least somewhat relevant to that difference.  And that in turn leads me to think that the space left open by the Supreme Court is relevant.  Perhaps the core difference is that since Roe, most Republican politicians have made overturning Roe a consistent policy aim, whereas Democrats have accepted Heller and McDonald.

Tuesday, September 24, 2013

Automatic Transactional Immunity

By Mike Dorf

Last week, Dan Alonso, the chief assistant district attorney in New York County, gave a talk at Cornell in which he promoted the recommendations of a task force (described here) that looked into reforming state laws governing the prosecution of white collar crime.  Although he embargoed full disclosure of those recommendations, today (and possibly already by the time this post runs), Alonso's boss, DA Cyrus Vance, Jr., will unveil the full package of proposed reforms at a press conference.  Here I want to discuss one such proposed reform that is no secret because Vance and others (including Governor Andrew Cuomo) have made the case for it already: Replacing the automatic transactional immunity that grand jury witnesses receive with use-and-derivative-use immunity.

First, the background.  A witness called to testify before any kind of court has a Fifth Amendment right against self-incrimination.  Yet witnesses to crime are often criminal suspects themselves.  In order to prosecute the principals, the government sometimes strikes deals with lesser offenders, whereby the latter agree to testify in exchange for leniency.  But even if a prospective witness does not agree to testify, he can be required to testify if the government gives him immunity from prosecution.  The immunity replaces the Fifth Amendment privilege.

What kind of immunity must the government provide?  In the 1972 case of Kastigar v. United States, the SCOTUS held that the government fully satisfies the Fifth Amendment by providing the witness with so-called "use and derivative use" immunity.  As the term suggests, when the government provides such immunity, it may not use the witness's statements against him in the pending or any subsequent prosecution (use immunity), nor may the government use any evidence derived from the immunized testimony against him (derivative use immunity).

Although the Constitution allows for use-and-derivative-use immunity to substitute for the Fifth Amendment privilege, New York is more generous.  Under New York criminal procedure law, a witness called to testify before a grand jury automatically receives immunity for her testimony, and the immunity the witness receives is "transactional immunity"--that is, she cannot be prosecuted (under state law) at all for any of the incidents about which she testifies.

So, let's suppose that a NY grand jury is investigating an alleged burglary of the home of Harry by suspect Sam.  The prosecutor calls Harry as a witness and asks whether Sam had permission to enter Harry's house.  Harry says no.  Then the prosecutor asks whether Harry recognizes the allegedly stolen goods that were found on Sam's person, including a diamond necklace.  Harry says yes.  The prosecutor asks how.  Harry says "because that's my diamond necklace.  It looks exactly as it did the day I took it off of the body of Victoria right after I killed her."  The government may not now--or ever--prosecute Harry for the murder of Victoria because by testifying about the killing in response to the question, he immunized himself.  Crazy, no?

In case you think this sort of thing never happens, think again.  Real cases--detailed in the Task Force Report as well as here--follow the pattern just described.  There is, to be sure, one loophole for the prosecution: The automatic transactional immunity does not cover a witness who simply blurts out "I committed the following crimes" in the course of completely unrelated grand jury testimony.  But even that exception has been narrowly construed, so that a prudent prosecutor must be very very careful about what witnesses she calls before a grand jury and what questions she asks.

Why, one might wonder, does NY give automatic transactional immunity?  The short answer is that the statutory provisions I've just described were enacted before Kastigar, when it was arguable that the Constitution permitted compelled testimony only on the provision of transactional immunity.  In Kastigar itself, Justices Douglas and Marshall took this position, and Justice Brennan likely would have as well, but he did not participate in the case.

So, why wasn't the statutory provision of automatic transactional immunity replaced with use-and-derivative-use immunity after Kastigar?  It has not been for lack of trying.  Both Democratic and Republican state and local executive officials have long sought to eliminate transactional immunity, but each time they have been frustrated in the state legislature.  I don't know enough about the interest group politics at stake to say whether this time will be different, but I do want to close by suggesting that less may be at stake than meets the eye.

Under the post-Kastigar case law, the prosecution must show that any evidence used against a defendant who previously received use-and-derivative-use immunity derived from an "independent source."  The high-water mark for defendants was the ruling by the DC Circuit in the Oliver North case, which found that despite heroic efforts by independent counsel Lawrence Walsh to isolate his prosecutorial team from any taint due to North's immunized Congressional testimony, the prosecution failed to satisfy the burden of proving independent source.  To be sure, most other courts apply a somewhat less stringent standard for showing independent source, but the task is difficult enough that, in general, even in a use-and-derivative-use jurisdiction, a prudent prosecutor will do everything she can to avoid immunizing a witness she thinks she may later want to prosecute (except for perjury, which is outside the scope of immunity, but presents its own prosecutorial challenges).

So in practice there may not be that much difference between transactional immunity and use-and-derivative-use immunity.  Which way does that cut?

It's not clear.  On the one hand, proponents of the change can argue that use-and-derivative-use immunity is plenty protective.  On the other hand, opponents of the change can say that if use-and-derivative-use immunity is de facto almost as much of an obstacle to prosecuting immunized witnesses, then there's no need to bother changing the law.

Monday, September 23, 2013

Pope Francis, Deng and Gorbachev: How Do Nondemocratic Institutions Produce Reformers?

By Mike Dorf

Although it is too soon in his papacy to draw definitive conclusions, it now appears that Pope Francis is a genuine reformer who seeks to shift the focus of the energy of the Catholic Church from its "obsession" with sexual morality towards aiding the least fortunate.  And it appears that his reformist plans extend to other areas as well.  As I said, though, it's still too soon for a definitive assessment, as the Pope already appears to be walking back some of the implications for abortion of his interview with La Civilta Cattolica.

But let's suppose that the preliminary assessment turns out to be correct and that Pope Francis turns out to be a reformer.  If so, how did he become Pope?  After all, the College of Cardinals that elected him was packed with conservatives by his conservative predecessors.

The question applies to other contexts as well.  How did Deng Xiaoping become premier, and implement market-oriented reforms that abandoned communism in all but name?  What about Mikhail Gorbachev?  Broadly speaking, the question is this: How do nondemocratic institutions produce reformist leaders when advancement within the organizational hierarchy depends on ideological purity and loyalty to the existing leadership?  (Note that in lumping together the Catholic Church with communist governments I do not mean to imply that Catholicism and totalitarian communism are fundamentally similar; they are, however, similar in the way that now interests me.)

Consider a few, non-exclusive mechanisms for producing reformers:

1) Playing possum:  A reformist can be a reformist from day one but feign ideological purity for his entire professional life to get ahead, and then, once in power, implement his reform agenda.  This strategy of "deep cover" must take quite a personal toll, though, especially as most people who deploy it will not ascend to the top and so will spend their entire lives working for a cause they revile.

2) Change your mind: Someone might start out as an ideological purist but eventually come to see the dominant ideology as corrupt, bankrupt or merely misguided.  If the conversion occurs before this person ascends to the top leadership position, then he must play possum for a while until he gains that position.

3) Recognize that the emperor has no clothes: In some truly dysfunctional authoritarian systems, it is widely known that the system is rotten, but nobody dares to say so for fear of retribution.  In such a system, almost any new leader interested in doing so can implement reforms that his megalomaniacal predecessor would not have undertaken.  This phenomenon can be partial.  For example, Krushchev was very much a reformer relative to Stalin but he hardly abandoned the entire enterprise of Soviet communism.  Why not?  Partly because Krushchev himself remained committed to communist ideals but also because those around him did--as he learned to his chagrin when he was deposed in 1964.

4) Change to survive.  Some reformers reluctantly embrace the role to hold onto power.  Fearing either a popular revolution or a revolt of a reform-minded palace guard, they seek to pre-empt replacement by fashioning themselves the agents of change.

Into which of these patterns--or some other pattern--does Pope Francis fit?  We shall see.

Friday, September 20, 2013

Bold Presidential Leadership and Congressional Shirking

-- Posted by Neil H. Buchanan

As I was channel surfing last night, I came across a segment on Rachel Maddow's show about the Beltway's response to the non-attack on Syria.  Her point was that even though the American people were (and are) overwhelmingly opposed to military intervention, and Congress balked at giving its blessing, and the situation has now at least temporarily been resolved through diplomatic means, the pundit class is in a collective fit over Obama's supposed failure to provide leadership.  She noted that the usual suspects seem to be quite unhappy that they did not get a new war.  As much as I have complained recently about the Beltway establishment's treatment of budget issues (e.g., yesterday's Dorf on Law post), I must say that their war-mongering is even more disgusting.

Maddow then interviewed former Congressman Barney Frank, who pointed out that members of Congress and the punditocracy have often complained about Presidential arrogance when it comes to making war.  But when this President actually put Congress in the position of having a say on military action, it turned out that members of Congress do not want to make tough decisions.  Hardly a novel observation, but certainly relevant and disturbing.

How might these broad observations about the nature of intra-branch politics in Washington -- the Beltway insiders' certainty that we need bold, decisive action from the President, and condemnation of Congress's tendency to shirk its responsibilities -- affect analysis of other policy issues?  For example, what insights might they provide about federal budget negotiations and the debt ceiling?  (You didn't see that coming, did you?)

If it is bold Presidential decision-making that we want, then a Presidential proclamation that the debt ceiling is non-binding would seem to fit the bill.  "I am willing to fulfill my constitutional duties, but Congress has made it impossible for me to do so.  Therefore, from now on, when Congress sends me spending and taxing bills, I will do what is necessary to make it happen.  If Congress wants to limit the debt, then it can do so responsibly by passing spending and taxing bills to make that happen.  But I will not do Congress's job, cutting spending programs that Congress itself has ordered me to fund."

This is a two-fer for the President.  He looks bold and decisive for the pundits, and he plays on the public's distaste for Congressional cowardice.  Why, then, can we be sure that everyone in Washington would reject this strategy?  Perhaps it is this simple: The public (currently) hates military intervention, but it loves (the idea of) spending cuts.  For the President to back off on Syria pissed off the pundits, but the public was ultimately on the President's side.  But if the President were to "blow past the debt ceiling," as it would surely be characterized by all the wise heads, he would alienate a debt-weary public.

Maybe.  Even so, one of the fundamental points driving the Buchanan/Dorf debt ceiling analysis is that the country would be ill-served by yet another consolidation of power in the presidency.  For the President to refuse to honor the debt ceiling is actually a Congress-affirming act, in exactly the sense that Congress fears most.  (House Republicans cannot even get themselves to vote for the specific spending cuts that are required by their own budget resolutions.)  Forcing Congress to make the decisions about spending priorities would be good for our system.

Perhaps the larger point here is that I have always seen the debt ceiling nonsense as being so crazy on the merits that it has to be a matter of "message mismanagement" by the White House.  In May 2011, I imagined Obama pointing out that he does not "want" a debt limit increase, which is how Republicans had framed the issue.  He could have said that he would refuse to sign a debt ceiling increase unless Congress gave him some other thing that he wanted, rather than giving House Republicans something when they balk at doing what is necessary.

All of which suggests that Obama -- who actually is having some success, thus far, saying "I will not negotiate over the debt ceiling -- could turn a Constitutional necessity into a political bonus.  Be bold, be daring, and make Congress look small.  Even better, make Congress look small by daring them to act like adults.  During the 2011 debt ceiling crisis, Bill Clinton said that he would issue more debt and dare Congress to impeach him.  Issuing more debt and daring Congress to do its own job would be even better.

Thursday, September 19, 2013

So Soon? Bad Reporting on the Budget, Again

-- Posted by Neil H. Buchanan

On Tuesday of this week, the Congressional Budget Office (CBO) issued its new report, "The 2013 Long-Term Budget Outlook."  If I was correct in my blog post from last Friday -- "The Worst Economic Reporting in History: Has It Ever Been Thus?" -- the news articles describing the report should have been extremely bad; and they were.  I did not expect to be proved right so quickly, and I would like to have been proved wrong.

How bad was it in The New York Times, which continues to be head and shoulders above a very unimpressive group of peers?  Mixed, but still bad.  The Times news article (not an op-ed) managed to be both sober-sounding and deeply misleading.  In other words, business as usual.

But first, the good news.  The article's headline, and arguably its main point, was that Congress's only "successes" in cutting spending over the last few years were in exactly the areas where it matters least to the long-term deficit and debt picture.  Republicans' relentless cuts to domestic discretionary spending were, in other words, as gratuitously cruel as we always thought they were.  That entire category of spending, which includes food stamps and nearly all of the other programs that are designed to help poor, near-poor, and working poor people, was never especially large.  Moreover, it was not projected to rise much at all over time.  If there was a long-term problem (a big if), it was not in this area of the budget.  The reporter also earned partial credit for at least acknowledging that Social Security might only be a problem to "a lesser degree" than health care spending, which everyone should know has been the big question mark in long-term forecasts.

That was the good news.  The bad news is that the Times reporter framed all of his analysis in the "Oh my God, the debt is out of control and will end up ruining us all!" narrative that I have mocked so often.  Admittedly, the CBO report itself uses a decidedly grim tone, but there are plenty of government documents that take on a particular point of view that a responsible reporter would refuse to mimic.  Being skeptical of the official story is a big part of what reporters do -- unless, of course, they are reporting on the federal budget.

Two specific examples will help to show what is wrong with even relatively high-level reporting on budgetary issues.  Admittedly, the first example will seem minor, while the other might appear to be obscure.  In fact, however, they show just why press coverage of the federal budget is so ridiculous.

At one point in the Times story, the reporter points out that in 2023, which is the final year of the official forecast that most analysts think might be at all accurate (and even then, we are talking about predicting spending and taxing ten years from now!), "the annual deficit would rise to an estimated 3.5 percent of the G.D.P., which is just beyond the level that many economists consider sustainable in a growing economy. By 2038, it would be 6.5 percent."  Even describing a projected deficit of 3.5% as not "sustainable" is bizarre, given that the 3% target to which the reporter refers is so casually unscientific.

Essentially, what budget analysts want is to be sure that the debt-to-GDP ratio is generally falling (or, at least, not rising) over the long term.  If we assume that the Fed sticks to its 2% targeted annual inflation rate, and that the growth rate in real GDP will be in the 2-3% range, then nominal GDP will rise by 4-5% per year.  A 3% deficit thus increases the numerator of the debt-to-GDP ratio less quickly than the denominator is rising.  But the idea that 3.5% is "beyond the level that many economists consider sustainable," while accurate in the sense that 3% is the number that most budget experts toss off when asked, is comical.  It suggests that the reporter is looking for ways to spin the story in a negative way.  It is true that the reporter also notes the forecast of a 6.5% deficit in 2038, which is above almost anyone's guess of a sustainable deficit, but only IF the deficit were to stay that high for many years in a row.  As I explain below, however, that 2038 estimate itself is hardly worth emphasizing (or even mentioning).

The bigger problem here is with the very notion of sustainability.  The first paragraph of the NYT report refers darkly to "the unsustainable buildup of debt that is projected in the coming decades."  Actually, the CBO is not projecting an unsustainable buildup of debt.  What it says is that the debt projections for the next 25 years (2013-38) show the debt falling and then rising, reaching about one hundred percent of GDP in 2038, at which point "debt would be on an upward path relative to the size of the economy, a trend that could not be sustained indefinitely."  That is not what the Times reporter claims.

What is the difference between the reporter's claim that the CBO projected an unsustainable buildup of debt, and what the CBO actually said?  All the CBO said is that it is not possible for the debt-to-GDP ratio to rise without limit.  That is, CBO said that the trend, if it were to continue past 2038, could not possibly continue "indefinitely."  That is true, obviously.  However, CBO did not forecast that the debt would grow after 2038 without limit, nor that the long-run trend is unsustainable.

In fact, the report carefully says that the uncertainties associated with long-term forecasts are such that their 25-year forecasts have an extremely wide range of plausible estimates: "[F]ederal debt held by the public in 2038 could range from as low as 65 percent of GDP (still elevated by historical standards) to as high as 156 percent of GDP, compared with the 108 percent of GDP projected under the extended baseline."  That's quite a range.  Indeed, although CBO does provide some estimates over spans longer than 25 years, the report goes out of its way to play down their usefulness.

So, whereas the CBO said that the longest-range forecast that it is comfortable talking about has debt-to-GDP rising mildly at the end of 25 years, and that it could not continue to rise without limit forever after, it did not describe its forecasts as saying that the U.S. is on an unsustainable debt path.

Paul Krugman has a very good short blog post explaining that "This Is Not A Crisis," in response to the CBO report, and he is right.  Note first that there is nothing magical about the 100% level of the debt-to-GDP ratio.  It is possible to go above that number, and there is nothing significant about going from 98% to 102%, for example.  More to the point, however, the question is whether the CBO report is really the basis for a call to political arms.  We have a ten-year period with debt-to-GDP going down mildly and back up mildly.  We then have an iffy 15-year extended forecast that debt-to-GDP will rise further, above U.S. historical norms, but well within the range of experience for many advanced countries.

We have much bigger problems, if this is even a problem at all.  But news reporters and commentators all read from the same deficits-are-the-end-of-the-world script, no matter the facts.

Wednesday, September 18, 2013

Abortion Delayed...

By Sherry F. Colb

In my column for this week, I discuss the abortion case of Cline v. Oklahoma Coalition for Reproductive Justice, on which the Supreme Court granted certiori in June.  The case raises the question whether an Oklahoma abortion statute violates a woman's constitutional right to terminate her pregnancy.  The statute provides that if a doctor wishes to prescribe RU-486, an abortion medication indicated for the first trimester of pregnancy, he or she must do so in accordance with FDA labeling instructions from 2000, when the drug was first approved.  The problem with this requirement, as I discuss in the column, is that it -- among other things -- demands a dosage that is three times what doctors currently consider medically sound.  The result is thus to deter doctors from prescribing the medicine at all, by demanding malpractice by those who do, and thereby to effectively (and intentionally) create an impediment for women in Oklahoma who wish to obtain a medical abortion.

In this post, I want to focus on an aspect of the regulation to which I allude briefly in my column:  the possibility that impeding access to medical abortion may have the effect of leading women to terminate their pregnancies at a later stage.  Let us assume, for purposes of this post, that the regulation and others like it in fact do have this effect and that the consequence is to leave the number of abortions constant but to move them from relatively early in the first trimester to late in the second trimester of pregnancy.

From the perspective of pregnant women's health, this outcome would be very undesirable.  Terminating a later pregnancy is generally more complicated and risky for a woman than terminating an earlier one.  But let us focus only on the ideological perspective of two groups of people with a moral position on abortion:  people within the pro-choice movement who believe that post-sentience abortions raise serious moral questions (that should nonetheless be left up to the woman who must carry the pregnancy if termination is unavailable); and people within the pro-life movement (who believe that a life begins at conception and that all abortions should be illegal).

People within the pro-choice movement who believe that killing a sentient fetus raises serious moral questions would find the Oklahoma abortion regulation and others like it outrageous, for the following reason:  When a woman decides to terminate her pregnancy long before fetal sentience, her choice does not result in either suffering or death for a being capable of consciousness.  Allowing her to terminate her pregnancy at this stage rather than later therefore avoids the morally agonizing choice that she must otherwise face (and that many mainstream Americans might wish to deny her) at the later stage.  To make the point clearer, if we knew that a couple will either use a spermicide today or carry out a late-term abortion in 25 weeks, the choice would be a no-brainer:  facilitate the couple's using the spermicide now, when the action is innocuous.

Given the options of allowing abortions in the first trimester or seeing those abortions occur in the latter part of the second trimester, most people outside of the pro-life movement would strongly prefer the first option. Given that, people in this camp would find the Oklahoma law at issue in Cline to be wrong, not only because women should have sovereignty over their own bodily integrity, but also because the death of "someone" -- a sentient being -- could have been avoided through permission to kill "something" -- a pre-sentient organism still incapable of consciousness and thus of pain and pleasure.

What about from the pro-life perspective?  At one time, I thought that even people within the pro-life movement would agree that a late abortion is "worse" than an early one, because sentience must count for something.  After all, is it not people within the pro-life movement who came up with laws such as the "Partial-Birth Abortion Ban Act" (PBABA), prohibiting what they describe as a very brutal and inhumane procedure?  Presumably, one would not single out this procedure as brutal and inhumane (and thus worthy of a ban) unless one believed that it is qualitatively different from (and worse than), say, a first trimester RU-486 abortion.

I now, however, think that the pro-life view of abortion -- that it is murder from the very moment at which a sperm cell joins with an egg cell to form a zygote -- puts very little stock in fetal sentience, except perhaps as a vehicle for reaching the wider audience of people who reject the view that killing a zygote is murder but do feel that later, "pain-capable" abortions raise serious and potentially dispositive moral questions.  This would help explain, for example, their arguments offered for the PBABA saying that an intact dilation and evacuation abortion is too much like infanticide to countenance.  For someone who adheres to a pro-life view of abortion, terminating the life of an eight-cell, undifferentiated embryo is just as much like infanticide, for moral purposes, as aborting a late-term fetus through an intact delivery followed by the crushing of the fetus's skull.  The whole argument that a particular kind of abortion is "too much like infanticide" assumes as its premise the idea that abortion is, as a general matter, something better than infanticide.  The pro-life view expressly rejects that idea.  Being capable of pain is a significant marker only for those who reject the zygote = infant equation.

Why does this matter?   For someone who is pro-life in the way that I have defined it above, a late-term abortion is no worse than a first-trimester abortion.  Thus, if a woman is probably going to get an abortion anyway, delaly is a good thing rather than a bad thing.  Like someone on the telephone with a suicidal individual, the goal of the pro-life advocate is to put off the act of killing as long as possible.  If nothing else, this gives the target of the intervention a little more time to live than he or she would otherwise have had.  By contrast to most people (who would distinguish morally between a zygote and an infant), the pro-life individual would not regard it as any sort of victory to move abortions from late in pregnancy to early in pregnancy.

If early and late abortions are morally equivalent, however, then consider what follows.  Moving an abortion from earlier to later may be affirmatively desirable, from the point of view of someone who believes the two sorts of abortions are morally indistinguishable.  If a woman is allowed to terminate her pregnancy early, then most people will reject the notion that something truly horrible has occurred.  By creating impediments to an early abortion, though, the advocate of a pro-life view may find himself or herself less isolated in his or her opposition to what the woman is doing.  That is, many people would sympathize with an effort to ban and punish  -- or at least places limits on -- late-term abortions.  Therefore, if a pro-life advocate manages to move an abortion that would otherwise have taken place early into late in the second trimester, then he or she will potentially attract many allies in opposing that abortion.

At first glance, it may seem rather pointless to relocate what one regards as murder from one time to another, just because more people will oppose it at the later time.  It is not pointless, however, if we consider the fact that the overwhelming majority of abortions currently occur during the first trimester of pregnancy.  A movement dedicated to criminalizing abortion has a corresponding interest in pushing those abortions out of the first and into the second trimester.  If it succeeded in doing this, then the pro-life movement would gain strength because it would be opposing procedures that many more people consider immoral or at least morally troubling.

Along these lines, one can understand laws that restrict access to RU-486 as an indirect means of strengthening the movement to ban abortion altogether.  Few people would support an outright ban on medical abortion, provided such abortion is safe for the woman.  But a law that forces medical abortions to conform to outdated dosages that, in turn, deter doctors from prescribing them may seem relatively innocuous to people who do not closely analyze the law.  And if such laws pass, as one did in Oklahoma, then abortions may in time be pushed into a stage of fetal development at which stage the pro-life movement no longer needs to convince people that a zygote is morally entitled to live.  Simply convincing people that a sentient fetus is entitled to live may become enough.

Tuesday, September 17, 2013

When Should Constitution Day Be Observed? And Some Thoughts on the Constitution's Non-Fundamentality

By Mike Dorf

Another Constitution Day is upon us.  As I noted last year, a law hatched by the late Senator Robert Byrd mandates that institutions receiving federal funds (like Cornell) commemorate the anniversary of the Constitution with an annual day of educational programming.  Here is the program at Cornell:

Noon Panel: "The State of the Constitution" with me, my colleague Josh Chafetz, Rich Ford of Stanford, and moderated by my colleague Chantal Thomas.

3:45 Panel: "The Constitution in the World" with Cornell English Professor Liz Anker, my colleague Laura Underkuffler, Noah Feldman of Harvard, and moderated by my colleague Aziz Rana.

What am I saying about "the State of the Constitution"?  Well, to be honest, until the weekend, I didn't realize that the panel even had a title.  I was told simply to say something about the Constitution, connecting it to my scholarship if I wanted.  Here's the condensed version of my remarks:

Since the inception of Constitution Day in 2005, various commentators have problematized the idea of Constitution Day.  I want to continue in that tradition by asking when is Constitution Day, and using that inquiry to open up some questions about the nature of Constitution Day, the Constitution, and ultimately, popular consent.

Why do we celebrate Constitution Day on the anniversary of the signing of the Constitution in the Convention, rather than on June 21, when, in 1788, New Hampshire became the ninth state to ratify, thus fulfilling the terms under which the Constitution would become effective?  Is it because New Hampshire's ratification--while bringing the total of states to the necessary minimum--did not really guarantee the Constitution's effectiveness?  After all, Virginia would not ratify the Constitution for another few days, and New York for another month.  Even though the Constitution said it would be effective among the ratifying states as soon as nine states ratified, in practice it is hard to imagine the Union surviving without Virginia or New York.

Indeed, perhaps we ought to celebrate Constitution Day on May 29, commemorating the ratification by Rhode Island, the thirteenth state.  After all, Article XIII of the Articles of Confederation provided that only unaninimity of the states could alter the Articles.  But that can't be right either, because Article XIII required that state legislatures approve amendments, whereas the Constitution was originally ratified by state ratifying conventions.  So celebrating on November 21 would be tantamount to admitting that the Constitution was illegal.

Perhaps we celebrate on September 17 because Senator Byrd had in mind an old-fashioned notion of "original intent" of the framers, rather than the view that now prevails among academics who call themselves originalists--that the act of ratification made the Constitution law and what it enacted was the "original semantic meaning" of the words.  Perhaps Byrd thought that the "Miracle at Philadelphia" was the key event because he equated the Constitution with the intentions of its framers.

I hardly think that's a necessary implication of the choice of date, however.  Surely the semantic meaning (which is what normal people simply call "meaning") of the words of the Constitution did not change in any substantial way between September 17, 1787 and May 29, 1790, when Rhode Island ratified.  Indeed, one might say that the proposal date (Sept 17, 1787) is the more important date for semantic-meaning originalists because that was the date when the public debate about the Constitution began.

I'll return to originalism momentarily, but first I want to take a detour into the very idea of Constitution Day.  The educational initiatives that are at the heart of Constitution Day are rooted in the accurate perception of widespread ignorance about civics among Americans.  Public polling routinely shows confusion about such basic matters as whether the Constitution contains the Marxist slogan "from each according to his abilities to each according to his needs."

Yet many Americans are undoubtedly confused about other things as well, such as the origins of human life, the threat posed by man-made global warming, and the religion of the current President. Why should federal funds to educational institutions be tied to education about the Constitution rather than to education about these--and/or other--topics?

As a historical matter, politicians and activists across the ideological spectrum have turned to the Constitution for a variety of reasons: to build solidarity; to claim the mantle of patriotism for whatever cause they espouse; to argue that they, rather than their political opponents, are attempting to redeem, or return to, the nation's core principles.  But the sense of urgency for a broad campaign of education about the Constitution without any distinctive tie to a particular political movement strikes me as serving a somewhat different aim.

I suspect that Senator Byrd and the other lawmakers who created Constitution Day rather than Evolution Day, Global Warming Day or Obama-Is-A-Protestant-Christian Day were driven by the belief that the Constitution is somehow more fundamental to citizen participation in our democracy than other matters are.  After all, the Constitution sets up the basic institutions of government within which voters exercise the franchise.  Before we worry about getting Americans up to speed on issues relating to specific policy questions, the theory would go, we need to ensure that they understand how the system functions.

That supposition strikes me as dubious as a factual matter.  A voter can know a great deal about where she stands on some particular issue--gun control; the death penalty; same-sex marriage; abortion; etc.--and be able to successfully identify candidates who share her views on these issues, without knowing all that much about the Constitution.  As the two major political parties have become more clearly divided ideologically in recent years, the task has been made even easier for voters.  So knowledge about the Constitution is hardly a prerequisite for effective democratic participation.

Moreover, the supposition that the Constitution is more fundamental than anything else also strikes me as wrong.  Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way.  Some years ago, Bruce Ackerman and Akhil Amar each in his own way offered theoretical grounds for thinking that it would be possible for the People to substantially change the Constitution without adhering to the amendment process while operating within the same legal universe of the Constitution.  Maybe you agree; maybe you disagree.  Still, no one disputes that it would be possible--as a matter of brute fact--for Americans to let go of the Constitution and replace it with something else.  Put in terms we owe largely to H.L.A. Hart, what makes the Constitution the law around here is the social convention that we treat it as the law.  The Constitution is like paper money.  It has no inherent value.  Its value derives from everybody's willingness to treat it as valuable.

What's true of the Constitution is also true about efforts to discern the Constitution's meaning. Originalists--of all stripes--sometimes talk as though their method for interpreting and construing the Constitution is simply the only honest way to do the job.  Yet everything depends on what that job is, and that is ultimately determined by the same sorts of conventions that make the Constitution law in the first place.  And those conventions are themselves a product of the political system.

Originalism provides a nice illustration.  One can find examples of judges seeking the original understanding of the framers and ratifiers in very old cases, but the idea of originalism as an ism, that is, as a distinctive methodology/ideology, is a relatively recent innovation.  Raoul Berger was probably the first modern originalist, but originalism as a movement got going somewhat after the publication of his controversial Government by Judiciary.  Modern originalism sprang from the Federalist Society and the early Reagan Administration.  It has been as successful as it has been--which is to say quite successful--for three reasons: First, there is a certain commonsensical appeal of originalism that makes it an easy sell to the public and politicians; second, as Republican Presidents appointed originalist-leaning judges and Justices to leading positions in the federal judiciary, they shifted the discussion in originalist directions; and third, the Federalist Society's well-to-do patrons successfully promoted originalism (and related ideas), thus adding encouragement for academics to provide intellectual respectability.

Nonetheless, originalism's future looks dim.  Demographics suggest that Democrats will increasingly win the Presidency in the short to medium term, at least until the Republican Party reinvents itself or we see dramatic realignment.  Although Democratic appointees may play the originalism game when they are in the minority, there is no reason to think that the sort of Justices and judges that future Democratic presidents appoint will be originalists in any real sense of the word.  With originalism on the wane in the Supreme Court, academic interest in it is likely to wane as well.

That doesn't mean that originalism will entirely disappear.  Academic careers have trajectories, so people who have already invested a good deal of their reputation in the project will continue to beat the drum.  Furthermore, even non-originalists are interested in the original understanding for historical and other reasons, so scholarship that aims to uncover original meaning will continue to be valued.  Still, it would be surprising to see the originalist movement thriving in a world dominated by nonoriginalist judges and Justices.

But perhaps this analysis overlooks the possibility that originalism could thrive as an opposition movement, as a kind of insurgent position to which conservatives feel even more strongly tied than ever as they perceive themselves having been unjustly thrown out of power?  I'll concede that that's a possibility, but I wouldn't bet on it.

As I've said, originalism got going in the first place as a means of achieving conservative political ends.  I acknowledge that it became more than that, but notwithstanding the odd liberal originalist like Jack Balkin, conservative political druthers are the life blood of originalism.  And so the question is whether future efforts to stave off political decline by the Republican Party would include an originalist rallying cry.

I tend to doubt it, because the fundamental problem the Republican Party faces is that its shrinking base consists disproportionately of old white men.  I'm not a political guru by any means, but it does strike me that a Republican Party aiming to broaden its appeal would be ill advised to rest any part of its platform on a view of our fundamental charter that attributes meaning to the views of a group of people who are not only exclusively white and male, but also really old, in fact so old that they are all dead.

Postscript Acknowledgment: Some of my thoughts on the past and future of originalism arose out of recent separate conversations with Mark Tushnet and Neal Devins.

Monday, September 16, 2013

The Yale Sex Code

By Mike Dorf

What should we make of the eight scenarios of, by turns, consensual and non-consensual sex that Yale University has published to provide guidance to its undergraduates (and others) about what counts as a violation of the university policy requiring affirmative consent for sexual contact?  Reminiscent of a similar policy adopted by Antioch College twenty years ago, the Yale policy has predictably been ridiculed from what we might loosely call the boys-will-be-boys right, as in this (admittedly pretty funny and not all that offensive) parody on Gawker.

I suppose that the best one can expect from the general culture is the tone of the NY Times story on the Yale policy: recognizing the existence of a real underlying problem but still bemused by the efforts of nerds of my generation to formulate a policy for a generation of twerkers whose social world we barely understand, even if (perhaps because?) they are our own children.

Meanwhile, some feminists critique the Yale policy.  In addition to the complaint that Yale and many other other colleges have hitherto been too lenient in meting out discipline for perpetrators of non-consensual sex, some feminists have called Yale out for use of the term "nonconsensual sex" rather than rape, which, it is argued, perpetuates the view that some kinds of rape, i.e., "date rapes,"are not so serious as "real" rape.

That's a fair critique of a lot of thinking about rape but I think it's an unfair charge with respect to the Yale policy.  The document linked above containing the scenarios acknowledges that some of the scenarios would amount to criminal conduct but others would not.  Yale is not saying that some rapes are not real rapes.  It is saying that some less-than-fully-consensual sex that would not violate the criminal law is still forbidden by the Yale policy, and so Yalies oughtn't to do it.  If anything, Yale should be given credit for taking seriously nonconsensual sexual "encounters" that fall short of rape--at least if the university intends to follow through by enforcing the rules as indicated by the scenarios.

Nonetheless, I would suggest a somewhat different feminist critique of the Yale scenarios: The whole enterprise of providing guidance with multiple scenarios reinforces the widely held view that it is difficult for a man to know when a woman has consented to sex.  These scenarios construct sex as something a man gets from a woman but only under certain conditions, and so he needs to be very careful to make sure that the conditions are satisfied, lest he subsequently--and to his surprise--end up in trouble.  The need to explain with multiple scenarios suggests that figuring out whether a woman wants to have sex is like evaluating the costs and benefits of a complex package of synthetic collateralized debt obligations.

To be sure, the sixteen protagonists in the Yale scenarios all have androgynous names.  Still, even if the scenarios do not reveal whether a man is coercing a woman or another man, or a woman is coercing a man or another woman, we know that the typical real-world case involves a man coercing a woman.

And so, I came away from reading the Yale scenarios with a mix of skepticism and horror.  Reflecting the reality of widespread alcohol abuse on college campuses, three of the eight scenarios involve drunk students, and in each case the resulting sexual activity is nonconsensual.  But do we really need multiple illustrations to instruct undergraduates on the finer points of "don't take sexual advantage of someone who is pass-out drunk"?  And will such fine-grained guidance work on 19-year-olds who are themselves likely to be quite drunk at just the moment when they need to make the relevant judgment?

I'm willing to concede that the answer to the first question may well be yes, and that if so, then I shouldn't be blaming Yale but the wider society.  Still, I can't help but think that making things simpler would be a better route.  When I was an undergraduate in the 1980s, the feminist rallying cry around this issue was "no means no."  Of course there are still plenty of young men (and some not so young men) who didn't get the message, but one would hope that some progress has been made.  For the next steps, I would recommend a similar catch-phrase.  I suggest "only yes means yes" or perhaps, even more simply, "don't be a creep."

Friday, September 13, 2013

The Worst Economic Reporting in History: Has It Ever Been Thus?

-- Neil H. Buchanan

My new Verdict column, published yesterday, carries the somewhat ungainly title, "How to Succeed in Sounding Impressive When Talking about Budgets and Deficits Without Really Trying: Understanding the Degraded Media Environment When It Comes To Reporting and Discussing U.S. Budgetary Matters."

The ultimate purpose of the column is to summarize what we actually know today about federal spending, deficits, and so on.  The deficit has fallen dramatically in the past few years, and it will fall further, with projections showing that deficits will be completely sustainable for at least the next ten years.  The long-term forecasts have radically improved as well, with health care inflation having moderated significantly.

In short, even if one were a deficit worrier, the news lately has been nothing but good.  The only danger, and it is a very real possibility, is that the looming government shutdown and/or debt ceiling-related default will tank the economy, pushing down tax revenues and pushing up what remains of safety net spending, as people lose their jobs and homes.  The ballooning nominal deficit will be even worse as a percentage of a shrinking GDP.

As I noted above, my goal in writing the article was to summarize the current reality of our budgetary situation.  As the title of the piece suggests, however, I tried to reach that goal by setting up a rhetorical device, wherein I describe the facts about the budget situation, and then explain that a person who wants to write (either as a commentator, or even as a news reporter) about the budget does not need to understand any of those facts.  Such a person can have a successful career as a sage, worldly-wise bloviator about budgets without really trying to know anything about budgets.

In fact, the only thing that budding Beltway insiders need to do is to try to remain as ignorant as possible about reality.  Possessing knowledge will only complicate their jobs, which is to convince everyone that Social Security, Medicare, Medicaid, and domestic discretionary spending need to be cut -- not because the commentators will admit that they agree with Republicans, mind you, but because all serious people understand that the government can no longer afford to indulge its foolish notion that it can guarantee dignified retirements to people after a lifetime of work, or prevent people from dying of treatable diseases, or provide nutrition to children who will otherwise go hungry.  In pundit world, the story is that even liberals must admit that cuts need to be made, and the only thing to do is to decide how to add back a few dollars to the Republicans' demands.  Then, everyone can congratulate themselves on having backed "compromise," and we can call it a day.

I think a reader could fairly infer from the column, and from the paragraphs above, that I am saying that this state of affairs is uniquely bad.  If the media environment is "degraded," as I say in the subtitle of the column, that suggests that there is some higher level from which it has fallen.  That is not the only fair reading, of course.  It could be that the environment is degraded by comparison with an ideal, rather than a historical point of comparison.  But that is a less natural reading.  In any case, I certainly do mean to say that things are worse now than they used to be.

The obvious retort is that people always think that their era is the worst ever.  Kids are less well behaved than ever.  Music is less interesting than ever.  Politicians are more venal and stupid than ever.  And the media is less professional than ever.  In one of my college English classes, we were assigned to read Ovid's The Art of Love, and it was startling to read about people two thousand years ago complaining (and getting excited) about the same things that seemed ever-so-modern to an 18-year-old in the late Seventies.

One answer to this objection is that it really does not matter.  The point is not really whether things are worse, better, or the same as ever.  The point is that things are ridiculous now, and that has bad effects on policy.  Who cares if this is merely a different kind of ridiculousness, or that it is possibly meaningless to try to compare degrees of degradation?

As appealing as that argument is, I am willing to stick to the more difficult task of arguing that things really are worse now.  Maybe not the worst ever (after all, I really don't know what the media environment was like when Franklin Pierce was President), but the worst in at least a few generations.

This task is made more difficult, however, by the very language that I repeatedly use to describe the media's self-reinforcing echo chamber.  In decrying the "conventional wisdom," I am using a term coined in 1958 by the great economist John Kenneth Galbraith, who also meant to disparage the policy and media environment in the United States at the time.  It is not as if there was a time prior to, say, 2011 when media types and political hacks were free thinkers.  Galbraith saw the low level of independent thought of his era, and it was cause for alarm.

Moreover, the very embodiment of the conventional wisdom predates our current predicament.  David Broder, who died in 2011, held sway at The Washington Post for decades as the man who was always calling on serious people to agree that both parties were wrong, but somehow that the more conservative viewpoint was always really the right one.  Although he lived into the Tea Party era, his greatest influence was in the last half of the 20th century.  And his approach clearly infused the emergence of the political chatfests (McLaughlin and all those shows), which also date back a few decades.

How, then, is it worse today than it has been for decades, when at least the last half century has seen plenty of inanity passing as received wisdom?  For lack of a better way to describe it, the degree of inanity has simply gotten much worse.  For example, back in 2009, I was drafting an article that was not published until 2011 (as Good Deficits: Protecting the Public Interest from Deficit Hysteria, 31 Virginia Tax Review 75).  When I began drafting the article, I did not even plan to talk about the need for short-term stimulus, because it seemed obvious (in late 2008 and early 2009) that the conventional wisdom in Washington acknowledged the need for Keynesian stabilization, at least when the economy was extremely weak.

Within months, however, a Democratic President and his advisors were willingly going along with (and helping to reinforce) a newly metastasized consensus that the biggest problem facing the world at that moment was large fiscal deficits.  The insiders (politicians and the media) hardened their commitment to screwing up Social Security, even as the evidence piled up that that program was not part of any conceivable long-term problem.  And the rest is currently-unfolding history.

In short, there has surely always been a conventional wisdom.  And the conventional wisdom has almost surely always tilted toward comforting the comfortable and afflicting the afflicted.  Even so, the degree of disconnect between facts and reality, at least regarding budgets and fiscal policy, is greater now than I thought I would ever see.  Today, a person can pretend to say wise things about economic policy without even knowing the direction that the deficit is moving, much less when and why higher deficits are bad or good.  And virtually no one will call him on his willful ignorance.

It has surely ever been true that the political conversation is frustrating to those who actually know that they are talking about, but the current conventional wisdom has taken us to the point where the moderate position is to agree to policies that would obviously damage a weak economy.  Worst ... pundits ... ever.