Thursday, April 30, 2015

Is the Sex Discrimination Rationale in the SSM Cases Narrower?

by Michael Dorf

During Part 1 of Tuesday's oral argument in the SSM cases, CJ Roberts created a stir when he asked the lawyer for the state the following question: "if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" Writing in the NY Times, Adam Liptak suggested that the Chief Justice's question hinted at a possible narrower ground on which he might join the presumed five other votes for a right to SSM. Stating what has become more or less the emerging conventional wisdom, Liptak wrote that CJ Roberts "may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation."

I have long agreed with the argument that laws banning SSM are unconstitutional under the equal protection rationale of Loving v. Virginia for exactly the reason articulated by the Chief Justice. And of course I would be very pleased were the Chief to write a concurrence or a majority opinion that was based on the sex discrimination argument. However, I disagree with the claim that a sex discrimination rationale would be narrower than an expressly sexual orientation discrimination rationale or a fundamental right rationale. Let me explain.

The chief objection to the sex discrimination rationale is that it is formalistic. Yes, barring Tom but not Sue from marrying Joe formally draws a distinction based on sex but not in a way that is at all invidious with respect to sex. By contrast, everyone understood that the social meaning of laws banning interracial marriage was white supremacy. The social meaning of laws banning same-sex marriage is hetero supremacy but not patriarchy or the like. The use of a sex-based classification to ban same-sex marriage, in this view, is something like the use of race in a race-based identification of a criminal suspect: Formally, it uses race (or sex) but as a substantive matter there's no race or (sex) discrimination.

That initially looks like a good objection, but it doesn't stand up to analysis, and the way in which it fails is instructive. The analogy itself is problematic because, as Stanford Law Professor Rick Banks has argued insightfully, race-based identifications are not in fact as benign as generally assumed. Because race is a social construct and not simply a biological fact, race-based descriptions often incorporate racial stereotypes.

More directly to the present point, whatever one thinks about racial identifications, laws that ban SSM do not merely draw formal distinctions based on sex. They rely on the very sorts of stereotypes about proper sex roles that the modern sex discrimination cases condemn as the central problem with laws that discriminate on the basis of sex. Just as it's sex-stereotyping for the state to say a woman can't be a lawyer because women are supposed to be wives and mothers, so it's sex-stereotyping for the state to say a woman can't marry a woman or a man can't marry a man because men should be with women. Put differently, discrimination on the basis of sexual orientation is sex discrimination in a substantive, not just a formal sense.

But relying on the argument of the foregoing paragraph to defeat the objection to the Loving analogy for sex means that a holding that SSM bans are invalid on sex discrimination grounds would have broad implications for other state laws and policies that discriminate on the basis of sexual orientation. If sexual orientation discrimination is sex discrimination, then such laws and policies are subject to the same (nominally intermediate but often even tougher) level of scrutiny that applies to other laws and policies that discriminate on the basis of sex. By rooting the decision in the constitutional law applicable to sex discrimination, the Court (or CJ Roberts for himself) would not be issuing a narrower ruling.

To be sure, the sex discrimination argument might be attractive to CJ Roberts anyway, because he could say that he is simply applying Loving in a formalistic way with respect to sex. His answer to the objection that this is formalism would be, in essence, "so what?". As a supporter of color-blindness with respect to race, CJ Roberts believes in equal protection formalism. I don't think CJ Roberts would be prepared to fully follow through on sex classification formalism. For example, I don't imagine that he would require an "exceedingly persuasive justification" (the characterization of the sex discrimination test in United States v. Virginia) for sex-segregated restrooms in government buildings. But maybe he would; he might be prepared to say that interests in privacy satisfy the test.

Still, even a formalistic understanding of sex discrimination in the SSM case would have broad implications and applications, because just about every law and policy that classifies people based on same-sex attraction or same-sex conduct necessarily involves drawing sex distinctions in exactly the same way as the hypothetical example of Sue, Joe, and Tom does.

To reitierate, I think that's fine. I agree that sexual orientation discrimination is sex discrimination both formally and substantively. But as a consequence, a ruling on this basis would be at least as sweeping as a sexual orientation ruling simpliciter. Indeed, the approach suggested by the Chief Justice's question is potentially broader than the sort of anti-animus approach of Romer and Windsor. The latter is nominally not heightened scrutiny at all, whereas treating laws barring SSM as sex-discriminatory makes sexual orientation (at least) a de facto semi-suspect classification.

Wednesday, April 29, 2015

Switching Seats Because I'm A Woman

by Sherry F. Colb

In my column for this week, I examine a conflict scenario that has been making its way into the news lately, one in which an ultra-Orthodox Jewish man (also known as a "Haredi") asks one or more people on an airplane to switch their seats to enable him to avoid sitting next to a woman, as an accommodation to his religious observance.  My column explains the religious doctrinal basis for the religious man's request ("Negiyah"), and I consider the perspectives of both the religious man and the woman in the situation and conclude that his request--though it may seem relatively trivial, particularly given his minority status--is capable of inflicting a lot more harm on the woman than might be apparent at first glance.  Having said this, I want to consider in this post how I personally would react to such a request, were a Haredi man to ask me to switch seats so that he would not have to sit next to me on an airplane.

I predict that, in my own case, my answer to the request would depend primarily on two factors, neither of which have that much to do with the issues I identified in my column:  First, how important is it for the flight to leave on time?  (that is, how costly is the delay that I might occasion by refusing to accommodate the religious man's request?); Second, how does the religious man go about making his request of me?

The first factor is purely practical.  If neither I nor the other people on the airplane seem especially stressed out by the possibility that the flight on which we are traveling will arrive at its destination somewhat later than originally scheduled, then that fact would give me the freedom to make my decision on the basis of whether I truly wanted to accommodate this person's request.  On the other hand, if I or others on my flight are at risk of missing a connecting flight if we do not leave the gate on time, then I will feel tremendous pressure to do what is necessary to facilitate an on-time departure.  Even if I would otherwise be inclined to say no to what I regarded as an offensive request, I might not have the luxury of doing so.  By analogy, a parent of a young child who is about to have a temper tantrum in a public place might accommodate the child's unreasonable request (for a candy, for example), rather than stand on principle and create a scene.

In the case of the Haredi requesting a seat change, of course, an airline could require that everyone either sit in his or her assigned seat or vacate the plane.  This approach would spare me the pressure of having to accommodate a request I would prefer not to accommodate.  It would also, however, potentially implicate the airline in actionable failure to accommodate a religious request, and such a failure could conceivably--if other, similar secular requests are regularly accommodated or perhaps even if they are not--qualify as religious discrimination.

Assume, however, that there is no time pressure.  No one on the flight is in much of a hurry, and I have the freedom to decide whether or not to grant the Haredi's request without regard to this extrinsic factor.  What do I do?

My inclination is to attend very closely to how the Haredi frames his request to me.  I believe that the doctrine of Negiyah itself is objectionable, but I would not necessarily visit the consequences of my belief on every ultra-Orthodox Jewish man who observes the doctrine.  Many people--particularly those who are highly devout in their observance--follow the doctrinal requirements of their religions without necessarily endorsing or buying into the philosophical ideology behind a particular doctrine.  To put this differently, some ultra-Orthodox Jewish men may not have dedicated themselves unequivocally to the underlying meaning of "Negiyah" and might even find it troubling but nonetheless feel bound by it as an inseparable part of the religious observance that they regard as mandatory and non-negotiable.

Why do I mention these possibilities?  Because my inclination to grant a request that I switch seats as an accommodation to an ultra-Orthodox Jewish man's request would increase tremendously if I sensed that he (a) understood that what he was asking of me would quite likely be hurtful and insulting, (b) felt some sense of regret about generating such hurt and insult, and (c) perhaps even recognized the legitimacy of the view that the entire doctrine is fraught with misogyny (although this last of the three is a great deal to ask of someone who has embraced the doctrine as a way of life).

Consider two scenarios:

Scenario One:

Haredi:  Excuse me, m'am, but I was assigned by the airline to sit next to you, and you are female.  Under Jewish law, sitting next to you would be an "averah," or a sin for me.  If you could just switch seats with the gentleman sitting directly behind you, also a window seat, that would solve the problem."

Scenario Two:

Haredi:  Excuse me.  I'm so sorry to bother you, but I have what will surely sound like a strange request to make of you.  I intend no offense at all by this request, but my religion prohibits me from being in physical contact with a woman who is not my wife.  Since the seats on this flight are so narrow and close together, my sitting in my assigned seat would place me in violation of that religious prohibition.  I realize that this probably sounds peculiar to you, but I am hoping that you will nonetheless do me an enormous favor and switch seats with one of the men seated on this flight.  I would be so grateful if you would agree to do this, and I'd be glad to make the inquiries if there is a particular seat to which you would be willing to switch.  Please forgive me for this imposition, particularly since we are strangers.

If I faced the situation in scenario two, I would almost certainly grant his request (unless there were some other compelling reason for me to refuse).  By framing it as he did, he makes it clear that he understands that he is not entitled to have me move, notwithstanding his religious obligation.  He also makes clear his recognition of my own perspective and the fact that his request will probably sound strange to me.  He communicates effectively that his request comes entirely from a need that he has, and he makes clear that I am not socially or morally obliged to fulfill that need and will do so, if I do, only because I would like to help him out as a favor.

Facing the first scenario, by contrast, I would be sorely tempted to say no (or, at the very least, to attempt to educate him about how he is coming across as a prelude to considering saying yes).  By contrast to the man in the second scenario, this man behaves as though I am under an obligation to solve his problem--the problem that arises because his religion makes demands of him that have run into conflict with a social context in which men and women are integrated rather than segregated.  He accordingly views me as an obstacle to his observance rather than as someone with whom he can engage productively to try to find a solution to a problem that I had no hand in creating and for which I am not responsible.

The fact that I would react so differently to the two requests highlights the importance of how we communicate with one another.  It may sometimes seem as though the important thing, when communicating, is simple content, especially when we converse online and it is challenging to remember that there is someone with feelings, needs, and a perspective on the other end of the cyberline.  But the reality is that despite all of the principles that might drive me either to agree or to refuse to grant a request that is itself fraught with meaning, the deciding factor may very well be the style and tone of the communication.  If it is non-violent, considerate, and conscious of the perspective on the other side of the conversation, I will be inclined to say yes.

Tuesday, April 28, 2015

The Bonauto: An Imagined Dialogue of Plato

By Michael Dorf

During the oral argument in Obergefell v. Hodges, Justice Alito said to Mary Bonauto, the attorney arguing for the plaintiffs, that ancient Greek society was not hostile to gay people--indeed, Plato wrote approvingly of homosexuality. Yet the Greeks did not recognize same-sex marriage (SSM). Ergo, Justice Alito implied, the prohibition of SSM does not demean gay people. Bonauto essentially punted the issue, declining to speculate on the implications of the views of philosophers, but the brief exchange led me to imagine how a somewhat longer discussion of this question might have gone.

Accordingly, after the fashion of The Crito or The Phaedo, I present The Bonauto:

Persons of the Dialogue

Scene: The Supreme Court of the United States


ALITO: Tell me, Bonauto, how can laws recognizing only opposite-sex marriage have the purpose of demeaning gay people when the ancient Greeks had only opposite-sex marriage and yet they approved of homosexuality?

BONAUTO: Well, for one thing, the ancient Greeks didn't have a conception of sexual orientation. I think they were all kind of bi.

ALITO: All the more reason to think that the Greek conception of marriage as only man-woman didn't reflect animus, isn't it?

BONAUTO: I don't know much about history, your honor, but I don't think that ancient Athens had a Fourteenth Amendment.

SCALIA: No no no, that's not the point. You say that it's irrational and nothing other than prejudice to deny same-sex marriage but for millenia we had only man-woman marriage. Did all of those societies harbor animus for homosexuals? Even the Greeks? The Greeks! [Stage direction: SCALIA holds out his hands and looks to the heavens.]

NOTORIOUS RBG: Isn't your answer that marriage itself was a very different institution back then and even until very recently, with a married woman's identity traditionally being absorbed into her husband's?

BONAUTO: Certainly, your honor, I was about to say that many of the institutions of ancient Greece would not pass muster under the modern interpretation of the Constitution.

ALITO: Like what?

BONAUTO: Slavery, for starters.

ALITO: Fair enough.

SCALIA: No it isn't fair enough. The Thirteenth Amendment explicitly bans slavery, just like the Fourteenth Amendment explicitly bans race discrimination.

NOTORIOUS RBG: No it doesn't.

SCALIA: [Not noticing NOTORIOUS RBG but speaking more loudly now] But no provision of the Constitution says anything about homosexuality. Which is fine, you know. I mean if a State wants to approve homosexuality or homosexual marriage or adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity, I mean, that's fine, but that's the business of the voters.

ALITO: What did Plato say about masturbation?

BREYER: I believe Plato condemned the "excess of self-love". It's an interesting question. Perhaps we should invite supplemental briefs.

BONAUTO: Uhm, which question would your honors like me to answer?

SCALIA: Mine. Always.

AUDIENCE: [Laughter]

NOTORIOUS RBG: I believe what Justice Scalia wants to know is what the Reconstruction Congress thought about what James Madison thought about what Plato thought about same-sex marriage.

AUDIENCE: [Laughter]

SPECTATOR IN THE GALLERY: You'll all burn in hell!

CHIEF: Marshalls, defenestrate that low-born rascal! [Stage direction: SPECTATOR IN THE GALLERY is thrown out the window]

SCALIA: That was refreshing.

CHIEF: The case is submitted.

Then Lobbying Happened

by Neil H. Buchanan

A famous New Yorker cartoon shows two men standing in front of a chalkboard.  On the left side of the board are some mathematical symbols.  Another group of symbols has been written on the right side.  In the middle, connecting the two sets of symbols, are the words "THEN A MIRACLE OCCURS."  The older man points to those words and says, "I think you should be more explicit here in step two."  This is a nerd-comic take on the concept of the deus ex machina: "a character or thing that suddenly enters the story in a novel, play, movie, etc., and solves a problem that had previously seemed impossible to solve."

I am becoming increasingly convinced that "lobbying" is now the miracle-equivalent that explains everything in politics, without actually explaining anything.  We all think we know what lobbying is, and maybe even how it is supposed to work.  We attribute many (all?) unfavorable political outcomes to it.  At the end of the day, however, I doubt that we really have any idea what we are talking about.  Let me offer a couple of small examples, along with a big counterexample, to make my point.

I was recently reading an article on the Vox blog about the Trans-Pacific Partnership (TPP) trade deal.  (As an aside, I agree with Paul Krugman, who argued on Sunday on his blog that, really, "this is not a trade agreement.")  The Vox piece was appropriately skeptical of TPP, describing how the deal could increase profits for large companies, especially drug makers.  It turns out that an obscure provision of pharmaceutical law in the U.S. grants "data exclusivity" to U.S. drug makers.  This means that a company that has paid for clinical trials need not share the data from those trials with other drug companies for 12 years. This is a problem, from the public's standpoint, because "[t]o introduce competing drugs before then, companies have to perform their own set of redundant clinical trials. The higher cost of bringing drugs to market leads to less competition and higher prices."

Surprising, and very interesting.  Certainly, it was good news that the Obama administration had been thinking about a proposal to reduce the period of data exclusivity from 12 years to seven.  But you know what is coming: "Yet under pressure from industry lobbyists and their allies in Congress, Obama's trade negotiators are reportedly pushing for language requiring 12 years of exclusivity."  Note that the second embedded link in that last quotation takes readers to an op-ed that was co-written by a veteran congresswoman, who also treated "lobbying" as a deus ex machina: "With lobbying and millions in election spending, the drug giants got inserted into the Affordable Care Act measures that block the U.S. sale of cost-reducing competition for biologics for 12 years."

Second example: On the April 19 episode of "Last Week Tonight," John Oliver's main story was about "patent trolls."  He described how there are companies that exist entirely to buy other companies' patents in order to litigate aggressively against any possible violations, which supposedly harms the economy.  Like his piece on college sports (which I criticized here on Dorf on Law last month), his analysis was disappointingly shallow, never bothering to ask if there are any possible upsides to selling patents, and failing to provide any sense of the magnitude of the supposed social costs.  (But boy, is he convinced that the effects are big!)

Because I do not have strong views on that particular policy question, I would not have been especially troubled by the piece, despite its shortcomings.  It was Oliver's explanation for why a bill to reduce patent trolling had failed in the Senate, however, that caught my attention.  His explanation: lobbying.  He showed a clip of an opponent of patent trolling saying this: "I know this is news, but trial lawyers' influence in Washington is alive and well."  Oliver then added: "Yes, apparently, lobbyists for groups including trial lawyers managed to prevent the bill from moving forward.  And you cannot let trial lawyers decide whether there should be more baseless lawsuits."  He then made a bizarre (but funny) analogy to raccoons, before asserting that the economy will be ruined by these lawsuits.  That was the entirety of his explanation.

I might not have thought too much about those two examples, except that The New York Times ran a piece last week explaining how the proposed Comcast merger/takeover of Time Warner failed.  The basic story was that, even though Comcast is an absolute powerhouse when it comes to lobbying in Washington (the article providing scary details regarding the scale of dollars and bodies involved), and even though people on Capitol Hill were more than open to listening to Comcast's arguments, the arguments were simply unconvincing.  For example, Connecticut Senator Richard Blumenthal "said he came away from the meeting unconvinced, as did others on Capitol Hill who had similar conversations."  An unnamed "senior Senate staff aide" is quoted as saying that Comcast's lobbyists ultimately offered "unsatisfactory answers."

What is going on here?  Back in 2010, I wrote a Dorf on Law post in which I tried to think through how lobbying is supposed to work.  I was puzzled about how legislators' votes are actually changed by lobbying.  The lobbyist walks in the door, the legislator listens and is convinced, and the vote changes.  The expenses of lobbying buy the access to the legislator's office, and apparently the rest is easy.  On the comments board for that post, one reader discussed the unconscious nature of politicians being swayed by people with money (and the promise/threat of campaign contributions), which I found rather plausible.  Still, even with a slightly better sense of the process of how lobbying changes votes, that explanation was still rather thin.  In any case, the presumption was that lobbying changes votes, and that this needed to be explained.

Looking at the three examples above, however, we now have a different puzzle.  The Times basically says, "Lobbying gets you in the door, but you need a good argument on the merits."  But Vox and John Oliver both present what they take to be compelling -- almost incontrovertible -- cases for a change in policy, but then lobbying happens.  Surely, the case for the Comcast proposal was at least as plausible as the case for 12 year data exclusivity, or for allowing lawyers supposedly to continue to ruin the economy.

To look at it somewhat differently, consider that Comcast apparently is a welcome presence in the halls of power.  The company's chairman has golfed with President Obama.  Their lobbying team is legendary.  By contrast, trial lawyers are reviled in the public imagination, and one political party has openly declared war on the plaintiffs' bar.  Yet when the lawyers' lobbyists get in the door, they kill a supposedly clear improvement in our laws, while Comcast cannot even get a few Senators to send letters to antitrust regulators?

Years ago, Professor Dorf (before he was a professor) commented that people like to have labels to explain things, even though they do not understand what the labels mean.  Why do objects fall to the ground?  Gravity.  Can anyone but physics majors actually explain what gravity is, and why it makes objects fall?  No, but people think that "gravity" is an answer.  Gravity makes things fall.  Given that nearly everyone (including me) thinks that there is too much influence from lobbyists in Washington, it is kind of amazing that we really have no plausible, consistent story of how it works when it works, and when it will fail.  If we do not understand it, how can we ever know how to mitigate or reverse the bad outcomes that (we are certain) inevitably occur when lobbying happens?

Monday, April 27, 2015

Does Anti-Commandeering Compensate For Broad Commerce Clause?

by Michael Dorf

Last Thursday I posted on the oddity that the Idaho legislature appears to have the power to prevent the United States from entering into a multilateral treaty governing transnational enforcement of child support obligations. As I explained, the state's veto power is a product of the anti-commandeering doctrine that the U.S. Supreme Court announced in two 1990s cases, forbidding Congress from requiring states to enact or enforce legislation. In the course of addressing the question of whether the commandeering prohibition applies to treaty obligations and statutes implementing treaty obligations, I noted that I think the anti-commandeering doctrine--which is not based on any express provision of the Constitution--is misguided. In particular, I approvingly summarized the historical argument made by the dissenters in the anti-commandeering cases as follows:
Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.
I have setup Twitter to automatically tweet a URL and title for each of my blog posts and shortly after Thursday's post went up, Prof. Randy Barnett tweeted to me about it. He raised what I regard as an interesting set of questions that are not usefully discussed in 160-character snippets, so, after reproducing our exchange, I'll elaborate at some greater length. Here's our exchange:
BARNETT: How about returning to original scope of Congress's powers? Then less need for anti-commandeering doctrine. Deal? 
DORF:  If we return to the economic conditions that prevailed at the Founding, I'll take that deal! 
BARNETT: That's cheating. You don't get to rely on Articles of Confederation, etc. then. Can't have it both ways. 
DORF: AoC shed light on orig understanding. Changed circumstances bear on how it applies 2day. Follow-up post nxt wk. 
BARNETT: Dorf in short: follow original understanding when it suits you? And expansive reading of Congressional power is another change in circumstances. Can everyone play? 
DORF: L Lessig proposed that idea in 1995 Sup. Ct. Rev. 125. It's not crazy but I disagree. I'll discuss Monday.
It is now Monday, and thus, as promised, I shall discuss. I'll begin by unpacking exactly what is going on in the foregoing, somewhat cryptic, exchange.

Barnett's proposed "deal" rests on the tacit acknowledgment that the anti-commandeering doctrine is not rooted in the Constitution. However, he also thinks the Court erred by departing from the Founding-Era understanding of the Commerce Clause--which, he believes, was much narrower than the current understanding. Thus, he is willing to trade away a made-up constitutional limit serving to limit the national government in favor of the states for a genuine but abandoned constitutional limit.

My initial response challenged Barnett's equation of the original understanding with the contemporary implications of the Commerce Clause. I noted that the expansive view of the Commerce Clause in the modern era is justified as a response to changed circumstances. Barnett then cried foul. If I was going to rely on a historical argument about the meaning of the Constitution that rested on juxtaposing it with the Articles of Confederation, then I was "cheating" by trying to "have it both ways," or as he concluded, to follow the original understanding only when I chose to. Herewith, my objections to Barnett's assumptions and arguments:

(1) Barnett misunderstands what I was saying. Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point. In the anti-commandeering cases, the majority (authored by Justice O'Connor in New York v. United States and by Justice Scalia in Printz v. United States) offered a historical, i.e., originalist argument for the anti-commandeering principle. Accordingly, the dissenters--who offered the counterargument that begins with the Articles of Confederation--were responding that the originalist argument for the anti-commandeering principle fails on its own terms. Neither they nor I said or assumed that one must always be bound by the original understanding, regardless of intervening changes in the world. Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else.

(2) To be sure, Justice O'Connor's New York opinion also offered a functional argument for the anti-commandeering rule: She said that it promotes accountability by ensuring that the people of each state know which government to hold responsible for unpopular actions. But (for reasons I won't detail here because they're tangential) I find that argument unpersuasive and, in any event, there is a powerful functional argument that goes in the other direction, as I noted at the end of the post. To wit, forbidding the federal government from commandeering creates incentives for greater federalization, not less, and so the anti-commandeering rule ends up undermining the interests of the states. One can disagree on the functional point, but the fact that I was making a functional argument should have been a clue to the fact that I wasn't resting my opposition to the anti-commandeering principle on purely originalist grounds. And thus there is no hypocrisy in my rejection of a strictly originalist understanding of the Commerce Clause.

(3) Moreover, I deny that the modern understanding of the Commerce Clause is inconsistent with the original understanding, at least if by "original understanding" one means what Barnett himself typically means when he talks about the original understanding, namely the original semantic meaning of the language rather than the concrete expected applications. The argument for the proposition that the scope of regulable activity has been enlarged even as the meaning of interstate commerce has remained the same is very familiar in constitutional jurisprudence, and it's exactly the one I invoked by referring to "changed circumstances." The movement from a craft-based economy to one of mass manufacturing that began in the middle of the 19th century made the notion of purely local economic activity untenable; thus, even if one retains the original semantic meaning of interstate commerce as commerce that concerns more than one state, in the modern world that means just about all economic activity. And that is in fact how every Justice to sit on the Supreme Court in the last 75 years--excepting only Clarence Thomas--has understood the modern doctrine. Barnett can resist this conclusion by equating the meaning of the Commerce Clause with the framing generation's concrete expected applications, but then he would be a "new" originalist when it suits him and an "old" originalist when that suits him.

(4) Fun though it is to execute a jujitsu move and show that Barnett is the real hypocrite here, I won't play that game. Barnett can escape the charge of inconsistency by claiming that the original semantic meaning of "Commerce . . . among the several States" included trade rather than manufacturing. I would say he's wrong or that, if he's right, the interconnectedness of modern supply chains enable Congress to regulate manufacturing and the like under the Necessary & Proper Clause, but that's a bigger debate that I'm not interested in having. I'll leave it to the liberal originalists like Jack Balkin to fight the likes of Barnett on his own turf.

(5) I want to turn instead to Barnett's apparently sarcastic suggestion that if changed circumstances justify a broader construction of the Commerce Clause, that broader construction is itself a changed circumstance that justifies the Court in creating the anti-commandeering doctrine. I don't read Barnett to have been making this as a serious argument. He seems to have meant it as a way of mocking what he took to be my position, although it's hard to tell exactly what anybody means on Twitter. In any event, even if Barnett meant the point as a reductio, it is in fact an idea worth considering.

(6) And indeed, Larry Lessig proposed exactly this idea 20 years ago in the pages of the Supreme Court Review in an article titled Translating Federalism. (The article is available via JSTOR but you need a subscription or to pay.) There Lessig suggested that, in light of the changed economic conditions that rendered the enumerated powers a failure as a means of preserving the balance between state and national power, the Court might be justified in making up other means of limiting the federal government in favor of the states, and that the anti-commandeering doctrine could be such a means.

I think Lessig's basic move is sound, as his core example illustrates. At the Founding, the Fourth Amendment was thought to protect privacy via a no-trespass rule. Absent an invasion of a property interest, there was no "search." But modern eavesdropping technology gave the government greater capacity to invade privacy without invading property, and so Lessig thinks that Justice Brandeis was right in his dissent in Olmstead v. United States to treat electronic eavesdropping as a Fourth Amendment search, even absent a property invasion. It's possible to reach that result via semantic originalism, I suppose, by treating the "meaning" of "search" as quite plastic, so that the property rule is only part of the "construction," not the meaning of the constitutional text. But Lessig, writing before the full flowering of semantic originalism, instead chose the metaphor of translation. His idea was that to give effect to the core purpose of the Fourth Amendment, the modern interpreter must move beyond the original understanding.

As I said, I think this view is sound in principle. My quarrel is with the suggestion that an anti-commandeering rule really does implement principles of federalism. I would also quarrel with the idea that the modern Court ought to worry much about ensuring that principles of federalism receive robust judicial protection, both because political safeguards are largely up to the task and because I read the Civil War and the Reconstruction Amendments as a sufficiently important break with the Founding Era understanding of the proper balance between state and federal authority, that any post-Reconstruction effort to preserve a state-federal balance should strive to preserve one that tilts much more to the federal side than it did at the Founding.

But, as I said, these are disagreements with how Lessig carried out the enterprise that Barnett now (apparently and tacitly) ridicules. The basic enterprise itself makes sense.

Friday, April 24, 2015

Pummeling the IRS Instead of Actually Simplifying the Tax System

by Neil H. Buchanan

In my new Verdict column, published yesterday, I describe the political strategy that Republicans have been using for the last generation or so, wherein they set the IRS up for failure, watch it fail, and then use that failure as an excuse to cut the IRS's budget even further, setting up the next round of failure.  Obviously, I did not imagine that I am the only person to have noticed this pattern, but after I wrote the piece, I was surprised to discover that my column's title ("The Republicans’ Cynical Tax Game: Undercut the IRS, Blame the IRS, Repeat") was eerily similar to a sentence in a column in Forbes magazine last December ("It is a cynical recipe for a self-fulfilling disaster: Give the agency more and more work. Cut its budget. Blame it for failing to do its job. Repeat.")  Not as surprised as I was to see that Forbes would publish such a column, but still surprised.

My column also ran through three of the common right-wing arguments about why people should hate the U.S. tax system -- which, to be clear, need not and should not be an excuse for beating up on the agency that tries to administer that tax system.  I show that the overall level of taxes in the U.S. has not been going up (in fact, it has been amazingly stable since the end of the World War II), that the U.S. remains one of the lowest-tax countries in the developed world, and that the U.S. tax system is barely progressive and thus is not engaging in a makers-to-takers redistributive plan.  Not that there would be anything wrong with that!

As it happens, the Republicans were pouring more gasoline on the anti-IRS fire at almost exactly the same time that I was writing my column.  The majority staff of the House Ways & Means Committee (now chaired by Rep. Paul Ryan) issued a report earlier this week claiming that the IRS "deliberately" allocated its budget in a way that harmed customer service.  Now, therefore, the claim is that the IRS does not just do its job poorly, but Republicans would have us believe that the IRS's leadership is deliberately making matters worse.  I am working on a new column to debunk those claims, which I hope to publish soon on Verdict.

In this toxic environment, it is difficult to believe that the Republicans would be interested in trying to make the IRS work better.  The political advantage lies in keeping the IRS wounded, and making people think that it is the Democrats' fault that things are not working smoothly.  Even so, there are very sincere people who have offered helpful ideas that could truly make a difference, and whose honest efforts I admire.

For example, tax professors Jon Forman and Roberta Mann (of the law schools at the universities of Oklahoma and Oregon, respectively), have a working paper up on SSRN, "Making the Internal Revenue Service Work," that says, in essence, "Well, if Republicans are not going to fund the IRS at its previous levels, here are some good ideas about how to make things work better in a lower-budget environment."  Similarly, at the recent Critical Tax Conference at Northwestern (see my recent Dorf on Law post here), Professor Danshera Cords of Albany Law School offered some useful ideas about how to improve matters at the IRS.  During Q&A, I said to Professor Cords what I will surely also say to Professors Forman and Mann when they present their paper at the Law & Society conference next month in Seattle: "The declining performance of the IRS is not a problem that the Republicans want to fix.  The whole point is to gum up the works, to accomplish tax reduction for the rich by deliberately reducing and diverting the resources needed to enforce the tax laws, and to undermine public support for tax collection."

The grandaddy of all good-faith efforts to improve average Americans' experience with taxes, however, is a still-not-completely-abandoned effort, led by Professor Joseph Bankman of Stanford Law School, to make it unnecessary for the vast majority of taxpayers to fill out tax returns at all.  The idea is that the IRS already receives from your employer and your financial institutions the information that you are required to enter into your tax forms.  Why not have the IRS send you a pre-filled tax form, containing that information and performing the necessary calculations, and allow you to avoid all of the aggravation that makes people hate the IRS?  All we would have to do is create a way for people to contest any errors and to provide any additional information, but even the people who interacted in that way with the IRS would end up doing less work than everyone currently does when filling out these utterly unnecessary forms.

Professor Bankman actually oversaw a pilot version of his idea, Ready Return, in California in 2005.  The program was hugely popular.  Unfortunately, the makers of tax preparation software packages, especially Intuit, have engaged in a lobbying blitz that successfully killed the program in California, and no other state government has even considered fighting that fight ever since.

Last week, the technology writer for The New York Times wrote an interesting piece about Bankman's idea.  Tellingly, however, the title of the article was "Would You Let the I.R.S. Prepare Your Taxes?"  Despite the article's fair reporting, and its extensive quotations from Professor Bankman (and from UC Davis Professor Dennis J. Ventry, Jr., who is also engaged in this admirable battle), the tone was unmistakably about not trusting government bureaucrats to do anything right.  (I was especially surprised a few years ago when Professor Bankman told me that the State of Maryland -- with all of its DC suburbs filled with government workers, who would hardly be a good audience for anti-government rhetoric -- had dropped all plans to run a state Ready Return program.)

Again, "Would you let the IRS prepare your taxes?" is a non-issue.  The IRS already computes your taxes.  That is why it would be so simple for it to send people pre-filled forms.  Even so, one can imagine reasonable questions being raised.  At the end of the article, the reporter notes that some people have objected that people would not dare challenge the IRS's computations.  After accurately reporting Bankman's argument that "the IRS might include tax breaks that taxpayers wouldn't have otherwise found," the reporter offered this parenthetical: "Critics of the I.R.S., which revealed in 2013 that it had targeted conservative groups for special scrutiny when determining tax status, scoff at this idea."  Yes, the non-scandal scandal is now (as I suspected when the story broke) simply a conservative touchstone in any debate about the IRS, no matter the reality.

Beyond the odd invocation of the non-scandal scandal, however, there is simply no reason to scoff at the idea that the IRS would ever do anything to help a taxpayer.  Indeed, in two of the last four years, I have received extra refunds from the IRS, after internal cross-checking revealed that I had made errors that overstated my taxes.  These were not, moreover, transcription errors, but a matter of having failed to note my eligibility for lower tax rates on certain categories of my income.  (Yes, even tax law professors make mistakes on their tax returns.)  In both cases, the IRS generated corrected forms, sent me those forms along with checks for the overpayments, and provided me with further explanations of what to do in the future.

Moreover, Congress always has the ability to require the IRS to err in the taxpayers favor.  I do not think it would be wise to do so, but Congress could certainly set up a Ready Return-like program in any way that it liked, including setting up default rules that would make it more likely that taxpayers would be happy with what the IRS calculates.  In other words, there is nothing about this system that need be stacked against the taxpayer.  Congress, not the IRS, ultimately decides how complicated and difficult the system is.

Again, however, that is really the point.  Back in the 1990's, then-House Majority Leader Dick Armey (who until recently ran a conservative super-PAC) proposed eliminating tax withholding from people's paychecks.  His argument (directly echoing conservative icon Milton Friedman) was that paying taxes should be as painful and difficult as possible, and withholding makes paying taxes easy and painless.  I do not know whether Milton Friedman would have extended his argument to suggest that we should deliberately make a government agency as dysfunctional as possible, but his political acolytes have certainly embraced that idea.

Thursday, April 23, 2015

Treaties and Commandeering

by Michael Dorf

Yesterday's NY Times carried a story that, I imagine, was baffling to most readers. It noted that a committee of the Idaho legislature had voted to kill (for now) legislation designed to bring that state into line with provisions of a multilateral treaty governing the transnational enforcement of child support obligations. The U.S. signed the treaty in 2007 but full ratification depends on the enactment of legislation in all 50 states.

To which the moderately well educated reader might well have reacted "huh? I thought the Senate gave its consent to treaties in order for them to become binding." The very well educated lawyer, however, will understand what's going on here. The treaty imposes affirmative implementation obligations on the governmental authorities in each signatory nation, which with respect to family law in the U.S. means state governments. But under the Supreme Court's "anti-commandeering" doctrine as set forth in New York v. United States and Printz v. United States, Congress cannot force a state to enact or enforce federal law. Congress can "bribe" the states to do so by attaching strings to federal funds--so long as those conditions are not too coercive. And as noted in the Times story, that's what the federal government has done here, but, as with the Medicaid funding, it appears that anti-Washington don't-tell-us-what-to-do sentiment can sometimes trump self-interest on the part of the states. (Note, however, that in this instance it's not anti-Obama sentiment, as the Bush II Administration signed the treaty.)

Here I want to briefly reflect on the wisdom of applying the anti-commandeering doctrine to treaties. I'll begin by saying that I don't like the anti-commandeering doctrine in any context. It strikes me that the dissenters were right in New York and Printz. Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.

But assuming that the anti-commandeering rules properly apply to exercises of most of Congress's powers, are there reasons to suppose that they don't apply to self-executing treaties or to statutes that implement non-self-executing treaties? Although some commentators have argued that Congress (or in the case of a self-executing treaty, the President plus 2/3 of the Senate) should have the power to commandeer pursuant to a treaty, I think the logic of New York and Printz pretty much precludes this result. If commandeering is not a necessary and proper means of carrying out Art. I, Sec. 8 powers, it's hard to see why it would be necessary and proper to carrying out a treaty.

That's unfortunate because modern multilateral treaties (from which the U.S. and its nationals derive reciprocal benefits) sometimes call for actions that, in our federal system, can only be taken at the state level.

Or maybe not. Under Missouri v. Hollanda treaty may give Congress powers it would otherwise lack, i.e., powers that are otherwise reserved to the states. Thus, one could imagine that a somewhat different version of the Child Support treaty could empower Congress to enact national legislation and take federal executive action with respect to child support, even though there is no enumerated federal power governing family law. (I say this would only arise under a different version of the treaty, because the actual treaty allows for action at the state level in federal nation-states.)

Would the Supreme Court go for that? I doubt it. Although the Court's ruling in Bond v. United States last year avoided the question of whether, and to what extent, Holland is good law, I have difficulty imagining five Justices of the current Court thinking that a treaty could empower Congress to create federal family law, absent some Article I, Sec. 8 power. (The power to regulate interstate and foreign commerce would authorize some aspects of federal law governing child support, but probably not a comprehensive code.)

The irony here is that the only reason that Congress (or in the case of a self-executing treaty, the President and the Senate) would need to resort to the radical step of federalizing family law is that the Court itself has cut off commandeering as an option. That observation is a variation of the dissenters' point in the anti-commandeering cases: Commandeering is often less intrusive of the prerogatives of the states than federalization, which is why subsidiarity is seen as a protection for state sovereignty in Germany and the EU.

Wednesday, April 22, 2015

What's at Stake in Next Week's SSM Oral Argument?

by Michael Dorf

In my latest Verdict column, I take the occasion of next week's oral argument in the same-sex marriage cases to reflect on some broader questions about the relation between social change and judicial rulings. I make a number of points, including these: (1) Progress on LGBT rights has been very rapid in recent years but partly that's a tipping-point effect that disguises the long steady progress; (2) in general, majoritarian politics lends itself to tipping points, because just below 50% support for some legal change means that the status quo likely remains, whereas just above 50% means that it can change rapidly; (3) the courts play an important role in this dynamic, although hardly the primary one; (4) because legal change follows rather than leads social change, the worst abuses of minorities and others will typically occur before they have legal protection; but (5) it does not follow that progress in the social and political realm should prevent rights claimants from having their claims recognized. Too cryptic? Read the column.

I presented a version of the foregoing, along with other thoughts on the SSM cases, to a constitutional law workshop at UC-Berkeley Law School on Monday. A lively discussion ensued. Here I'd like to focus on one aspect of that discussion: What, if anything, is at stake in the case?

The "if anything" may sound jarring, but I ask because I continue to think that there is virtually no chance that the SCOTUS will rule against the plaintiffs/petitioners. As I have noted on numerous occasions (e.g., here), if the Court were to unexpectedly hold that there is no right to SSM, then the only people who got married in reliance on lower federal court rulings that there is a right to SSM who would certainly be entitled to remain married for state purposes would be those who were actual parties to the litigation. The thousands of others who were married over the objections of state officials could find themselves retroactively de-married, a fate as cruel as it would be confusing. The Justices must have been aware of these realities when they permitted the interim marriages to go forward, and so, either the matter is a foregone conclusion or the Justices have lost their minds.

I shall proceed on the assumption that the Justices have not lost their minds. What, then, is at stake? At least the following:

(1) Anti-LGBT discrimination in other contexts

Even if the Court finds a right to SSM, it might be possible for states and their sub-divisions to discriminate on the basis of sexual orientation and gender identity as to employment, benefits, etc. Much depends on how the Court reaches the result. The best approach, in my view, would be to find that discrimination on the basis of sexual orientation triggers heightened scrutiny. That would still leave private anti-LGBT discrimination unregulated, of course, but the suspect and semi-suspect classifications for constitutional purposes often serve as a model for local, state, and federal statutory protection. A clear ruling by the SCOTUS on this point would carry considerable persuasive weight with legislators. To be sure, as David Schraub noted in the Q&A, there is a risk that heightened scrutiny for sexual orientation could end up doing more harm than good for LGBT Americans because the Court's "symmetry" principle means that then laws advantaging them would also be subject to heightened scrutiny. That's a real risk, but a small one, I think: There is very little need for affirmative action or the like for LGBT Americans, so more to gain than to lose from suspectness or quasi-suspectness.

(2) Doctrinal Order

Each of the leading gay rights cases in the SCOTUS to this point has been authored by Justice Kennedy, and each has been doctrinally unorthodox. In Romer v. Evans, the Court invalidated Colorado's Amendment 2 because it "defie[d]" conventional scrutiny, applying neither rational basis scrutiny nor heightened scrutiny, nor even exactly something in between. In Lawrence v. Texas, the Court used the structure but not the language of fundamental rights, but lower courts have sometimes construed it as merely applying rational basis scrutiny. And United States v. Windsor blended equality, dignity, and federalism concerns in a way that gave people of various commitments the chance to claim victory. These departures from the conventional doctrine have been a great source of fun for academics and while I think that there is much to be said for Justice Kennedy's unorthodox approach (as I noted here), the doctrine in this area has often felt like it was not done evolving. The SSM cases provide the Court the opportunity to say whether the cases to this point have been a kind of way station en route to treating sexual orientation as a suspect or quasi-suspect classification or whether they herald something new: either a sui generis approach to sexual orientation (but why?) or, more intriguingly, the end of the old structure of tiers of scrutiny as a general matter.

(3) The Legacy of the Other Conservative Justices

Another question posed during the Q&A, this one by Jesse Choper, was whether CJ Roberts might join the liberals and assign the opinion to himself in order to keep it fairly narrow. My answer--which was pretty rank speculation--was that even if the Chief Justice joins the liberals plus Justice Kennedy for a 6-3 ruling, he would likely assign the opinion to Justice Kennedy if Justice wants to write it, as he probably would.

More important than who ends up writing is how the Chief Justice votes. His Windsor dissent could be said to box him in as opposed to a constitutional right to SSM, but Justices routinely vote against a decision and then accept it as precedent. And so, if CJ Roberts reads the writing on the wall and wants to end up on the right side of history, there is wiggle room for him to join the liberals. A 6-3 decision would also make the Court look less political. This too is speculation but my gut instinct tells me that at some level, the Chief Justice wants to vote in favor of the plaintiffs but that he may not be able to bring himself to do so.

Meanwhile, I have very little doubt that Justices Scalia, Thomas, and Alito will vote for the state respondents. The highest stakes here may be for Justice Scalia. His dissents in Romer (decrying gay political power) and Lawrence ("Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home") contain culture war language that was inappropriate then but is downright embarrassing now. Justice Scalia's Windsor dissent was much more measured.

I cannot imagine Justice Scalia joining the Court in finding a right to SSM, but for his sake, he ought to write a dissent that is, in tone, more like Judge Sutton's Sixth Circuit ruling--more in sorrow than in anger, and focused on what he regards as the appropriate roles of legislators as opposed to judges. If he really wants to protect or enhance his legacy he would follow the course laid out by Justice Thomas in his Lawrence dissent (which Justice Scalia did not join, even though Justice Thomas joined Justice Scalia's Lawrence dissent). There, Justice Thomas stated that he would vote to repeal a same-sex sodomy ban were he a legislator but that he didn't think he had the authority to invalidate the ban as a Justice. It was a cost-free gesture that showed a certain magnanimity.

Even so, I doubt Justice Scalia will follow suit now, mostly because I don't imagine that he would vote to repeal a SSM ban if he were a legislator. But at the very least, for the long-term good of his own reputation, he should keep his rhetoric in check.

Tuesday, April 21, 2015

Are Lies About SSM, Abortion, and Economics Different?

by Neil H. Buchanan

Yesterday's Washington Post included an op-ed by Dana Milbank, "The New Argument Against Gay Equality: Same-Sex Marriage Kills," which describes and effectively dismantles an especially loopy new argument from someone named Gene Schaerr, who was a losing lawyer in Utah's SSM case.  (Schaerr is no minor player or local rube, by the way, having clerked for Justice Scalia.)  That the argument is nutty does not, of course, mean that it will lead to any embarrassed distancing by other people on the right; and, in fact, the Heritage Foundation held an event earlier this week in which Schaerr laid out what one might generously call his argument.

Here, I will briefly describe that non-argument.  This will be fun, in its way, but it is not difficult.  Indeed, Milbank does a great job on his own mocking Schaerr's claims.  Even so, Milbank missed one big possible defense by Schaerr.  After describing (and ridiculing) that possible defense, I will tie this argument back into my recent musings about lying and dishonesty by right-wing politicians in this country.  Although my earlier writings focused on arguments about taxes, it turns out that there is an interesting connection between these various deceptions.

Schaerr makes his argument in the form of a statistical claim: "nearly 900,000 more children of the next generation would be aborted as a result of their mothers never marrying."  Notwithstanding his decision to put a numerical estimate on the number of abortions, Schaerr admitted to Milbank that his argument "is still too new to do a rigorous causation analysis using statistical methods."  So, it is not really a numerical claim, but Schaerr is willing to say that the effect will be big, so big that he can put a big number on it with no factual underpinning.

Lacking actual statistical analysis, how does Schaerr get from SSM to that supposed increase in abortions -- especially given that, as Milbank points out, married gay couples are likely to adopt children, plausibly reducing the number of abortions?  (I am not saying that this cause-and-effect has been tested, either.  But we are now talking about hypotheses only.)

Schaerr's chain of illogic goes like this: gay marriage causes fewer opposite-sex marriages, which leads to more out-of-wedlock pregnancies, which leads to more abortions.  Sure, that sounds insane.  However, it does have the advantage of claiming to be evidence-based.  Even the most out-there statistical claims can be tested, and if the evidence turned out to be suggestive of unexpected connections, those connections would be worth pursuing.  No such luck, however, for Schaerr's desperation play.

There seem to be two statistical claims floating around Schaerr's argument.  He now asserts that U.S. states in which same-sex marriages have been legal have seen declines in marriage rates.  This is a replacement for a claim that was part of the State of Utah's arguments in its federal legal proceedings, that birth rates had fallen in states with SSM.  As Milbank points out, birth rates have been falling nationwide for some time, and the birth rates in Utah and Texas have actually fallen faster than birth rates in Vermont, Massachusetts, and Connecticut.

Milbank gathers similar statistics to debunk Schaerr's claims about marriage rates: "The national marriage rate declined to 6.8 per 1,000 in 2012, from 8.0 in 2002, before Massachusetts became the first state to legalize gay marriage. The Massachusetts rate dropped from 5.9 in 2002 to 5.5 in 2011, while Connecticut went from 5.7 to 5.5 and Vermont went from 8.6 to 8.3. But Texas and Utah, free of same-sex marriage, dropped from 8.4 to 7.1, and from 10.4 to 8.6, respectively."

Let us leave aside the complete failure to connect decreases in birth rates to increases in abortion rates.  Let us also ignore the many unstated and unsupported statistical connections between declines in marriage and increases in abortions.  (And, of course, let us not fail to note that Schaerr's argument has the effect of causing the discussion to rush past his central claim, equating abortion and "killing.")  What Milbank fails to consider is the miraculous power of all bad things to affect everything around them, in the past, present, and future.

A core argument from the likes of Schaerr, after all, has been that simply knowing that same-sex couples are marrying degrades the value of marriage among heterosexuals.  Surely, state borders are not enough to block the dispiriting knowledge that SSM is on the march nationwide, or to prevent that trend from upsetting people in red states.  Maybe straight people in Utah and Texas are so distressed by what is happening elsewhere, and so worried about SSM coming to their home states, that they began shunning marriage in anticipation of the inevitable.

Of course, this argument also has the virtue of explaining any declines in marriage and/or birth rates before even Massachusetts allowed same-sex marriages: People knew for years that this was coming, and so the lack of apparent cause-and-effect in real time is really a matter of people anticipating future events.  After all, given that people on the right continue to rage against "the Sixties," maybe the Beatles' "Revolution" and "Lucy in the Sky With Diamonds" somehow set this all in motion.  (No comment needed regarding the Rolling Stones' "Let's Spend the Night Together.")

We have, in fact, recently heard a version of this very argument.  After the mid-term elections last Fall, when the economic reports began to show that the economy had been improving for months, notwithstanding the supposedly ill effects that President Obama and Senate Democrats were having on the country, rising Senate Majority Leader Mitch McConnell had a ready answer: The economy started to improve earlier in 2014, because people suspected that the Republicans were going to do well in the November elections!

As I noted at the beginning of this post, the illogic of Schaerr's argument provides fresh insights into the arguments that I have made in three of my most recent Dorf on Law posts (here, here, and here).  In those posts, I have described deliberately misleading statements as "lies," "deceptions," "distortions," and similar terms.  Two of my examples have been Republicans' invention and repetition of the terms "IRS Code" to describe the tax code that Congress enacted (diverting public anger toward the agency that tries to administer Congress's mess), and "death tax" to describe the federal estate tax.

As always, calling out any particular deception has brought forth some halfhearted defenses.  "IRS Code" is not really misleading, I am told, because everyone knows what it means.  Similarly, I should see that"death tax" is not exactly a lie, because it is a tax that is collected at death.

It is true that some lies are more bald-faced than others, but that does not make them any less deceptive.  If anything, the whole point of dressing them up is to make them more deceptive.  For example, Milbank quotes a Heritage staffer claiming that "every nation and every state that have redefined marriage have seen their marriage rates decline by at least 5 percent after that redefinition, even as the marriage rates in the rest of the states remain stable."  I have not looked at whatever data to which he might be referring, but I recognize weasel words like "stable" when I see them.

When I enrolled in law school, I was a literalist when it came to lying.  My attitude was not George Costanza's famous "it's not a lie if you believe it" line from "Seinfeld," but rather that so long as one says nothing that is, in isolation, a literal falsehood, then one is not lying.  "Sorry that I cannot go to your party.  My car broke down again."  How clever not to add that the car has already been fixed!

As I have noted in various places, law school had the counter-intuitive effect of making me less likely to rationalize lies with half-truths.  If I really did not want to go to a party, and I did not want to tell the host why not, I realized that there was really no moral high ground to saying, "Well, I didn't actually lie."  That is why rules for perjury, standards for "good faith and fair dealing" in contracts, and professional ethics rules are written more broadly than "no literal falsehoods allowed."  Even the familiar courtroom witness's oath to tell "the truth, the whole truth, and nothing but the truth" captures the need to prevent serious arguments from descending into absurd gamesmanship.

Similarly, legal standards often include an inquiry into whether a party "knew, or should have known" how his statements would be understood.  Regarding the estate tax, I have written in the past (e.g., here and here) why "Well, it is a tax at death" and similar arguments do not work.  My point here is simply that even political arguments can and should be held to a standard higher than "not literally a bald-faced factual falsehood."  Notwithstanding our cynicism about "lies, damned lies, and statistics," defaulting to the lowest standards is no better than having no standards at all.

Monday, April 20, 2015

What is Neutrality With Respect to Religion?

by Michael Dorf

With Religious Freedom Restoration Acts (RFRAs) much in the news lately, it may be worth recalling the piece of religious freedom that did not need to be restored, even after the SCOTUS weakened protection for religious freedom in the 1990 case of Employment Division v. Smith. There the Court held that a law that does not single out religion does not implicate the Free Exercise of Religion, even if, in particular cases, it substantially burdens the exercise of religion by particular people--as Oregon's general ban on peyote burdened the exercise of religion by Native Americans wishing to participate in the peyote ritual.

But even after Smith and before the enactment of the federal RFRA, the Supreme Court made clear that a law that actually targets a religious practice because it is a religious practice does implicate--and presumptively violates--the free exercise of religion. The case so holding was Church of Lukumi v. Hialeah, which unanimously invalidated a local ordinance forbidding ritual animal sacrifice even though, as Justice Blackmun emphasized in a concurrence joined by Justice O'Connor, a general law forbidding cruelty to animals might well be sufficiently compelling to overcome any religious objections to complying with it under the pre-Smith law, which Justices Blackmun and O'Connor would have continued to apply.

Whereas RFRA enjoyed widespread support when enacted, it has now become controversial, as religious conservatives increasingly turn to RFRAs to resist liberal legislation (such as mandating contraceptive health insurance and antidiscrimination laws). However, Lukumi apparently remains uncontroversial. Politicians, judges, and scholars across the ideological spectrum seem to agree that laws may not single out religion or any particular religion for adverse treatment.

But a recent controversy from India may indicate that the consensus that Lukumi is correct trades on an ambiguity concerning what it means to say that a law serves a religion-neutral purpose. Writing in yesterday's NY Times, Manil Suri explores the motivation behind the Indian State of Maharashtra's expansion of its ban on slaughter of cows to cover bulls and oxen, and the adoption of a law banning the sale of beef.

Suri portrays the new law as motivated by something like either Hindu supremacy or anti-Muslim animus. Either way, it seems of a piece with the broader ethno-religio-nationalist policies of Indian Prime Minister Narendra Modi.

But note that, unlike the Hialeah ordinance, which singled out ritual animal sacrifice for prohibition while permitting more or less the same practices when conducted for other purposes, such as to obtain animal-based food and clothing, the Maharashtra law is general. It forbids the sale of beef and the slaughtering of cows, bulls, and oxen, regardless of the religious or nonreligious purpose for which such sale or slaughter occurs. In that sense, the law is neutral.

Except that in another sense it isn’t. The motivation is pretty clearly religious. The law cannot reasonably be understood as advancing a religion-neutral purpose, such as preventing cruelty to animals. It applies only to cows, bulls, and oxen, which are holy to (many) Hindus. Even then, it does not target cruelty or even the killing of these animals. Traditional Hinduism permits the drinking of cows’ milk; indeed, it even celebrates drinking cows’ milk. (The god Krishna was fostered by cowherds and later cavorted with milk maids). Yet to produce milk, cows must be repeatedly impregnated, their calves taken away and slaughtered, and they themselves slaughtered when their production drops.

To be sure, some Hindus, Hare Krishnas, Jains, and others attempt to consume only “ahimsa milk,” taken from cows who are permitted to retire rather than be slaughtered, and whose male offspring are put to work rather than turned into veal. But this practice is extraordinarily costly and has a greater adverse impact on the environment than even the very substantial adverse impact of conventional dairy farming. Moreover, India—the world’s leading producer of dairy—obtains the vast majority of its dairy products using conventional (i.e., cruel) means. The Maharashtra law does not forbid the consumption of all non-ahimsa dairy products.

But suppose that it did or, better yet, suppose that a state of India forbade the purchase and consumption of all or nearly all animal products. Would that law serve a secular purpose? It is easy to imagine how such a law could have a secular purpose in a U.S. state, a majority of whose citizens had come to see veganism as a moral obligation independent of any religious belief. But in a majority-Hindu state of India, things would not be so straightforward. Perhaps the (hypothetical) legal prohibition on the consumption of animal products would be traceable to the belief that all sentient beings are or could be the vessels for the reincarnated souls of human beings. If the voters’ concern for animal wellbeing were the product of this prophylactic concern for the souls of humans rather than for the wellbeing of the animals for their own sake, would that render the motivation impermissibly religious under Lukumi or the Establishment Clause? Obviously, Smith, Lukumi, and RFRA do not apply in India, but the Maharashtra law nonetheless sheds light on how we might want to think about such questions.

My inclination would be to distinguish between, on the one hand, laws that facially draw distinctions based on religion (as in Lukumi itself) or are motivated by animus against members (or non-members) of some religious group and, on the other hand, what we might call second-order religious motivation—i.e., circumstances in which people have religious views that motivate them to hold moral views that they in turn translate into law, where the moral views could nonetheless be supported on secular grounds alone.

Even if the only reason that a majority of some political community supports a law banning murder is that their holy book proscribes murder, the law banning murder should be regarded as religion-neutral. Likewise, I would want to say that in the hypothetical world in which a majority-Hindu political community supports legally mandated veganism on ultimately religious grounds (relating to reincarnation), they should be entitled to impose that law on religious dissenters, so long as the secular reasons for such a law are sufficiently compelling, as I believe they are but as most people apparently do not (yet) believe, to override the dissenters' objections.

Finally, it is worth emphasizing that even in my highly stylized hypothetical case, and especially in the real case, the problem is in some sense intractable, because of the tendency of religious views to overlap with moral views. The minority of Muslim, low-caste Hindu, and other citizens of Maharashtra who want to eat, buy, or sell beef or to slaughter cows, bulls, or oxen will not see any moral imperative behind the law that forbids them from doing so, and would not see the imperative in my hypothetical. They will see the law as simply imposing the majority’s religious beliefs on them (and in the actual case they will almost certainly be right about that). To bring the point home to the U.S., whether under Lukumi or RFRA, it will not be the people seeking to practice their religion in the face of a legal prohibition who judge whether the prohibition is justified. Whether there is a "compelling" interest sufficient to override the religious objection will almost invariably be determined by judges who hold views that align with the religiously influenced moral views of the majority.

Sunday, April 19, 2015

Charles Davenport, Rest In Peace

by Neil H. Buchanan

Chuck Davenport died last week.  I admired him greatly.  Chuck was the senior tax law professor at Rutgers-Newark when I was on the entry-level market for legal academics.  When I visited Newark for my job talk, Chuck came to the small dinner the night that I arrived, and I immediately knew that I had met a kindred spirit.  It was clear that we were politically similar (for example, he positively compared my thinking with that of John Kenneth Galbraith -- a generous compliment that would turn anyone's head!), but that was not what really mattered.  Chuck was just so easy to like.

Upon my joining the Rutgers faculty, Chuck agreed to be my official senior faculty mentor.  He had already become my mentor unofficially, so this really changed nothing.  Even so, it meant that he was willing to put his considerable reputation behind my emerging career, which changed things quite a lot.  After I left Rutgers, Chuck and I stayed in touch, getting together for a few lunches and dinners over the years.  He always asked to read the drafts of my latest work, insisting modestly that he probably would not understand it, but then offering extremely helpful insights.

Remembrances of departed law professors often focus on descriptions of high-impact scholarship, important cases argued and briefs filed, and so on.  This is important, especially when celebrating people who have devoted their lives to improving the world through that kind of work.  As important as that is, however, I will leave it to others.  The most important thing to remember is that the departed were first and foremost people.  Chuck was a person, a human being, a mensch.  He cared deeply about social justice as a legal and academic matter, but he also cared about being kind, friendly, and helpful.  He was understated and funny, with a dry sense of humor and a twinkle in his eye that always let people know that he was happy to be spending time with them.  He never took himself or the world too seriously.

Charles Davenport mattered in people's lives.  Wherever he was involved, he made things better.  He was modest, and he helped others.  He was a good man, and I wish that he was still in our world.

Friday, April 17, 2015

Nothing Really Matters, Anyone Can See ... or Maybe Not

by Neil H. Buchanan

In my post here on Dorf on Law yesterday, I asked, "Do Republicans Lie and Deceive for No Reason?"  There, I considered whether there is any real value in calling out the lies and deceptions of politicians -- especially today's Republicans, who have taken shameless distortion to levels previously unseen.  In particular, I responded to the apologia that goes something like this: "Oh, come on, it's all a game.  The politicians lie, and the people know they're lying.  It's stupid to think that there is any reason to point out when a politician isn't being completely honest."

My response to that objection was that it proves too much, which is not to say that there is nothing at all to it.  For example, any good criminal defense lawyer will know to refer to her client by name (to humanize him), just as any good prosecutor will know never to refer to a defendant by anything other than "the defendant," and it would be tantamount to malpractice for either attorney not to act based on such strategic considerations.  Words matter, and we expect people to choose words in ways that will advance their objectives.

However, if we were truly in the equilibrium position where every politician is lying all the time, and everyone knows that everyone is lying all the time, then there would be no reason to make the effort to lie.  Now, one might object that a lying-all-the-time equilibrium would at least require everyone to continue lying, lest one put oneself in a disadvantageous position, as in my example with the defense lawyer and prosecutor above.  That does not work, however, because if everyone knows when everyone else is lying, then everyone must also know what the truth is, which means that a politician would suffer no disadvantage from telling the truth.  (The lawyers' word choices only matter, after all, because their audience is a jury that is not in on the game.)  But if everyone does not know when someone is telling the truth, then there really is an advantage to be gained from lying, which brings us back to a situation in which calling out liars has a public benefit.

In any case, I noted that the Republicans do not act as if they expect to gain no advantage from lying and deceiving.  As the Washington Post Fact Check article that I discussed yesterday explained, Republicans in the mid-1990's conceived of the idea of referring to the tax code as the "IRS Code," putting great effort into the plan to have all Republicans associate the public's dissatisfaction with the tax code (written by Congress) with their hatred of the IRS (vilified and under-funded by Congress, at Republican insistence).  This was exactly the same period in which those same Contract-on-America Republican radicals were re-branding the estate tax the "death tax," a public relations effort that has been documented at book length.

Republicans have shown that they are willing to put serious resources into long-term propaganda campaigns.  By revealed preference, then, they must believe that they are doing something shrewd.  To prove that repeated Orwellisms like "IRS Code" do not matter would require something far beyond, "I don't think it affects the way people think, because people aren't stupid," which is the only thing resembling an argument that the Republicans' defenders have offered.

There might, however, be a different way to deflect claims that Republicans' sustained assault on facts and language is damaging the country.  That defense can be assembled from the arguments of, of all people, Paul Krugman.  In his NYT op-ed this past Monday, Krugman convincingly asserted that all of the "endless thumb-sucking" about the presidential candidates is a waste of time.  For all of the attempts to divine the "character" of the various candidates, Krugman notes, the two parties will nominate people in 2016 whose platforms are currently pretty easy to predict.

Moreover, Krugman points out, the parties' consensus positions are quite different.  Unlike, say, 1976, when one could reasonably have predicted that Jimmy Carter would govern to the right of where Gerald Ford would have governed (at least on some issues), any Republican candidate today will win only by embracing the tax-cutting, labor-bashing, regulation-cutting, Medicare/Medicaid/Social Security-attacking, climate-change denying, culture warrior stuff that the party's base requires.  In fact, Krugman wrote, "the differences between the parties are so clear and dramatic that it’s hard to see how anyone who has been paying attention could be undecided even now, or be induced to change his or her mind between now and the election."

And then there is the well known empirical fact, which Krugman described in his op-ed the previous Monday, that nothing that politicians say seems to matter to election outcomes, because "[w]hat mainly matters is income growth immediately before the election. And I mean immediately: We’re talking about something less than a year, maybe less than half a year."  This effect, moreover, seems to be true not just of general elections.  In the 2014 mid-terms, the only way to explain the success of candidates who would otherwise have been punchlines -- like now-Senators Jodi Ernst and Cory Gardner -- is by reference to something beyond what the politicians actually say.

Put together these two observations -- that we already know what the ultimate nominees will stand for, and that the differences between those two positions will not determine the result of the election -- and you have a pretty good case for the idea that "nothing really matters." Whether Rand Paul is being especially egregious in his twisting of statistics, or Ted Cruz is being unhinged in telling his followers that it would be possible to "shut down the IRS" (without replacing it with an essentially identical tax collection agency), might simply not affect anything.  Which would mean, of course, that calling them out on any of that does not matter, either.

Although I completely believe both elements of Krugman's argument, there is still room for Republicans' lying to matter, which means that there is still reason to be vigilant in pointing out those lies.  The question is how the parties' consensus positions become consensus positions.  For example, as many people have pointed out over the years, there is no good reason for the Republicans' foot soldiers to oppose the estate tax.  Once it was called a death tax, and once the mythology had been implanted about that tax's supposedly devastating effects on family farms, the plutocrats were able to get the little people to do their bidding.

Worse, the Democrats failed to push back on that mythology, which quickly led to farm-state Democrats in the Senate agreeing to make foolish changes to that tax.  It is the same basic story that I have often recounted about how Democrats so badly failed to respond to the deficits-and-debt-are-destroying-the-world campaign waged by Republicans.  Not having made the arguments in favor of deficits and debt, and having essentially adopted the Republicans' attack lines to try to attack deficits under Reagan and the Bushes, Democrats have left themselves with no room to move, to the detriment of actual people.

We then find ourselves with two parties, admittedly miles apart on policy, and whose fates will be determined by the direction of the economy in Spring 2016, with policy positions driven in large part by the successes and failures of attempts to distort the facts.  Pushing back on ridiculousness like "IRS Code" and "death tax" will surely not turn around the next election, but it can change the arguments that are taken as acceptable by both sides going forward.

Congressional Republicans' big symbolic move this year on April 15 was not to pass a fundamental tax reform bill.  It was to repeal the estate tax.  That strategic decision did not happen by accident, and it certainly was not a given when "death tax" was first injected into the political conversation in the 1990's.  Distortions, especially those to which there has been no effective response, matter.

Thursday, April 16, 2015

Do Republicans Lie and Deceive for No Reason?

by Neil H. Buchanan

Several of my recent posts (here, here, and here) have confronted various forms of pandering and dishonesty from Republican presidential candidates Rand Paul and Jeb Bush.  (I realize that Bush has not yet officially announced his candidacy, but please.)  Although the comments in response to each of those posts have been generally constructive, an unmistakable theme has started to emerge.  None of my commenters has been harsh, but a blunt version of the meta-narrative might go like this: "Wow, you noticed that politicians are dishonest.  Stop the presses!  What the heck do you expect politicians to do?  They lie.  They pander.  Get over it."

Again, no actual commenter has offered such an unvarnished response, and I am deliberately setting this up in its extreme form.  Even so, the "nothing to see here" tenor of some of the responses has caused me to wonder whether there is any value in pointing out that a group of notoriously dishonest people is being dishonest.  And if there is value in it, how does one decide which deceptions to call out, and which to ignore?  I do not claim to have any definitive answers to the latter question (although the answer to the first is obviously and emphatically "yes"), but I think it is worthwhile to think through a few of the issues in play here.

As an initial matter, no one could imagine that we should try to expose every half-truth, every deceptive phrasing, and so on.  In my post earlier this week regarding Rand Paul's dishonesty, I noted that even though Paul "was utterly dishonest about it, ... reporters will selectively decide which lies are 'just a part of politics, and what can you do?' "  Even PolitiFact and the other journalistic operations that try to call out dishonesty do so only selectively.  Triage is the order of the day.

The very existence of those journalistic truth-squad groups, of course, attests to the perceived value of trying to keep political dishonesty from getting out of hand.  Even polluted environments have measurably different degrees of degradation, and efforts to keep things less bad are still worthwhile.  This is, in fact, simply another example of not letting the perfect be the enemy of the good.  It would be crazy to say nothing more than, "Wow, a politician wasn't totally honest.  Why is anyone surprised?"

The real question, then, is how to figure out which lies and deceptions to highlight.  Looking at my post about Rand Paul again, I raised the possibility that Paul was looking at net federal debt instead of gross federal debt in order to make his point.  Doing so would be inconsistent for Paul, because he and his Republican colleagues prefer to shout about the much larger (and thus scarier sounding) gross number.  Even so, I wrote that "one can hardly expect him to be intellectually consistent."  If the facts had shown that Paul's claim that debt is "tripling under Obama" had been true for net debt but not for gross debt, therefore, the most that one could have said is that Paul was being opportunistic.  Even I, naif that I am, would have found little reason to think that such a deception seriously worsened the debate.

Of course, the facts did not support Paul's claim, under any set of numbers.  And although he was not engaging in the opportunism that I had imagined, it was actually much worse.  As I described in that post, the Paul campaign now says that "doubling under Bush, tripling under Obama" is meant to mean "doubling under Bush, and compared to the beginning of Bush's first term, tripling under Obama."  For PolitiFact to call that one "Half True" was the ultimate in grading on the curve, but at least they called out this ridiculous sophistry.

Perhaps, however, I am putting too much stock in the idea that any of this matters.  In the title to this post, I ask whether it is possible that Republicans like Paul are lying for no reason.  This question is an attempt to confront a possible defense of political lying that goes like this, "Yes, everyone knows that they do it, so it's harmless."  A variation on this argument is, "Well, any politician would be crazy not to choose his words strategically, and voters know that.  But you can't expect a politician not to try to take every advantage, can you?"

The general answer to those questions is, "Yes, you can.  Politicians will only do what they think they can profitably get away with, so it is important to put a price on dishonesty."  The more pointed response, however, is to note that the cynical what-can-you-do-about-it response implicitly presumes that the liars are lying for no reason.  If everyone knows what they are doing, and if everyone is appropriately cynical about it, then taking the time to deceive would be pointless.  Only a true believer in rational actor theory could imagine that politicians have no reason to think that lying and deceiving might have beneficial political results.

Consider the Republicans' use of the term "death tax" as a substitute for "estate tax."  The standard, oh-so-bored defense of this is to say something like this: "Well, it is a tax that is levied at death.  So it's not dishonest.  And everyone knows that they are talking about the estate tax, so there is nothing wrong with using either term."  What we know, however, is that "death tax" was introduced into the political lexicon a generation ago, after Republican polling operatives spent a great deal of time, money, and effort trying to figure out the best way to demonize the estate tax.

It is possible, I suppose, that the payoff from that effort was ultimately dissipated, when Democrats (along with journalists and do-gooder academics like me) objected to the term.  Possible, but unlikely.  Republicans have certainly shown that they are willing to drop attack lines that stop working (e.g., complaining about the ACA's website), but the Death Tax rhetoric rolls on.

Another recent example arose in discussions on the TaxProf discussion list, which then spilled over into a Washington Post Fact Checker article about the term "IRS Code."  It is obvious that Republicans have adopted that term because they want to blame the unpopular IRS for the tax code that the IRS did not write.  Asked about Ted Cruz's use of that term, the senator's spokesman angrily responded that Cruz "calls it the ‘IRS Code’ because that is what it is. Its name is literally the Internal Revenue Code. Some may disagree with that label, but that does not change the fact about what it is called."  Apparently, the spokesman is unaware of how acronyms work.

A different response was offered by a tax professor: "Of course politicians use terms for political purposes, that shouldn’t be a surprise. But that doesn’t make the ‘IRS Code’ inherently misleading."  Yes, it is true that politicians' use of terms for political purposes does not make "IRS Code" inherently misleading.  Of course, it also does not make "IRS Code" inherently not misleading.  That politicians are often dishonest does not tell us anything at all about this particular political attack line.  What we do know is that Congress over the years has written an unpopular tax code, and because of Republicans' insistence, it has under-funded the agency that enforces that code.  Then, Republicans take the unpopularity of that very agency as an opportunity to shift responsibility in the public's mind for the tax code onto the IRS.  More to the point, Republicans must think that this turn of phrase works.

On the other hand, I have noted the odd persistence of Republicans' claim that progressive taxation is inspired by "envy" and "jealousy" by the unwashed masses against their betters.  Although that claim has no evidence to support it, the Republicans cannot let it go.  I recently suggested that perhaps the reason Republicans hold onto this nonsense is not that they think it is politically valuable, but because they so deeply believe in their own superiority that they cannot understand the world in any other way.

It is, therefore, possible that Republicans' lying and deceit is sometimes based on something other than perceived political gain.  Even so, these people are very good at figuring out what they want and getting it.  They are not even especially concerned with hiding what they are doing (and they are certainly not ashamed).  Efforts to call them out on their various deceptions might not always work, but the jaded retort that "all politicians lie" lets them off far too easily.