Dorf on Law

-- by Neil H. Buchanan In my new Verdict column , I reluctantly return to the trenches of the debt ceiling wars.  Although people might reasonably have imagined that the debt ceiling is " so 2011 ... or 2013 ... or, at worst, soooo thirteen months ago," in fact it will come back to life next Monday, setting in motion yet another round of " extraordinary measures " that will run out late in the summer, just in time for another game of fiscal brinksmanship that could simultaneously also involve the threat of another government shutdown and the return of "the sequester," on top of a first-ever government default.  Good times. One might have thought that, by now, even the most ardent conservatives would finally have realized that using the debt ceiling to take the economy hostage is bad economics, bad law, and even (by all available evidence) bad politics.  However, as long as some Republicans believe that they are morally required to threaten to destro...

by Eric Segall The issue in King v. Burwell , if this were not the Affordable Care Act, would be simple. It would not be about the intricacies of statutory interpretation or the avoidance doctrines of constitutional law or grand issues of federalism. It would be about reading plain text. In the nine days since the case was argued, the textual nature of the case has been marginalized by many Court commentators and legal scholars (maybe because Justice Kennedy seemed to embrace non-textual concerns). That is a shame because King  should be resolved based on text alone. Everyone in the world agrees that HHS must create health exchanges in those states that don't create their own exchanges. Everyone in the world agrees that federal subsidies are available on exchanges created by the states. Everyone in the world agrees that the issue in the case is whether federal subsidies are also available on federal exchanges. Everyone in the world agrees that the requirement Congress imposed...

by Michael Dorf The buzz over the last few days over whether the 47 Republican Senators who signed the letter to the leaders of Iran violated the Logan Act led me to recall the similar contretemps in 2007 over whether then-Speaker Nancy Pelosi violated the same law when she visited with Bashar al-Assad in contravention of the Bush Administration efforts to isolate his regime. I originally wrote about the Pelosi issue  here . Then I wrote a follow-up about the Logan Act in connection with the Pelosi issue  here .  And then I wrote a short follow-up  here . I think my analysis at the time applies equally now: If there was a technical violation of the Logan Act, it's not going to be prosecuted, and the bigger issue is whether, under our constitutional system, it's appropriate for members of Congress to freelance in conducting foreign policy. My view then was, as it is now, that our Constitution and the practices that have grown up around it pretty seriously con...

by Michael Dorf In my latest  Verdict  column I explain the pros and cons of the three main ways in which the SCOTUS could rule for the government in  King v. Burwell , even if the Court finds that the relevant statutory language is unclear. As I noted in my last post on the case, one possibility is that the Court could give Chevron deference to the IRS, and a second is that the Court could invoke the clear statement rule of South Dakota v. Dole applicable to conditional spending. The column expands on these and also considers the idea--suggested in amicus briefs and picked up at oral argument--that the principle of constitutional avoidance could be invoked to prevent the necessity of addressing the question of whether it would be unconstitutional for Congress to use the threat of disastrous conditional preemption to coerce states into passing laws that Congress could not simply mandate, given the anti-commandeering doctrine . To my mind, this third possibility po...

-- by Neil H. Buchanan In 2011 and 2012, I wrote a series of posts arguing that the housing crisis should cause us to rethink this country's longstanding policy preference in favor of home ownership.  The titles of some of the posts should offer a sense of the arguments, e.g., " Why Have a Bad Landlord When You Can Owe Money to a Worse Bank? " and " The (Somewhat) Hidden Costs of Home Ownership ." The idea was that it would be both good public policy and good business for fewer people to own homes, and instead for people to rent the home of their choice from a real estate management company. The most important policy argument supporting my position is that housing is a terrible financial investment, in two ways.  First, housing has a surprisingly low rate of return, compared even to plain-vanilla investments like savings accounts at banks.  There are many studies that have demonstrated this phenomenon, but one analysis is especially interesting, looking at ...

by Michael Dorf I begin with a confession. At some point in the early 2000s, Columbia Law School, where I was then employed, changed from a buggy antiquated email system to a brand new buggy system. As far as I was able to ascertain, the main reason for selecting the new system was that it was made by the same software developer as the antiquated one, so that faculty who barely knew how to use a computer would feel most comfortable with the transition given the new system's familar look and feel. I had been frustrated by the old system for some time but had used it anyway because I was told by the IT department that it would be replaced by a better one soon. When the decision was made to replace the old system with a newer but still terrible system, I gave up. I got IT to forward all of my email to my personal Gmail account. (Even that sentence tells you something about how terrible the new system was: An individual user couldn't simply set email to forward by himself.) Whe...

by Sherry F. Colb In my Verdict column for this week , I explore the case of a pediatrician in Michigan who reportedly refused to meet with a six-day old patient, because the baby's parents are lesbians and this fact made the doctor uncomfortable.  Though Michigan apparently permits discrimination on the basis of sexual orientation, the doctor appeared to have nonetheless been invoking a common "exception" to anti-discrimination principles, for situations in which adhering to anti-discrimination norms would violate the would-be discriminator's religious or conscience-based convictions.  In my column, I discuss the inappropriate breadth of a religious/conscience exception that would apply where adhering to the anti-discrimination principle would in no way implicate the practitioner in any religiously prohibited conduct.  In the case in question, it is hard to imagine any religious rule that might prohibit a doctor from treating an infant whose parents happen to be a...

by Neil H. Buchanan [Update: I have edited the fifth paragraph below to reflect that the Lewinsky scandal grew out of the Republicans' breathless pursuit of the Paula Jones case, not out of the Whitewater investigation itself, even though Kenneth Starr was the Javert-like character in both the Whitewater and Lewinsky investigations.] While the rest of the legal world chews over yesterday's Supreme Court oral argument in King v. Burwell , I am on vacation.  The other big story that I have been following between tourist stops is the proto-scandal involving Hillary Clinton's emails.  An article in The New York Times broke the story earlier this week, describing how Clinton, when she was Secretary of State, had failed to follow government rules regarding the use of official versus personal emails when conducting government business. It is too early to know whether this story will end up being huge or a flash in the pan, but I do think that there are a few aspects of th...

by Michael Dorf In the aftermath of the King v. Burwell oral argument , what I have previously called "SCOTUS kremlinology"  now commences: Lawyers and law professors will dissect every question asked by the various Justices and even matters analogous to the seating arrangements--such as the fact that CJ Roberts was mostly quiet during the argument, with one critical exception, to which I'll return below. I like to play this game too but I'm going to resist in order to suggest that there is a critical argument towards which Justice Kennedy's questions gestured, but that, for institutional reasons, SG Verrilli was not well positioned to make quite as forcefully as it might have been made. The plaintiffs and the government each argued that they respectively should win the case under both the plain meaning of the statutory text and its meaning understood in context. I think it's nonetheless fair to say that the government's argument relied more on context...

By Eric Segall I had the pleasure of debating Professor Jonathan Adler of Case Western Reserve at the University of Pennsylvania on Monday afternoon on the issue of King v. Burwell and the legality of federal subsidies on federal exchanges (because of weather he had to appear via Skype). As usual Jonathan was civil and classy and I thoroughly enjoyed the back and forth. The debate was sponsored by the American Constitution Society and the Federalist Society as well as the law review. Our dueling essays can be found here . There has been so much written about the case, by so many talented people, that I just want to add emphasis to one point that has not received nearly enough attention. Many scholars who believe the government should win the case have repeatedly emphasized that Professor Adler and the plaintiffs are focusing too much on the phrase “established by the state” in Section 1311 of the Act and not enough on the rest of the law and its myriad provisions making clear t...