This is a pretty good outline for the sequel for my next book on Obamacare, Unraveled.
This column has analyzed the disaster of ObamaCare in terms of three phases. Phase 1, the technical failure, was evident as soon as open enrollment began on Oct. 1 and many of the exchange websites proved to have been incompetently designed. Technical problems continue to emerge, including, as noted here last week, the Internal Revenue Service’s tardiness in preparing the final instructions for Form 8960, which taxpayers must file if they owe the new ObamaCare “net investment income tax.”
Phase 2 is the revelation that ObamaCare’s central promise–”if you like your plan, you can keep your plan”–was fraudulent. In an effort to appease defrauded consumers, the Obama administration has announced a series of unlegislated exceptions to the law, which the president himself attempted to explain the other day….
Even the New York Timesacknowledges as much in an editorial today:
Ideally, President Obama would not have extended the period for retaining the less-comprehensive policies, but in the current political environment, he opted to take a step to protect health care reform against a Republican takeover in the Senate.
The third phase of failure is the slow revelation that the basic economic assumptions behind ObamaCare are wrong. A new survey from McKinsey & Co., conducted in February, found that only 10% of those who lacked insurance pre-ObamaCare had signed up for an exchange plan, and that of those who had signed up, just 27% were previously uninsured.
True, those numbers were up significantly from January’s figures, 3% and 11% respectively. Still, they’re low enough that the Washington Post sums it up: “The new health insurance marketplaces appear to be making little headway in signing up Americans who lack insurance, the Affordable Care Act’s central goal.”
Of late, I am now leaning towards writing the book to coincide with the 2016 election. That should be good timing.
This passage from “The Bully Pulpit” shows how little the coverage of the Court has changed over the last century–reporters wait with bated breath, and as soon as they can, run to file their reports.
ON MARCH 14, 1904, AS word spread that the Northern Securities merger decision was imminent, an immense crowd gathered outside the Supreme Court. For Roosevelt, the outcome loomed with enormous implications for his party, as well as the nation. If the Court sustained the administration’s argument that the colossal merger represented a monopoly that restricted trade, the victory would demonstrate a fundamental shift in the Republican Party’s relationship with the trusts. Inside the chamber, seating was filled to capacity. Dozens of senators and congressmen jockeyed for space in the section normally reserved for families of the justices. At the government bench, Attorney General Knox and Secretary Taft sat side by side, their expressions marked by “nervous expectancy.” Nearby, ranks of powerful corporate lawyers had assembled. At the back of the chamber, more than fifty newspapermen, “paper and pencil in hands,” readied to race to the telegraph wires the moment the ruling came down. “It required but little effort of imagination,” one reporter noted, “to see in the vast background millions of American citizens awaiting the outcome of this judicial battle against daring financiers.” The crowd stood as the Court crier opened the session with the traditional cry: “Oyez, Oyez, Oyez.”
Just like today.
As Justice John Harlan began to read the Court’s 5– 4 opinion, papers reported, “everyone was alert for the significant sentence which should disclose the attitude of the majority.”
Just like today.
Phones, the internet, and the rest of the 20th Century hasn’t quite made it into One First Street.
And it was in this case that Holmes joined the dissent that President Roosevelt famously lashed out against him.
Roosevelt was stunned by Holmes’s dissent. “I could carve out of a banana a judge with more backbone than that,” he angrily charged. Years later, Holmes agreed that the Northern Securities case had derailed his nascent friendship with Roosevelt. “We talked freely later,” he recalled, “but it was never the same.”
Eric Posner had this to say about those “libertarians” that carrying around pocket Constitutions.
In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.)
I hope Will Baude brings a Constitution to the next class. I keep one in each suit. That way I always have on nearby.
This is Angel Raich, the lead plaintiff in Gonzales v. Raich.
Here is a photograph of Raich using a marijuana vaporizer.
Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.
Here is Raich finding out that the Supreme Court ruled against her cause.
In honor of President’s Day, I recently visited the National Archives. With the utmost awe and reverence, I walked up to the enclosed cases containing the original copy of our United States Constitution. My eyes slowly panned across my favorite provisions—Article I limiting the powers of Congress, Article III creating the Supreme Court, and Article VI stating that the Constitution is the “Supreme Law of the Land.” But, my immersion in our Charter of Liberty was abruptly interrupted. A guard told me to keep walking: “Please do not read the entire Constitution. If you want to read the entire document, please visit the gift shop.”
I could not believe my ears. Could he possibly be serious? Did he actually just say what I think he said? Now, I recognize the guard was attempting to move the crowd along (a small line had formed), and that he likely had said this many times before. But the thought that a guard would have the gall to tell visitors to our Nation’s capital to not read our Constitution is appalling. By the way, all federal employees draw a salary by virtue of the Constitution’s “Appropriations Clause,” found in Article I, Section 9, in case he allowed anyone to read that far.
No one, myself included, was going to read the entire document. At best, maybe interested guests would look at a few provisions and try to make out the faded letters on the parchment (it is not easy to read). This exercise would take several seconds, at the most. But instead of allowing people—who may only witness the majesty of our Constitution once in their lives—the opportunity to savor the moment, it is apparently the official policy of the National Archives to move people along. Nothing to see here, apparently.
I cannot imagine that any other museum in Washington, or anywhere in the world, would rush people past an exhibit—let alone the Constitution, a document that every American should discuss and learn more about. Any policy that favors rushing more visitors past our founding documents, at the expense of denying them the opportunity to even read a few letters, strikes the wrong balance.
As a surreal post-script to this troubling episode, after I departed from the rotunda containing the Constitution, as the guard suggested, I went to the gift shop. I was drawn to a sign that advertised “The Declaration of Independence in a Bottle” for $2.95. I looked closely at the bottle and saw the phrase, “We the People.” Huh?! This wasn’t the Declaration of Independence. This was the Constitution of the United States. I brought this error to the attention of a manager. She promptly switched the signs around, so that the “Constitution in a Bottle” sign now appeared in front of the Constitutions. No problem, right? That the National Archives made such a mistake is stunning. I have no idea how long the exhibit was mislabeled, and I hope visitors did not buy the wrong document.
These charters of freedom belong to We the People. We should expect better from the museum charged with protecting our national treasures.
Cross-Posted at Law & Liberty.
During oral arguments in NFIB v. Sebelius, the Solicitor General of the United States, charged with defending the Affordable Care Act, made the argument that the law actually promotes liberty. As I retell in Unprecedented, Solicitor General Verrilli drew together a connection between freedom, and health care security.
Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.
Turning to the practical realities at hand, “in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and has the provisions we discussed yesterday, secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to our Constitution, which states that the United States was formed to “secure the Blessings of Liberty to ourselves and our Posterity.”
To many, this is a bizarre notion of liberty. Mandating that millions of Americans purchase a product they may not want, and forcing sovereign states to expand a program against their wishes, so that others have access to more-affordable health insurance is a funny conception of liberty. In response, Paul Clement, who was arguing on behalf of the challengers in NFIB painted a very different vision of liberty.
Without skipping a beat, the Chief Justice said, “Thank you, General. Mr. Clement, you have 5 minutes.” Paul Clement rose to have the last word, and provided an impromptu rebuttal that offered a very different vision of what liberty means.
“Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty–aimed directly at Justice Kennedy.
“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the liberty of Justice Kennedy.
Clement echoed a point he had made in his brief: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed . . . However, by making clear that this uncabined authority is not among the limited and enumerated powers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees . . . An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. ”
Clement continued, “And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.” This was not the federalism of Justice Kennedy. Clement wrote, in his brief “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand”
I call these dichotomous views the two conceptions of liberty in NFIB v. Sebelius.
Most strikingly, one of the key benefits that supporters of the ACA cite is that now people, no longer having to worry about buying healthcare, can pursue their own happiness as entrepreneurs. Free health care makes them more free.
This piece in CNN, titled “I’m quitting my job.Thanks, Obamacare!” illustrates this dynamic.
Now that Karen Willmus can get health insurance through Obamacare, she plans to quit teaching 9th grade English at the end of the school year.
The 51-year-old found policies on the Colorado state exchange for about $300 a month. That’s less than what she’s paying now for employer-sponsored coverage and less than half what she paid on the individual market in 2007.
Like Willmus, millions of people could quit their jobs or cut back on their hours in coming years because of Obamacare, according to a recent report from the Congressional Budget Office.
Though, stated differently, the Affordable Care Act will eliminate over 2.5 million jobs during the next decade.
The report found that Obamacare could reduce the labor force by the equivalent of 2.5 million workers by 2024, as many Americans may opt to work less to retain eligibility for Medicaid or subsidies. That sparked a fresh round of criticism that health reform is hurting the economy.
As an economic argument, this position is difficult to digest. Not all of these people leaving their jobs are doing so entirely volitionally. First, the ACA makes employment much more expensive–especially for those at the bottom of the pay-scale. Second, many jobs that were eliminated during the last downturn, will not be recreated, because the marginal cost of the employee is not worth it.
Though, some are spinning this news as a good thing–that people should be able to leave their jobs, retire earlier, and seek out entrepreneurial activities. This is Verrilli’s notion of freedom–that the ACA secures this blessing of liberty.
But for some, Obamacare is allowing them to become entrepreneurs or retire a few years early since they’ll be able to find affordable individual coverage for the first time.
Instead of eating bonbons on her couch, Willmus plans to start her own business with her teen daughter publishing materials for non-native English speakers and others looking to improve their literacy. She expects to work even more than she does now and hire two or three people.
“I can’t afford to go out and buy insurance while trying to start a business,” said Willmus, of Colorado Springs, Colo. “Obamacare will allow me to be more comfortable at risking what I own.”
As a child of two entrepreneurs, I have great respect of those willing to risk their wealth on going it alone. But the unavoidable fact is that nearly all of these businesses will fail. Tyler Cowen addresses this point in his new book, Average is Over.
As we should expect from these developments, many American workers are turning to self-employment. For instance, in 2010 an average of 565,000 Americans a month started businesses, the highest rate of the last decade. We’re not suddenly more energetic; rather, a lot of these people had a hard time finding remunerative work elsewhere. Starting your own business may seem like praiseworthy creative entrepreneurship, but often it is a sign that labor markets are not absorbing everyone at a reasonable wage.
These two differing conceptions of liberty–positive and negative–will frame any debate over how the ACA impacts Americans.
The College Board will be revising the SAT, and (!) include reading passages from our founding documents.
Every exam will include a reading passage from either one of the nation’s “founding documents,” such as the Declaration of Independence and the Bill of Rights, or from one of the important discussions of such texts, such as the Rev. Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail.”
I support this change, wholeheartedly! Let’s hope they can tell the Declaration and Constitution apart.
The President, by pure fiat, has decided that the health insurance plans that we all need to be healthy, are not really necessary until 2016, past the midterms, and he is on his way out of office. No, there is no authority for such an unprecedented failure to take care that the laws are faithfully executed.
So what is the next shoe to drop? We still have the full month of March to go. Maybe he will delay the individual mandate penalty another year? Whatever it takes to get it past the election, right.
I have to second Jonathan Turley here:
“I support national health care, but what the president is doing is effectively amending or negating the federal law to fit his preferred approach,” said Jonathan Turley, a law professor at George Washington University. “Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.”
When President Bush issued a few signing statements, the American Bar Association nearly prepared Articles of Impeachment. President Obama is running roughshod over the Constitution, and no one seems to care.
On Thursday, March 6, at 12:30 I will be giving a talk on Unprecedented at the Florida State University College of Law. Later that day, at 6:00 p.m. at the Governors Club (202 South Adams Street, Tallahassee), I will be giving an encore presentation to the Tallahassee Lawyers Chapter. Details are here. The challenge to Obamacare officially begin in Tallahassee, though the first suit was filed in Pensacola.
On Friday and Saturday, I will be at the Federalist Society Student Conference at the University of Florida.
I hope to see you there.
Update: This may be one of the best flyers I’ve seen!
The lecture notes are here, and the live chat is here. Thankfully, Texas has abolished the Rule in Shelley’s case, the Doctrine of Worthier Title, and the Rule Forbidding a Remainder in the Grantor’s Heirs. This is the Texas Rule Against Perpetuities.
RULE AGAINST PERPETUITIES. The rule against perpetuities applies to trusts other than charitable trusts. Accordingly, an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gestation. Any interest in a trust may, however, be reformed or construed to the extent and as provided by Section 5.043.
And, if you hate the Rule against Perpetuities, blame this guy. Orlando Bridgeman, whose crazy conveyances raised the possibility of perpetuity, which led to the creation of the Rule Against Perpetuities. Don’t blame me. Blame Orlando. Note: The Rule Against Perpetuities will not be tested on the final examination. In other words, this is a wrap for RAP.
The Enforcement Powers of the 14th Amendment
- Enforcement Powers (1306-1307).
- The Civil Rights Cases (1307-1318).
- Notes (1318-1322).
- Note on 11th Amendment (1262-1263).
- Sovereign Immunity (557-558).
- 11th Amendment (558).
- Chisolm v. Georgia (558-566).
- Hans v. Louisiana (566-570).
- City of Boerne v. Flores (1327-1337).
- United States v. Morrison (1322-1327).
The Civil Rights Cases
The Grand Opera House in New York CIty, formerly known as Pike’s Opera House, was located on the Norhtwest Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.
I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.
This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.
United States v. Morrison
This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.
City of Boerne v. Flores
Here are photographs of St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.
These photographs are courtesy of Hanah Volokh.
There are reports that the Administration will delay Obamacare once more, to allow people to keep non-qualifying plans past the mid-term elections.
The Obama administration is set to announce another major delay in implementing the Affordable Care Act, easing election pressure on Democrats.
As early as this week, according to two sources, the White House will announce a new directive allowing insurers to continue offering health plans that do not meet ObamaCare’s minimum coverage requirements.
Prolonging the “keep your plan” fix will avoid another wave of health policy cancellations otherwise expected this fall.
The cancellations would have created a firestorm for Democratic candidates in the last, crucial weeks before Election Day.
The White House is intent on protecting its allies in the Senate, where Democrats face a battle to keep control of the chamber.
And the report suggests that the goal of this change is political (no surprises there).
“I don’t see how they could have a bunch of these announcements going out in September,” one consultant in the health insurance industry said. “Not when they’re trying to defend the Senate and keep their losses at a minimum in the House. This is not something to have out there right before the election.”
The White House and the Department of Health and Human Services on Monday both said they had no updates to announce.
I’m sure we’ll get a blog post from HHS on a late-Friday afternoon.
After my previous post on the Justice Stevens’s new book, I requested a review copy from the publisher, which I have now received. Here are his six proposed Amendments. I’ll avoid commenting until I read the entire book (a fairly breezy 133 pages, followed by the Constitution as it stands now, and a list of all JPS clerks).
- The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
- Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
- Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
- Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
- Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
- The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.
I’ll have more thoughts later.
I will note that his biography, which says he “Retired from the Supreme Court on June 29, 2010″ is inaccurate.
The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.
During a recent trip to Times Square, I saw huge billboard with a photo of Gabby Giffords and her husband, next to a headline asking for support in stopping “gun violence.” This phrase is often used interchangeably with mass shootings. For example, consider the President’s remarks in January 2013:
And that’s why, last month, I asked Joe to lead an effort, along with members of my Cabinet, to come up with some concrete steps we can take right now to keep our children safe, to help prevent mass shootings, to reduce the broader epidemic of gun violence in this country.
Notice the pivot. The goal is not merely to prevent “mass shootings,” but to “reduce the broader epidemic of gun violence in this country.” Mass shootings are certainly a subspecies of gun violence, and the type that garner the most attention. But, as I document in The Shooting Cycle, they represent a tiny sliver of death by guns. Roughly .1% of deaths from gunfire take place during a mass shooting (defined as 4 or more deaths in a single event). The overwhelming majority, 99.9% are not during a mass shooting. This much is straightforward statistics.
A point that I didn’t address in The Shooting Cycle, but will elsewhere, is how politicians conflate the steps needed to stop mass shootings, with the steps needed to stop gun violence. In short, they are not the same discussion.
Politicians hold out proposals, such as bans on assault weapons and bans on high-capacity magazines as ways to stop “gun violence.” But really, they are holding out these measures as a ways to stop “mass shootings.” I’ll assume for the moment these steps will stop mass shootings (I am seriously doubtful here. Deranged people intent on killing two-dozen children are not likely to be deterred by background checks, and will find alternative means, such as the shooter in Araphoe who used a shotgun, the very weapon VP Joe Biden recommended we buy instead of an AR-15). But even so, this will only address a tiny, tiny percentage of deaths by guns. As Professor Winkler noted, “Even if the law could be passed, it wouldn’t have made any dent in gun violence statistics because these guns are rarely used in crime.” Everyone knows this. Even the people at Brady.
Further, I’ll assume that banning high capacity magazines makes it more difficult to inflict mass casualties (Again I am doubtful. Reloading can be done fairly quickly, and it is very easy to carry multiple weapons, as most shooters do). The overwhelming majority of gun deaths involve one, maybe two bullets being fired. That’s it. (With civilians. When police officers shoot, they fire hundreds of rounds. I suspect people would be more amenable to a debate about gun control for the police). So a ban on high capacity magazines would only have the effect of criminalizing the overwhelming majority of semiautomatic pistols, that take magazines with more than ten rounds. Of course, this is not a bug, but a feature .
In short, all of these efforts are aimed at disarming the overwhelming majority of law-abiding citizens, and doing little to stop the actual causes of gun violence. But again, the gun control advocates realize this.
The reasoning for these moves is accurately summed up in a quotation from 1996 by conservative columnist Charles Krauthammer, who conceded that the assault weapons ban would not result in a decrease in violence, but it served as an important symbolic step in desensitizing Americans towards the path of banning all guns.
“Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically. It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.
Passing a law like the assault weapons ban is a symbolic — purely symbolic — move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.
De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades….
Laws aimed at stopping mass shootings are not actually about stopping gun violence, directly at least. They are about desensitizing us to incremental laws, until the American culture has shifted enough that registration and confiscation are options. When members of the Brady Campaign speak about patience, and a long, drawn-out process, this is their end goal.
Nelson “Pete” Shields III, a founder of Handgun Control, Inc.—the progenitor of the Brady Center to Prevent Gun Violence—openly advocated for the elimination of all handguns: “‘We’re going to have to take this one step at a time. . . . Our ultimate goal—total control of all guns—is going to take time.’ The ‘final problem,’ he insisted, ‘is to make the possession of all handguns and all handgun ammunition’ for ordinary civilians ‘totally illegal.’” John Hechinger, a sponsor of the D.C. handgun ban and a board member of Handgun Control, Inc., put it simply: “We have to do away with the guns.”
Here’s a discussion you don’t see often in statutory interpretation cases: what is the value of captions in a statute. RBG opines in Lawson v. FMR LLC:
Second, FMR argues that the statutory headings support the exclusion of contractor employees from §1514A’s protections. Although §1514A’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, §806 of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under §1514A to employees of public companies. 670 F. 3d, at 69.
This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 (1947), we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under §1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U. S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. Id., at 529.12
In Lawson v. FMR LLC Justice Scalia concurred in the judgment of Justice Ginsburg’s majority opinion, but only concurred “in principal.” Here is how the opinion begins:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment.
I agree with the Court’s conclusion that 18 U.S.C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part.
Scalia travels over the well-trodden ground about why legislative history is not reliable.
I do not endorse, however, the Court’s occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill.
Next Scalia credits the majority with “poetic license” for citing favorable parts of the record, but ignorable unfavorable parts.
It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes).
Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.
This question may become even more salient if ENDA (Employment Non-Discrimination Act) is enacted, which would prohibit discrimination based on sexual orientation. This law, which does not seem to affect RFRA, would seem to run headlong into the question of whether a defendant could raise a RFRA defense. [Update: ENDA only applies to private employment discrimination claims, and not public accommodations, so the photographer hypo is not a good example, but the remainder of the post works--ENDA does not create a carveout for RFRA].
For example, a photographer refuses to photograph a same-sex wedding, and is sued for a violation of ENDA, could assert that the enforcement of ENDA as applied to them violates their religious liberties as protected by RFRA. These are the facts of the Elane Photography case, where the New Mexico Supreme Court held that New Mexico’s RFEA does not apply to exemption for private causes of action. This case is currently pending before the Supreme Court.
But that was New Mexico RFRA. Does the Federal RFRA apply to private causes of action? This is an open question that has generated a circuit split.
The DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties, as noted in this amicus brief by the Becket Fund in the Elane Photography case:
In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (―RFRA‖).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).
However, as this note in the Virginia Law Review explains, there is a Circuit split about whether RFRA can be raised as a defense in a private cause of action.
The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.
Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:
Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more general- ly obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.
It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”
RFRA by its terms does not apply to suits between private parties.
Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against agovernment” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go forward” with any evidence. In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.
All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.
This could prove interesting if this issue comes before the Court.
Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.
Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.
And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).
RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).
It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.
Though Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.
I should stress–and this point was totally lost in the Arizona debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.
I see Hobby Lobby, Elane Photography, and other similar cases as addressing a key question about the scope of religious liberties, and how they interact with employment discrimination laws.
Cross-Posted at Law & Liberty.
This doesn’t make sense. The Supreme Court chamber is filled with reporters. The news of this outbreak hit the wires days before the audio was released. In fact, we have the audio on YouTube. Whether or not the audio wound its way onto the Supreme Court’s website, at this point, was immaterial. The cat was out of the bag.
But you don’t have to take my word for it. I asked Kai Newkirk, the protestor himself if censoring the audio would deter him, or his colleagues, from protesting at future sessions. Unequivocally, the answer is no. In fact–and I agree with Kai here–deleting the audio reinforces the Court’s transparency problems.
The U.S. Supreme Court on Monday acknowledged that a spectator’s outburst during an oral argument Feb. 26 was “redacted” from the audio posted on the court’s web site late last week.
“The comments were not transcribed by the court reporter, who is responsible for transcribing and creating an official record of oral arguments (justices’ questions, statements, and counsels’ comments),” court public information officer Kathy Arberg said in a statement. “The audio was redacted to reflect the official proceedings.” The court reporter is an employee of Alderson Reporting Service, Arberg added.
Gee, I was expecting a “No Comment” from Kathy Arberg. This is even worse. So if the court reporter only records the justices’ questions, statements, and counsels’ comments, why are “Laughters” recorded. Those are from the crowd. The audio recordings are never redacted to eliminate the laughters. In fact, entirely scholarly studies have been done to record them. I’m not buying this rationale. Sorry.
And as Jerry Goldman notes, many other interruptions have been recorded:
The court’s handling of the audio of the protest appears to diverge from past policy. Numerous oral argument tapes found on the Oyez Project website contain spectator outbursts, according to founder Jerry Goldman.
“Nonofficial statements during arguments have definitely been recorded,” Goldman said.
Pat Ward, a consulting audio engineer who has listened to thousands of official argument audiotapes going back to 1955, agreed. “Protests in the court are readily heard” on the tapes, Ward said. “You don’t need a mike in front of it to hear it.”
Thanks to Tony for the nice shout-out to Michelle Olsen and me:
Josh Blackman and Michelle Olsen, avid bloggers and tweeters about the court, reported on the deletion of the audio in recent days, with Blackman calling the court’s action “appalling.” New York Times editorial writer Jesse Wegman called it a “hasty re-clothing of the emperor.”
Though Kathy Arberg’s answer confirms what I suspected–that the Court only views the audio as a means to record the “official” proceedings, and nothing else. In no sense does the Court feel they have any obligation to record these arguments for ourselves and our posterity. They are just doing us a favor. I couldn’t agree more.
This is what all public proceedings are subject to open meeting and record preservation laws. They exist not for the government’s benefit alone, but for our benefit.