Mr. Abrams is the author of “Friend of the Court: In the Front Lines with the First Amendment” (Yale, 2013) and a senior partner in the firm of Cahill Gordon & Reindel LLP.
Certainly both are great accomplishments, but I think he may have a few other credentials that qualify him to opine on free speech.
Earlier today I blogged about Wisconsin Senator Ron Johnson’s lawsuit, challenging the Presidents decision to provide subsidies for Hill Staffers who buy insurance from the exchanges. Senator Johnson has an op-ed in WSJ explaining his suit. Here are the key paragraphs:
On Monday, Jan. 6, I am filing suit in the U.S. District Court for the Eastern District of Wisconsin to make Congress live by the letter of the health-care law it imposed on the rest of America. By arranging for me and other members of Congress and their staffs to receive benefits intentionally ruled out by the Patient Protection and Affordable Care Act, the administration has exceeded its legal authority. … It is clear that this special treatment, via a ruling by the president’s Office of Personnel Management, was deliberately excluded in the law. During the drafting, debate and passage of ObamaCare, the issue of how the law should affect members of Congress and their staffs was repeatedly addressed. Even a cursory reading of the legislative history clearly shows the intent of Congress was to ensure that members and staff would no longer be eligible for their current coverage under the Federal Employee Health Benefit Plan. … This was the confidence-building covenant supporters of the law made to reassure skeptics that ObamaCare would live up to its billing. They wanted to appear eager to avail themselves of the law’s benefits and be more than willing to subject themselves to the exact same rules, regulations and requirements as their constituents. … Neat trick, huh? Except that in issuing the ruling, OPM exceeded its statutory jurisdiction and legal authority. In directing OPM to do so, President Obama once again chose political expediency instead of faithfully executing the law—even one of his own making. If the president wants to change the law, he needs to come to Congress to have them change it with legislation, not by presidential fiat or decree.
The “legal” basis for the suit is, well, curious:
The legal basis for our lawsuit (which I will file with a staff member, Brooke Ericson, as the other plaintiff) includes the fact that the OPM ruling forces me, as a member of Congress, to engage in activity that I believe violates the law. It also potentially alienates members of Congress from their constituents, since those constituents are witnessing members of Congress blatantly giving themselves and their staff special treatment.
I bet Judge Posner is chomping at the bit for this one. Maybe Cuccinelli will represent Johnson too! Update: Via Jon Adler, I see that Johnson will be represented by fellow native Wisconsinite Paul Clement.
Say what? At this point, I’m pretty jaded to things like this, but I did a double-take when I saw this headline.
Attorney General Ken Cuccinelli leaves office Saturday, but he will continue to take on what he considers overreaching by the federal government.
Cuccinelli will be the lead lawyer in a suit filed by Sen. Rand Paul, R-Ky., against the Obama administration over the data-collection policies of the National Security Agency, according to The Associated Press.
I previously blogged about Paul’s class-action lawsuit against the NRA. I could not have predicted that former-AG Cooch would represent him.
The article doesn’t say what law firm will be involved, but what?!
H/T Andrew Grossman
Richard Kirsch, the campaign manager and chief executive of Healthcare for American Now (HCAN) has a wide-ranging interview in the Post, discussing the origin of the Affordable Care Act. Now that the ACA is settled, in his words, HCAN is closing shop.
These comments about the compromises of the passage of the ACA are helpful to remember.
The reality was that they were relying on 60 Democrats and not relying on Republicans. It became pretty clear by the summer of 2009 that Baucus was being led down the primrose path by Chuck Grassley. Grassley was making all sorts of public statements that he wasn’t really going to reach a deal on this. Yet Baucus kept trying and trying.
You have to look at Baucus and Obama together on this. Jim Messina, who was one of the top people working for Obama and his deputy chief of staff, had been Baucus’s chief of staff. They kept making concessions when it was clear the Republicans weren’t going to support it. Even when it was crystal clear — and they gave up on getting Republican support – -they didn’t go back and present a better bill. They might have said, “Well, we’re going to write the bill that we want and then we’ll make compromises to get 60 Democrats.” Instead, they kept all the things they added to appeal to Republicans that hadn’t worked. So they were unnecessarily negotiating with themselves. Then, at the end in December, when they had to get it through the Senate, they had to negotiate with the Joe Liebermans and the Ben Nelsons and had to make concessions. Had they not made all these concessions earlier, they would’ve started it with a stronger bill … . The conservative Democrats could only ask for so much. The final bill would have been stronger.
By making these preemptive concessions to appease Republicans, Baucus and Obama put themselves in a much weaker position from a policy point of view and eventually from a political popularity point of view, as well. That’s the thing I want to emphasize: It’s not just a political game. At HCAN we kept asking: how is it going to affect real people’s lives? We were looking for legislation that people would find the most affordable and giving them the best opportunity to gain access to good health care. That’s what our mission was.
Also, he makes a point I made before. Obamacare is HIllarycare 2.0.
HP: So much of your story might be called the prehistory of health reform, which did so much to shape what became the Affordable Care Act. People like to use terms such as ObamaCare. Yet if we had had President Hillary Clinton instead, I wonder how different the final product would actually have been.
RK: There’s no reason to think it would be fundamentally different. A lot of work was done before the 2008 election really got into gear to get the major Democratic candidates aligned in support of the same health policy solutions. As a result, the three leading Democratic candidates — John Edwards as well as Hillary Clinton and Barack Obama — were all supporting almost the same proposal, which was in effect the Massachusetts law, with a public option added to it.
I think President Hillary Clinton would’ve come in with a similar proposal and faced a similar political climate, with a very hostile opposition. After all, we saw the tremendous opposition to her husband from the right. Many of the same people who hate Obama have lots of reasons to hate the Clintons, too. So I don’t think we would have seen a very different contour to the political fight. She may not have made some of the concessions that Obama made preemptively, which made it harder to win good policy, but it’s hard to know. It wouldn’t have been that different.
And on the demise of the public option:
HP: That $900 billion figure also encouraged another original sin of ACA: back-loading of so many key provisions. One floated proposal would have allowed states to start Medicaid and the new exchanges whenever they wanted. So the blue states could have started when they were ready. Especially as we’re in the middle of a devastating recession, front-loading would have added some economic stimulus, too. Had a couple of states started early, we might also have received greater forewarning about some of the implementation and software issues …
Then there was the public option. From a progressive perspective, what happened was doubly sad. The public option didn’t make it into the final bill. And it wasn’t bargained away to get anything in return. It seems like it was just left on the table. Part of the political challenge for Democrats was that people on the left were very excited about the public option. Other things such as the affordability issues didn’t quite have the same handles to grab onto. So it wasn’t as if the one could say, “Well, we’ll give up the public option if you provide subsidies to 500 percent of poverty or whatever.” I don’t know whether there was a way that might have been handled differently. As things played out, there was no way the left could’ve got anything back for giving up the public option that wouldn’t have demoralized people.
Kirsch: Part of the problem — this was a huge problem for us that I talk about in my book — was that to do a big public campaign around issues of affordability would have been very tricky. Affordability was people’s biggest fear about the legislation. The right was attacking ACA as not being affordable. For us to make a big public campaign about ACA’s affordable would have been risky, particularly after the tea party gains of August 2009. We did organize grass-roots lobbying to seek improvements to affordability and won some small improvements in the final bill. But these were much more subdued than a big public campaign.
In addition to which, the reality is that a lot of the excitement about the public option was that this was something bold and different. Progressive base activists could get a hold of that and get excited about it. There’s nothing about affordability that’s that sexy and clear. If you say, “We want to be sure instead of 200 percent of poverty paying no more than 2.5 percent, we want to get that down to 1.5 percent,” that’s a huge thing in people’s lives, but it’s really hard to get people excited about it.
On Obama being “conciliatory.”
HP: At one point in your book, you asked someone in the White House, “What’s the inside/outside game?” This person basically responded, “There is no outside game.” Watching from a distance in 2009 and early 2010, I always got the feeling that the White House didn’t quite know how to strike the right balance here. They faced practical challenges of negotiating inside deals to get this done. By the way, I think the president’s progressive base understood that. People had watched the Clinton effort fail. They knew that some deals needed to be cut. President Obama had a tremendous amount of good will from liberals and the left coming on his historic election. For all this, there was tremendous uneasiness in Washington about what would happen to ACA if all of these somewhat uncontrollable outside groups who were operating alongside a delicate set of negotiations.
How would it work if grass-roots activists — including many who had been quite active in the Obama campaign — pursued a populist campaign against the insurance companies at the very moment politicians were in the room with the insurers negotiating the myriad practicalities of health reform. One end result was a de factodemobilization of outside voices out of a fear these might have complicated the inside game.
RK: This was a huge misunderstanding by the Obama folks about power and political dynamics, just a fundamental miscalculation and blindness that was really destructive. The president’s personality is to be conciliatory. Until the summer of 2011 and the grand bargain collapsed, he always wanted to be conciliatory. He also had people like Rahm Emanuel and Jim Messina in the White House who wanted to totally control everything and did not want any on the left pushing them. But power works differently. They would have been in a much stronger position if they could say, “We’re being pushed really, really, really hard from the left, and so this is the best we can do.” And then cut final deals when they had to.
Look at the difference in approach between Ronald Reagan and Barack Obama. Reagan did not compromise publicly. He staunchly stood up for his conservative ideals publicly. But finally he made a lot of deals. He made a lot of concessions. People now point out that a lot of what Reagan agreed to was further left than where Republicans are now on taxes and other things. But when Reagan made those deals, his base ultimately forgave him. They saw he was out there as a champion and said, “Well, this must be the best he can do.” But because Obama was constantly undercutting his own rhetoric, he lost credibility with his base.
I won’t comment on the fact that Rand Paul is in favor of working on a plea bargain with Edward Snowden, while Chuck Schumer would not. What’s more fascinating is how the Times had to refer to Paul as a “libertarian-minded Republican.” Talk about cognitive dissonance. I’ve commented before how I’ve seen a surge in the libertarian wing of the Republican party. Maybe Orin right that the party out of power becomes more libertarian. But for the foreseeable future, the GOP will hew libertarian.
The Police Chief of Detroit–a city ravaged by budget cuts, and often unable to provide the most basic municipal services–has emphatically put his weight behind citizens owning guns as a means to deter crime.
Detroit— If more citizens were armed, criminals would think twice about attacking them, Detroit Police Chief James Craig said Thursday.
Urban police chiefs are typically in favor of gun control or reluctant to discuss the issue, but Craig on Thursday was candid about how he’s changed his mind.
“When we look at the good community members who have concealed weapons permits, the likelihood they’ll shoot is based on a lack of confidence in this Police Department,” Craig said at a press conference at police headquarters, adding that he thinks more Detroit citizens feel safer, thanks in part to a 7 percent drop in violent crime in 2013.
And he didn’t always think that way.
Craig said he started believing that legal gun owners can deter crime when he became police chief in Portland, Maine, in 2009.
“Coming from California (Craig was on the Los Angeles police force for 28 years), where it takes an act of Congress to get a concealed weapon permit, I got to Maine, where they give out lots of CCWs (carrying concealed weapon permits), and I had a stack of CCW permits I was denying; that was my orientation.
“I changed my orientation real quick. Maine is one of the safest places in America. Clearly, suspects knew that good Americans were armed.”
Craig’s statements Thursday echoed those he made Dec. 19 on “The Paul W. Smith Show” on WJR (760 AM), when he said: “There’s a number of CPL (concealed pistol license) holders running around the city of Detroit. I think it acts as a deterrent. Good Americans with CPLs translates into crime reduction. I learned that real quick in the state of Maine.”
And–this is rich–the guy from Brady said his position is “emotional.”
Robyn Thomas, director of the the Law Center to Prevent Gun Violence in San Francisco, disagreed.
“I think at its core, his position is an emotional one, based on the idea that people feel safer when they have guns. But studies have shown more guns don’t deter crime,” Thomas said. “There’s no research that shows guns make anyone safer, and it does show that, the more guns in any situation, the higher the likelihood of them harming either the owner, or people who have access to them.”
For crying out loud, the overwhelming majority of Brady’s appeal is emotional.
This is the law that keeps on giving. Wisconsin Senator Ron Johnson tomorrow will file suit challenging the legality of Obamacare. Which part you ask? Remember that entire kerfuffle over Hill staffers receiving subsidies on the state-exchanges? That.
U.S. Sen. Ron Johnson plans to file a lawsuit on Monday challenging a federal rule that allows members of Congress and their staffs to continue to receive health benefits similar to other federal employees.
The lawsuit stems from a provision in the Affordable Care Act that requires members of Congress and their staffs to buy health insurance on the marketplaces set up through the law.
A rule released last summer by the Office of Personnel Management stated that the federal government could continue to contribute to the cost of health benefits for members of Congress and their staffs — just as it does for other federal employees — even though they would be buying health insurance on a marketplace.
They also would be able to pay their share of the cost with pretax dollars, the same as other federal employees as well as employees who get health benefits through an employer.
I have no idea about the merits of the suit, but this could give courts an opportunity to address at least one instance of the Administration playing fast and loose with the implementation of the law. Johnson sees this as a commentary on the broader separation of powers issue.
In a telephone interview Friday, Johnson said he was filing the lawsuit because he believed President Barack Obama was continuing the historical trend of presidents’ chipping away at the power of Congress.
“It has disturbed the balance of power,” Johnson said. “I think it is not beneficial for our republic to have that balance of power continue to be eroded.”
He also said that members of Congress made a “covenant” with the American people and promised to subject themselves to the law.
The administration, he said, helped them back out of that deal.
What’s somewhat perverse, is that if Johnson wins, his own staffers would be out of luck. So what are they fighting for? “Principle.”
Johnson, a longstanding opponent of the Affordable Care Act, is being represented by the Wisconsin Institute for Law & Liberty, a conservative public interest law firm. He plans to file the lawsuit in federal court in Green Bay on Monday.
“The purpose of the lawsuit is to ensure the law is enforced as written,” said Richard Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty.
The provision does not affect many people, he acknowledged.
“This is absolutely a matter of principle,” he said.
In the late 1950s, the Wilmington Parking Authority operated the Midtown Parking Center, which included the Eagle Coffee Shoppe. Several african-americans staged as it-in at the counter at the Coffee Shoppe, and refused to leave. Later, a black city councilman, William Burton, parked at the garage, and went to the coffee shop, where he was refused service.
In Burton v. Wilmington Parking Authority (1961), the Court, per Justice Clark, found that the coffee shop and parking garage were closely related to the state, and were state actors for purposes of the Fourteenth Amendment. Further, the Court found a violation of the Fourteenth Amendment.
Now, the Parking Garage is scheduled for demolition.
The Mid-Town Parking Garage and several vacant stores in a city block considered crucial to downtown Wilmington’s revitalization are being demolished – and an important piece of Delaware’s civil rights history is going down with them.
One of the stores on Ninth Street between Orange and Shipley streets was once the Eagle Coffee Shoppe, where City Councilman William H. “Dutch” Burton was refused service in 1958 because he was black.
The coffee shop and the garage it was attached to were owned by the Wilmington Parking Authority at the time. Burton sued the authority and won in Chancery Court, but the decision was overturned by the Delaware Supreme Court, in part because of a state law that gave private businesses the right to not serve anyone who would be “offensive” to other customers.
The coffee shop eventually closed and the parking authority sold the stores and the garage to a private company. For 35 years, the building that houses the coffee shop was the site of the Ninth Street Book Shop before it moved a few blocks to Market Street last year.
H/T David S. Cohen
Here are some pictures of the parking center taken during the 1960s.
The Bully Pulpit, which I have blogged about before, is every effective in chronicling Roosevelt’s evolution from the laissez faire principles he had as a youth, to a progressive, based on his experiences in the seedy underworld of the late-19th Century New York. One of the more poignant vignettes concerns his views towards a bill that would have prohibited the manufacture of cigars inside crowded tenement houses.
When the Cigar-Makers’ Union introduced a bill to prohibit the manufacture of cigars in tenement houses, Roosevelt presumed from the outset he would vote against it. He had always believed that tenement owners had an absolute right to do as they wished with their own property. As he examined more closely the conditions leading to the bill, however, he began to question his inherited resistance to social legislation.
After inspecting the horrid conditions of these tenement houses, led by labor leader Samuel Gompers, Roosevelt had a change of heart.
After two additional forays into this dark underworld, Roosevelt was “convinced beyond a shadow of doubt” that the manufacture of cigars in tenement houses “was an evil thing from every standpoint, social, industrial and hygienic.” Though the proposed bill was “a dangerous departure from the laissez-faire doctrine in which he thoroughly believed,” he championed its passage and joined a group of supporters urging Governor Grover Cleveland to sign it.
Of course, this law led to litigation, and resulted in the case of In Re Jacobs, 98 N.Y. 98 (NY 1985), which struck down the law.
Once the bill became law in March 1883, the cigar makers straightaway brought suit, arguing their right to hold property, guaranteed by the state constitution, was violated by the new regulations. The case, In re Jacobs, eventually made its way to the New York Court of Appeals, where the justices declared that the law indeed deprived the cigar makers of their “fundamental rights of liberty . . . without due process of law.” Furthermore, the court argued, the legislation did not constitute a legitimate use of the state’s police power to regulate behavior detrimental to the public welfare, for tobacco was in no way “injurious to the public health.” On the contrary, it was “a disinfectant and a prophylactic.”
Here is the main holding of Jacobs.
Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. In re Jacobs, 98 N.Y. 98, 110 (1885)
“It was this case,” Roosevelt later said, “which first waked me to . . . the fact that the courts were not necessarily the best judges of what should be done to better social and industrial conditions.” While the justices were well intentioned, they interpreted law solely from the vantage point of the propertied classes. “They knew nothing whatever of tenement house conditions,” he charged, “they knew nothing whatever of the needs, or of the life and labor, of three-fourths of their fellow-citizens in great cities.” In the years that followed, the court’s defense of free enterprise in this case would be repeatedly cited to block governmental regulation of industry. “It was,” Roosevelt observed, “one of the most serious setbacks which the cause of industrial and social progress and reform ever received.”
In “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” Victoria Nourse tells the role that then-President Roosevelt played in bringing attention to Lochner v. New York, decided by the Supreme Court in 1905.
This quotation from TR in 1912 seems about right:
“My proposal is that . . . if the court has decided that the Legislature plus the Executive has exceeded the power granted by the people to them under the Constitution, that the people shall themselves have the right to say whether their representatives in the Legislature and the executive office were right, or whether their representatives on the court were right.”133 Theodore Roosevelt (1912)
From Part III of her article:
Enter the second tale of Lochner, a tale in which rights are strong, but not because judges make them so. They are strong because they appear to thwart popular will and thus the politically powerful take them up as a call to arms. Theodore Roosevelt plays the lead in this story, one which is completely absent from traditional lawyerly accounts, yet is essential to creating the story of Lochner we know today.136Roosevelt harshly criticized cases such as Lochner, Adair, and Coppage, which were small in number but lived an exceedingly large, public life.…For example, before his progressive conversion, future president Wilson declared that the “‘right of freedom of contract’ was the ‘most precious of all “the possessions of a free people,”’ a political slogan signaling that he was against labor unions.142 In the 1912 presidential campaign, when Theodore Roosevelt heard that Wilson had invoked the term “liberty,” he insisted that it was “the laissez-faire doctrine of English political economists three-quarters of a century ago.”143 “Liberty” was a political fighting word, one used by the National Association of Manufacturers to fight “unionism,”144 a rhetorical and political invocation that lasted until the “Liberty League” was created to fight the New Deal.145
It would take the indomitable Theodore Roosevelt for Lochner to become a legal and public icon. During his presidency, Roosevelt (who was not a lawyer) made clear that he was no friend of the courts.162 Like most progressives, he insisted that the judiciary had been hostile to the regulation of trusts, protecting “property” rights rather than “human” rights (one of the great political slogans of the period).163 This all reached fever pitch, however, when Roosevelt began his political comeback during Taft’s presidency.164Just back from his African safari in 1910, Roosevelt delivered a sensational speech to the Colorado legislature attacking the Supreme Court.165 Roosevelt specifically cited two decisions: one was Lochner, and the other was United States v. E.C. Knight, an antitrust case.166 Roosevelt charged that the courts had created a “neutral zone” in which neither the state (Lochner) nor nation (Knight) could *780 express majority will and “popular rights.”167 The Court had become a refuge, Roosevelt explained, for the very rich men “who wish to act against the interest of the community as a whole.”168Roosevelt’s critique of Lochner was not that the courts had created a new right to contract, nor that the courts had diverged from original intent, but that the courts had ignored the “welfare of the general public.”169 Echoing Justice Harlan, Roosevelt attacked Lochner using the police power rationale. He claimed that the Court did not know “the facts” of how the baking business was “carried on under unhygienic conditions.”170 The Court had struck down the law, despite the approval of the New York legislature and the New York courts, on the theory of a “liberty to work under unhygienic conditions.”171 It was a decision “nominally against State rights . . . but really against popular rights, against the democratic principle of government by the people under the forms of law.”172Roosevelt later elaborated on his position:In the New York Bakeshop Case it is our duty to say that it is for the people of a State to decide whether they intend to be true to the school of political economy of the eighteenth-century individualistic philosophers or whether they intend to act on the principles set forth in such books (to mention two among many) as those of Professor Ross on “Social Control” and by Father Ryan on “A Living Wage.”173
Roosevelt was unfazed. In the following month, before a crowd of 40,000, Roosevelt defended his right to criticize the Court and opined, “I have not a word to retract.”180 Invoking Lincoln, he reminded the crowd that the great president was “assailed” for his criticism of Dred Scott.181 Critique of the Court was not “merely the right but the duty of citizens” who believed judicial decisions were wrong.182 Judicial decisions, Roosevelt urged, should “be submitted to the intelligent scrutiny and candid criticism of their fellow men.”183 The people, he argued, should be capable of reviewing judicial decisions on “certain constitutional questions” dealing with the public welfare.184 Shocked at such a proposal, the New York Times editorialized that, *782 should the Court try to follow “popular opinion,” it would be like one who tries to follow a single rabbit on a particular trail after letting loose ten rabbits over a field of snow (implying that “public opinion” was in the eye of the beholder).185The debate continued186 and intensified as Roosevelt began his campaign for president in earnest; by 1912, he formalized his complaints into a proposal that state court judgments should be submitted to the people for review. Today, this is known–somewhat deceptively–as one form of “recall.” What is forgotten is that every step of the way, Roosevelt invoked the “Bakeshop Case.” In response, Lochner’s proponents characterized Roosevelt’s support for popular rights as support for majority tyranny.187 In a 1912 speech at Carnegie Hall in New York,188 Roosevelt responded to this criticism by alluding to Lochner as an example of judicial “tyranny.”189 Expressing his “scant patience” for the view that he supported the tyranny of the majority, Roosevelt countered that a tyranny of the minority stood behind “the present law of master and servant, the sweat-shops, and the whole calendar of social and industrial injustice.”190 If the majority really were tyrannous, Roosevelt claimed, “no written words” were strong enough to stay tyranny.191
All of this enraged President Taft, who insisted that the Constitution was *783 the “supreme issue” of the election.192 Taft even told campaign audiences that he was confident that the American people “will never give up the Constitution, and they are not going to be honey-fugled out of it by being told that they are fit to interpret nice questions of constitutional law just as well or better than Judges.”193 Both candidates eventually lost to Woodrow Wilson, but Lochner remained part of Roosevelt’s speeches.194