Ross Davies and his creative team at The Green Bag continue to impress with creative SCOTUS bric-a-brac. The latest is a series of five baseball cards dedicated to the “First 4” Supreme Court Sluggers: Justices O’Connor, Ginsburg, Sotomayor, and Kagan.
Here is a front shot of the five cards.
The “Thought Bubble Gum” includes a quote from RBG’s opinion in United States v. Virginia:
“[N]either federal nor state government acts compatibly with the equal protection principle when [it] denies to women, simply because they are women, full citizenship stature–equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities”
The backs of the cards are tributes to other famous women who blazed trails before the Supreme Court.
The card commemorates Myra Bradwell (from Bradwell v. Illinois) and Belva Lockwood (first female to become a member of the SCOTUS bar, and argue a case).
You can even request a special, limited-edition Belva Lockwood Bobblehead!
The backs of the cards also list the portraits of the four female Justices:
The series is based on a 1935 baseball card.
On Friday, I was a guest on Houston Matters–a local public radio show–to discuss prayer in the public square. It was an extended discussion that touches on Establishment Clause jurisprudence over the last five decades.
Posner: “I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record…”
The Seventh Circuit continues to troll everyone who thinks appellate judges should stick to the record. Construction and General Labor v. Town of Grand Chute considers a local ordinance that restricts the placement of one inflatable rats, that unions use to shame employers. Judge Easterbrook wrote the majority opinion:
This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers.
Judge Posner’s concurring opinion, to demonstrate that the rats are not nuisances, explains that he often passes a similar rat on his commute from Hyde Park.
I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record, by sharing with them my experience with a roadside union rat. I some‐ times drive to work on a major divided highway called Mar‐ tin Luther King Drive, which runs north from Hyde Park, where I live, south of downtown Chicago, to downtown. As one nears the downtown on MLK Drive one sees (or rather saw, because during the long gestation of this case the rat— alas!—was removed, whether because the labor dispute be‐ tween union and employer was resolved or for some other reason), on the east side of the street, a large inflated rubber rat named Drape (short for Draper and Kramer, the employ‐ er with whom the union that put up that rat was fighting). Every time I drove past the rat I glanced at it, as it was the only noteworthy sight on my route. This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat. I saw no driver, or pedestrian, upon glimpsing the rat flee in terror. And yet this rat, like its Grand Chute cousin, was close to a major street—in fact much closer than the Grand Chute rat was to a major street; for while the Grand Chute rat was 70 feet from the highway, my Chicago rat was only about three feet from MLK Drive.
He even took pictures (hopefully not while driving):
I took a close‐up photo of the rat, and another photo of it from across the street. Here are the two photos:
I can’t imagine that any driver seeing Drape either close up or from across the street would have been distracted to the point of endangerment.
Only Judge Posner would first cite WIkipedia, and then cite a State Department Human Rights Report to “confirm” Wikipedia. His dissent in Fuller v. Lynch considered a removal case where the alien asserted he would be subject to persecution in his native Jamaica because he was bisexual. To show that in fact Jamaica has a hostile culture towards the LGBT community, Posner cites (what else?) Wikipedia.
Fuller testified before the immigration judge at length and in detail about his being bisexual and having had nu‐ merous sexual relationships with both men and women be‐ ginning when he was a pre‐teen, and about the hatred directed against LGBT persons in Jamaica, including by members of his own family. He testified that in college he was stoned by other students on several occasions and a few years later taunted as gay by a group of men who sliced his face with a knife. On another occasion he was robbed at gunpoint by a man who called him a “batty man,” which is a Jamaican slur for a homosexual. And he didn’t make that up: see “Batty boy,” Wikipedia, https://en.wikipedia.org/wiki/Batty_boy (last visited Aug. 17, 2016, as were the other web‐ sites in this opinion), where we learn that “in 2006 Time Magazine claimed that Jamaica was the worst place in the Americas for LGBT people and one of the most homophobic places in the world.
Later in the paragraph, we learn that our State Department agrees with Wikipedia.
Our State Department’s Human Rights Reports for 2012 and 2013 confirm the Wik‐ ipedia entry, as do a report by Amnesty International and a decision by another federal court of appeals: Bromfield v. Mukasey, 543 F.3d 1071, 1076–77 (9th Cir. 2008). The immi‐ gration judge’s opinion is oblivious to these facts.
Judge O’Scannlain, writing for a 9th Circuit panel in U.S. v. McIntosh, concluded that a appropriations rider prohibited DOJ from spending any money to enforce the Controlled Substances Act “to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” As a result, the court dismissed prosecutions as violations of the appropriations clause.
I don’t have any thoughts on the construction of the omnibus budget, but there is one dictum in Judge O’Scannlain’s opinion that is not exactly correct. Footnote 5 on the final page of the opinion states:
Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.
The final quoted sentence is absolutely correct. Under Gonzales v. Raich, possession of a controlled remains prohibited by federal law, regardless of what the state law enacts. Justice Stevens explained in Raich:
The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.
However, the Supremacy Clause does not require California, or any other state, to enact laws criminalizing marijuana. In fact, such a mandate would amount to unlawful commandeering. California remains free to either not criminalize marijuana, or in fact authorize its possession. Utilizing its own resources, it can direct its state officers not to prosecute anyone for possession. If the federal government doesn’t like that, it can DOJ agents into California to arrest people for possession of marijuana that is legal under state law. This is precisely what happened to Angel Raich.
So this sentence, “Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,” is not complete. This sentiment only becomes relevant if a defendant raises the state law as a defense to a federal marijuana prosecution. At that point, the federal court would cite the Supremacy Clause, and hold that the state law is preempted. Or DOJ could sue to block the enforcement of the law (like in Arizona v. United States), arguing that it is interfering with federal priorities. But a state is well within its own power to have a law on the books legalizing marijuana, not expend its own resources to criminalize marijuana, and hope the federal government doesn’t waste its time doing the same.
I’ve blogged about this misconception concerning the supremacy clause in the context of a Colorado employee who was fired for marijuana use, even though it was legal under state law. (The opinion was authored by one of the Trump short-listers, Justice Eid).
Just as soon as Unraveled is completed, the next chapter in this Obamacare trilogy opens up. By now, you should have read that Aetna is pulling out of virtually 11 out of the 15 ACA exchanges. Humana is also dropping from 15 states to 11 states. UnitedHealth will offer policies on “three or fewer exchanges.” In one county in Arizona, there will not be any ACA policies on the exchange. A number of states will have only one policy available. Alaska came close to having none, but the legislature bailed out the remaining provider.
What caused Aetna’s withdrawal? Jonathan Cohn and Jeffrey Young obtained through FOIA a letter Aetna’s CEO sent to DOJ Antitrust Division. (The Obama administration finally found a FOIA request that it quickly turned around, huh?) In short, the letter states that if Aetna’s merger with Humana goes forward, the “anticipated synergies” will allow the company to expand coverage on the exchanges. However, if the merger is blocked, due to the lack of such “synergies,” the company would have to scale back its exchange coverage. Aetna wrote:
Specifically, if the DOJ sues to enjoin the transaction, we will immediately take action to reduce our 2017 exchange footprint. We currently plan, as part of our strategy following the acquisition, to expand from 15 states in 2016 to 20 states in 2017. However, if we are in the midst of litigation over the Humana transaction, given the risks described above, we will not be able to expand to the five additional states. In addition, we would also withdraw from at least five additional states where generating a market return would take too long for us to justify, given the costs associated with a potential break- up of the transaction. In other words, instead of expanding to 20 states next year, we would reduce our presence to no more than 10 states.
Cohn and Young call it a “threat.” Nick Bagley writes that, “’there’s something disquieting about its thinly veiled suggestion that the Justice Department should bless anti-competitive conduct for short-term political advantage.” My perspective? Aetna made their Faustian pact–now they have to deal with it.
Aetna and their ilk wholeheartedly supported a law they thought would make them lots of money–can you imagine a government mandate to buy your product! They severely miscalculated. Everyone from Jonathan Gruber on down all suffered from the same fatal conceit: if we tinker with subsidies like this, and risk adjustment like that, and structure these risk corridors, then presto, we can erect a magical, dynamic marketplace. When I wrote Unprecedented, I expected the law to chug along for at least a decade before it seriously started to show signs of failing. Boy was I wrong. Now Aetna is in the position that without expanding the size of their risk pools–necessarily through mergers, because enrollments are flat–they can’t afford the law’s onerous mandates and community rating provisions. So now they’re stuck.
Seth Chandler wrote a painstakingly detailed post on whether the ACA is collapsing. Towards the end of the post, Seth uses an image I created in Unraveled about how the ACA is creeping up on the death spiral’s event horizon.
When you see the rapid contraction of the marketplace, when you see gross premiums increasing by more than 20%, and when you yourself are calling for the federal government to spend considerably more on Obamacare, it is time to admit that the existing Obamacare spaceship is passing the event horizon of the adverse selection black hole. Another quest for the unicorn of community rated health insurance has failed.
At some point in the future, I will complete the Obamacare trilogy (likely publication date in the fall of 2020, around the next election, assuming the Republic is still standing). To keep with the theme, my working titles are #Unbreakable or #Undone. That is, over the next four years, the long-term viability of Obamacare (HillaryCare II?) will become well known. Either the law will survive, against all odds, or it will have to be completely reworked to prevent its implosion. You can probably guess what my prediction is, but I’ll leave my options open.
Update: The WSJ has a fitting take on the release of the letter:
This is some gall. Aetna was answering a June 28 “civil investigative demand,” in which Justice’s antitrust division specifically asked how blocking the merger would “affect Aetna’s business strategy and operations, including Aetna’s participation of the public exchanges related to the Affordable Care Act.”
Soliciting sensitive internal information that Aetna is legally compelled to provide—and then making it public to sandbag the company—is the behavior of political plumbers, not allegedly impartial technocrats. If police tried this, it’d be entrapment
I often dream about the Supreme Court. Don’t try to psychoanalyze me–just go with it. Last night I dreamt that I was sitting next to Justice Breyer, and showing him the galleys for Unraveled. The first thing he did was the “Washington read.” He quickly flipped to the index to see how many times his name was mentioned. I can’t tell you how many people did this for Unprecedented, and told me–complained, really–that their names weren’t listed enough. I expect similar complaints this go-around, because Cambridge does not index the names of authors in the footnotes.
In any event, after checking out his own name, Breyer flipped to the other justices to see how many times they were listed in the index. I remember telling him that because Justice Thomas doesn’t ask any questions, he’s not in the book very often. I also remember seeing a typo in the manuscript–which I am positive is actually there–but I have no recollection of what it was. I’ll see it once the book is published.
Well Justice Breyer, in case you were trying to contact my subconscious, here are your entires in the index of Unraveled.
Breyer, Stephen G. (Justice), 6, 294
King v. Burwell and, 479
on Medicaid expansion, 546
NFIB v. Sebelius and, 122–123
nomination of, 487–488
religious freedom rulings and, 254, 306, 308
Supreme Court budget hearings and, 418
on Supreme Court building, 515
Wheaton College ruling and, 310
Zubik v. Burwell and, 505–508, 516–517, 521, 523, 534
And here is Justice Thomas’s far-more paltry index listings:
Thomas, Clarence (Justice), 78, 123, 229, 250, 343, 442, 479, 481
on Medicaid expansion, 546
nomination of, 486–487
Zubik v. Burwell and, 521
By far, the Justice with the most mentions in this Obamacare book is (shocker) the Chief:
Roberts, John (Chief Justice), xxiii
Cruz and, 465–467
defunding proposals for ACA and, 25
on former chief justices, 432–433
on Garland nomination, 492
individual mandate in ACA and, 91, 116–117, 190, 344, 346
on judicial nominations, 230–231
King v. Burwell and, 387–388, 399–402, 433–435, 437–444, 465–467
on Medicaid expansion, 546
nomination of, 465–467, 487–488
religious freedom rulings and, 255–257, 261, 264, 293–294, 303
Scalia’s death and, 479–482, 520
Supreme Court rulings on ACA and, 59–60, 75, 77–78, 130, 251, 270, 291–292, 560
tax credits in ACA and, 122–123
Verrilli on, 518
Zubik v. Burwell and, 503, 508, 510, 512–514, 521, 524–527
In Unraveled, I develop the theme of the political cost of Obamacare. No–not the never-ending efforts of Republicans to repeal the ACA. Rather, what were the costs to the Democrats, and our polity at large, of forcing through this massive transformation of our society on a straight party line vote.
The Washington Post analyzes several of these “What Ifs?” in a series on President Obama’s legacy. The story begins in 2009, as his closest advisors urged him not to focus on Health Care right away.
The debate roiled Democrats, including some inside the administration, from the earliest days of the presidency. At the time, the nation remained beset by the economic turmoil sparked by the 2008 global financial meltdown, and many wondered whether health-care reform should be the top priority.
“I begged him not to do this,” former chief of staff Rahm Emanuel told a reporter in 2010, airing his preference for a hard focus on jobs and the economy even after the passage of the stimulus bill.
On Capitol Hill, many Democratic lawmakers, aides and consultants wondered — openly and not — about the political costs of the dogged pursuit of health-care reform. The costs were to be measured not only in congressional seats but in policy priorities.
However, by focusing on the ACA with majorities in both houses, the President put aside other major policy goals:
What would this mean for other major items on the Democratic agenda, ones requiring major outlays of presidential political capital? What about cap-and-trade, union “card check,” the Dream Act or the Employment Non-Discrimination Act — each one a major priority for key parts of the Democratic base?
None of those bills would pass the 111th Congress, even though for the first time in more than 40 years one party held the presidency and dominant majorities in both houses of Congress.
I distinctly remember in 2010 talks about the President turning to cap-and-trade, card check, and the Dream Act once health care was done. Didn’t happen.
As a result of the ACA, many Democrats lost their seats:
The GOP leveraged Obamacare into massive political gains, and they didn’t end with the profound Democratic losses in the 2010 midterms. By the last year of the Obama administration, his party had lost 14 Senate seats, 68 House seats, 12 governorships and hundreds of state legislative seats.
One academic paper suggested that the Obamacare vote alone cost the Democrats roughly 25 House seats — the difference between a historic landslide and two more years in the majority.
The Senate remained under Democratic control until 2015, but a Republican House majority, with an ascendant cadre of hard-line tea party conservatives unwilling to compromise, meant that Obama’s progressive agenda was a dead letter two years into his presidency.
And the rest of his presidency focuses on keeping the government funded:
Card check and cap-and-trade were out. A series of high-stakes fiscal cliffhangers were in, starting with a showdown over a potential U.S. credit default that ended in a deal forcing years of spending cuts that reined in Obama’s domestic ambitions.
Rather than take a Clintonian move to the middle, instead Obama turned to his pen and phone.
Fifteen years earlier, President Bill Clinton took his own midterm lumps and proceeded to make a centrist peace with new GOP House Speaker Newt Gingrich (Ga.), cutting deals on welfare reform, crime and other bills. With the exception of a brief and unsuccessful attempt at a fiscal “grand bargain” in 2011, Obama did not seek compromise at a Clintonian scale — the gulf between his progressive agenda and a hard-right House majority was too wide, and seemingly unbridgeable.
When he did seek to push a controversial priority though Congress — notably, seeking to expand firearm background checks — he lost. Instead, he shifted his efforts away from a branch of government he did not control to the one he did. His domestic legacy would be written in policy memos and the obscure pages of federal agency rulemakings.
The Keystone XL pipeline would not be built; power plants would emit less carbon dioxide; investment advisers would adhere to higher standards; and environmental regulators would have new authority over U.S. waterways. The Obama administration did those things by itself over the loud objections of the Republican Congress.
I’ll have an entire chapter on this theme in the book–stay tuned.
Starting in September, I will be traveling across the country to discuss Unraveled. I have events scheduled in New York, New Jersey, Virginia, D.C., Illinois, Arizona, Texas, Massachusetts, Alabama, Pennsylvania, Georgia, and other places. If you are interested in hosting me for an event, please drop me a line. I am on sabbatical during the fall semester, so I have far more flexibility than usual to schedule events. (Believe it or not, this will be my fifth year teaching). I hope to see you soon!
One of the themes I develop in Unraveled focuses on how the ACA’s elimination of limits on spending, combined with the never-ending series of special signup periods, have allowed people to utilize huge amounts of health care in a very short time, and cancel coverage when they’re done.
The New York Times today provides some examples:
Highmark defended its request by saying it was paying out more in claims than it was receiving in premiums. Jeff Scheib, the vice president in charge of actuarial services at Highmark, offered a statistic to illustrate the problem. Continue reading the main story “There were close to 250 individual A.C.A. policyholders in Pennsylvania who incurred over $100,000 each in claims and then canceled coverage before the end of the year,” Mr. Scheib testified. “This behavior drives up the cost to insure the entire pool, because people use insurance benefits and then discontinue paying for coverage once their individual health care needs have been temporarily met.” ….
At a hearing in Helena, Mont., Monica J. Lindeen, the state insurance commissioner, asked Blue Cross and Blue Shield why it was seeking an average rate increase of 62 percent for 2017, after receiving an increase of 22 percent this year.
“Cost is what’s really driving our rate increases,” said Michael E. Frank, the president of Blue Cross and Blue Shield of Montana.
“For every dollar we brought in last year, we paid out $1.26 for medical care,” Mr. Frank said. “In the first six months of this year, we have already paid $4.17 million in medical costs for the top 10 individuals. That’s $70,000 a month for those individuals.”
As we move towards the fall, when rates are finalized, I will be writing much more about this topic. The greatest threat to the ACA is no longer the Republican Party, or the Supreme Court, but the law itself. Now that it has survived the first two chapters in this trilogy, Obamacare will have to stand on its own feet.
Over the next month, the New York Times will release a six-part series on “the sweeping change that President Obama brought to the nation, and how the presidency changed him.” Part I focuses on Obama as the regulator in chief. I encourage you to read the entire piece, as it is thorough compilation of many of the themes I’ve developed since this blog launched in 2009. But I want to draw attention to one paragraph that embodies the largest misconceptions about our age of gridlocked government.
The new rules built on the legislative victories Mr. Obama won during his first two years in office. Those laws — the Affordable Care Act, the Dodd-Frank Act and the $800 billion economic stimulus package — transformed the nation’s health care system, curbed the ambitions of the big banks and injected financial support into a creaky economy. But as Republicans increased their control of Capitol Hill, Mr. Obama’s deep frustration with congressional opposition led to a new approach: He gradually embraced a president’s power to act unilaterally.
What’s wrong with this passage? This sentiment has been repeated so many times that it must be true, right? The conventional narrative is wrong. For starters, the authors write “Republicans increased their control of Capitol Hill” as if there was some sort of hostile invasion. Rather, every year the President was in office, Democrats lost control of federal and state offices nationwide. The President’s policies were rejected the electorate. The only reason why Dodd-Frank and the ACA could pass was due to the sixty-vote bloc in the Senate. Since Democrats lost the filibuster-proof majority in the Senate, the President’s legislative agenda has gone nowhere. And that’s why the President has had to turn to executive power. The Times offered this quote which sums up the dynamics quite well.
“It’s certainly true that we learned by about the third year that the answer to every challenge isn’t going to be legislative,” said Cecilia Muñoz, now director of Mr. Obama’s Domestic Policy Council.
This is largely the theme of my forthcoming piece in the Harvard Law Review, Gridlock.
But there is another cost to using executive action as a countermeasure to gridlock–it stultifies that intransigence. Here is a preview of the Epilogue of Unraveled:
Beyond forgoing opportunities to advance other legislative agendas – such as immigration or environmental reform – the decision to force the ACA on a party-line vote was a contributing factor to the stultifying gridlock during the final six years of the Obama presidency. The “one-term president” com- ment was indeed made by Senator Mitch McConnell, but not in early 2009. Rather, he said it on the eve of the midterm elections in October 2010, six months after the ACA passed. McConnell linked his opposition to Obama’s re-election with the GOP’s goal of eliminating Obamacare. “If our primary legislative goals are to repeal and replace the health [care] bill,” he said, “the only way to do all these things it is to put someone in the White House who won’t veto any of these things.”
In July 2016, President Obama lamented the “hyperpartisanship” surrounding healthcare reform. He wrote that “through inadequate funding, opposition to routine technical corrections, excessive oversight, and relent- less litigation, Republicans undermined ACA implementation efforts.”7 The President’s criticism is well-founded, but ignores his own role in institutionalizing this gridlock. It was hubristic to think that after enacting a monumental law, without any bipartisan buy-in, opponents would simply fall in line. As history played out, Republicans had no problem undermining a law they had no part in enacting and felt no attachment to. Senator Max Baucus, chairman of the Finance Committee that drafted the healthcare bill, “fret ” about the ACA’s origin. “It is my belief,” he said in December 2013, “that for major legislation to be durable, sustainable, it has to be bipartisan. I mean, one party can’t jam legislation down the other party’s throat. It leaves a bitter taste.”8
The article closes with a quote from then-Professor Elena Kagan:
“We live in an era of presidential administration,” Elena Kagan, a Harvard law professor since appointed by Mr. Obama to the Supreme Court, wrote in a 2001 paper that reviewed the expansion of the regulatory state.
Both Mrs. Clinton and Mr. Trump would most likely face significant congressional opposition to their major campaign promises. To sidestep Congress, they now have the legacy of Mr. Obama. Mr. Podesta, now Mrs. Clinton’s campaign chairman, said the appeal of taking action without Congress is hard to resist.
My next article, which should be ready by the end of this month, challenges the core of Kagan’s article that courts should give greater deference to actions undertaken by high-level executive branch officials. I contend at a minimum, such actions are not entitled to more deference, and in reality, should warrant greater skepticism. It is titled, Presidential Maladministration.
In June, I acquired a Christmas card sent from the family of Chief Justice Earl Warren. As I noted in the post, I could not figure out exactly when it was mailed.
Due to the wonders of the internet, Chief Justice Warren’s grandson, Jeffrey Earl Warren emailed me. (In the cartoon, he is wearing red pajamas, with his bottom showing, on the second sled). With his permission, I post this message:
Saw your note on Papa Warren’s Christmas Card. Doubt it was sent from the Court. Papa Warren was appointed by Ike in ’53. I was born in ’48. My brother Jocko, was born in ’50. He would have been on the card. I was 5 when Papa Warren was appointed. My father, James Cleveland drew the card. He was an amateur artist who worked in an Ad agency at the time. The card was sent out when Papa Warren was Governor. I’m the one in the back with his backside showing and the red colored pj’s.
The card was sent in this envelope with SCOTUS letterhead.
Jeffrey doubted it was sent from the Court:
Papa Warren would not have sent out old Christmas cards, nor do I think he sent out cards when he was on the bench–that would have smacked of politics and self-promotion. My guess is that the recipient got a letter or something else from the court and kept the Christmas card in that envelope. The card would not have been sent in an “Industrial” envelope like that. Too business like.
In all likelihood, the card was sent in 1949–after Jeffrey was born in January 1948, but before Jocko was born in 1950–and long before Warren was appointed to SCOTUS. There you go.
This email goes in my #ConstitutionalPlaces hall of fame, alongside my correspondences with Homer Plessy’s great-great grandson about Plessy v. Fergusson, and calls with the granddaughter of the plaintiff in United States v. Carolene Products.
To round out this week of announcements, I will be publishing in the Cato Supreme Court Review an imagined opinion of what Justice Scalia would have written in U.S. v. Texas. Keeping with Cato’s tradition, I will not publish a draft before publication date on September 15 (this year Constitution Day falls on a Saturday). I will give you this tease from the introduction:
I write separately to address the “stark” constitutional questions that arise when the “Federal Government . . . does not want to enforce the immigration laws as written.” Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting). Historically, the Take Care Clause of the Constitution has been cited to bolster the executive’s power to act. However, here the problem is not of a “vigorous” and “energetic Executive,” The Federalist No. 70 (A. Hamilton), but of a passive one. Through DAPA, the Secretary of Homeland Security has suspended a law Congress refuses to change, in violation of the President’s duty of faithful execution.
As Professors attempt to conjure up insane situations where a constitutional crisis mandates that we ignore the Constitution, we should not forget that, once again, the Framers gave us a much more elegant solution: the electoral college. A Republican elector of Georgia’s electoral college has indicated that he may not be able to vote for Trump, even if the Donald wins the Peach State. Would this be anti-democratic? Absolutely, and that’s the point.
Contrary to what you may have been taught in school, we do not have a democracy. After the Revolution, the Founders soured on the democratic governments in their 13 states, so they replaced the Articles of Confederation with a new “republican” form of government, which would better secure the individual rights of the people. To prevent the government from violating our rights, power was divided in various ways to block the power of democratic majorities. One of the most poignant examples of this buffer was the electoral college.
Voters do not actually vote for the President. When millions of Americans go to the ballot box in November, they are actually voting for delegates, who will meet in the electoral college, to determine who should receive that state’s electoral votes. In recent years, the meeting of the electoral college has been a formality, as delegates would always vote based on who won the popular vote in the state (with the exception of Maine and Nebraska which award votes proportionally). But this was not the framer’s design: Originally, delegates were not only allowed to, but indeed were expected to vote differently than the will of the people to prevent a person unfit for the Presidency from assuming the office.
Long before he was a Broadway superstar, Alexander Hamilton forcefully defended the anti-democratic features of the electoral college in Federalist No. 68. Publius explained that it was “desirable that the sense of the people should operate in the choice,” but the ultimate decision of who should select the Chief Magistrate should fall to a group of “men chosen by the people for the special purpose.” These individuals, buffered from the vicissitudes of the populace, would be “most capable of analyzing the qualities adapted to the station,” and most likely to “possess the information and discernment requisite to such complicated investigations.” Such a process, Hamilton wrote, “affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
To paraphrase Lin-Manuel Miranda’s rendition of the $10 founding father, the electoral college does not throw away its shot. Simply stated, the people by themselves could not be completely trusted, and the electoral college exists to prevent the selection of a demagogue as the Commander in Chief. If this republicanism is too jarring for Mr. Trump, he should read James Madison’s Federalist No. 10, perhaps the most important essay in American political theory–or at least surround himself with the “best people” who have studied it. Madison wrote that the greatest good of government is to guard against the risk of factions–even those supported by a majority–for such a movement “enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In short, under democratic republicanism, there is nothing stopping a majority of the polity from engaging in self-dealing at the expense of the minority. Alexis de Tocqueville later dubbed this the “tyranny of the majority.”
What Madison and his allies in Philadelphia decided was that we needed a new republican form of government that would address the weakness of the too-democratic state constitutions, while preserving the notion of popular sovereignty. Madison believed that “to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.” Our anti-democratic electoral college is a manifestation of Madison’s inquiry.
The framers viewed the delegates sent to attend the electoral college as a check, to ensure that a demagogue–even someone who achieved a majority in the popular vote–would not be selected as President. This is still (in large measure) the law today. According to FairVote, 29 states bind their electors to vote for the candidate that won the popular vote. But 21 states do not. In 2012, the AP reported that 5 Republican “rogue” electors would vote for Ron Paul over Mitt Romney.
No matter how often constitutional crises arise, I am always struck that the framers provide an exit hatch. As I noted in my Harvard Law Review piece, if the Senate won’t confirm any nominees, the President can adjourn the Senate and make a recess appointment. There’s usually an answer baked in somewhere.
To give you a sense of what will be in Unraveled, here is the table of contents. (If you pre-order the book, I will mail you a free autographed book plate.). Those who followed the ACA closely can probably figure out what is in each chapter based on its title.
In March, the Florida International Law Review hosted a symposium on the Separation of Powers. It was a stellar lineup, including David Bernstein, Ron Rotunda, Lee Strang, Brannon Denning, Jon Adler, and Michael Ramsey. My contribution, Government by Blog Post, is now available on SSRN. Here is the abstract.
During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.
Each of these executive actions—implemented through formal notice-and-comment rulemaking or informal social-media blogging—came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.
One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.
This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.
The Chicago Law Review is hosting an online symposium about “Presidential Politics and the 113th Justice.” Randy Barnett and I submitted a piece titled “Restoring the Lost Confirmation.” As you may guess, we discus on how a renewed focus on originalism could improve the confirmation hearing process. Also check out the submissions from Amy Howe, Lisa McElroy, Michael Stokes Paulsen, Kermit Roosevelt, Erwin Chemerinsky, Marci Hamilton, and Michael Dorf.
Here is the abstract of our piece:
There is a silver lining to the stormy cloud brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech nominating Judge Merrick Garland to the Supreme Court, President Barack Obama faulted Democrats and Republicans for their prior positions on judges. “[T]here’s been politics involved in nominations in the past” on both sides, Obama observed. He is right. Over the past three decades, presidents and senators from either side of the aisle have ratcheted up the tension over Supreme Court nominees. And the linchpin of that conflict is what has become an utterly meaningless ritual: the confirmation hearing. But not for the reasons you may think.
The conventional wisdom is that, in their present form, judicial confirmation hearings serve no meaningful purpose. This is because nominees, who are rationally self-interested in being confirmed, refuse to answer any questions that could jeopardize their prospects. Instead—the theory goes—when asked a controversial question, the nominee filibusters and obfuscates. Candidates of both parties are trained through rigorous “murder boards” to provide answers that are designed to shed as little light as possible on how they would behave as judges.
However, the conventional wisdom is based upon an incomplete account of how the hearings have devolved. While we agree that the current dysfunctional state of the confirmation process stems from the failed appointment of Judge Robert Bork to the Supreme Court, there is a widespread misunderstanding of what exactly went wrong at the Bork hearing. We contend the types of questions asked by both Democratic and Republican senators—at that hearing and since—assume a “legal realist” emphasis on results rather than on legal reasoning. The focus has been on cases of the Court rather than on clauses of the Constitution. Each side is trying to get nominees to tip their hand on how they will decide cases that each side cares about. But there is a better way.
This Essay proceeds in three parts. First, we identify three distinct “moves” that allow nominees to skate away from questions that might reveal that they would reach the “wrong” results in future cases. Second, we demonstrate how a focus on the meaning of clauses of the Constitution, rather than the cases before the Supreme Court, can fundamentally transform how hearings are conducted. We harbor no illusions that members of the Senate Judiciary Committee all possess the sufficient knowledge to meaningfully engage in this line of questioning, beyond reading prepared questions from staffers. But we do not need a cadre of originalist senators. The beauty of our reform is that no rules need be changed; no bipartisan agreement need be reached; and even the Republicans on the Senate Judiciary Committee need not all be of the same mind. For this approach to restore the lost confirmation hearing, we need only a senator or two to focus their limited time on originalism.
Finally, we explain how the gravitational pull of originalism can tug future justices, and ultimately the Supreme Court itself, closer to the original understanding of the Constitution. This new methodology would improve public confidence in the courts, and encourage presidents to be more mindful of the text of the Constitution, rather than outcomes, when selecting nominees. Our proposed approach seeks to restore the lost confirmation, where the focus on the text and history of our “republican” Constitution—the truly immutable characteristics of our fundamental law—is paramount and timeless.
Randy and I will have an expanded version of this article in the Fall issue of National Affairs–perhaps well-timed for whatever may happen with Justice Scalia’s seat in the next few months.
When Unprecedented was released, I had a feature on my blog which allowed readers to order an autographed copy at a slightly higher cost, to factor in my costs of shipping. This was not very effective, and fewer people than I had hoped tried it.
For Unraveled, I will make this much easier. If you pre-order a copy of the book, I will mail you a free personalized, autographed book plate. It will he an adhesive, which you can peel and place wherever you’d like. I won’t even charge for postage!
Once you’ve pre-ordered the book, please fill out this form, which asks for your contact information so I can mail the book plate.
Also–to give you a little inside-the business perspective–the more pre-orders there are, the more books that will be printed. This will help to increase the distribution of the book, merely by ordering it early. Amazon offers a pre-order guarantee. If the price drops before it is published (it will), you will only pay the lowest cost. So there is no downside.
I am thrilled to announce that Randy Barnett has invited me to join as a co-author on the third edition of his constitutional law textbook, Constitutional Law: Cases in Context. I was the Editor for the Supplement to the Second Edition, which should hit bookstores this fall. We included several of the big cases (Fisher and Whole Women’s Health), as well as several other significant cases that didn’t get much attention (Taylor v. United States, Caetano v. Massachusetts, and Voisine v. United States). I am really excited about this new project, which should keep me busy for the next few decades.
My second book, “Unraveled: Obamacare, Religious Liberty, and Executive Power,” is now available for pre-order from Amazon. Cambridge is scheduled to publish it on September 27, so please ignore the October 31 publication date. Also, Amazon has a pre-order price guarantee, so when the price drops below $29.99 prior to the release date (it will), you will only be billed the lowest amount.
I am happy to provide some of the early reviews of the book from George Will, Erwin Chemerinsky, Michael McConnell, Nick Bagley, and Ramesh Ponnuru:
“Obamacare has remarkably, if perversely, made American political discourse more interesting. It has stimulated braided debates about the proper scope and actual competence of government, about the role of the judiciary in supervising democratic processes, and about how religious liberty becomes a casualty of ‘comprehensive’ social legislation enlarging the entitlement state. Josh Blackman, who has been immersed in all this as a scholar and participant, gives readers an invaluable inside tour of an ongoing controversy.”
George F. Will, newspaper columnist and political commentator
“Josh Blackman has written a thorough and engaging account of the political and legal issues surrounding Obamacare. This book is a must-read for all who are interested in the history of the Obama presidency and especially of its most important legislative accomplishment. Blackman presents the conservative perspective but he is even-handed, and all, including those (like me) who disagree with him, will learn a great deal from reading this book.”
Erwin Chemerinsky, University of California, Irvine School of Law
“Health care involves some of the most personal and – to many people – sacred and spiritually significant issues of life and death. So it is no surprise that an attempt by government to standardize health care coverage for all Americans would raise a host of issues of conscience, choice, and conviction. Josh Blackman’s new book Unraveled chronicles the legal struggles over these issues in a fair, complete, and immensely readable narrative. Three things are certain: death, taxes, and that these conflicts are far from over. This book will help us all to understand the stakes and the arguments.”
Michael W. McConnell, Stanford Law School
“Even-keeled and exhaustive, Blackman’s Unraveled offers the consummate insider’s take on the titanic legal struggles at the Supreme Court over the future of health reform. It is an indispensable resource and a gripping read.”
Nicholas Bagley, University of Michigan Law School
“Josh Blackman continues to bring a gimlet eye to the legal controversies surrounding the Affordable Care Act. He combines a careful, even meticulous attention to detail with a grasp of the important issues at stake. Even people who paid close attention to the debate will find much to learn from Unraveled.”
Ramesh Ponnuru, National Review
I will write much more about Unraveled in the coming days.