In Tom Goldstein’s brief to the Court in favor of setting a scheduling order for the Hobby Lobby and Conestoga cases, that no party requested, he offers this advice to the lawyers at the Alliance Defending Freedom.
(Conestoga Wood Specialties makes the point that this schedule interferes with the holidays, but that won’t really concern the Court; if the lawyers want to enjoy their holidays, they shouldn’t seek cert. in significant cases.)
Update: Tom writes in with an update. The Court did what the parties asked it to do.
The Court has let the parties know that it has accepted their suggestion that the parties in the Hobby Lobby and Conestoga cases not be realigned for purposes of briefing. So the petitioners and respondents will file their briefs in the ordinary course. One important exception to the ordinary schedule — also proposed by the parties — is that amicus briefs supporting either party are due together on January 28, 2014.
Imagine that. The parties were able to set their own scheduling order. Merry Christmas everyone!
Earlier this year, at the We Robot Conference at Stanford, I met Patric Verrone, a writer on The Simpsons and Futurama. When I told him about FantasySCOTUS, he mentioned that he made Supreme Court Justice figurines. “What?!”, I replied. How did I not know about this. Well they are real, and they are awesome.
You can read more about this in Wired. Patric has created miniature figurines of all of the Supreme Court Justices, accompanied by collectable trading cards for each Justice.
Patric was kind enough to send me a series of the cards, and a John Marshall Harlan I figurine. They sit proudly in my office, accompanying my Green Bag bobbleheads.
Or, you can get the entire current Supreme Court.
Check them out! Derek Muller has already bought a bunch of them. And unlike Bobbleheads, you don’t have to wait for the elusive certificate to arrive in your mail, and bribe some GMU Law student to mail it to you. You can order these right now from Patric’s web site.
Professor Caitlin Borgmann writes in with a comment following up from my recent post about Justice Breyer googling (which was picked up by Business Insider), and on an amicus brief in the Hobby Lobby case that introduces new scientific research about emergency contraception (EC).
A student familiar with my research alerted me to your recent post, “Breyer: The Record Isn’t So Clear So I Googled It.” I then read with interest your other posts on extrarecord judicial factfinding on appeal. I share your concerns about this problem and am glad you’re raising these issues. I just published an article on this topic with the California Law Review and have attached it in case it’s of interest. I argue that Fed R Civ P 52(a)(6) should apply to all facts, not just adjudicative or case-specific facts, making it inappropriate for courts to rely on amicus briefs for determinative facts. Regarding the issue of how emergency contraception works, I think that if the studies cited in the PRCH brief are not int he record below, and if facts about how EC works are determinative to the Court’s decision, it should remand for further trial court factfinding on that issue. Scientific understanding on how EC pills work has recently become much clearer (as evidenced by the drug label change in Europe), and it would be bad for the court to base a decision on old/incorrect science, just because the parties and/or lower courts did not address the issue below. On p. 1218 of my article, I suggest that amicus briefs may serve an important role in alerting the court (and parties) to key facts not developed in the record. But because of the dangers inherent in judicial reliance on amicus briefs for determinative facts, and because I think that Fed R Civ P 52(a)(6) should apply to all facts, including social facts like how EC works, I don’t think courts should rely solely on the amicus briefs for such facts. On Daubert specifically, it’s not clear whether it applies to social facts (David Faigman would argue, for example, that it doesn’t). But as a matter of practice, trial courts tend to apply it, even to social facts. That, among other things, makes trial courts a better forum than appellate courts for fact determinations, in my opinion.
There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.
On the First Monday in October, I blogged about what has become known as LaughterGate. There were laughs in the Supreme Court chamber, but none in the transcript.
— Adam Liptak (@adamliptak) October 7, 2013
This hilarious line about a bird or fish got no laughter? Impossible!
JUSTICE BREYER: It’s pretty universal he’s not an employee under ADEA, though he might be under GERA. You have to say yes or no, because if you’re going to say — I mean, you know, let’s either do it or not do it. If you — if you want to leave this issue in the case, it’s possible to argue we should decide this whole issue on the ground that although he’s not really a bird, he’s a fish or whatever. But I mean, this is supposed to be fairly realistic, I think, what we’re supposed to do.
The indefatigable Michelle Olsen wrote to Alderson Reporting, and they said there were no changes in policy.
Now, mysteriously, two months later the transcripts have been updated, Michelle reports.
— Michelle Olsen (@AppellateDaily) December 4, 2013
The bird, fish line now reads:
JUSTICE BREYER: It’s pretty universal he’s not an employee under ADEA, though he might be under GERA. You have to say yes or no because, if you’re going to say — I mean, you know, let’s either do it or not do it. If you — if you want to leave this issue in the case, it’s possible to argue we should decide this whole issue on the ground that, although he’s not really a bird, he’s a fish or whatever.
SCOTUSHumor has updated the scores.
— Jay Wexler (@SCOTUSHUMOR) December 4, 2013
Updated standings after 1st week of this sitting (including #laughtergate fix): AS19, SB 19, CJ 7, SA 7, SS 6, AK 6, EK 3, RBG 0, CT 0.
— Jay Wexler (@SCOTUSHUMOR) December 4, 2013
Interestingly, when first released, the transcripts say, “Subject to Review.” But now they say, “Subject to Final Review.”
I’m glad the transcripts were updated. Though, I feel slightly guilty if our shenanigans made someone listen to the recording a second time to enter a [laughter] for bad jokes.
I have blogged repeatedly over the years about my frustration at the Justices going outside the record, and using the internet to conduct independent research. The reason there is a record, and a joint appendix, so everyone is playing on a level playing field, and both sides are able to dispute any factual issues.
But not Justice Breyer. During oral argument in United States v. Apel, Justice Breyer found the record “not developed” enough so he Googled it.
JUSTICE BREYER: Oh, that’s what I don’t understand. Let me press — at the risk of repetition, the reason I’m asking this question is the record is not developed. I looked at the Google maps.
I doubt this issue will be dispositive, but if it is, the fact that the Justice is independently finding facts is wrong. Plus, why Google? Why not Bing? Or official government maps? Sometimes maps and photographs are misleading. That is why trial lawyers spend time authenticating them. No such luck for the Supreme Court.
Justice Breyer did give a drive-by of the land at issue:
It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner. And when you try to see where does the green line cross that grassy area, you can’t easily tell, and — and it may be just a foot or two. So it may have been inconceivable that your client didn’t cross the green line or maybe he didn’t. I don’t know.
Recall that in McCutcheon Justice Breyer got info from “the Internet.”
JUSTICE BREYER: There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more. We’re telling them: You can’t; you can’t support your beliefs. That is a First Amendment negative.
This really should stop. Stick to the record.
Update: This post was re-published at Business Insider.
What happens to Sex Offender Registration if underlying sex offense is vacated because statute is struck down?
Today I had lunch with Houston lawyer Mark Bennett, who recently secured a victory in the Texas Court of Criminal Appeals, which struck down a Texas “online solicitation of a minor statute.” But, Mark tells me, Texas has an odd wrinkle where it is not entirely clear if old convictions under this statute–whether or direct appeal, habeas, or final–will be vacated. There haven’t been many Texas criminal statutes struck down, the sodomy statute at issue in Lawrence v. Texas being the last (and in that case there were no prosecutions or incarcerations pending). Mark mentioned that there are roughly 300 people who have been convicted under this statute.
Getting their judgments vacated will be a slow process, requiring the filing of individual habeas actions in Texas state court. The AEDPA issue may be tricky, as many of their judgments became final over a year ago. But those periods can be tolled.
My question is something different. What happened to people who agreed to register as sex offenders as a result of a conviction, or a guilty plea under the “online solicitation” statute. Shouldn’t those registrations be nullified? If the underlying sex crime is unconstitutional, why in the world should they remain registered?
What about a constitutional challenge? In Smith v. Doe, the Supreme Court upheld sex offender registries against ex post facto challenges, ruling that it is civil and nonpunitive. But a civil and nonpunitive regulatory system can only be applied when the government has reason to believe such steps are necessary. If a convicted person has his sex offense vacated because of an unconstitutional statute, surely it would violate due process to continue this regime. The state can’t place someone on the sex offender registry based solely on an indictment. A conviction, or a guilty pleas is necessary.
Now, could a convicted person sue in federal district court, alleging a violation of due process, by continuing to impose the registration requirement, even though the underlying conviction is nullified?
Or I’ll give you one better. Could a convicted person bring suit in federal court *before* the state court proceeding concludes to vacate the judgment? This could be a nice end-run around the state habeas proceedings. I suspect this would have abstention problems, maybe under Younger, as the district court, not sitting in habeas, would be loathe to find the conviction was invalid as a prerequisite to nullifying the registration requirement.
In case you were wondering, I found three cases in the U.S. Reports where a party had the official title “Rabbi” in the caption. Only the Ginsberg case was a grant.
- NORTHWEST, INC., et al., petitioners, v. Rabbi S. Binyomin GINSBERG (Argued Dec. 3. 2013).
- Rabbi Luzer WEISS, Director, New York State Department of Agriculture and Markets, Kosher Law Enforcement Division, petitioner, v. COMMACK SELF-SERVICE KOSHER MEATS, INC., dba Commack Kosher, et al (Cert Denied 2003).
- Isaac ZABARE, aka “The Rabbi”, petitioner, v. UNITED STATES (Cert Denied 1989)
The last one has a cool alias.
Skyteam FTW! Screw over your customers? No big deal. The case is captioned after Northwest, an airline that ceased to exist in 2008.
I have really enjoyed reading Double Down: Game Change 2012. The amount of access the authors had to the key decision-makers is remarkable. I really felt like I was on the campaign trail, through every twist and turn. This is the narrative I aspired to in writing Unprecedented (and in its sequel, Unraveled).
Perhaps the most touching moment came on the eve of the second debate. Recall that President Obama bombed the first one in Denver. He was not improving in debate prep, and was coming up flat. His closest aids held what could only be dubbed an “intervention,” to talk some sense into him.
They needed to figure out what had gone haywire from the inside out. They needed, as someone in the staff room put it, to stage an “intervention.”
The President’s remarks were candid, honest, and revealing. I have no idea how the authors obtained a verbatim transcript of the talk. Maybe it was recorded. Maybe it was staged. Who knows? But, I’ll assume this is actually what happened.
Read it for what it’s worth.
“Guys, I’m struggling,” he said somberly. “Last night wasn’t good, and I know that. Here’s why I think I’m having trouble. I’m having a hard time squaring up what I know I need to do, what you guys are telling me I need to do, with where my mind takes me, which is: I’m a lawyer, and I want to argue things out. I want to peel back layers.”
The ensuing presidential soliloquy went on for ten minutes— an eternity in Obama time. His tone was even and unemotional, but searching, introspective, diagnostic, vulnerable. Psychologically, emotionally, and intellectually, he was placing his cards face up on the table.
“When I get a question,” he said, “I go right to the logical.” You ask me a question about health care. There’s a problem and there’s a response. Here’s what my opponent might say about it, so I’m going to counteract that. Okay, we’re gonna talk about immigration. Here’s what I’d like to say— but I can’t say that. Think about what that means. I know what I want to say, I know where my mind takes me, but I have to tell myself, No, no, don’t do that— do this other thing. It’s against my instincts just to perform. It’s easy for me to slip back into what I know, which is basically to dissect arguments. I think when I talk. It can be halting. I start slow. It’s hard for me to just go into my answer. I’m having to teach my brain to function differently. I’m left-handed; this is like you’re asking me to start writing right-handed.
Throughout the campaign, Obama had been criticized for the thin gruel of his second-term agenda. Now he acknowledged that it bothered him, too, and posed a challenge for the debates.
You keep telling me I can’t spend too much time defending my record, and that I should talk about my plans, he said. But my plans aren’t anything like the plans I ran on in 2008. I had a universal health care plan then. Now I’ve got . . . what? A manufacturing plan? What am I gonna do on education? What am I gonna do on energy? There’s not much there.
“I can’t tell you that, Okay, I woke up today, I knew I needed to do better, and I’ll do better,” Obama said. “I am wired in a different way than this event requires.”
Obama paused. “I just don’t know if I can do this,” he said.
Also, I should note that Obama mentioned that he ran on a universal health care plan in 2008. That is *not* what the Affordable Care Act implemented.
Here is Nick’s testimony from his appearance before the House Committee on the Judiciary. I’ll include some highlights:
As for Republican congressmen who questioned his authority, Mr. Obama said only: “I’m not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers.”12 Mr. Obama made no mention of, for example, Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who asked exactly the right question: “This was the law. How can they change the law?”13 Senator Harkin’s point, of course, is that a change like this is inherently legislative; it requires an amendment to the statute itself.
But the President has been distinctly ambivalent about any such amendment. A few months ago, he said that he would like to “simply call up the Speaker” of the House to request a “change to the law” that would achieve his desired delay.14 But the truth, as the President knows, is that he wouldn’t even need to pick up the phone: On July 17, 2013, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor).15 This would have authorized President Obama’s desired suspension of the law. 16
But President Obama did not actually welcome this congressional ratification. To the contrary, this bill—which stood to fix the constitutional problem that he himself had created—the President deemed “unnecessary”. 17 Indeed, he actually threatened to veto it.18 In this case, it appeared that the President would actually prefer to flout the law as written, rather than support a statutory change that would achieve his desired result. This seems an almost willful violation of the Take Care Clause.
On the DREAM Act and DACA:
The second example, immigration, is almost an exact mirror of the first. In the ObamaCare context, the President suspended an Act of Congress—a statute that was duly passed by both Houses of Congress, and which he himself had signed into law. In the immigration context, the situation is the opposite. Rather than declining to comply with a duly enacted statute, the President is complying meticulously—with a bill that never became a law. Congress has repeatedly considered a statute called the DREAM Act, which would exempt a broad category of aliens from the Immigration and Nationality Act (INA). 19 The President favored this Act, but Congress repeatedly declined to pass it.20 So, on June 15, 2012, the President announced that he would simply not enforce the INA against the precise category of aliens described in the DREAM Act. 21 He announced, in effect, that he would behave as though the DREAM Act had been enacted into law, though it had not.22 Once again, the President does have broad prosecutorial discretion and broad discretion to husband executive resources. But in this case, it is quite clear that the President is not merely trying to conserve resources. After all, his Solicitor General recently went to the Supreme Court to forbid Arizona from helping to enforce the INA.23 And exempting as many as 1.76 million people from the immigration laws goes far beyond any traditional conception of prosecutorial discretion.24 More to the point, this exemption has a distinctly legislative character
Nick also cited the heckler, and the President’s “eloquent” response.
Mike Cannon offers a handy list of all of the President’s executive peccadilloes with Obamacare:
- Diverting Prevention Funds to Federal Exchanges,
- Illegal Subsidies to Members of Congress,
- Spending Billions That the PPACA Expressly Forbids the President to Spend,
- Unilateral, Blanket Waivers of the PPACA’s Requirements
- Declining to Collect Taxes the PPACA
- Imposes Imposing Taxes the PPACA Does Not Authorize
Andy Koppelman compares a plaintiff in the challenge to the Medicaid Exchanges who refuses to be forced to see a doctor to a fictional libertarian in an Onion satire who reluctantly calls the fire department when his house is burning down. Andy writes, “Here, reality has outpaced fantasy. Presumably, if Klemencic’s house catches fire, he will resist any effort by the fire department to trespass on his property.”
Let me say this for the umpteenth time. Libertarians are NOT anarchists. Libertarians accept that the government can exist to provide certain public goods that individuals could not furnish, such as a fire department or national problems (update: that should be national defense). Health insurance, according to libertarians, is not a public good. (Liberals consider it a right, but that is a discussion for another time. Also interesting, liberals view health insurance as a collective action problem that usually triggers the public good rationale, but that is also for another time).
This Libertarian-Anarchist strawman is so pervasive in prominent scholarship. I saw it somewhat in Andy’s book, and I saw it repeatedly in the manuscript of Larry Tribe’s new book. It’s frustrating because it is so counter-productive. I would get blasted if I called every single liberal an out-and-out Marxist who wants to redistribute all property. That is asinine.
But anyone who self-identifies as a libertarian is viewed as someone who wants to reject a fire department.
Now, there are anarchists. There are anarcho-capitalists. They do exist. But they are not mainstream libertarians by any stretch of the imagination. They will tell you so themselves.
The Times reports on how a 1993 murder of a child gave birth to the abomination to Justice that are the “Three Strike” laws. Reason again not to pass laws in the hazy aftermath of tragedies.
To most of the world – back in 1992 and even now — Mike Reynolds’s effort to keep repeat violent offenders locked up for life after the murder of his 18-year-old daughter, Kimber, in Fresno, Calif., was a non-event, not the opening salvo of what would become a barrage of state laws and referendums eventually known as the “Three Strikes and You’re Out” movement.
Mr. Reynolds, a wedding photographer in California’s Central Valley, far from the media centers of the Bay Area and Los Angeles, was just a grieving father (could there be a less empathetic phrase?), whose youngest child, on a weekend visit home from college, had been shot in the head at point-blank range outside the Daily Planet restaurant by a man with a long criminal record.
Mr. Reynolds’s howl of helplessness took the form of a ballot initiative, Proposition 184, which called for sentences of 25 years to life for anyone previously convicted of two serious felonies. Mr. Reynolds began a lonely campaign to gain the necessary 385,000 signatures to put it before voters in a state with a long and often misguided history of governing by popular outrage rather than carefully created legislation. But Mr. Reynolds had only a shoestring budget, a small band of neighborhood volunteers who met in his living room, no nationwide attention and little hope of success until another dreadful crime galvanized the state, nation and world a year later.
That was the abduction at knifepoint and eventual murder of a dimpled 12-year-old, Polly Klaas, 4 feet 10 inches tall and 80 pounds, during a slumber party right down the hall from her sleeping mother’s bedroom. It occurred in the quaint Sonoma County hamlet of Petaluma, scene of President Ronald Reagan’s “Mornings in America” television commercials. …
Not until I reread my own articles did I remember that it was after Polly’s death that Mr. Reynolds’s sluggish signature-gathering effort took off. That first weekend, at the urging of a local radio station, so many people called the modest Fresno headquarters of Three Strikes and You’re Out that the voice-mail system crashed. Within weeks, the petition had been signed by the required number of people, eventually by 800,000, and would pass by a wide margin.
A few noted criminologists predicted at the time that “three strikes” laws, which would sweep the nation, were unlikely to have much effect on crime, would fill the nation’s prisons to bursting and would satisfy frustrated voters at the expense of bad public policy. They were largely ignored. As this Retro Report points out, California voters eventually concluded that its three strikes law was excessive in its zeal and financial burden, and last year they amended the law that Mr. Reynolds had put before them two decades earlier.
Congratulations to Jameson Jones on his first argument today in Lexmark Int’l, Inc. v. Static Control Components, Inc. Fittingly, Jameson’s first question was from his former boss, Justice Scalia.
Then there was this odd colloquy about Justice Breyer’s hypo involving, “soda fountain that sells ice cream with chocolate sauce and there is a statement that the chocolate sauce is poisonous.”.
JUSTICE ALITO: So if Bailey’s was the only place that sold this chocolate sauce, Bailey’s might have standing. That would be similar to this case. But if other places also sold this chocolate sauce, then Bailey’s is out.
MR. JONES: In the hypothetical that I hear from Justice Breyer, the statement was: The chocolate sauce that Bailey’s uses is poisonous. In that circumstance, where both Bailey’s is mentioned and the chocolate sauce, then I think Bailey’s would have to have standing.
JUSTICE BREYER: How do we tie that in? I’m sort of sorry I used that hypothetical.
(Laughter.) JUSTICE BREYER: But it nonetheless illustrates -
JUSTICE SCALIA: I am too because I’m sick of it.
The battle over Obamacare gives me such deja vu sometimes. Recall that Scott Brown ran for Ted Kennedy’s seat in a special election in January 2010. Brown ran on the platform of being the 41st vote in the Senate for the GOP, and the silver bullet for Obamacare. Well, that didn’t quite pan out, but his election did prevent the Democrats from brining the bill back to Senate, for it would have been defeated in a filibuster.
Now, Brown is weighing a run for the Senate in New Hampshire, and what is he basing his platform on (once again) opposing Obamacare.
In the FoxNews.com op-ed, Brown focuses on the effects of the federal health-care law in New Hampshire — not Massachusetts, notably — and appears to take a shot at his would-be opponent, Sen. Jeanne Shaheen (D-N.H.).
“Many other Americans are experiencing fewer medical options as insurers restrict their choice of doctors and hospitals in order to keep costs low,” Brown writes, adding: “For example, in New Hampshire, only 16 of the state’s 26 hospitals are available on the federal exchange, meaning patients must either pay more to keep their current doctor or seek inferior care elsewhere.”
Brown then mentions New Hampshire a second time: “New Hampshire is not alone. Across the country, some of the best hospitals are not available on plans on the exchange, leaving patients with difficult choices and unwanted sometimes, life threatening decisions.”
Brown doesn’t name Shaheen, but he does allude to Democrats who have been offering changes to the health-care law. Shaheen has been out-front in pushing for an extended open enrollment period.
“Obamacare became the law of the land because every single Democratic senator fell in line with their party bosses and voted for it,” Brown said. “For any sitting member of the Senate to somehow now suggest that they are fighting to protect their constituents from this ‘trainwreck’ is completely hypocritical.
“Not only is President Obama to blame here, so too are every single one of the Democratic senators who forced this fiasco on the American people.”
There’s nothing new in politics.
The 6th Circuit has issued its en banc opinion in Blewett, reversing a bizarre panel opinion by Judges Merritt, (now-retired) Martin, and with a dissent by Judge Gilman, that held that the Fair Sentencing Act applied retroactively to final sentences.
The En Banc, as is common on the 6th Circuit, is messy. The lead opinion has 9 votes (8 active judges, plus Gilman who is senior but was on the panel), with Judge Moore concurring in judgment. Seven judges dissented. So in effect, Moore cast the tie-breaking vote. You don’t see that often. (Update: I can’t count. There are 10 judges in the majority, so Moore did not cast the tie-breaking voting).
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., joined in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.
Here is the introduction from the lead opinion by Judge Sutton:
SUTTON, Circuit Judge. The Anti-Drug Abuse Act of 1986 established mandatory minimum sentences for possessing crack cocaine with the intent to distribute it: 5 years for possessing 5 grams, 10 years for possessing 50 grams. 100 Stat. 3207. The Fair Sentencing Act of 2010 increased the amount of crack cocaine needed to activate the same mandatory minimums. It now takes 28 grams to trigger the 5-year penalty and 280 grams to trigger the 10-year penalty. 124 Stat. 2372. Through these changes, the Fair Sentencing Act significantly reduced, but did not eliminate, a sentencing disparity between offenses involving crack and powder cocaine. What used to be a 100:1 ratio between the amount of powder and crack needed to trigger the mandatory minimums has become an 18:1 ratio.
At issue in this case is whether the changes created by the Act apply to defendants sentenced five years before the new law took effect. Consistent with a 142- year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
Two weeks ago I blogged about a piece in Politico that contended that with the botched launch of the ACA, “the future of the Democratic Party’s plausible agenda, and of liberalism itself, is on the line.”
Ezra Klein poses a similar question at WonkBlog, in a piece titled, “After Obamacare, will Americans ever trust the government again?”
HealthCare.gov is recovering from its disastrous launch. But liberals are increasingly worried that public faith in government will not.
“There’s a reputational loss that has already taken place about the capacity of government to cope with complexity and deliver services,” says Ted Marmor, a leading expert on Medicare. “Whether Obama can recover from that is one thing. But even more, can the discussion about government recover from this sad example?”
Over at Slate, Matt Yglesias is thinking along similar lines. “The public has long been skeptical of the political system’s practical ability to do the things progressives say they want to do,” he writes. “A health care website that comes in months late, over budget, and still lacking full functionality confirms all those fears when it was initially meant to debunk them. And that’s true whether or not it in some sense ‘works.’”
But the fact that the public will trust the government to do big things again doesn’t mean they should.
The deeper problem progressives (and conservatives!) need to grapple with is that the government’s track record really is terrible of late. The implementation of major initiatives, both domestic and foreign, launched under both Democrats and Republicans, has been badly botched. Few believe Congress is legislating wisely, thoughtfully, or effectively. The minority party is actively trying to sabotage laws passed by the majority. Most everyone agrees that federal procurement, particular for the information technologies that are so fundamental to 21st century services, is badly broken. The list goes on.
The New Yorker offers a differing take on whether liberalism will survive Obamacare:
Now to how liberalism is faring. If you’ve been reading some of the articles out of Washington in recent weeks, you may have received the impression that it’s an endangered creed, and that the troubled rollout of the Affordable Care Act might just about finish it off. I’m not just referring to the coverage in conservative outlets like theNational Review, the Weekly Standard, and the op-ed page of the Wall Street Journal, which have been publishing obituaries of liberalism for decades. In mainstream and even liberal publications, some of the best columnists in Washington have expressed worries that the problems afflicting healthcare.gov amount to such a political disaster that they endanger the very idea of activist government, which lies at heart of progressivism. ….
And anyway, American liberalism, like its opposite number, American conservatism, is much bigger than any individual policy or slip-up, however dire. To suggest that the problems of the A.C.A. will do irreparable damage to liberalism makes about as much sense as suggesting that the government shutdown will do irreparable damage to conservatism. It confuses politics with history and ideology. ….
What I object to is the larger suggestion—sometimes it is made explicit; often it remains implicit—that Obamacare is the embodiment of twenty-first-century liberalism, and that its failure would upend the entire liberal project (whatever that may be). Neither claim withstands examination.
In short, the ACA’s marriage of government regulation and private insurance is not liberal. Thus Obamacare’s failure is not a failure of liberalism, but a “test of technocratic centrism.”
Strictly speaking, however, Obamacare isn’t a test of liberalism; it’s a test of technocratic centrism of the sort advocated by Romney and, eventually, endorsed by Obama. If the reform has any liberal antecedents, they lie in the “Third Way” neoliberalism associated with Tony Blair and Bill Clinton. While some aspects of that doctrine remained hazy even to its proponents, one of its clear and central tenets was that, wherever possible, the private sector should be left to deliver goods and services. In both Romneycare and the A.C.A., the designers of the system went to great lengths to make sure this would happen. The system of employer-financed insurance was left intact. In the individual market, the government set out to facilitate private commerce by setting up online marketplaces populated by insurance companies and providing subsidies to those purchasers that needed them.
The great irony of Obama’s reforms is that the most “socialized” bits of them—the expansion of Medicaid and new regulations that prevent insurers from discriminating against the sick, the old, and the female—are working out pretty well. Where the Administration has gotten into trouble is in trying to promote private enterprise.
In other words, the failure of this law should give motivation to liberals to further pursue a public option:
And what about the liberals—the ones who pushed the White House to pursue something more radical than a souped-up version of Romneycare? Even if the A.C.A. were to collapse before it got going—and as I’ve said several times, I don’t expect this will happen—they wouldn’t be routed; they would be vindicated. Far from slinking away and conceding that their grand plans had failed, they would once again take up the campaign, which has been active in various forms since the nineteen-sixties, for the public option, and perhaps even a single-payer system.
This very well may be the case, but for the overwhelming majority of Americans who do not read the New Yorker (those people on the other side of the Hudson), none of this matters. The failures of Obamacare will be tied with the failures of liberalism. The same way the failures of Iraq were tied with the failures of conservative foreign policy. For the same reason the American people will be wary about entering new wars (Iran), the American people will be wary about any further government intrusions into the healthcare market (public option or single payer). The ACA was the Democrats’ chance to get something right, even if it was not their best option. It didn’t work. And now they’re stuck.
Obama made his bed. Now he needs to sleep in it.
Ryan Reilly reports at HuffPo that the Office of Legal Counsel prepared a memo on whether the President could issue a trillion dollar platinum coin to avoid the debt ceiling.
The Justice Department’s Office of Legal Counsel, which functions as a sort of law firm for the president and provides him and executive branch agencies with authoritative legal advice, formally weighed in on the platinum coin option sometime since Obama took office, according to OLC’s recent response to HuffPost’s Freedom of Information Act (FOIA) request. While the letter acknowledged the existence of memos on the platinum coin option, OLC officials determined they were “not appropriate for discretionary release.”
HuffPost submitted the FOIA request when there was increased speculation about the use of the platinum coin option ahead of the debt ceiling crisis this fall. Under the compromise reached between the House and Senate following the government shutdown, the U.S. will hit the debt ceiling once again on Feb. 7, though the Treasury can use extraordinary measures to extend that deadline.
OLC also weighed in on whether the President could ignore the debt ceiling under the 14th Amendment.
The administration previously stated that both the Treasury Department and the Federal Reserve did not believe that manufacturing a platinum coin could or should be used as a way to avoid raising the debt ceiling. The OLC has also weighed in on whether the 14th Amendment allows the president to ignore the debt ceiling, but the Justice Department has also declined to make any memos on that topic public.
One day, hopefully, we will see these memos.
You have to read this NYT article closely, and you will find that reductions in health care began before the ACA was implemented, and the law has only had a minimal effect on “bending the curve.” The decrease began before the ACA was even enacted.
Over the next few years, the government is expected to spend billions of dollars less than originally projected on the law, analysts said, with both the Medicaid expansion and the subsidies for private insurance plans ending up less expensive than anticipated.
But even though the Affordable Care Act might be more a beneficiary of changes in health care spending than the primary driver of them, the law’s provisions to control costs could prove increasingly important as the economy improves, demand for health care increases and spending picks back up.
“It was a trend that was happening; we noticed that trend; we took advantage of that trend,” said Jason L. Furman, the chairman of the White House’s Council of Economic Advisers. “Some of it was the Affordable Care Act catching up with the private sector, and some of it was pushing the private sector forward.”
Administration officials have pointed to falling hospital readmission rates as one strong sign that cost-control provisions in the Affordable Care Act are working. Also, they noted that a growing number of insurers and health care providers are agreeing to contracts that pay for the quality of care, rather than the quantity, another indication that the law’s encouragement on that front is starting to pay dividends.
Though, indirectly, the President should take some credit here. It is the weak economy that has slowed healthcare spending.
Economists broadly agree that the sluggish economy remains the main reason that health spending has grown so slowly for the last half-decade. From 2007 to 2010, per-capita health care spending rose just 1.8 percent annually. Since then, the annual increase has slowed even further, to 1.3 percent. A decade ago, spending was growing at roughly 5 percent a year.
But those are responsible for only a tiny portion of the slowing rise of health care costs; other changes, like rising deductibles and copays that discourage some people from seeking extra services, play a bigger role, analysts say. Still, the Kaiser Family Foundation, a nonprofit research group, estimates that the weak economy accounts for as much as three-quarters of the slowdown in the growth of spending on health care.
So our “sluggish” economy has resulted in a decrease in healthcare spending. Is that a good thing?
Whenever I teach The Case of the Speluncean Explorers, I always explain that the things the judges do in that case really happen. The students usually don’t believe me, until I point out at various junctures during the year how judges do it. Often it is subtle. Other times, it is not. Such as requests for executive pardons.
Recall that in Speluncean, Chief Justice Truepenny found no exception to the murder statute, but asked the Chief Executive to grant clemency to the cannibals.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive.
Does stuff like this actually happen? Yeah.
Angelos was sentenced in 2004 to 55 years’ imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn’t brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and an aspiring music producer was given an effective life sentence because of a draconian federal law requiring mandatory minimum sentences.
Even the judge on his case, Paul G. Cassell, found the sentence “cruel and irrational.” While urging Obama to reduce Angelos’s punishment, the Republican-appointed judge wrote, “While I must impose the unjust sentence, our system of separated powers provides a means of redress.”
Speluncean! Judge Cassell has no discretion under the guidelines to make an exception, so he imposes a sentence he knows is not just, hoping the executive will pardon the defendant.
And Cassell is no bleeding heart. He is a leading proponent for victim rights. Certainly not a softy for defendants. It’s fascinating how the principles in this fictional case always pop up in the most difficult of situations.