Wednesday, April 16, 2014

Federalism as Administration and Politics

Guest Blogger

Jessica Bulman-Pozen

For the Symposium on Federalism as the New Nationalism

How should we understand American federalism today? Amidst dysfunction in Washington, the prompt of this Symposium—“Federalism as the New Nationalism”—might suggest the states are now in charge not only of their own affairs but also of the governance of our country as a whole, our nationalism no more than what individual states make it. Or perhaps it might be read to indicate the opposite: that a long-running process of centralization is complete and the federal government has displaced the states, reducing our federalism to nationalism.

In my contribution to the Symposium, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, I argue that we need to complicate both the “federalism” and the “nationalism” sides of the equation. We miss too much when we define federalism in terms of autonomous state governance and distinctive state interests, as the federalism literature tends to do. And we miss still more in assuming that nationalism means a unitary federal position, as the federalism literature tends to take for granted. In thinking about federalism and nationalism alike, we should focus on the legally and politically generative interaction among the state and federal governments and the American people.

The story of federalism as nationalism is a story about two things in particular: the administrative state and partisan politics. It’s old news that states administer many federal laws. Increasingly, states also rewrite portions of federal laws pursuant to waivers. In many areas, states don’t enjoy a protected realm in which to set their own policies; instead, they set national policy together with federal politicians and bureaucrats. What this means for our nationalism is just as important as what it means for our federalism. There is plenty of competition between states and the federal government when it comes to state administration of federal law (think healthcare, emissions standards, immigration), but this competition tends not to be about state versus federal interests as such. Instead, states ally themselves with certain federal actors—often members of Congress—in in order to oppose others—often executive branch agencies. We can’t understand today’s federalism without considering the separation of powers, and we can’t understand the separation of powers without considering federalism.

Partisan politics is also a critical part of federalism as the new nationalism. The rise of ideologically cohesive and polarized national political parties, coupled with the rise of overlapping state and federal domains of governance, means that states are critical platforms for the party out of power to fight the party in power in Washington (again, think healthcare, emissions standards, immigration). We see political actors using state and federal governments alike to articulate, stage, and amplify competition between the political parties. Such partisan federalism challenges our understandings of both federalism and nationalism: the states further a set of national interests, not distinctive state interests, yet these national partisan interests are themselves multiple. (State-level direct democracy also provides a forum for Americans nationwide to participate, though funding or other assistance, in national political debates that are neglected at the federal level, like the legalization of marijuana.)

The vision I offer of states as national actors may be unsettling to those who see too much discord and contestation in today’s nationalism. And it may be particularly unsettling to those who value states as independent, autonomous units of government and define federalism accordingly. But attempting to wall off federalism from nationalism to protect one or the other is a misguided quest. Attending to how states pluralize, rather than stand apart from, national governance best captures the contemporary vitality of our federalism and of our nationalism.

Jessica Bulman-Pozen is an associate professor at Columbia Law School.  You can reach her at

Tuesday, April 15, 2014

Federalism as the New Nationalism

Heather K. Gerken

Today the Yale Law Journal has published a Feature marking the emergence of a nationalist school of federalism.  It brings together the work of five scholars (Abbe Gluck, Jessica Bulman-Pozen, Alison LaCroix, Cristina Rodriguez, and myself) who have made unique contributions to the field.  Thanks to Jack Balkin, each of the contributors to the YLJ Feature will offer her take on whether, as the Forum’s title suggests, “federalism is the new nationalism.”

In my Introduction to the collection, I argue that the essays collected in the Feature offer a descriptive and normative account that is deeply nationalist in character.  The work is shorn of the trappings of sovereignty and separate spheres, detached from the notion that state autonomy matters above all else, and attentive to the rise of national power and the importance of national politics.  It shows that federalism can be a tool for improving national politics, strengthening a national polity, bettering national policymaking, entrenching national norms, consolidating national policies, and increasing national power.  State power, then, is a means to achieving a well-functioning national democracy.

There is a reason that the title of this Feature is aimed at the nationalists. Nationalists often pride themselves on taking a clear-eyed view of on-the-ground realities, rebuking federalism’s proponents for not coming to grips with the changes in federal power brought on by the New Deal.  But the nationalists are now the ones behind the times, as they have not yet absorbed how much state power has changed in recent years. States now serve demonstrably national ends and, in doing so, maintain their central place in a modern legal landscape.
My Introduction identifies the basic tenets of the nationalist school.  It is organized around the five features needed for any account of federalism: (1) a tally of the ends served by devolution, (2) an inventory of the governance sites that matter, (3) an account of what gets the system up and running, (4) a description of how the national and local interact, and (5) and “rules of engagement” to guide those interactions.  In each instance, the nationalist school of federalism departs from state-centered accounts of federalism and pushes toward a nationalist vision of devolution’s virtues. 
 Stay tuned.

Friday, April 11, 2014

The Origins of "Necessary and Proper" (Part I: The Corporate Law Background)

John Mikhail

Ever since James Madison and Thomas Jefferson put its meaning at issue in the controversy over the first Bank of the United States, much effort has been spent on determining the original meaning of “necessary and proper” in the Constitution.  This trend has accelerated in recent years, as a Supreme Court inclined toward originalism and textualism has begun to ask whether federal legislation is “proper” under the Necessary and Proper Clause.   Despite this, few scholars have asked where James Wilson drew this particular language from or what he originally meant by this phrase when he first composed it for the Committee of Detail.  Before attempting to grapple with more complex historical questions, such as what the founders as a group understood by “necessary and proper” or what a reasonable English speaker would have taken it to mean in 1787, it seems useful to focus on these preliminary issues.
Recently, Professor Geoffrey Miller has advanced our understanding of this topic by exploring what he calls “The Corporate Law Background of the Necessary and Proper Clause.”  Beginning from the premise that the Constitution itself is an act of incorporation and that “‘[n]ecessary and proper’ feels like a lawyer’s clause—a standard provision that, despite its importance, is not usually the subject of negotiation or debate,” Professor Miller suggests that the origin of this phrase might be located in founding-era corporate charters.  To investigate this thesis, Professor Miller collected hundreds of eighteenth-century and nineteenth-century corporate charters to determine how couplets such as “necessary and proper” were used in these documents.  His impressive database included colonial charters, acts of incorporation for the first and second Banks of the United States, and corporate charters issued by two states, Connecticut and North Carolina, dating from the colonial period through 1819, the year McCulloch v. Maryland was decided.

Examining these sources, Professor Miller found that “necessary and proper” and similar language was ubiquitous throughout this period.  On this basis, he concludes that founding-era corporate law can help us interpret this particular language of the Constitution.  For a law “to be ‘necessary,’” he writes, “there must be a reasonably close connection between constitutionally recognized ends and the means chosen to accomplish those ends; to be ‘proper,’ a law must not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.” 
Although Professor Miller’s insight about the corporate law background of the Necessary and Proper Clause seems plausible, his study also has some significant limitations.  For example, most of the corporate charters on which he relies originated after 1787.  Therefore, they could not have influenced the actual drafting of the Necessary and Proper Clause.  In addition, Professor Miller neglects to note that it was Wilson who first wrote the phrase “necessary and proper” for the Committee of Detail.  He thus fails to connect the dots by asking whether Wilson’s own background as a corporate lawyer may have influenced this choice of language. 
As I document in a new article on the Necessary and Proper Clause, when one investigates this issue, the results are revealing and tend to confirm Professor Miller’s thesis.  In this post, I'll summarize some of the main findings of this research, which include the fact that Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase “necessary and proper” or similar language in their articles of association and business correspondence.  In my next post, I’ll explain why this new evidence is not dispositive, in light of the many other prevalent uses of “necessary and proper” and similar couplets during the founding era.
Read more »

Wednesday, April 09, 2014

The Supreme Court Confirmation Process

Gerard N. Magliocca

If you believe Nate Silver, then the GOP has a fine chance of taking control of the Senate in 2015.  The last time that a Democratic President appointed a Justice confirmed by a Republican Senate was in 1895 (Rufus Peckham, the author of Lochner), so this is a rare political conjunction/junction.  I want to make two observations about how a party change in the Senate could shape the Court.

First, we are in uncharted waters with respect to a party division like this in the modern era of polarized parties.  The days where Justice Kennedy (appointed by President Reagan) could be confirmed unanimously by a Democratic Senate are over.  It's hard to know what kind of Democratic nominee can get a majority (or sixty votes) in a chamber controlled by Republicans, and thus we may be looking at a more unorthodox selection the next time around.  (Someone older who won't be on the bench for long?  Someone with a more bipartisan profile?)  It's been a long time since a Justice was confirmed who was not predictable, but that could end in 2015.

Second, the rule change in the Senate to eliminate filibusters of circuit and district judges may have the perverse effect of making a Supreme Court filibuster more likely.  The Senate excluded the High Court from cloture reform, and there would be no reason for a Republican majority to change that when a Democrat is in the White House.  Accordingly, the sixty-vote threshold could apply to anyone that President Obama selects.  No wonder some people want Ginsburg or Breyer to retire now.    

Sunday, April 06, 2014

Lingering Thoughts About the "Innovation Law Beyond IP" Conference

Guest Blogger

Michael Abramowicz

For the conference on Innovation Law Beyond IP at Yale Law School

In my comments at this past weekend's "Innovation Law Beyond IP" conference, I had the pleasure of reviewing two careful and creative articles, Daniel Hemel and Lisa Ouellette's Beyond the Patent-Prizes Debate and John Golden and Hannah Wiseman's detailed exploration of the development of fracking technology (summarized here).

Taken together, these papers highlight that there are many ways of promoting innovation. Hemel and Ouellette highlight several: patents, prizes, grants, R&D tax credits, and patent boxes (tax breaks on patent income). This is not a long list, but it is considerably broader than the typical exploration of innovation policy. They also do an excellent job of pointing out variations in each of these. I was particularly pleased that they carefully distinguished winner-take-all prizes from prizes in proportion to contribution, which might more usefully be called rewards. 

Read more »

Friday, April 04, 2014

Implied Powers and the Necessary and Proper Clause: A New Look at the Original Understanding

John Mikhail

On November 3, 1790, the Virginia House of Delegates adopted a resolution condemning Secretary of Treasury Alexander Hamilton’s Funding Act of 1790.  The resolution declared that the assumption of state debts by the federal government was “repugnant to the Constitution of the United States, as it goes to the exercise of a power not expressly granted to the general government” (emphasis added).  Hamilton sent the resolution to his friend and fellow New Yorker, John Jay, with this note: “This is the first symptom of a spirit which must either be killed or will kill the Constitution of the United States.  I send the resolution to you that it may be considered what ought to be done.”  In reply, Chief Justice Jay counseled patience and restraint: “The assumption will do its own work; it will justify itself, and not want advocates.  Every indecent interference of State assemblies will diminish their influence; the national government has only to do what is right and, if possible, be silent.”

The exchange of letters between Hamilton and Jay is a useful reminder of how alert the founders were to the distinction between express and implied powers, and to how the addition or alteration of a single word in the Constitution ("expressly," "specifically", etc.) could be used to support inferences that otherwise would be implausible.  In a new article that began as a series of posts on Balkinization, I take a fresh look at the concept of implied powers and how it was originally conceived by the framers of the Constitution.  The touchstone is the precise syntax and semantics of all three provisions of the Necessary and Proper Clause.

These provisions were written for the Committee of Detail by James Wilson, one of the founding era’s most sophisticated lawyers, and a committed advocate of both individual natural rights and implied government powers.  In a series of posts over the next few weeks, I will highlight and discuss some of the main themes of the article, drawing attention in particular to the implications of Wilson’s “Sweeping Clause” that evidently troubled George Mason, Edmund Randolph, Pierce Butler, and the other large slave-holding delegates at the constitutional convention who were most concerned with protecting slavery from a more powerful national government.  I will also take the opportunity to respond to the thoughtful and generous comments on the article that were recently published by Professor Michael Ramsey on The Originalism Blog.  Finally, I'll also explain why the article's new account of the origins and original understanding of the Necessary and Proper Clause can serve as a useful framework for addressing some of the issues presented in Bond v. United States.

For those readers who may be interested, the introduction to the article (minus footnotes) appears after the jump.

Read more »

"A Total of Three Sentences"

Mark Tushnet

Chief Justice Roberts's opinion in McCutcheon argued that overruling the relevant holding of Buckley v. Valeo was made easier because the Court there treated the issue in "a total of three sentences." I suppose this means that the opinions of Justice Holmes, and perhaps those of Justice Cardozo, are now less authoritative than they were last week. Oh wait -- we'll know when the Court hands down its decision in Bond v. United States.

[One curiosity: The headnote, and apparently the Chief Justice's oral announcement of the opinion, uses the rhetorically more effective "just three sentences," which -- according to my search function -- doesn't appear in the opinion itself. And one disheartening observation, not about the merits: Consider the incentives the disparagement of brevity gives to judges -- and law clerks -- going forward.]

Thursday, April 03, 2014

MPSA roundtable on Bottlenecks

Joey Fishkin

For any Balkinization readers who may be here at the Midwest Political Science Association convention in Chicago, if you're interested, tomorrow (Friday) at 10:25am there is going to be an author-meets-critics roundtable discussion about my new book, Bottlenecks: A New Theory of Equal Opportunity.

Who is a Constituent?

Joey Fishkin

In yesterday’s big campaign finance case, McCutcheon v. FEC, Chief Justice Roberts doubled down on a very narrow definition of corruption, one that calls most remaining campaign finance regulation into some doubt.  That was the most important thing that happened in McCutcheon.  However, the most interesting thing that happened in McCutcheon, to my eye, was something subtler, something having to do with the question in the title of this post.  Near the start of his opinion, Chief Justice Roberts quoted Justice Kennedy’s opinion in Citizens United, which said that “Ingratiation and access . . . are not corruption.”  From Kennedy’s original sentence, one might think “ingratiation and access” are a sort of minor nuisance, regrettable but inevitable and not enough of a problem to justify regulation that burdens people’s First Amendment rights.  In McCutcheon the Chief expands on Kennedy, and takes the point in a new direction:

“Ingratiation and access . . . are not corruption.” They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.   (slip op. at p.2)

Later he builds on this point, after citing Edmund Burke:

Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (p.39)

So here is the puzzle.  Who exactly does Chief Justice Roberts have in mind when he says “constituents”?   This is a legal case, so most obvious answer is the plaintiff, Shaun McCutcheon.  After all, that’s whose rights the case is about.

But McCutcheon, like most donors, supports candidates in places other than where he lives.  (Lots of places, in fact.  That’s how he ran up against the aggregate contribution limits.)  So when Chief Justice Roberts speaks favorably about “ingratiation and access” by campaign donors, calling it a “central feature of democracy” that “constituents” support candidates they agree with—and candidates ought in turn to be “cognizant of and responsive to” the concerns of such “constituents,”  who is he talking about?

Cracks in the Standard Model of Constituency

The answer to the question in the title of this post might seem too obvious to be worth discussing.  We all know who elected officials represent in a functioning democracy.  The model is familiar and standard.  In our geographically sprawling nation, every elected official save the President and Vice President represents a specific geographic area—a state, a congressional district, a city council district.  Your constituents are the people who live within the area you represent.  By “people” I mean “humans”—from the law of reapportionment we learn that constituents are humans, not “trees or acres.”  These humans are your constituents whether or not they voted for you, whether or not they voted at all, and indeed whether or not they’re even eligible to vote.  The baby born yesterday in your district, who may never live there as an adult, is one of your constituents.  Your job includes representing him.

This standard model is clearly correct.  And yet it doesn’t seem to be the whole truth, either empirically or normatively.  Representation is multi-layered.

Read more »

Tuesday, April 01, 2014

Department of Shameless Self-Promotion

Mark Tushnet

I wish I could have come up with a more clever heading that that, but: My book, "Advanced Introduction to Comparative Constitutional Law" is now available for ordering, with an official publication date in the UK of March 28 and in the US of May 28. Here's a link: There are generous blurbs from Cheryl Saunders, Michel Rosenfeld, and Gunter Frankenburg.

Sunday, March 30, 2014

Reply to McConnell on Hobby Lobby and the Establishment Clause

Guest Blogger

Nelson Tebbe, Richard Schragger, and Micah Schwartzman
On Thursday, Michael McConnell offered his current thoughts on the Hobby Lobby case. His post addresses a range of issues including the question that has been our focus, namely, whether accommodating the religious beliefs of Hobby Lobby’s officers would impermissibly shift burdens onto female employees in violation of Establishment Clause values. Though the burden-shifting argument started at the periphery of this case, it is now a central issue before the Supreme Court. The government emphasized this point in its briefs, and Solicitor General Verrilli raised it during oral argument, responding directly to a number of the Justices’ concerns about the effects that an exemption would have on employees. That Professor McConnell is also concerned with refuting the argument is some indication of how important it has become over the course of this litigation.  
As we have explained, a longstanding nonestablishment principle holds that the government may not lift a statutory burden on religious believers when doing so would shift that burden onto third parties who do not share those beliefs. In Estate of Thornton v. Caldor, the Court explained that “[t]he First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” In that case, a statute gave employees an absolute right not to work on the Sabbath day of their choosing. Because the statute imposed significant costs on employers and other employees, the Court held that it “contravene[d] a fundamental principle of the Religion Clauses.” The Court reaffirmed that principle in Cutter v. Wilkinson, where a unanimous Court relied explicitly on Caldor to hold that courts applying a statute similar to RFRA “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”
And in United States v. Lee, the Court refused to grant a free exercise exemption to an Amish employer who claimed a religious objection to social security taxes. The Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice” they accept limits on their activity that cannot be lifted where doing so would “impose the employer’s religious faith on the employees.” Congress later adopted a legislative accommodation for Amish employers, but only in cases where their employees shared their religious beliefs.
It is surprising that Professor McConnell does not address any of these authorities in his post. Instead, he rejects the principle that burden-shifting accommodations raise constitutional problems, arguing that religious accommodations frequently impose burdens on third parties. Yet the examples he gives to support this claim do not involve the sorts of burden-shifting that raise constitutional concerns.
Consider the exemption from the draft for people conscientiously opposed to war in all forms—what Professor McConnell calls “the most venerable of all religious accommodations.” McConnell argues that the exemption for conscientious objectors shifts burdens to other draftees. But that law does not involve a direct and identifiable substitution of a nonobjector for an objector, as in Hobby Lobby. And regardless, the exemption in the draft cases does not raise Establishment Clause concerns because it does not favor religion. In fact, as Marty Lederman has pointed out, the Supreme Court interpreted the draft exemption to cover all objectors precisely because limiting it to religious people would raise Establishment Clause concerns, according to the best and most common interpretation of its decision. So that example actually cuts against Professor McConnell’s argument, not in favor of it.

McConnell’s other examples are equally unavailing. He says that Title VII’s requirement that employers accommodate their employees’ religious beliefs shifts burdens to the employer and to other employees. But he does not cite TWA v. Hardison, where the Court held exactly for that reason that the employer’s obligation to accommodate religious employees is limited to situations where doing so would impose no more than a “de minimis” cost on employers. The Court reasoned that “requir[ing] [the employer] to bear additional costs when no such costs are incurred to [benefit other employees] would involve unequal treatment of employees on the basis of their religion.”
Staying within the employment context, Professor McConnell invokes Hosanna-Tabor, where the Court exempted a religious school from employment discrimination law for a decision to terminate a minister. But that case concerned a core issue of church autonomy, namely the relation between a congregation and its spiritual leaders. As we have explained, that doctrine is specific to churches and some religious nonprofits. Although we have reservations about the rule of Hosanna-Tabor, it does not extend to employees other than ministers, nor does it apply to for-profit corporations like Hobby Lobby. Allowing religious associations to choose clergy free of certain antidiscrimination laws protects core associational values while imposing minimal burdens on people of other faiths, who are unlikely to seek employment as leaders of churches. An exemption that permitted a for-profit employer to discriminate against any employee on those grounds would not only be contrary to Title VII, but would raise serious Establishment Clause concerns. 
Professor McConnell also cites Lukumi and O Centro, concerning free exercise and RFRA, respectively. Lukumi is inapposite because it did not involve a religious accommodation at all. There, the town’s ordinance was unconstitutional because it impermissibly targeted practitioners of Santeria. After the Court’s decision, the statutory prohibitions on killing of animals were lifted for everyone, not just for religious actors. Therefore, the case raises no Establishment Clause concerns. O Centro does not help Professor McConnell either. In that case, involving the use of banned substances for religious rituals, the government failed to carry its burden of showing that the risk of diversion for recreational use amounted to a compelling interest. Moreover, the Court noted that an equivalent exception for ritual use of peyote had been in place for 35 years without Congress repealing it because of abuse or harm to third parties. Yoder, another case cited by Professor McConnnell, is distinguishable as well. The Yoder Court did not accept that exempting Amish families from compulsory schooling would burden their children. In fact, it expressly rejected that assertion. Although the government argued that children removed from public school would be “ill-equipped for life,” the Court called that contention “highly speculative.”
Probably Professor McConnell’s best argument is that employees are not burdened because they are not entitled to coverage for contraception in the first place. If the ACA is read together with RFRA, he suggests, employees of Hobby Lobby do not experience a burden when they lose coverage. This is the baseline question that we addressed at greater length elsewhere. Here we simply note that the Court has rejected Professor McConnell’s view. In Lee, the Court did not read the Social Security Act together with the Free Exercise Clause (pre-Smith), figuring that employees could not be burdened because they were not entitled to benefits in the first place. On the contrary, the Court held that the Social Security Act shifted the baseline of benefits by imposing statutory obligations on employers, and it therefore concluded that granting an exemption to the religious employer would impermissibly shift burdens to its employees. If RFRA deprives only Hobby Lobby employees of contraception coverage, they will lose an entitlement that continues to be enjoyed by virtually all other women, including those working for religiously-affiliated nonprofits. The most sensible understanding of that situation is that it would shift the burden of providing contraception coverage from employers with religious objections to their female employees in violation of a basic and longstanding nonestablishment value.
McConnell closes by saying that “[t]he political dynamics of this case have attracted extraordinary attention, but the Supreme Court is a court of law, not of politics.” Our argument has proceeded on the same assumption, and that is why it is important for the Court to consider all of the relevant legal principles, including those that protect the rights of employees not otherwise represented in this litigation.
Nelson Tebbe is Professor of Law at
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at

Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at

Micah J. Schwartzman is
Edward F. Howrey Professor of Law at
the University of Virginia School of Law. You can reach him by e-mail at schwartzman at

Saturday, March 29, 2014

Business Structures for Innovation

Guest Blogger

Dan L. Burk  

For the conference on Innovation Law Beyond IP at Yale Law School

Transaction cost analysis is a standard tool used across corporate, securities, bankruptcy, and related areas of business law to understand how firms respond to particular market conditions.  The fundamental premise of such analysis is that markets are costly mechanisms for organizing economic production.  In some instances managerial direction will be cheaper than market negotiation, in which case the business will develop an internal capacity to produce the necessary input.  The decision whether to make an input or buy it in the market will be determined by which option presents lower transaction costs.

This perspective implies that firms will integrate some activities, growing to a size dictated by market transaction costs, and assuming a structure that will lower their internal transaction costs.  Applicable legal regimes are an important factor determining both the transaction costs facing firms and the structures that they can adopt in response to such costs.  Laws governing the form of business association, and those governing employee relations may dictate or limit the strategies that firms can adopt in order to manage such costs.

Read more »

Thursday, March 27, 2014

Do The Rights of Employees Count?: The Supreme Court Hears Oral Argument in Hobby Lobby

David Gans

Hobby Lobby is shaping up to be the most important free exercise of religion case the Supreme Court has heard in a very long time.    It’s also emerging as a key test for Justice Anthony Kennedy and his vision of individual liberty.  Will Justice Kennedy recognize that Hobby Lobby’s employees, who seek to protect their health and control their reproductive lives, are entitled to enjoy federal guarantees that safeguard women’s liberty and personal dignity by ensuring access to the full range of contraceptives?

The fundamental question at the heart of the case is whether the Court will extend free exercise rights to secular businesses and allow them to extinguish the rights of their employees.  That would be a radical break from both the Constitution’s text and history and everything the Court has said in the past about the meaning of the constitutional guarantee of the free exercise of religion. 

Never before in our Nation’s history has a commercial enterprise been granted a religious exemption from a neutral law when that exemption would allow business owners to impose their religious beliefs on their employees.  And, indeed, this is hardly surprising, as the Court has rarely granted religious exemptions at all.   Nevertheless, in a bitterly divided oral argument in Hobby Lobby, a number of the Court’s conservative Justices seemed inclined to read the Religious Freedom Restoration Act (RFRA) to revolutionize free exercise law and create religious exemptions for secular businesses never recognized by any other court in our Nation’s history before this case.  Justice Kennedy – alone among the Court’s conservative Justices – asked hard questions to both sides.   As virtually all Court watchers seemed to agree, Justice Kennedy’s vote appeared to be the one that will determine the outcome.  

The oral argument in Hobby Lobby was billed as a critical test of whether the Court’s conservative wing would double down on the decision in Citizens United and extend religious free exercise rights to secular for-profit corporations – businesses that cannot pray and lack a religious conscience in any meaningful sense of those words.  Surprisingly, that debate never materialized.   While Justice Sonia Sotomayor made the point that “we’ve never considered a for-profit corporation as exercising religion,” and Justice Ruth Bader Ginsburg stressed that the Court’s Free Exercise Clause jurisprudence protected only individuals and religious bodies, these arguments were quickly brushed aside. 

It is disturbing to think that the Court’s conservative majority would be willing to extend to secular, for-profit corporations the basic rights of conscience and human dignity – rights they have never possessed in more than two centuries – with hardly any serious debate at all.  Instead, the critical question during oral argument seemed to be whether the rights of employees count at all when a secular business seeks a religious exemption from a neutral, generally-applicable law protecting the rights of employees.  Solicitor General Don Verrilli put the rights of Hobby Lobby’s employees front and center, while Hobby Lobby’s lawyer, conservative superstar Paul Clement, tried to sweep them under the rug.  

The Court’s pre-RFRA case law interpreting the Free Exercise Clause recognized that the rights of employees do matter.  That was the lesson of United State v. Lee – a case discussed at length during the Hobby Lobby argument – in which the Supreme Court unanimously rejected an Amish business owner’s claim that he was entitled to a religious exemption from having to make Social Security payments on behalf of his employees.  The Court in that case could have said that, to accommodate Mr. Lee’s religious beliefs, the government should pay for Social Security benefits for Lee’s workers or should create a new exemption to protect his ability to run a business consistent with his religious beliefs.  But it did not.  Rather, the Court held that Lee was not entitled to a religious exemption that would “impose the employer’s religious faith on the employees.”  That’s exactly what Hobby Lobby is seeking to do here.

Led by Chief Justice John Roberts, a number of the Court’s conservatives suggested during oral argument that RFRA had changed the fundamental principles that govern religious exemptions.  RFRA was enacted in 1993 to restore the Court’s free exercise case law as it existed before the Court’s decision in Employment Division v. Smith, a body of case law that mainly rejected claims for religious exemptions from neutral laws.  But Chief Justice Roberts seemed to read RFRA as having created a broad right to religious exemptions.   When Solicitor General Verrilli began his argument by quoting Justice Jackson’s 1944 statement that limitations on religious freedom kick in when they “collide with the liberty of others,” Chief Justice Roberts snapped back, “[t]hat’s a statement that’s inconsistent with RFRA, isn’t it?”  Justice Scalia, too, appeared to take the view that the rights of employees were entitled to no weight, emphasizing that the text of RFRA did not require a court to consider the rights of third parties.  He even fought the language of the Court’s opinion in Lee, suggesting the rights of employees did not figure in the analysis.  Only Justice Kennedy appeared to recognize that the rights of employees do matter. 

As the oral argument demonstrated, the Supreme Court’s ruling in Hobby Lobby could have dramatic and harmful ramifications that go way beyond the specific question before the Court in this case.  If Hobby Lobby prevails, secular businesses could try to avoid paying for medical treatments like vaccinations and blood transfusions, and to seek exemptions from important legal protections given to employees for family leave and against discrimination.  Justices Sotomayor, Ginsburg, and Kagan all pressed Paul Clement to explain how courts should handle such claims.  Disturbingly, he offered no limiting principle that might confine the reach of a ruling in favor of Hobby Lobby.  Conservative Justices, who had so worried about government mandates to eat broccoli and other far-fetched hypotheticals in the first challenge to the Affordable Care Act, seemed uninterested in testing the limits of the argument that Clement was making.    

Hobby Lobby has been billed as a clash between the religious beliefs of the company’s owners and the power of the government, but that is a too narrow a frame.  As the Justices reflect on the oral argument, they should recognize that the rights of Hobby Lobby’s thousands of employees – who have deeply held beliefs and convictions of their own – are at stake here, too.   The big question at the heart of the case is whether Hobby Lobby’s owners will be entitled to impose their religious beliefs on Hobby Lobby’s employees and deny them federal rights critical to women’s health and reproductive freedom.  A ruling that would give business owners the power to extinguish their employees’ rights would be a grave setback for hard-working Americans.  And as Justice Kagan recognized, it would also open the floodgates to numerous other claims challenging other important federal laws and threatening other employee protections.  Employees should not have to check their personal liberty and human dignity at the workplace door. 

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, the author of Can Corporations Pray?, and a co-author of CAC's brief in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.  This post is cross-posted at Text and History.  

IP in a World Without Scarcity

Guest Blogger

Mark A. Lemley 

For the conference on Innovation Law Beyond IP at Yale Law School

Things are valuable because they are scarce. The more abundant they become, they cheaper they become. But a series of technological changes is underway that promises to end scarcity as we know it for a wide variety of goods. The Internet is the most obvious example, because the change there is furthest along. The Internet has reduced the cost of production and distribution of informational content effectively to zero. In many cases it has also dramatically reduced the cost of producing that content. And it has changed the way in which information is distributed, separating the creators of content from the distributors.

More recently, new technologies promise to do for a variety of physical goods and even services what the Internet has already done for information. 3D printers can manufacture physical goods based on any digital design. Synthetic biology has automated the manufacture not just of copies of existing genetic sequences but any custom-made gene sequence, allowing anyone who want to create a gene sequence of their own to upload the sequence to a company that will “print” it using the basic building blocks of genetics. And advances in robotics offer the prospect that many of the services humans now provide can be provided free of charge by general-purpose machines that can be programmed to perform a variety of complex functions. While none of these technologies are nearly as far along as the Internet, they share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture. Combine these four developments – the Internet, 3D printing, robotics, and synthetic biology – and it is entirely plausible to envision a not-too-distant world in which most things that people want can be downloaded and created on site for very little money.

Read more »

Wednesday, March 26, 2014

Religious Accommodations Cost More Than Money

Guest Blogger

Kara Loewentheil

Yesterday the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).

This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” In the paper I provide a thorough analysis of the existing case law on this issue and propose both a novel framework for balancing such rights as well as insight into how to better utilize the existing constitutional and statutory doctrine toward this end.

In this short post, however, I simply want to draw attention to one particularly overlooked element of the contraceptive coverage requirement that can only be understood in relation to the “third parties” (female employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive coverage requirement, and analyzed everything – from the compelling interest the government advanced to the effect of already-existing exemptions – in terms of the tangible access or lack of access to contraception for the women affected. But law has more than practical impacts – it has important expressive impacts that are explicitly meant to, and do, shape social norms and priorities. In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. The importance of contraception to women’s equality has been recognized by the Supreme Court, and is featured prominently in the Government’s briefing on its compelling interest in the law. That equality is impossible to achieve without access to contraception. In that light, allowing religious accommodations without ensuring seamless and no-cost contraceptive access for the employees of objectors would be inflicting a serious expressive and dignitary harm.

Now compare that understanding to this exchange on pages 37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different.  In the case of the employee who's been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. . . . Here . . . all we’re really talking about is who's going to pay for a subsidy that the government prefers. This is not about access to the contraception.  It's about who’s going to pay for the government's preferred subsidy.

Clement’s description of what’s at stake is as minimal as can be: it’s just who is going to pay for contraception. It’s just a matter of money, with no expressive or dignitary implications. What is fascinating about this set-up is that Clement specifically contrasts this case to a race discrimination case, in which he happily admits that an employee discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury” that exists “even if they can get another job.” Contraception, on the other hand, is positioned as simply a consumer good in the market, with absolutely no greater purpose or significance. (Which is ironic, of course, since part of his argument is that his clients view it as a sin.)

This focus on expressive norms and purposes is not just theory-talk. It has direct implications for the way we understand the details of the doctrinal standards as well. In the second half of the argument the conservative justices hammered General Verrilli, arguing for the Government, on how the Government’s interest in the contraception coverage requirement could be compelling when there were allegedly various other exemptions in the law, including for companies with fewer than 50 employees, religious organizations, and grandfathered plans. Verrilli did his best to defend the exemptions, noting that (1) companies with fewer than 50 employees are exempted from providing all health insurance but must cover contraception if they choose to offer health insurance, (2) religious organizations are exempted if they are houses of worship but are only offered an accommodation that ensures access if they are religiously-affiliated nonprofits, and (3) that the grandfathered plans will decrease over the next several years until very few, if any, remain. 

The conservative justices were particularly obsessed with the grandfathered plans, and Verrilli had a bit of a difficult time explaining why the practical impact of leaving millions of women without contraceptive access during the intervening years did not undermine the Government’s compelling interest. Embracing the expressive import of the contraception coverage requirement, however, would have cast the exemptions in an entirely different light. The expressive message of exempting small businesses from health care coverage requirements generally is far different than if contraceptive coverage was singled out from those policies. Similarly, the exception for grandfathered plans reads, expressively-speaking, as an administrative transition matter affecting all preventative health care coverage, along with other of the law’s requirements, not as a judgment about the importance of contraception. The religiously-affiliated organizations, meanwhile, are subject to an accommodation that ensures seamless coverage for women in their employ; it is true that the lack of an adequate enforcement mechanism sends a troubling expressive message about the importance of this right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to undermine it.

In other words, understanding the expressive impact of the law reframes the question of the baseline, helping us understand the compelling interest and narrow tailoring tests in a deeper, more coherent way. Such a perspective also has implications for the First Amendment analysis when it comes to whether a law is neutral or generally applicable, but like the Court I leave those questions for another day. 

Kara Loewentheil is a Postdoctoral Associate-in-Law and Fellow in the Program for the Study of Reproductive Justice at the Information Society Project at Yale Law School. In May she will begin as a Research Fellow and Director of the Public Rights / Private Conscience Project in the Center for Gender & Sexuality Law at Columbia Law School. Kara can be reached at kara.loewentheil at