an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
concern of Ironic Freedom is the way in which arguments that promise women and members
of other historically subordinated groups greater freedom have the potential to
generate new forms of subordination.
Repeatedly, legislative or judicial decisions that permit women to take formerly banned actions foster social practices that
compel women to take those actions.
Within weeks after New York declared persons had the right to marry a
person of the same sex, many businesses in that state announced they would no
longer offer domestic partner benefits to same-sex couples who did not marry
within a short period of time. Affluent couples have pressured desperate poor women to have their baby in states where surrogate motherhood is legal “May,”
Professor Baer detailed, in these instances and many others was partly transformed into “must.”
Ironic Freedom details the ways in which
policies permitting a right to die, birth control, abortion, surrogate
motherhood, prostitution, a volunteer
army, equal employment opportunities, and same-sex marriage all generate
coercive pressures that some woman are better able to resist than others. In numerous areas of law, Baer details, the
possibility exists that “permission will lead to coercion: that ‘may’ will
become ‘must,’ or ‘can’ will become ‘should.’”
Liberal freedoms are not unmitigated blessings because being a woman, being gay,
being young (or old) or being differently abled is not the sole marker
for any person. Whether legalizing
prostitution increases liberty depends on the extent to which particular woman are free in practice choose whether to become prostitutes. Legal birth control increases pressures on many women to engage in sexual behavior. Some elderly poor are unable to resist subtle and unsubtle pressures to exercise
their “right” to die.
Baer provides an exceptionally readable introduction to the ways in
which “may/must’ arguments function in contemporary discourse. The chapters on each subject highlight how
various “may/must” arguments implicate liberal and feminist concerns, and are
not simply rationales for conservatives opposed to the right in question primarily
on illiberal and antiegalitarian grounds.
The volunteer draft has resulted in a military in which poor persons and
persons of color are overrepresented.
Some men are more inclined to pressure women to terminate pregnancies
because abortion is legal. Far more poor
than affluent persons choose assisted suicide.
Professor Baer at the end of the day makes strong arguments for all of
the liberties in question. Nevertheless,
she insists that liberals and feminists keep their eyes open when promoting
liberalizing policies because all liberalizing policies have coercive
dimensions, dimensions likely to be exacerbated when ignored. Liberalization, in short, is only one step in a long, complicated and paradoxical process by which men and women in our society may become equally free and equal.
Ironic Freedom is particularly
appropriate for classroom use. The work
is short, accessible and fascinating. The text promises one terrific class after another. The chapters explore the pros and cons of various policies from a
variety of fascinating angles and do not resemble the disguised legal briefs
that too often dominate the academic law market.
Most important, at a time when intersectionality is hot, this is perhaps
the best introduction to the ways in which gender intersects with race, sexual
orientation, class, and disability to make what appear obvious liberal and egualitarian
policies a bit more illiberal and antiegalitarian than many of us would like to
There wasn't enough space on the New York Times'
op-ed page for me to elaborate a key legal issue in my
critique of Obama's unilateral declaration of war against ISIS. My essay emphasized that in 2001 Congress rejected President Bush's initial demand for sweeping powers to launch a world-wide war on terror, and only authorized the use of force against groups
and countries associated with “the terrorist attacks on September 11th.”
didn't have room to explain the full significance of point.
David Abramowitz makes this plain in a contemporaneous essay in the Harvard International Law Journal. (See "The President, the Congress, and the Use of Force, 43 Harv. I. L. J. 71 (2002). He was
chief counsel of the House Committee on International Relations at the time, and explains Congress’ rationale for rejecting President Bush’s initial demand in a particularly
cogent fashion: “Given the breadth of activities potentially
encompassed by the term ‘aggression,’ the President might never again have had
to seek congressional authorization for the use of force to combat terrorism.” In
claiming that Congress’ authorization of
force against Al Qaeda supports his war against ISIS thirteen years later, President
Obama fails to confront Congress’ self-conscious refusal to grant the
commander-in-chief any such power to launch future preemptive campaigns. terror.
At the present time,
the White House has failed to publish an opinion supporting the Administration’s current interpretation of the 2001 statute. If the Office of Legal Counsel or the White House Counsel does so in the future, it is imperative for it to explain
how the Administration's current open-ended interpretation is compatible with Congress’ original refusal to grant presidents a free-hand to wage preemptive war against future terrorist threats.
President Obama may not have initiated the War on Terrorism, but he has certainly become attached to it. The administration now maintains that the President's announced campaign to use force against the Islamic State of Iraq and the Levant (ISIL) in Iraq and Syria is covered by the existing 2001 Authorization for Use of Military Force (AUMF), which was passed days after the 9/11 attacks and specifically targeted those individuals and organizations responsible for the attacks. The legal theory is that ISIL was originally part of al Qaeda and, while it subsequently split from al Qaeda, "is the true inheritor of Usama bin Laden's legacy." (Oddly, this theory suggests that the U.S. has been at war with ISLS for some time, even if no one knew it). Cloaking ramped-up operations against ISIL in the AUMF has multiple aims, including providing the required congressional approval under the War Powers Act; avoiding the limitations of relying exclusively on the President's Article II commander-in-chief authority; and escaping a contentious congressional debate shortly before the upcoming mid-term elections. But, putting aside its questionable interpretation of the AUMF, the administration's theory raises troubling questions about the entrenchment of permanent war in a liberal democratic state.
The AUMF, to be sure, has been read expansively before. Some notable examples include its invocation for the authority to: detain indefinitely individuals seized anywhere in the world (and not just in connection with the U.S.-led invasion of Afghanistan, which served as the backdrop for the AUMF's enactment); engage in warrantless surveillance of U.S. citizens, circumventing the restrictions imposed by the Foreign Intelligence Surveillance Act; and conduct lethal drone strikes not only against al Qaeda, but also against "associated forces," a term that appears nowhere in the AUMF's text but which has served as the basis for drone strikes in Yemen and Somalia. (Presumably, the fact that al Qaeda and ISIL are presently fighting each other precludes invoking this "associated forces" theory here).
But interpreting the AUMF to cover ISIL remains troubling. Last year, the President delivered a speech at the National Defense University in which he announced his goal of repealing the AUMF and ending the war on terror. Instead, Obama has revitalized the AUMF, not only by extending it to a conflict that is expected to occur on multiple fronts and last years, but also by demonstrating its continued elasticity. A much better course, assuming the underlying decision to wage war against ISIL is correct, would have been to seek a new and narrow force authorization from Congress specifically targeting that group--one that would have required the people's representatives to debate the issue publicly.
Going to war against ISIL through the rubric of the AUMF has significant implications. Among them is the deterioration of the levers of democratic accountability for waging armed conflict in an age of global terrorism. It suggests not only the relative ease with which the United States will go to war, but also the way in which new military actions are subsumed under a more generalized war against extremist groups. War is becoming increasingly open-ended, while also more able to avoid democratic checks, as each successive military operation gets subsumed within an existing--and ever growing--conflict. War doesn't end; it just expands, all without the friction that the separation of powers is designed to provide. Posted
by Jonathan Hafetz [link]
Passive Aggressive: Scalia and Garner on Interpretation
Antonin Scalia’s and Bryan Garner's coauthored treatise on legal interpretation,Reading Law: The Interpretation of Legal Texts,is also a
melodrama, with sharply drawn good guys and bad guys.
The hero is the Faithful and Impartial Judge, the
servant of Democracy. The argument is weak and inconsistent with
actual practice as a judge. The book nonetheless
nicely accomplishes what it is trying to do. Scalia is one of the
to be sure, but he is also the protagonist of a
narrative. The author’s preeminent concern is seeing to it that you
the protagonist as the author intends: as the
champion of judicial restraint, against all those liberal oligarchs. If
buy the story of Virtuous Scalia, that empowers
Judicial Activist Scalia.
I elaborate in a review of the book in the literary journal Boundary 2, available here.
Beyond Levels of Scrutiny: Windsor and 'Bare Desire to Harm'
United States v. Windsor, the Supreme Court left many people unsatisfied when
it failed to identify the level of scrutiny to apply to laws that classify by
sexual orientation. That question however was not even presented. The Defense
of Marriage Act, which the Court invalidated in that case, makes no reference
to sexual orientation, but it does speak of “man” and “woman.” It classifies on
the basis of sex. Sex-based classifications are presumptively unconstitutional.
The Court avoided this rationale for its result, probably because it did not
want to reach the question of whether states could deny same-sex couples the
right to marry.
The equal protection analysis upon which the Court did rely, the lesser-used “bare
desire to harm” doctrine, had nothing to do with levels of scrutiny. It looked
past that heuristic device to the underlying purposes of equal protection. This
was a rare but appropriate response to an unusual kind of law, one that singles
out a particular class and imposes an unprecedentedly broad disability upon it.
elaborate on this argument in a paper forthcoming in Case Western Reserve Law
Review, available on SSRN, here.
Danielle Citron for the past half decade has been doing for cyber harassment
what Catherine McKinnon did for sexual harassment.McKinnon’s Sexual Harassment of Working Women redefined as criminal behavior the
sexual remarks and demands directed at women in the workplace that too many
people had regarded as adolescent philandering and teasing.Citron‘s Hate Crimes in Cyberspaceredefines as criminal behavior the repeated threats,
insults, and gross violations of basic privacy norms on the internet that too
many people, police in particular, regard as juvenile behavior.Her book has already gained national
attention as a pathbreaking study of how cultural tolerance of bullying and
harassment on the internet is threatening to turn the most important
contemporary forum for ideas into masculine Wild West where
respect and common decency are signs of weakness rather than basic norms of
Hate Crimes in
Cyberspace offers a remarkably thorough survey of the depressing state of
the internet for women.The first
chapters detail how women are repeatedly attacked on the internet, sometimes
for challenging sacred cows, sometimes because they have broken up with their
boyfriends, and sometimes because persons unknown to them derive pleasure from
causing random women pain.Harassment
and bullying take the form of death and rape threats, attacks on their
websites, posting of nude picture on revenge porn cites, malicious accusations
that are often forwarded to associates and potential employers, and Google
bombs designed to destroy their reputation in cyberspace.Many men join cyber mobs who victimize women just for the thrills.Harassment
and bullying have the same impact on the internet as elsewhere.Women participate less in cyberspace, they
become more generally fearful, and they lose employment and other opportunities
when persons attempt to research their background in cyberspace.A decent person would not wish on their worst enemy the
cyberexperiences Citron documents.
The second set of chapters detail problems with present
efforts to stop hate crimes on the internet.Citron focuses on three problems.The first is the genuine difficulty of bringing perpetrators to justice.The very same anonymity that fosters
malicious attacks on women makes attackers difficult to identify. The second are police attitudes.Too many law enforcement officials either are
unaware of laws prohibiting cyberbullying or regard the laws as somewhat less
significant than minor drug offenses in middle class neighborhoods.A consensus often exists that ordinary citizens
ought to have somewhat greater tolerance for online insults and death threats
than the president of the United States.Finally, laws regulating bullying, harassment and stalking were not
drafted with the internet in mind.A
person who says “I want to rape you” directly to a potential victim violates
laws that may not be violated by a person who posts on numerous websites “I
want to rape X.”
The last set of chapters focus on legal and social solutions
to the problem of hate crimes on the internet.Citron proposes a draft law on revenge porn (that several states are
adopting), other measures aimed at preventing cyber mobs from forming and
laws outlawing extortionist practices whereby websites encourage malicious postings
and then charge victims to take them down.Hate Crimes also recognizes
that the law has substantial limits.Citron
makes a number of intelligent suggestions for how private entrepreneurs,
schools and families can help clean up the internet.
Hate Crimes in
Cyperspace has the same ambitions as
Sexual Harassment of Working Women,
but the approach differs and, I think, is for more successful.McKinnon has always believed Americans need theory
to understand what is wrong with sexual harassment.Citron’s guiding assumption is that all
Americans need is common sense to work out that people should not urge that
women be murdered and raped, post nude photographs of ex-girl friends on revenge porn sites, or spread
malicious gossip. Hate Crimes details
how the vast majority of hate crimes on the internet target women and Citron
makes use of some feminist theory when explaining why this is the case.But while one goal of the book is to
ensure an internet in which woman can participate as equals, Citron makes far
clearer than McKinnon that the crimes she is documenting can easily be
identified by a11 decent persons, regardless of whether they are Kantians,
Marxists, critical race, gender or queer theorists, utilitarians, or the like.
The debate over Citron’s work will focus on the First Amendment
rights of cyberbullies, but a fair case can be made that the book defines
constitutional rights too broadly rather than too narrowly.Hate
Crimes in Cyberspace endorses a populist understanding of the internet in
which “All information should be free.” This commitment explains why Citron struggles
when drawing boundaries between posting nude
pictures of ex-girlfriends on revenge porn websites that are not
constitutionally protected and posting other information about ex-girlfriends on
various websites that may be constitutionally protected.I confess to thinking that no one has a right
to post, without my permission, my record against the chess program on my
private computer, even though this is information.And despite the mantra “All information
should be free,” no one has a constitutional right to post my defense against
queen pawn openings if I choose to charge people for this information. I do not think I have a First Amendment right
to post on a public website either “I fantasize about beating the world chess champion” or “I fantasize about murdering the world chess champion.” Doing so may be highly therapeutic, but with apologies to a significant percentage of my family, the Constitution provides no special protection to therapy. The First Amendment protects discourse about
public affairs, defined broadly but not capaciously.A very high percentage of what takes place on
the internet is not discourse and has little or nothing to do with public
affairs.We might choose to regulate only
false claims about a person’s LSAT scores because such claims are particularly
damaging, but no constitutional right exists to publish actual LSAT scores,
except under rare circumstances. The
same logic explains why we might not want to regulate my public postings about
my chess fantasies but regulate my public postings about my murder fantasies even though neither enjoys constitutional protection.Citron really frets about boundaries when
regulating hate speech on the internet because she works within two categories:
speech that should be criminalized and behavior that is protected by the First
Amendment.I think there is a third
class, namely behavior that for various reasons is not worth criminalizing even
though that behavior is not constitutionally protected.
Justice Brennan famously declared that the Constitution of the
United States is “committed to the principle that debate on public issues
should be uninhibited.”Not all
inhibitions, however, are created equal.People should not be inhibited by fears that they will be sanctioned by
those who disagree with their vision of public life.Other inhibitions are more valuable,
particularly as the connection between speech and public issues becomes
increasingly truncated.People ought to
be inhibited by basic norms of decency that prescribe silence when the main
purpose of speech is to cause distress, humiliation, and
fear.Danielle Citron has been a
crusader for those inhibitions and Hate
Crimes in Cyberspace is the seminal
work that documents how truly uninhibited speech savages the marketplace of
Among the many, many zingers in Judge Posner's opinion today for the Seventh Circuit panel in Baskin v. Bogan affirming the district court judgments invalidating bans on same-sex marriage in Indiana and Wisconsin:
Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577–79 (2003), and United States v. Windsor [133 S. Ct. 2675 (2013] are distinguishable from the present two cases but make clear that Baker [v. Nelson, 409 U.S. 810 (1972)] is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.
The U.S. Court of Appeals for the D.C. Circuit just vacated the judgment of the panel in Halbig and granted the government's motion for rehearing en banc. The schedule for briefing and argument is as follows:
Brief for Appellants October 3, 2014
Joint Appendix October 3, 2014
Brief(s) for Amici Curiae for Appellants October 3, 2014
Brief for Appellees November 3, 2014
Brief(s) for Amici Curiae for Appellees November 3, 2014
When I speak, I speak as Professor Mark A. Graber (my eldest
daughter, now Professor Naomi Graber, correctly observes that “Dad does not
speak, he lectures”). Many academics
wish professors had more authority in our society. Some wish professors had less authority. Whatever the authority of academics in an
ideal world, in this world a university decision to confer upon us the title of
“Professor” increases our authority to some degree, like it or not.
conferred authority upon us, a university might insist that we speak as
professors even when we are outside the classroom and not in a professional
setting. Of course, we often speak in
ways that no one thinks “professorial.”
No one takes my Super Bowl picks seriously. Nevertheless, when we comment on public
affairs, our comments have some extra weight because we are professors in a
society that places some value on knowledge.
There is a presumption when I speak about global warming, about British
poetry or about Gaza that I have some specialized knowledge or at least
training in critical reasoning that gives my words a little more weight than
the same comments made by someone of unknown employment.
reason, we might think a university justified in denying an appointment to a
candidate for a professorship on the ground that the person’s statements on
matters of public interest were too often “vulgar,” “juvenile,” and “insulting.” The First Amendment protects my right to
speak in ways that are vulgar, juvenile and insulting, but I have no First
Amendment right to be a professor. Just
as no one would think twice about a university who refused to hire a person
whose scholarship was vulgar, juvenile and insulting, so in circumstances where
our speech is given some authority because we are professors, universities
might in the abstract insist that our speech not be vulgar, juvenile and
insulting as a condition of obtaining employment.
observations suggest a somewhat different context for the debate over the
decision by the University of Illinois to rescind a job offer to Steven Salaita
on the ground that his tweets on the Gaza crisis were disrepectful. For the most part, Salaita’s defenders
emphasize two points, both of which strike me as largely correct. The first is that Illinois as a matter of policy
trusts departments to vet professors. The decision by Chancellor Phyllis Wise to revoke a departmental
offer for non-budget reasons is unprecedented, although I think this is less a
free speech/academic freedom issue than a faculty governance/academic freedom
issue. The second is that the
circumstances make clear that the offer was revoked because Salaita made “disrepectful”
comments about Israel. Had he made
disrespectful comments about Hamas, the Senate Majority leader or the most
recent production of Carmen, no one would have noticed or cared. Viewpoint discrimination is a core First
Amendment violation. We might tie these concerns together by noting that when administrators make unprecedented interventions in hiring decisions, viewpoint discrimination is probably afoot. Still, some
defenses of Salaita suggest a third ground, that professors have constitutional
rights to be vulgar, juvenile and insulting when they comment on public
affairs, as long as they do not do so in the classroom or, maybe, professional
settings. I am less sure for reasons
But I am
more certain that an increasing number of university administrators disagree
with me. Each year, more and more
pressure seems to be put on faculty to spend less time on traditional forms of
publishing and rely more on social media in which significant incentives often exist
for vulgar, juvenile, and insulting speech (I’ve never been told I should be
especially careful to avoid such temptations).
Take a look at the website of many law schools and other academic
institutions. Many strongly suggest that
the way to gain fame and respect at the institution is through the social media
or other outlets where eight second soundbites are norm and footnotes
forbidden. More and more of my friends
who do traditional, lots of footnotes, scholarship complain that they have
fewer and fewer friends (if any) in the administration and they are becoming
the first to be asked about buyouts. In
short, Salaita strikes me as doing exactly what a great many professors are now
doing to get ahead in our professions.
Having pressured us to get on the social media, the administrators at
our universities can hardly complain if we adopt the conventions of the social
media rather than what I think are the better norms of academic discourse.
It’s easy to document the degradation of work conditions in the wake of capital’s ascendance. I’ve done so for years, fully expecting that globalization would push the downward convergence of non-college-educated American workers’ living standards to that of the 73% of the global work force now living in the developing world. But I think we are in the midst of a sea change of resistance. Just listen to Belabored, an extraordinary series of podcasts on labor struggles (with plenty of print/web sources accompanying each broadcast). Or, if you’re in, or can visit, New York City, try to attend the following two conferences:
Digital Labor: This November conference will “will bring together designers, labor organizers, theorists, social entrepreneurs, historians, legal scholars, independent researchers, cultural producers and perspectives from workers themselves to discuss emerging forms of mutual aid and solidarity.” I attended the first iteration in 2009, and am on the Advisory Board for this one. It should be a fascinating event, particularly as forms of exploitation common in the “gig economy” influence large corporations.
My down and dirty research indicates that the Dow Jones Industrial Average has more than doubled while President Obama has been in office. The Dow began the day at 17,044. When Obama took office, the Dow was at 7,949. The result is unprecedented gains for anyone slightly above middle-class or better. Is there any reason why no one refers to the remarkable returns on investments (include 401(k)'s) as "the Obama Market?" Posted
by Mark Graber [link]
Overruled: A (Third) Response To Professor Adler
In the hopes of capping the increasingly
tedious (not to mention snarky) contretemps with Professor Jonathan Adler, I
think it worth reviewing a few of the instances where his responses to my blog
posts on Halbig have ignored, elided, or misconstrued my points.
For example, I observed that a threat, to be a
threat, must be communicated and understood. In this case, the alleged
coercive purpose of the language at issue in Halbig was lost on both the
legislators who supposedly communicated it and the states that supposedly
understood it. Among the evidence I cited that Section 36B was not
perceived as a threat were the initial characterizations of the disputed
language by Adler and others as a “glitch” and the consequences, as “perhaps
unintended.” Adler’s response re-imagines the word “glitch.” If that were all he had said back in the day,
it might be a plausible riposte. But in
Volokh on September 9, 2011, Adler recounted the theory of some observers that
“Congress meant to provide tax credits for any
exchange-purchased insurance, because Congress wanted lower-income individuals
to be able to purchase health insurance (and comply with the mandate).” Adler’s reaction: “This may be true,” but the
IRS still could not “revise statutory mistakes.” While arguing that the “ample
evidence” of the ACA’s intent to encourage states to establish exchanges
precluded any argument based on “scrivener’s error,” Adler conceded that, “it
is certainly plausible -- perhaps even
likely -- that many in Congress wanted tax credits for the purchase of
health insurance to be broadly available.”
“Congress may have wanted to make tax credits more widely available,”
Adler also wrote, “but that is not what Congress did.” It is highly unlikely that Congress’s intent
to coerce states was clear in 2010 when the ACA was enacted, but became
retroactively cloudy over the next 18 months.
Disturbing reversal of hate-crime convictions in Amish hair-cutting case
Yesterday a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned the convictions of 16 members of the Bergholz Old Order Amish community in Ohio under the 2009 federal hate-crimes law, even though it was undisputed that over a three-month period in 2011, the assailants--under the direction and approval of the Bishop of the Bergholz community, Samuel Mullett--attacked nine other Amish individuals by forcibly slicing off the men’s beards and cutting the women’s hair. A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable--indeed, deeply disturbing in its implications. I'm curious whether others have a similar reaction.
The methodological absurdity of isolated textualism: Halbig, King, and how not to read
Jonah B. Gelbach
Because many states refuse to operate their own health
insurance exchanges, millions of people must buy coverage through the federal
exchange known as healthcare.gov. The IRS pays subsidies to insurers on behalf
of qualifying enrollees who buy their plans through healthcare.gov. These
subsidies play a critical role in the operation of the Affordable Care Act.
In the D.C. Circuit’s Halbig
and 4th Circuit’s King
cases, plaintiffs and their supporting amici contend that the text of the ACA
forecloses the federal government from paying such subsidies. Section 1401 of
the ACA, which authorizes federal subsidies and sets out the formula for
determining who is eligible and for how much, states that the subsidy shall be
provided for any “coverage month.” A coverage month is defined as any month in
which an individual taxpayer, her spouse, or her dependents are covered by a
qualified plan in which the taxpayer enrolled through “an Exchange established
by the State” under another section of the ACA.
The Halbig and King cases turn on whether the federal
healthcare.gov exchange can qualify as “an Exchange established by the State.”
Absolutely not, says Michael F. Cannon, who has participated in these cases as
an amicus. Cannon has repeatedly insisted
that the phrase “an Exchange established by the State” cannot possibly be read
to encompass healthcare.gov:
(1)Everyone knows that the federal government is
not a State.
(2)A website established by the federal government
therefore cannot possibly be considered “an Exchange established by” a “State.”
(3)Therefore, it is impossible for a “coverage
month” to include months in which health coverage was enrolled in through
healthcare.gov, so there is no lawful basis for providing subsidies to those
who buy coverage on the federal exchange.
But Cannon’s claim is the absurd one. It rests on an approach
to reading the tax code—one little bit at a time, with no consideration of the
rest of the law—that is not just indefensible, but which, outside the
particulars of the Halbig and King litigation, no one does defend.
If there is any one article that everyone should read and think deeply about, it is Thomas Edsall's piece in the NYTimes (online) on the rise of what he calls "poverty capitalism," i.e., the privatisation of government functions that has the consequences of imposing huge financial costs on the poor. One cannot possibly understand the realities of Ferguson, Missouri, for example, without understanding the depth of this problem. Edsall ends his column thusly:
What should be done to interrupt the dangerous feedback loop between
low-level crime and extortionate punishment? First, local governments
should bring private sector collection charges, court-imposed
administrative fees and the dollar amount of traffic fines (which often
double and triple when they go unpaid) into line with the economic
resources of poor offenders. But larger reforms are needed and those
will not come about unless the poor begin to exercise their latent
political power. In many ways, everything is working against them. But
the public outpouring spurred by the shooting of Michael Brown provides
an indication of a possible path to the future. It was, after all, just
50 years ago — not too distant in historical terms — that collective
action and social solidarity produced tangible results.
But does anyone seriously believe that the United States today is capable of a revived Civil Rights Movement based on the notion of "the beloved community." Our "community organizer" President in whom so many of us had genuine hope has certainly betrayed any commitment he might ever have had to genuine "community organizing." And, alas, only the Tea Party is willing to demonstrate and engage in "uncivil" responses to people they (often correctly) view as exploiting ordinary Americans. Perhaps 'poverty capitalism" is simply a fancier way of saying "Dickensian," for Edwall demonstrates how we have recreated debtor's prisons (in the control of "private" business with an incentive to think only of their bottom lines). Who in the next presidential election will speak for these victims? Will Eric Holder start examining legal theories suggesting that there might be limits on the "privatized state" and the betrayal of what we'd like to think are constitutional norms before one can be deprived of liberty or property? Posted
by Sandy Levinson [link]
Saturday, August 23, 2014
Sara Mayeux, We Are All Law and Economics Now
Mary L. Dudziak
For your Saturday, I thought I'd share a post from the U.S. Intellectual History Blog by Sara Mayeux, who is currently a Sharswood Fellow at the University of Pennsylvania Law School. Sara looks at law and economics from the perspective of intellectual history, asking "how did law and economics go from an oddball preoccupation of a few
Chicago professors to one of the dominant intellectual frameworks for
thinking and talking about law?" You will think, of course, that Steven Teles already answered the question, but Sara compares Teles' work with landmark intellectual historian Dan Rodgers' Age of Fracture, and also legal historian Brad Snyder.
Sara writes, in part, that "In contrast to Teles’s emphasis on particular personalities and
institutions, Daniel Rodgers paints law and economics as one detail in a
larger panorama." Meanwhile "Brad Snyder composes a rock-and-roll ballad of generational rebellion,
in which law and economics was one of many shiny ’60s alternatives to
the stodgy proceduralism of legal scholars past." And then Sara synthesizes these different approaches to causality. Her synthesis, all the links you need, and wonderful writing can be found here. Hat tip to Sam Moyn (@Peiresc @saramayeux). And if you've ever wondered why scholars ever use Twitter, now you know. (@marydudziak)
The Augmented Contraception Coverage Regulations (and an NPRM on extension of the accommodation to some for-profit employers)
As promised, the federal government today issued an an interim final rule in which it has augmented the secondary accommodation for nonprofit religious employers that have religious objections to including contraceptive coverage in their employee (or student) insurance plans. The augmented regulation responds directly to the Supreme Court's suggestion in its Wheaton College order that the Government might "rely on [a nonprofit employer's] notice [to HHS of its religious objection] . . . to facilitate the provision of full contraceptive coverage under the Act,” and in so doing guarantee that the employees of that objecting organization would continue to receive cost-free access to contraceptive services while at the same time eliminating any religious objection that such organizations might have had to the requirement that they file "Form 700" in order to opt out. The government has simultaneously issued a proposed rule, as to which it is soliciting comments for 60 days (until October 21), on how it might extend to certain closely held for-profit entities, such as Hobby Lobby, the same accommodation that is available to non-profit religious organizations--something that the Court in Hobby Lobby described as a less-restrictive means of advancing the government's compelling interests without any significant harm to the employees and students of objecting employers and schools. Under the proposed rule, covered companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds, even if they retain employee health plans. The proposal offers two possible definitions of covered, closely held for-profit companies, and seeks comments on those and other possible definitions, and whether other steps might be appropriate to implement this policy.
* * * *
The new interim final rule for nonprofit organizations This is, in sum, how the accommodation would now work as to a nonprofit employer (or school) that offers its employees (or students) a "self-insured" insurance plan. (See this post for explanation of the distinction between insured and self-insured plans.) Under the augmented rule, such an employer or school would have two, alternative means of opting out of coverage. It can continue to use Form 700, as many organizations have done. Or, in the alternative:
1. An objecting organization that has an objection to submitting Form 700 to the plan's third-party administrator need only inform the Department of Health and Human Services that it has a religious objection to offering contraception coverage. The organization must also provide HHS with the name and contact information for any of the plan’s third party administrators and health insurance issuers. HHS has provided a "model notice" that eligible organizations may, but are not required to, use. 2. At that point, HHS would inform the Department of Labor of the organization's opt-out. 3. DOL would, in turn, inform the plan's third-party administrator (TPA), if any, that it is obliged to offer contraceptive coverage--initially from its own resources--to the organization's employees (and/or students) without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. (Moreover, the TPA must provide notice of this separate treatment to the plan beneficiaries, and do so separate from materials distributed in connection with the eligible organization’s group health coverage. The notice to employees must make clear that the objecting organization is neither administering nor funding the contraceptive benefits.) 4. The notice from DOL to the TPA -- rather than any form signed or submitted by the objecting organization -- will then become a "plan instrument" that designates the TPA as an ERISA "plan administrator" for purposes of contraception coverage.* 5. The federal government would then reimburse the TPA for its payments in the form of an adjustment to the TPA’s assessed user fees for the ACA exchanges. In other words, the cost of the contraceptive coverage in the self-insured setting is ultimately borne by the government itself, rather than by the organization or by the plan TPA. 6. In a hypothetical case in which the objecting organization does not use either an issuer or a third-party administrator, the government will not have any way of guaranteeing that the organization's employees are eligible for contraceptive coverage. In addition to the option of (i) not using a third-party administrator, an organization also has the options of (ii) using an insured rather than a self-insured plan; or (iii) not providing employer (student) health insurance in the first instance.** 7. The earlier regulation had provided that eligible organizations that establish or maintain self-insured group health plans “must not, directly or indirectly seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services” and “must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.” Although the Departments had interpreted this solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services, these provisions nevertheless had caused some confusion and disputation in the courts. Accordingly, and because such conduct is generally unlawful and is prohibited under other state and federal laws in any event, the augmented regulation deletes the prohibitions in question. * * * * This should take care of any religious objections that eligible organizations might assert, almost all of which I described in this post (and most of which were based on mistakes of law even before this augmentation). For example, under this regulation:
-- The objecting organization would not be obliged to direct (or require, or instruct) the TPA to provide contraception coverage.
-- The objecting organization would not be obliged to inform the TPA that it is opting out of providing coverage.
-- The objecting organization would not be obliged to inform or “notify” the TPA of the TPA’s obligation to provide contraception coverage.
-- The TPA would not be an “agent” of the objecting organization for purposes of contraception coverage.
-- The objecting organization would not be required to take any steps to help administer the TPA’s provision of contraceptive coverage.
-- The objecting organization would not be required to enter into, or sustain, a contract with a TPA that provides its employees with contraceptive coverage, or to “identify” a TPA to contract with if it has no such contract already.
-- The objecting organization need not refrain from objecting to the TPA’s provision of contraceptive coverage to its employees.
-- The objecting organization would not be required to act hypocritically by not "practicing what it preaches," or to do anything else that a reasonable observer might view as approval or endorsement of contraception use or coverage.
-- The objecting organization would not be required to confer a legal status upon the TPA, such as "plan administrator."
As I explained several weeks ago, however, it appears that at least some of the objecting organizations will continue to raise purported religious objections to this further accommodation--indeed, that they would continue to make RFRA claims for exemptions no matter what the government does, as long as the government continues to require plan issuers or TPAs to offer contraceptive coverage to the objecting employer's employees when the employer opts out.
These organizations will continue to object to the accommodation because (in the words of counsel for some of them) it allegedly requires them to "offer health plans through an insurance company or third-party administrator" at a time when that same issuer company or TPA is also providing contraceptive coverage to the organization's employees.
As I explained, this is not a claim that the organization itself is offering coverage, or paying for it, or facilitating it. Nor is it even a claim that the organization's action is a "but-for" cause of the employees' access to such coverage or eventual use of contraception: As I've stressed on several occasions, the employees will receive the coverage in any event--that's the whole point of the "preventive services" provision of the ACA--and these plaintiffs presumably would not conclude that they were complicit if their opting out caused the government itself to offer the coverage to those same employees.
Instead, the residual theory of complicity, as I
understand it, is that the accommodation requires the organization to contract
with an issuer or a TPA, and that the organization's choice of contractor,
together with its employee hiring decisions, will be responsible for the fact
that a particular insurance
company offers contraceptive coverage to a particular set of employees. As the brief for
Thomas Aquinas College puts it: "Plaintiffs’ insurance company or
TPA will provide the objectionable coverage to Plaintiffs’ employees only
by virtue of their enrollment in Plaintiffs’ health plans and only 'so
long as [they] are enrolled in [those] plan[s].'” For example, if
Thomas Aquinas College had contracted with Aetna, rather than
with Benefits Allocation Systems, to be the plan's third party
administrator, then it would be Aetna, rather than BAS, that would offer
coverage to Aquinas employees under the accommodation. And if any one of
those employees left Thomas Aquinas College employment next month, they would
then receive coverage from another party, other than BAS.
The premise of this argument is mistaken: The regulation does not require the organizations to contract with an issuer or a TPA--and if they do not do so, then the government currently has no way of ensuring contraceptive coverage for their employees. But even if that were not the case--i.e., even if federal law coerced the organizations to contract with such an issuer or TPA--Thomas Aquinas College and the other plaintiffs haven't offered any explanation for why, according to their religion, the College's responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees' eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees' contraceptive services.
Be that as it may, it appears that this will now be the primary (if not the only) argument the courts will have to contend with in light of the government's newly augmented accommodation.
The proposed extension of the accommodation to some closely held for-profit companies
The new proposed rule, subject to notice-and-comment review, accepts the Hobby Lobby Court's invitation: It would extend to certain closely held for-profit entities, such as Hobby Lobby itself, the same accommodation that is available to non-profit religious organizations.
The agencies offer up two possible definitions of covered, closely held for-profit companies:
-- Under the first proposed approach, "a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners." -- Under the second, alternative proposed approach, a qualifying, closely held entity would be "a for-profit entity in which the ownership interests are not
publicly traded, and in which a specified fraction of the ownership interest is concentrated in a
limited and specified number of owners." According to the preamble, these approaches "might serve to identify for-profit entities
controlled and operated by individual owners who likely have associational ties, are
personally identified with the entity, and can be regarded as conducting personal business affairs
through the entity. These appear to be the types of entities the Court sought to accommodate in
Hobby Lobby." The preamble further suggests that there may also be "useful definitions or principles in state laws governing
close corporations, or other areas of law" that could be employed. The agencies are seeking comments on those and other possible definitions, and whether other steps might be appropriate to implement the policy.
* That's what is said to afford the government the statutory authority under ERISA to compel the TPA to be the intermediary. As for DOL's statutory authority, the Preamble states that "[i]n establishing and implementing this alternative process, DOL is exercising its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A)."
** The regulation further confirms that because "church plans" are exempt from ERISA pursuant to ERISA section 4(b)(2), a third party administrator of a self-insured church plan "cannot become the plan administrator by operation of 29 CFR 2510.3-16, although such third party administrators may voluntarily provide or arrange separate payments for contraceptive services and seek reimbursement for associated expenses under the process set forth in 45 CFR 156.50." Thus, as I've explained, there is nothing at stake--and thus no valid RFRA claim--in cases such as Little Sisters, where a church plan TPA will not voluntarily offer contraceptive coverage if and when the employer opts out.