Thursday, July 24, 2014

Confirmation that the Supreme Court's suggested fix will almost certainly not mollify the plaintiffs: Recent developments in the nonprofit challenges to the contraceptive coverage accommodation

Marty Lederman

As I've discussed, the Supreme Court in Hobby Lobby in effect redirected the most contentious questions in the contraceptive-coverage challenges to those cases in which nonprofit organizations are challenging the government's regulatory accommodation for objecting religious nonprofit organizations.  Subsequently, in its order in the Wheaton College case, the Court invited the federal government to develop a regulatory fix that might both satisfy the nonprofit challengers to the contraceptive coverage rule and at the same time guarantee that the women who work for those employers will continue to receive cost-free contraceptive coverage. 

I've suggested that the Court’s proposal (or plea, or hope) for such a cost-free regulatory solution might be far easier said than done, since some of the objecting organizations are likely to continue to raise RFRA objections even to the sort of compromise that the Court appears to contemplate.

Now, we have the first two important moves in the next phase of litigation challenging the accommodation . . . the first of which announces that the government is accepting the Court's invitation to modify the accommodation, and the second of which confirms that such a modification will not fully bridge the gap, and that the RFRA challenges will continue nonetheless.
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Halbig as Opt-In Federalism

Joey Fishkin

The commentary about Halbig so far has viewed it mainly through two lenses.  Through one lens, most obviously, it’s a statutory interpretation case—one that illustrates some shortcomings of a certain hyper-formalistic, acontextual approach to reading statutory text.  Through the other lens, Halbig is a political case: a highly charged proxy fight about Obamacare that illustrates how thin and permeable the membrane is between some judges’ substantive political views of a law and their interpretation of it.

I think Halbig is even more interesting through a third lens: as a federalism case.

Here, ironies abound.  In NFIB v. Sebelius, the majority decided that the ACA’s Medicaid expansion raised constitutional questions because it put a gun to the head of the states: you will lose an enormous chunk of federal money unless you agree to expand Medicaid.  To the utter consternation of the legislators who wrote and voted for the ACA, the 2-1 majority in the DC Circuit in Halbig has interpreted the exchange portion of the statute to similarly threaten states with a catastrophic loss of federal funds if they don’t comply with the federal government’s demands—this time, supposedly, the demand that the state set up an insurance exchange.

As many commentators (including other judges, in dissent in Halbig and in the majority in the 4th Circuit) have noted, it’s abundantly clear not only from the legislative history of the statute but also from other parts of its text that no such threat was ever actually contemplated.  The whole point of the backup federal exchange was to give states a different kind of choice: they can either take control of (and responsibility for) the regulation of the new insurance plans in their state by establishing an exchange, or they can wash their hands of it, and let the federal government take the full credit and blame for the system that results.  That was the kind of federalism the ACA had in mind: backstop federalism, in which every individual American would have access to the same substantive benefits, but they could be administered either in a cooperative-federalism way, or, in uncooperative red states, by the feds alone.  This gives states real choices about how much involvement they want in the ACA’s new insurance system.  It doesn’t give states the option to deprive their citizens of access to affordable health insurance.

But the Halbig panel majority doesn’t read the statute in terms of what subsidies the ACA, by its terms, intends to make available to individual citizens.  Instead the panel majority manages to take the individual citizens out of the picture, and tell a simple story of a threatening federal government, holding a gun and demanding that the states set up an exchange or lose all subsidies.  This analysis is overly simplistic in a couple of ways.  For a start, it ignores where the gun is actually pointing.  The analysis also manages to obscure the question of what a state actually has to do to set up an exchange “under” Section 1311.   It may not be much at all, for reasons I discuss below, in which case the real story here is not one of the federal government requiring onerous action by states, but instead, one in which the Halbig court would turn what Congress intended as universal individual entitlement into a program of opt-in federalism, where the federal government might try to create a universal program, but it’s actually up to states to decide whether they want to opt in.

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Wednesday, July 23, 2014

Halbig and hurting the innocent as a political tactic

Andrew Koppelman

Q.  What’s the difference between a Ukrainian rebel with a rocket launcher and a lawyer challenging the Obamacare subsidies? 

A.  The Ukrainian doesn’t intend to hurt innocent people.

I elaborate the point in a discussion of the ethics of political warfare, posted at The New Republic, here.

Some Roundups on Halbig and King (the ObamaCare Subsidies Cases)

Abbe Gluck

Much commentary has been posted in the past 24 hours on the Obamacare subsidies rulings.  Here are just a few:

Emily Bazelon comments  at Slate about how implausible it is, as the D.C. Circuit holding would have it, "that Congress included in Obamacare the seeds of its own destruction, giving naysaying governors the power to kill it—without ever saying so."   I have my own op-ed at Politico, arguing that the opinion does a disservice to the credibility smart textualists have been trying to build for years and is not the way that complex laws should be interpreted in a well-functioning democracy. My piece also points out that the D.C. Circuit's reading of the statute contradicts the description of the exchanges by Justices Scalia, Kennedy, Thomas and Alito in the ACA Joint Dissent, which assumed the validity of the federal-exchange subsidies and understood that the statutory scheme depends on them.

Further on the health law academic front, Tim Jost has a post on the Health Affairs blog analyzing the opinion, as does Nicole Huberfeld at HealthLawProfBlog, and Nick Bagley at Incidental Economist. 

Jonathan Cohn, Ezra Klein, and Wonkblog each have posts detailing how no one involved in the drafting the statute or reporting on its enactment over 2009 and 2010 sees any any proof of the story that the challengers are telling about what the ACA means or what Congress intended. As Klein writes:

"For Congress to write a law that provides for federal exchanges but doesn't permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn't allow cars, bikes or buses to travel on them. That was...not what Congress thought it was doing. As Jonathan Cohn writes, 'not once in the 16 months I reported on the formal congressional debate did any of the law's architects suggest they were thinking along these lines.' My experience was precisely the same: architects of the bill underestimated how many states would let the federal government run their exchanges, but they always thought there would be a few, and they always assumed those exchanges would feature subsidies. Everyone in Congress — including the Congressional Budget Office in its estimates of Obamacare's cost — assumed subsidies would flow through federal exchanges."

More to follow.....

Some Thoughts on Halbig

Gerard N. Magliocca

I posted after the oral argument in the DC Circuit to say that I thought the argument that prevailed there yesterday needed to be taken seriously, so now I feel compelled to talk about what comes next.

First, I think that there are four Justices who will be waiting on the front steps of the Court for the certiorari petition from the Fourth Circuit (which ruled in favor of the Administration on the same issue yesterday).  Thus, the question of whether the DC Circuit will go en banc in Halbig is, to my mind, largely beside the point.  In an ordinary case, one would expect the Justices to wait and see if a circuit split could be healed before acting, but this is not an ordinary case.  The Justices who lost in 2012 on the individual mandate challenge would love to get another at-bat.

Second, the split yesterday supports my argument from last year that the Affordable Care Act remains unsettled law.  The fact is that many statutes are poorly drafted or have errors.  What normally happens when that is true?  One option is for Congress to fix that problem.  That cannot be done because the Republican Party is still overwhelmingly opposed to the Act.  Another option is that the courts fix or overlook the drafting issue.  That assumes, though, there is a consensus that the statute should be fixed, which is also lacking along partisan lines.

Third, I argue in my new draft article that the Chief Justice's opinion in NFIB is best understood as expressing a norm that it is wrong for the Justices of one party to invalidate the signature law of the other party.  Does this convention include crippling the same law with statutory construction?  The Chief Justice will have a year to mull that one over.

UPDATE:  Typos in the original post are now corrected.

Tuesday, July 22, 2014

Fourth Circuit Rules in FAVOR of Government in Obamacare Subsidies Case

Abbe Gluck

Making sure our readers keep up with this roller-coaster day in health reform land: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn't even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I've been arguing in previous posts), Judge Davis also argued that this isn't a case of "textualism v. purposivism" or statutory text versus some amorphous concept of congressional intent.  Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government.

The Loss in Halbig

Abbe Gluck

As Marty notes, the opinion is out. Initial quick reaction, more to come:  The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here);  it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges.  The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying the exclusio unius presumption  (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism  rather than the sophisticated statutory analysis that textualists have been claiming they are all about.

Halbig decided [UPDATED -- King too!: quickest circuit split ever?]

Marty Lederman

2-1, Edwards dissenting, as oral argument suggested.  I'm sure we'll have more on the opinion shortly here on the blog.

On the other hand . . . the Court of Appeals for the Fourth Circuit in King just decided the issue the other way!

Monday, July 21, 2014

The Anti-Partisan Principle

Gerard N. Magliocca

I've posted the draft of my new paper here.  Comments and criticism are always welcome.

Sunday, July 20, 2014

Rest in Peace, Dan Markel (1972-2014)


Our deepest condolences to the family, friends and colleagues of Professor Dan Markel of Florida State (and Prawfsblawg), who was shot at his home in Tallahassee on Friday. The latest details are here. Paul Caron has a collection of links and other remembrances are here and here.

Saturday, July 19, 2014

Hobby Lobby: Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise?

Marty Lederman

As part of a terrific symposium on Hobby Lobby over at the Conglomerate, I published a post with that title today, focusing principally on some of the corporate-law questions that the Court unfortunately elides or confuses in Hobby Lobby.

Will the ACA litigation be decided based on a mistake?

Guest Blogger

Timothy Jost

In a recent blog post, Cato scholar Michael Cannon admitted that he and his colleague, Case Western University professor Jonathan Adler, had made a mistake in an amicus brief they submitted to the courts in the Halbig and King cases.  We all make mistakes—indeed Michael has claimed that I have made many mistakes in my analysis of these cases, some of which were indeed mistakes.  This mistake is important, however, because it goes to the central argument that he and Jonathan have relied on in their brief.  There is a real danger that the Halbig case could be decided by the D.C. Circuit Court of Appeals, perhaps as early as next week, based on a mistaken understanding of the law, its purpose and history, propagated by Cannon and Adler and apparently adopted by one of the judges in the case.  Studies released in the past week demonstrate that this mistake could have devastating consequences for the country.
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Compendium of posts on Hobby Lobby and related cases

Marty Lederman

For our readers' convenience, I'm collecting here in one place links to all Balkinization posts about Hobby Lobby, Conestoga Wood, Notre Dame, and Little Sisters, et al., along with links to the briefs and oral argument in Hobby Lobby/Conestoga Wood and to a few other important posts about these cases.  We'll try to keep the list relatively current as the litigation proceeds.

Marty Lederman's Posts on Hobby Lobby

Hobby Lobby Part I -- Framing the issues (Dec. 11, 2013)

Hobby Lobby Part II -- What's it all about? (contraception?  abortifacients?  other religious objections to elements of health insurance?) (Dec. 13, 2013)

Hobby Lobby Part III -- There is no "employer mandate" (Dec. 16, 2013)

Hobby Lobby Part III-A -- Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “employer mandate”? (Dec. 28, 2013)

Hobby Lobby Part III-B -- Is it necessary that the government-imposed pressure to violate a religious obligation be substantial? (Jan. 8, 2014)

Hobby Lobby Part IV -- The myth of underinclusiveness (Jan. 21, 2014)

Hobby Lobby Part V -- Whose Religious Exercise?  Of corporations, for-profit employers, and individual plaintiffs acting in their various corporate capacities (Jan. 28, 2014)

Hobby Lobby Part VI --  The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers (Feb. 16, 2014)

Hobby Lobby Part VII -- Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb" (Feb. 17, 2014)

Hobby Lobby Part VIII -- Hobby Lobby's identification of the "precise religious exercise at issue here," and some thoughts on whether federal law substantially burdens it (Feb. 19, 2014)

Hobby Lobby Part IX -- There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan (Feb. 21, 2014)

How to Understand Hobby Lobby [on SCOTUSblog] (Feb. 23, 2014)

Hobby Lobby Part X -- A quick word on the Conestoga Wood reply brief (Mar. 12, 2014)  

Hobby Lobby Part XI -- Governor Brewer’s Veto in Arizona . . . and Hobby Lobby (Mar. 12, 2014)

Hobby Lobby Part XII -- On Abortions and "Abortifacients" (Mar. 22, 2014)

Hobby Lobby Part XIII -- Shareholder claims, Professor Bainbridge, and the red herring of "insider reverse veil piercing" (Mar. 24, 2014)

Asking the Wrong Questions in Hobby Lobby [on the Conglomerate Blog] (Mar. 24, 2014) 

The myth of "exemptions" that are said to undermine the government's compelling interests [on the Conglomerate Blog] (Mar. 25, 2014)

Hobby Lobby Part XIV -- How this week’s Sixth Circuit decision in a nonprofit case can inform the Supreme Court's "substantial burden" analysis in Hobby Lobby (June 14, 2014)

Hobby Lobby Part XV -- “There’s No Employer Mandate” Update: The Justices’ engagement at oral argument, and an important new Standard & Poor’s report (June 15, 2014)

Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision (June 30, 2014)

Hobby Lobby Part XVII -- Upshot of the decision: A possible win-win solution (and now all eyes turn to Notre Dame) (July 1, 2014)

Hobby Lobby Part XVIII -- The one (potentially) momentous aspect of Hobby Lobby: Untethering RFRA from free exercise doctrine (July 6, 2014)

Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise? [on the Conglomerate] (July 19, 2014)

* * * *

Marty Lederman's posts on the nonprofit and and other contraceptive-coverage cases
Not Quite Hobby Lobby: The Nonprofit Cases (including Little Sisters and Notre Dame), and Opting Out as Complicity [with UPDATE on Little Sisters "church plan" situation] (Jan. 1, 2014)

Government brief in Little Sisters
(Jan. 3, 2014)

Little Sisters State of Play (Jan. 5, 2014)

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters) (Jan. 24, 2014)

How This Week’s Sixth Circuit Decision in a Nonprofit Case Can Inform the Supreme Court's "Substantial Burden" Analysis in Hobby Lobby (June 14, 2014)
Is the Court’s attempt at a compromise order in Wheaton College based upon a misunderstanding of the law? [on SCOTUSblog] (July 4, 2014)

What next in Wheaton College?  Is it also a "win/win" compromise? (July 4, 2014)

Unpacking the forthcoming RFRA challenges to the government's accommodation (with emphasis on self-insured plans) (July 18, 2014)

Confirmation that the Supreme Court's suggested fix will almost certainly not mollify the plaintiffs: Recent developments in the nonprofit challenges to the contraceptive coverage accommodation (July 24, 2014)

* * * *

The Briefs in Hobby Lobby and Conestoga Wood

can all be found here.

The Oral Argument transcript and audio

are here, and here, respectively

* * * * 

Other Balkinization posts on Hobby Lobby, Wheaton College, et al.

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, The Establishment Clause and the Contraception Mandate (Nov. 27, 2013)

Joey Fishkin, Hobby Lobby: Federal Agent (Nov. 30, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees? (Dec. 4, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter (Dec. 9, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause: Gedicks and the Government (Jan. 21, 2014)

David Gans, Can Corporations Exercise Religion?: A Response to Douglas Laycock (Feb. 20, 2014)

Priscilla Smith, Whose Faith Does RFRA Protect? Everyone’s, No One’s, Or Not Mine? (Mar. 24, 2014)

Andrew Koppelman, Invisible Women (Mar. 25, 2014)

Nelson Tebbe, Today's Oral Argument in Hobby Lobby (Mar. 25, 2014)

Gerard N. Magliocca, What the Affordable Care Act Subsidy Case Tells Us (Mar. 26, 2014)

Mark Tushnet, Shelby County and Hobby Lobby (Apr. 20, 2014)

Andrew Koppelman, Hobby Lobby, a small victory for women's rights (June 30, 2014)

Sandy Levinson, Justice Ginsburg's inexplicable first two pages (June 30, 2014)

Joey Fishkin, Hobby Lobby and the Politics of Recognition (June 30, 2014)

Jason Mazzone, Hobby Lobby as Separation of Powers (June 30, 2014)

Jason Mazzone, Hobby Lobby: Breyer and Kagan (July 1, 2014)

Jason Mazzone, Horwitz on Hobby Lobby (and notes on Putnam and Campbell) (July 2, 2014)

Richard Schragger, Micah Schwartzman, and Nelson Tebbe, Not Bill Clinton’s RFRA (July 3, 2014)

Andrew Koppelman, Wheaton v. Hobby Lobby (July 4, 2014)

Sandy Levinson, The elephant in the room (July 4, 2014)

Mark Tushnet, Congress Enacted Single-Payer Health Care! (July 11, 2014)

* * * *

Other important online writing about Hobby Lobby

Eugene Volokh, My Hobby Lobby Posts, in a Single Word Document

Mark Tushnet, Do For-profit Corporations Have Rights of Religious Conscience?

Ira Lupu & Robert Tuttle, Religious freedom and savings constructions

Doug Laycock, Congress answered this question:  Corporations are covered

Michael Dorf, Why is RFRA still valid against the federal government?

Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:

Tracy Fessenden, Contraception v. Religious Freedom:  Hobby Lobby Heads to the Supreme Court

Pema Levy, When Is a Mandate Not a Mandate? Ask the Supreme Court

Walter Dellinger, Contraception as a test of equality

There are also a bunch of valuable posts over at Dorf on Law and on the Conglomerate.


Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:

Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:


Friday, July 18, 2014

Unpacking the forthcoming RFRA challenges to the government's accommodation (with emphasis on self-insured plans)

Marty Lederman

With its order in the Wheaton College case, the Supreme Court invited the federal government to develop a regulatory fix that might both satisfy the nonprofit challengers to the contraceptive coverage rule and at the same time guarantee that the women who work for those employers will continue to receive cost-free contraceptive coverage. 

In an earlier post, I suggested that the Court’s proposal (or hope) for such a cost-free regulatory solution is far easier said than done, at least in cases involving “self-insured” employers.  For example, the government may well conclude—as the Court appeared to anticipate it would—that an employer can simply notify the government of its religious objection, and the government will then have the legal authority to turn around and instruct the insurance plan’s third-party administrator to offer contraceptive coverage, subject to reimbursement from the government in the form of an adjustment to ACA exchange user fees.  If the government promulgates such a modification to its regulation, it might mollify some of the nonprofit plaintiff organizations; but I think it is likely that most of those organizations will not be satisfied:  They will argue that such a “fix,” too, violates their rights under RFRA, because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage.

If I’m right about that, and if the government cannot come up with an alternative regulatory solution that is satisfactory to all parties, then the courts will have little choice but to continue adjudicating the applicability of RFRA to the government’s “accommodation.”  The first set of such cases—many already pending—will involve nonprofit organizations currently eligible for the accommodation.  But the government is also likely to extend the accommodation to at least some for-profit employers with religious objections, as the Court suggested it could and should do in the Hobby Lobby decision.  Many of those for-profit employers may accept the accommodation.  Almost certainly, however, some will not—which will mean that the nonprofit cases challenging the accommodation will soon be joined by similar challenges from for-profit companies.

In this post, I’ll try to canvass the primary RFRA issues in these cases challenging the accommodation, and how should the courts should—or are likely to--address them.
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Misrepresenting Transfers

Mark Graber

One of my research assistants transferred to another law school last week.  This was hardly a surprise.  His rejection letter from the other school might as well have said, “Do not worry.  We plan to admit you as soon as we do not have to report your relatively low GPA and LSAT to US World News and Reports or other institutions that rank law schools.  We look forward to having you pay two years of full tuition.”  Similar winks and nods occur throughout contemporary legal pedagogy.

Whether law schools should encourage transfers is a fair question on which I have no intelligent opinion.  On the one hand, if faculty are free to move to higher ranking institutions, so should students.  On the other hand, for purposes of institutional stability, there is an obvious difference between faculty members who over a thirty year career spend ten years at three different institutions and law students changing schools after a year.  I’m a bit of a stick in the mud, so I do not like lots of transferring, but that is hardly a good reason to impose my preference on others.

The problem with continuing the above line of analysis is that contemporary law school transfer practices are strategies for increasing tuition dollars without risking the paper credentials of the class that have nothing to do with such concerns as institutional stability and free choice.  Administrators are well aware that in normal times they cannot gain more tuition dollars by increasing the size of their first year class without lowering their institution's average GPA and LSAT numbers ( in recent years, you cannot even maintain the size of your class without lowering average GPA and LSAT).  If, however, the same students are told go elsewhere for a year and then transfer, the law school gets two-thirds the tuition revenue with no cost to paper credentials. 

The result is that law school student credential reports are presently often as misleading as law school student employment reports.  The unreported credentials of the second and third year students in schools that accept substantial transfers are likely to be much weaker than the reported credentials of their first year class. No good reason exists, however, for thinking first year credentials far more important than second or third year credentials.  To the extent students have an interest in peers with strong paper credentials, that interest remains constant over time.  Employers making decisions whether to hire a law school graduate should be more concerned with the unreported credentials of that student’s third year class than with the reported credentials of the first year class. 

Of course, a fair case can be made that these credentials are meaningless.  But to the extent they are meaningful they ought to be accurate.  And the present practice of not counting transfers in student body credentials promotes or is misrepresentation.  

Once upon a time, we thought that universities ought to have high ethical standards in large part because, as the place where professional socialization took place, modeling the very best professional ethics was extraordinarily important (we also thought universities were places of higher learning rather than revenue generating bodies, but that is another post).  Increasingly, however, as universities are told they ought to behave more like businesses, those who insist on higher standards are mere eggheads, who no doubt are unfamiliar with practice.  I think a bar ethics commission would look askance at a lawyer who cooked numbers in the same way as we encourage law schools to cook the credentials of their students.  Perhaps law schools with “University” as part of the name ought to set a better example.

Tuesday, July 15, 2014

Still No Opinion in Halbig (Obamacare subsidies case)- consolidated posts here

Abbe Gluck

The nail-biter continues, as the D.C. Circuit is apparently still working on Halbig v. Burwell, the challenge to the ACA subsidies on the federal exchanges (the Fourth Circuit case also remains pending).  As the blogosphere is alive with anticipation, I've provided links to my previous posts and to my New England Journal of Medicine primer on the case below.  Stay tuned...

1. The CBO Scored the ACA Assuming the Subsidies were Available

2. A Primer on the ACA's Legislative History--and How It Unequivocally Supports the Government in Halbig.

3.Getting the Facts (and the Law) Right About Halbig

4.  What the Court's EPA Ruling *Really* Has to Say About Halbig

5. Primer on the Case and Its Importance (in NEJM)

Friday, July 11, 2014

Reclaiming the Constitution


The Washington Post has just published a longer version of my previous post on how liberals can reclaim the Constitution. It's available here.

The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.

Accepting that opposition as  the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in.  Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.

Franklin Roosevelt, Hugo Black, and the Warren Court had no problems with proudly invoking the founders and showing why liberal projects were faithful to the constitutional project the framers began. We shouldn't have any problems with that approach today.

Congress Enacted Single-Payer Health Care!

Mark Tushnet

Who knew? The following is emphatically not a serious argument, although it's something of an exercise to figure out exactly where it goes wrong.

1. Statutes that appear to conflict should be interpreted harmoniously so that each one's goals can be achieved to the greatest extent consistent with the terms of both statutes.

2. Everyone agrees that direct provision of contraceptive services by the government -- single-payer for contraceptives -- is a way of providing those services that is less burdensome on the religious conscience of objectors than anything else.

3. Taking Hobby Lobby together with the stays in Little Sisters of the Poor and Wheaton College (and subject to the qualification that the stay opinions in both of the latter cases were careful to say that they were not prejudging the merits of the RFRA claims asserted), we "know" that an entity that regards filing the required form as complicity with evil has a less restrictive means of complying with the ACA -- informing the government of its conscientious objection and of the name of its insurance carrier by means either of a court filing or a letter to HHS.

4. Some entities will regard informing the government in any way as itself complicity with evil, because the result of providing that information is that -- because of an action taken by the entity -- employees will have subsidized access to contraceptive services.

5. Again, direct provision of such services is less burdensome on religious conscience (because the objector takes no action whatsoever -- other than existing in the United States -- that makes it complicit in evil, when the government provides the contraceptive services directly).

6. Because of the lack of information (pursuant to #4), the government cannot identify which employers have religious objections to the provision of contraceptive services through their insurance carriers. So the only way to avoid burdening the religious consciences of the objectors identified in #4 is for the government to provide contraceptive services directly to everyone.

7. Because this is a big country, for every imaginable medical service there is someone who will regard providing it through that person's insurance plan as complicity with evil (imagine a particular sort of Christian Scientist [not all adherents, but a particular version]). Because of #6, the only way to avoid burdening those people's religious consciences is direct provision by the government -- single-payer for all medical services.

8. Although the ACA doesn't look like a single-payer statute, it should be interpreted to harmonize it with RFRA, and the best way to do so is #7.

(9. Alternatively, the ACA could be interpreted to make employer participation entirely voluntary [with no penalties for nonparticipation]. Everyone would get medical insurance on the exchanges.)

I have no clue about how the ACA could be interpreted to provide financing for a universal single-payer system or universal participation in the exchanges. But, unless there's some way to do so, in enacting the ACA -- in light of RFRA as interpreted in the foregoing way -- Congress would have simply been putting empty words on paper.

Thursday, July 10, 2014


Mark Graber

The status of state constitutions in American constitutional theory is constantly changing.  During the era of grand constitutional theory, the point of the constitutional theory enterprise was to spin an account of the good national constitution that would enable the really good justices on the Supreme Court to strike down bad state constitutional practices.  As the Supreme Court became staffed by less than really good justices, William Brennan (the next to last of the really good justices) pointed out that every move liberal constitutional theorists had proposed with respect to the national constitution might be made with respect to state constitutions.  If William Rehnquist and friends churlishly refused to acknowledge that the Eighth Amendment interpreted consistently with principles of human dignity prohibited capital punishment, the really good justices on the Supreme Judicial Court of Massachusetts might be persuaded to recognize that the similar language in the Massachusetts Constitution interpreted consistently with principles of human dignity prohibited capital punishment.  The present, far more interesting trend, is to explore the ways in which state constitutional practice is different from, or similar to, federal (and foreign) constitutional practice.  State constitutions, such scholars as Amy Bridges and Alan Tarr have taught us, are important documents in their own right, rather than inferior versions of or substitutes for the national constitution.

Looking for Rights in All the Wrong Places:Why State Constitutions Contain America’s Positive Rights is an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism.  Emily Zackin, a young assistant professor in the political science department of Johns Hopkins University, demonstrates that the common claim that American constitutionalism is committed only to negative rights is true only with respect to the Constitution of the United States.  State constitutions, the book details, are loaded with positive rights, constitutional provisions that require government officials to take certain actions to supply persons with certain goods.  Through a detailed analysis of state constitutional provisions on education, worker’s rights and environmental laws, Zackin highlights a dimension of American constitutionalism that has too often gone under the radar.

Looking for Rights in All the Wrong Places makes several points explicitly and successfully.  A good deal of the book unsurprisingly demonstrates the existence of a positive rights tradition in American state constitutionalism.  That tradition is lovingly detailed in all the major chapters.  As Zackin demonstrates, constitutional provisions obligating states to pass laws establishing public schools, protecting workers, and safeguarding the environment are staples of state constitutions, and not unique to one or two states in one or two periods of time.  Indeed, such provisions can be found in the most liberal and most conservative of state constitutions.  Second, there is nothing constitutionally peculiar about rather detailed state constitutional provisions, such as the provision in the New York Constitution dealing with certain features of ski trails in the Adirondack Mountains.  Zackin details how many state constitutional amendments are designed to constrain state legislatures and that more specific language constrains in practice far better than general principles.  Finally, Zackin suggests an important modification to Ran Hirschl’s influential hegemonic preservation thesis.  Hirschl noted that constitutional reform in many countries seems better described as efforts to entrench longstanding elites than as measures designed to empower and protect historically vulnerable peoples.  Looking for Rights in All the Wrong Places documents how many constitutional amendments are passed by movements as part of their efforts to enter corridors of power.  Constitutions, Zackin’s readers may conclude, are designed to lock in certain powerholders and policies, but sometimes their beneficiaries are emerging powers rather than ancient hegemons.

One signal virtue of any good book is the capacity to generate ideas that you really cannot figure out whether they are yours and or the author's.  Consider the following observations, all of which are clearly rooted in Looking for Rights.  Once we recognize the positive rights tradition in American constitutionalism, we might consider the history of positive rights in Anglo-American constitutionalism.  For much of English political history, the Charter of the Forest (1217), which guaranteed people access to the woodlands, was considered as central to English liberties as the Magna Carta.  Kings reconfirmed both repeatedly.  Here several developmental stories might be told.  Did Anglo-American constitutionalism take a sharp negative rights turn during the eighteenth century or perhaps during the seventeenth century, when radical members of Parliament reinvigorated the Magna Carta, but not the Charter of the Forests.  Perhaps when English liberties travelled across the ocean, a division occurred between local governments, whose notions of liberty were derived from the Charter of the Forest, and central governments, whose notions of liberty were derived from Magna Carta (which also contains more than a fair share of positive rights).   Looking for Rights has as much to offer constitutional pedagogy as constitutional development.  Readers may conclude that  the categories we use discuss rights are derived from national litigation.  Cases on the constitutional status of the environment and education are scattered across the constitutional law casebook.  By comparison, a constitutional law class organized along state dimensions might consider education as much as self-contained category as free speech.  This is particularly important given the emphasis on a practice-ready curriculum.  A fair case can be made that most of our students are far more likely to litigate a state constitutional provision on education or the environment than a First Amendment case.  If so, our constitutional law class might reflect that reality.

Perhaps the most interesting feature of Zackin’s work is how she offers fresh insights into how constitutional provisions work.  Conventional constitutional theory insists that rights provisions work by constraining government.  Zackin highlights how positive rights provisions function by empowering government, and not simply in the obvious sense that such provisions require government to do something.  Looking for Rights explains that many movements for state constitutional revision wish to empower supporters in the state legislature to begin a general program of reform and, by demonstrating political strength, convince other legislators that their political future will best be secured by supporting the movement’s goals.  Perhaps future work will examine what we might call Zackin’s laws: “The more general the rights provision, the more likely that provision functions by empowering the sympathetic decision maker.  The more specific the rights provision, the more likely that provision functions by constraining the unsympathetic decision maker.”

These are, of course, projects for other times and perhaps other scholars.  The bottom line point is that Looking for Rights is an important work by a talented young scholar that will both change how we talk about American constitutionalism and offer numerous fruitful paths for more creative thinking about the entire American constitutional experience.

The elephant in the room

Sandy Levinson

As everyone knows, the Supreme Court issued an order allowing Wheaton College to refuse to submit written documentation to insurance carriers regarding its unwillingness to fund contraception.  According to the Times' account, "The court’s majority said Wheaton College need not fill out the forms. Instead, the order said, the college could just notify the government in writing. The government, it said, remains free “to facilitate the provision of full contraceptive coverage.”  This provoked a dissent from what the article describes as the "three female Justices."  Similarly, in an editorial condemning the order, we read the following two sentences:

"But for the court’s male justices,[Hobby Lobby ittself] didn’t seem to go far enough....  This prompted an angry response from the three female justices — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan." 

Two comments:  First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies.  After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language.  But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues.

The second comment refers to the quite obvious demographic elephant in the room that the Times simply fails to consider.  They prefer to portray the cleavage in the Court as the guys against the gals.  Presumably we can all accept the proposition that "male justices" are simply ignorant of the importance of contraception to planning one's own life, whereas, of course, "female justices" are vividly aware of such realities.  No doubt there's something to this.  But, quite obviously, the male Justice Breyer, is able to figure out its importance, so presumably something more is going on, for empirically-oriented Court watches, than mere gender.  What might that be?

The Times and almost everyone else in the "mainstream media" (unlike, say, Katha Pollitt in The Nation), find it indelicate to refer to the majority as "five conservative Republican Catholics" and the dissenters in Hobby Lobby as "three Jews and a clearly less conservative Catholic than her male colleagues." Can it really be pure coincidence that the Hobby Lobby five are, without exception, conservative Catholics (and not merely conservative Republicans)?  Or, for that matter, that the dissenters are not?  To be sure, one can't explain most of the Supreme Court decisions by reference to religious background.  The Court's viciously anti-labor decisions,dating back to the arrival of the militantly anti-labor Lewis Powell, have nothing at all to do with the majority's Roman Catholicism.  Indeed, one can only wish that the majority had imbibed more of the Catholic Social Justice tradition when learning the catechism (or, for that matter, that they read some of Pope Francis's comments on the poor and realized that labor unions historically have had something to with bettering the plight of the poor and downtrodden).  And I seriously doubt that religion has anything to do with explaining the Court's death penalty jurisprudence (if one wants to dignify it with that term), since, again, the Catholic Church institutionally is admirably skeptical about state killing as well as other forms of killing (including, as no doubt some of you will wish to inform me, abortion).  But, of course, I doubt that gender explains many of the decisions either.  

The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion.  But, of course, the very premise of Hobby Lobby is that religion is not simply pietism, the kind of thing one does in the privacy of one's home, church, synagogue, or mosque; instead, for millions of people, religion is an overarching way of looking at the world that influences how one acts in the world. I doubt that George W. Bush was being simply opportunistic when he named the Bible (and Jesus) as the most influential book in shaping his life, just as Bill Clinton had earlier proclaimed the centrality of his religious faith to shaping his politics.  So if this is true for employers, legislators, and ven Presidents--or state governors like Ohio's John Kasich, who admirably supported Medicaid expansion in Ohio because he believed that as a (conservative) Christian, he had a duty to help the poor, even if he said the proper conservative things about how bad Obamacare is--then why should we think that judges, including members of the Supreme Court, are uniquely free from the influence of theological views that they might literally have begun learning as youngsters?  

I leave open the possibility that we're better off as a society by adopting the willful blindness illustrated in the Times editorial.  But maybe we're not.  The paradox is that having a conversation bout the wisdom of the Times's practices in identifying judicial demographics would itself require recognizing the existence (and potential importance) of the elephant.  

UPDATE:  Whatever else may be meritorious or wrong about my post, I do think that a discussant below is absolutely correct in suggesting that Justice Kennedy is probably not best described as a "conservative Catholic" inasmuch as he has clearly been the leading advocate on the Court for the rights of gays and lesbians (and, I suspect, when the Court gets an appropriate case, the rights of transgendered persons as well).  I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory, inasmuch as it really does require a disdain for community in favor of liberty (and what conservatives in the old days called "license").