Wednesday, February 25, 2015

Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA

Marty Lederman

One week ago, Judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas (Brownsville), issued an opinion and order in which he preliminarily enjoined nationwide operation of the Department of Homeland Security’s new “Deferred Action for Parents of Americans" (DAPA) program--the regulatory initiative that was the subject of a wide-ranging Balkinization symposium last November.  

On Monday, the federal government made a motion to Judge Hanen to stay the preliminary injunction pending the U.S.'s appeal.  In the alternative, the government asks that the injunction be amended to cover only aliens residing in Texas, since the State of Texas is the only plaintiff that Judge Hanen found to have standing--or, at the very least, that the judge should tailor his injunction so that it does not apply in states that are not party to the suit, including a dozen states that have filed a brief explaining that DAPA will substantially benefit them and their residents.*

In the meantime, Professor Michael McConnell has published a defense of Judge Hanen's judgment in a recent the Wall Street Journal.  Professor McConnell's condemnation of the DAPA program, however--like Judge Hanen's--rests on a fundamental misunderstanding of the relevant law.

Before discussing the merits, it's important to stress that Michael McConnell is right about three significant things:

First, he is absolutely correct that "we should all be able to agree that the executive branch must follow the law until it has been amended by Congress."  Indeed, everyone does agree on that--including the President, Jeh Johnson, Secretary of DHS, and the Office of Legal Counsel.  Notwithstanding the efforts of many of the President's opponents to characterize the case as raising a constitutional question concerning executive authority to disregard the law, it does not.  It might be a nice talking point for partisan wrangling, but in fact the case does not implicate any questions of a so-called "imperial" President.  As I explained here back in November, the federal government is not claiming that it can disregard statutory limitations, nor even that it can act without congressional authorization.  This is and always has been simply a matter of statutory interpretation:

If, as the government argues, Congress has conferred upon the Secretary the discretion to defer removal of these aliens – and to authorize employers to hire those aliens, see 8 U.S.C. § 1324a(h)(3) -- then the Secretary obviously does not cause the President to violate his "take Care" duty if he decides to exercise that statutorily conferred discretion.

And if, on the other hand, Congress has clearly precluded the Secretary from exercising such discretion, then that's an ordinary statutory/APA violation, just as is alleged every day in countless other cases challenging agency actions. 

Secondalthough Judge Hanen nominally issued his injunction on procedural grounds (namely, that DHS did not subject the new program to a notice-and-comment rulemaking procedure), his opinion makes it crystal clear that, if and when he reaches the merits, Judge Hanen will find that DAPA exceeds DHS's statutory authority.  Accordingly, Professor McConnell’s column is focused—as is this post—on the merits questions.  (The notice-and-comment issues warrant separate treatment elsewhere, as does the government's argument that Texas lacks Article III standing to challenge the DAPA program.)

Third, Professor McConnell is correct to emphasize a very important and largely overlooked point about Judge Hanen’s decision:  The judge does not rest his injunction on DHS's expected failure to remove (or "deport") DAPA-eligible aliens from the U.S.

Heckler v. Chaney establishes a strong presumption that Congress has afforded the agency the discretion to choose to enforce the removal laws against particular categories of aliens rather than others—a presumption that is especially strong here, because immigration law expressly directs the Secretary to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5).  As the Supreme Court recently recognized in Arizona v. United States, “a principal feature of the removal system is the broad discretion exercised by immigration officials,” which includes the decision “whether it makes sense to pursue removal at all.”

Judge Hanen acknowledges all of this.  Accordingly, in his balancing of interests for the purposes of determining whether a preliminary injunction is warranted, he stresses (pp. 118-19) that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question.  As Michael McConnell puts it, “the district court narrowly crafted its order not to touch on prosecutorial discretion.  The administration remains free to decide which illegal aliens to deport and which to permit to remain in this country.”

Why, then, does Judge Hanen conclude that DHS lacks the authority to issue the DAPA Guidance?  Because, he reasons (p.85), the program “is actually affirmative action rather than inaction.”  

What does the judge mean by this purportedly crucial action/inaction distinction? 

As noted above, the permissible DHS “inaction,” in Judge Hanen's view, is that agency may in the exercise of its prosecutorial discretion decline to remove the aliens in question from the United States, and to shift limited federal resources to the removal of other categories of aliens.  The judge writes, however, that such a permissible exercise of “prosecutorial” discretion “does not also entail bestowing benefits” (p. 87).  And because DHS purportedly has “bestowed benefits” here, Judge Hanen reasons, it has acted beyond its statutory nonenforcement authority.  Michael McConnell emphasizes the same point—that the case is centrally about DHS’s alleged conferred of benefits.

Judge Hanen and Professor McConnell are certainly correct about one thing:  DHS's conferral of deferred-action status on an alien will afford that alien at least one very significant benefit--it will free up an employer to hire that alien, something the employer could not otherwise do under federal law.  Moreover, the Judge and Professor are also correct that the Heckler v. Chaney doctrine about a presumption of unreviewable nonenforcement discretion does not address this work authorization aspect of the DAPA policy.

So where do Judge Hanen and Professor McConnell go wrong?  Simply in this:  There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.
Read more »

Monday, February 23, 2015

Still Standing in King v. Burwell

Gerard N. Magliocca

The Justices returned to work today without issuing an order for supplemental briefing on the questions raised in the media about the standing of the plaintiffs.  Why?  I can think of two reasons.

1.  Standing in the Supreme Court is purely a prudential doctrine.  In this case, the Court wants to hear the merits and just doesn't want to know about any jurisdictional problems, especially when the parties are not raising the standing issue.

2.  If the oral argument does not well from the perspective of either side, then the court could order the briefing afterwards.  That would given them an excuse to remand the case for further fact-finding or dismiss the certiorari petition as improvidently granted.  Perhaps they all want to see where the others stands before opening the escape hatch.

Why I'm in Favor of a Right-to-Vote Amendment but Against Amending the Constitution

Heather K. Gerken

The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote.  Today I posted on the question over on Rick Hasen’s Election Law Blog.  As I explain there, I’m entirely in favor of a constitutional right to vote but against amending the Constitution to add it.  I also have a new paper offering a more fully develop argument as to why the amendment game is not worth the candle. 

Contrived Threats versus Uncontrived Warnings

Guest Blogger

Einer Elhauge

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling.  The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements, but sometimes do not.  My new article, Contrived Threats v. Uncontrived Warnings, provides a general solution to this puzzle.  Such threats are unlawfully coercive only when they are contrived, meaning the threatened action would not have occurred if no threat could be made.  I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs.  When such threats are uncontrived warnings, meaning the threatened action would have occurred even if no threat could be made, they are not coercive and can only benefit the agreeing parties.  However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the different grounds that they harm third parties.  I show that this distinction explains contract law on duress and modifications, the doctrine of unconstitutional conditions, and the broad scope of the prohibition on blackmail.

This contrived-threat test also has relevance to two prominent Supreme Court cases on Obamacare.  First, it explains why the Medicaid defunding threat in Obamacare was properly held unconstitutional in NFIB.  That provision threatened to take away pre-existing Medicaid from any State that did not accept the Medicaid Expansion.  That threat was contrived because it was clear that, without a condition linking pre-existing Medicaid to the Medicaid Expansion, Congress would never have eliminated pre-existing Medicaid.  As my article details, several passages in Chief Justice Robert’s opinion (for himself and Justices Breyer and Kagan) emphasized that crucial feature of the threat, and his distinction of other Congressional threats that were constitutional stressed features showing that those threats were uncontrived warnings.

Second, this same principle explains why, in the pending case of King v Burwell, the canon of avoidance requires interpreting Obamacare not to withhold tax credits from States that do not create insurance exchanges.  Although I think that interpretation is also inconsistent with statutory text, purpose and structure, another fatal problem with that interpretation is that it posits that Congress threatened to withhold tax credits in order to coerce States to waive their constitutional right not to administer federal programs.  If one thought Congress were making such a threat, it would clearly be a contrived threat, because (if such a condition could not be imposed) the enacting Congress surely would have preferred giving tax credits to denying them given that, as NFIB itself stressed, its overriding goal was universal coverage.  Such a threat would be particularly coercive because, given other provisions in Obamacare, withdrawing tax credits would collapse State individual insurance markets below pre-Obamacare levels.  Because such an interpretation would make the provision unconstitutional under NFIB, or at a minimum raise serious constitutional doubts, the canon of avoidance requires avoiding it.

Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. You can reach him by e-mail at elhauge at

Sunday, February 22, 2015

Edward Corwin and the "Totality" of America's World War II

Mary L. Dudziak

What makes a war “total”? And how is war’s totality experienced? Edward S. Corwin, in the opening of his influential 1947 book Total War and the Constitution, turns to Deuteronomy:
Of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them…as the Lord thy God hath commanded thee.
The biblical reference enables Corwin to say that total war “is at least as old as recorded history.” He also finds in Deuteronomy a motive for total war. The Bible justified ruthlessness, “For…the Lord thy God hath chosen thee to be a special people unto himself, above all people that are upon the face of the earth.”

Total war, in this sense, went beyond domination, to elimination. Wars have been thought of as “total” when lacking genocidal objectives, however, at least for some participants. Ubiquity of violence is often a central aspect of war’s totality. The Oxford English Dictionary defines it as unrestricted war, especially “war in which civilians are perceived as combatants and therefore as legitimate targets.”

Totality takes a turn when applied to the United States. For Corwin, the totality that was relevant to American law was “functional totality,” which he defined as “the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Total war was when “every human element” of a society was involved in the conflict. He draws examples from nations under siege. During the War of 1793 in France, the Committee of Public Safety ordered that “young men will go into battle; married men will forge arms and transport food; the women will make tents, garments, and help in the hospitals.” Even children and the elderly had orders.

In the examples Corwin draws upon, including the 1935 invasion of Ethiopia, a core experience of war’s totality was collective vulnerability to violence. Corwin doesn’t explain how totality could apply to a society distant from the fighting, like the United States in World War II (with the exception of Hawai’i). Instead, he assumes its application, as he turns to the consequences of total war for government power and individual rights.

Another logic is needed to explain an American totality in World War II: a focus on the totality of power, as compared with total vulnerability to violence. Corwin’s application of total war to the American experience suggests that totality is experienced by a collective, society as a whole, with every element in society touched in some way by war. The body that feels war’s totality is the collective, and each human body within that collective might feel only some aspect of war. Many World War II Americans felt the war’s violence directly; others felt it through their connections with loved ones deployed. For others, the impact was felt through income taxes and shortages at the grocery store. The extension of war’s impact beyond its core violence is what makes American war “total,” although this experience of war's totality cannot compare with the lived experience of World War II in Europe, Asia and North Africa.

In his analysis of individual rights in this generative work, Corwin suggests that “the requirements of total war” are incompatible with fundamental American constitutional principles. But perhaps there is something more important in Corwin that we might look for elsewhere in the history of American thought. Perhaps Corwin provides a window on the way American war could be seen as present, personal, and “total,” even though the shooting, killing and dying were thousands of miles away.

I am thinking this through for an upcoming plenary at a Duke conference on violence, and for a lecture as part of a Rutgers symposium on totality, so comments and suggestions are most welcome. Please leave them here, where comments are moderated.

Saturday, February 21, 2015

Civil Rights History, Foreign Affairs, and Contemporary Public Diplomacy

Mary L. Dudziak

It seems like a good time to reflect on the policy implications of scholarship on the relationship between civil rights and U.S. foreign relations. President Obama has recently emphasized that protecting human rights matters to the fight against terrorism. And the Council on Foreign Relations in DC will soon hold an event on the International Implications of the Civil Rights Movement. The event is not open, and discussion may go in a different direction, but below are a few points I hope to have a chance to get across.

The history of the intersection of civil rights and Cold War era U.S. foreign relations is copiously documented here and here. It took a while for American diplomats and political leaders to grasp the extent of the problem and how to address it. Here’s how they got it wrong, and then right – at least for U.S. public diplomacy:

In the late 1940s, as the U.S. hoped to encourage a newly independent India to ally with the United States, but encountered persistent criticism of U.S. racial segregation and discrimination, American diplomats in India initially made things worse. They dismissed the problem and analogized American racism to the Indian caste system, suggesting that all nations have racial problems. If not exacerbating the U.S. image problem, this at least delayed addressing a critical issue during an important moment in US/Indian diplomacy.

Because the United States argued that American democracy was a model for the world (in the context of a Cold War battle for hearts and minds with the Soviets), the U.S. encountered global criticism for not living up to its own ideals. The more the U.S. emphasized the values of democracy – at the same time that there was global news coverage of American civil rights abuses – the more the U.S. was criticized as hypocritical, and the benefits American democracy were questioned. It took a very long time for American leaders to understand that they couldn’t talk about rights for other nations without protecting rights at home.

Important steps forward – Brown v. Board of Education, sending in the troops in Little Rock, and the Civil Rights Act of 1964 – along with careful management of the global story in U.S. public diplomacy, helped turn this around. By 1964, American diplomats could report that peoples in other nations had come to believe that the American government was on the side of civil rights, rather than being part of the problem. The unfortunate part of the story is that formal legal change, effectively marketed, could accomplish this. Continuing inequality, if below the radar of global news coverage, did not hold the world’s attention.

One obvious takeaway from this history is that a call for global human rights cannot be effective, and could be counter-productive, without meaningful progress toward human rights at home. There has been global coverage of the protests in Ferguson, Missouri, reminiscent of the international interest in American civil rights in the 1950s and 60s. And there has been a devastating hearts and minds problem stemming from abuses at Abu Ghraib, revelations of U.S. torture, and the continuing scar of Guantanamo. If President Obama believes that promoting human rights is important to the fight against terrorism, this history shows that there is only one effective way to begin: by starting at home.

Comments are closed on this blog, but are open and moderated here, and you can share your thoughts via Twitter.

Thursday, February 19, 2015

Windsor v. United States: Clearing the Channels of Political Change

Heather K. Gerken

Two days ago, I began describing a forthcoming paper of mine offering a new take on Windsor v. United States.  I noted that any satisfying account of Windsor must explain its many mysteries, including its unusual rhetoric and unconventional blending of rights-based and structural analysis.  Yesterday I argued that one can only understand Windsor if one grasps the core truth underlying the opinion: federalism and the First Amendment have served as interlocking gears, moving the cause of same-sex marriage forward. 

A handful of academics have tried to explain the link between rights and structure in Windsor by casting the case as an effort to use federalism to accommodate the fact of social change.  Like others, I think Windsor can be read as an effort – albeit a tentative one-- to think concretely about the relationship between social change and constitutional change.  But I have a quite different take on the fashion in which Windsor is doing so.  Windsor, in my view, was “clearing the channels of political change.”

Read more »

Wednesday, February 18, 2015

King v. Burwell: Standing Pat Or Standing Corrected

Guest Blogger

Rob Weiner
The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance.  To bring a lawsuit in federal court, plaintiffs must have standing to sue.  The prerequisite for standing is injury.  Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury.  If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.

The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief.  The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply.  They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.

    Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate.  Two of the four plaintiffs, it turns out, are veterans.  Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate.  A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold.  And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.
Read more »

Solving Windsor's Many Mysteries

Heather K. Gerken

Yesterday I noted that anyone attempting to offer a satisfying read of Windsor has to explain its unusual blending of rights and structure and its refusal to analyze the question through the lens of liberty or equality, on the one hand, or federalism, on the other.  As I’ve written in a forthcoming paper, even the text of the opinion reveals an unusual pairing of rights and federalism terminology.  In the wake of the opinion, much of the commentary dismissed Kennedy as muddle-headed and began squabbling over whether Windsor was “really” an equality opinion or liberty opinion or a federalism opinion.

What I’ve found so dispiriting about most, but not all, of the academic commentary is the rigid insistence on an either/or approach – that something is either federalism or liberty, either federalism or equality.  That view misses the crucial truth undergirding Windsor, the hidden logic that helps make sense of its many mysteries.  The key to understanding Windsor is to recognize that the ends of equality and liberty are served by both rights and structure.  It has simply been a mistake to assume that the values associated with the rights side of the Constitution are promoted solely by the rights side of the constitution.  But that mistake is made by virtually all constitutional law theorists. For just as those interested in dialogue and equality and integration write almost exclusively about rights, those who write about federalism miss what I’ve called the “discursive benefits of structure” – the ways in which federalism promotes democratic dialogue and, ultimately, democratic integration.  If you don’t understand the ways in which federalism and rights work together to promote change, you can’t understand Windsor.

The marriage-equality fight is thus a stand-in for this deep constitutional truth. Federalism and rights have long served as interlocking gears moving us forward. Kennedy’s opinion might not have been a model of clarity, but at least it recognized that important fact. Windsor is neither a rights opinion nor a federalism opinion.  It is both. And that is precisely as it should be.

That’s why the First Amendment and federalism work so well in tandem.  Dissenting speech leads to debate, which leads to organizing, which leads to policymaking, which in turn provides a rallying point for still more debate and organizing and policymaking. Social movements include pragmatic insiders, forging bargains from within, and principled outsiders, demanding more and better from without.  The key point to emphasize, however, is that federalism – far from being the enemy of dissent – supplies the policymaking gears that are all but essential for any movement to move forward.

Once you think of rights and structure as interlocking gears, once you recognize you can dissent by deciding, once you imagine federal dependence on the states as an advantage for dissenters, the many mysteries of Windsor seem less . . . mysterious.  What was at stake in Windsor wasn’t either structure or rights, neither the right of the states to bless same-sex marriage nor the rights of same-sex couples to seek that blessing.  What was a stake in Windsor was how the debate over same-sex marriage was going to unfold – specifically, whether states legalizing same-sex marriage would be allowed to pull the federal government along with it.

            Tomorrow I’ll describe why Windsor is best understood as an effort not just to accommodate social change, as many have argued, but to “clear the channels of political change” in an Elyian fashion.

Tuesday, February 17, 2015

Justice Kennedy's Mad Genius: A New Take on Windsor v. United States

Heather K. Gerken

Windsor v. United States is much on our minds these days as the Supreme Court looks poised to decide whether same-sex marriage bans are constitutional.  Windsor isn’t just a signal of where the Court is going, but an important opinion unto itself.

I’ve just written a paper offering a new take on Windsor.  The essay argues that while Windsor flouts just about everything we teach our students in constitutional law, it is right to do so.  Justice Kennedy blurs the lines between federalism, liberty, and equality, and he blurs the lines between structure and rights.  The genius of the opinion is that it recognizes that rights and structure are like two interlocking gears, moving the grand constitutional project of integration forward. While the doctrine isn’t geared to recognizing that reality, that’s the doctrine’s problem, not Windsor’s.  

There have been many articles trying to guess what Justice Kennedy was hinting when he wrote Windsor, but this read best fits with what the opinion actually says.  It’s an effort at construction and interpretation, not divination.  The paper thus begins by describing Windsor’s many doctrinal and rhetorical mysteries. It’s not just that the opinion blends -- seemingly willye nillye -- liberty, equality, and federalism analysis while refusing to follow the logic of any of those doctrinal lines.  It’s not just that the opinion reads as if a federal right to same-sex marriage doesn’t exist now but might well exist later.  Windsor’s mysteries seep down into the grain, inflecting the very text of the opinion itself.  It’s strange, for instance, that Windsor repeatedly – even doggedly -- describes the equality and liberty interest here as one recognized by the state.  The traditional rights/structure divide doesn’t accommodate such a distinction.  If same-sex couples enjoy a right to marry, it matters not at all if the right has been recognized by the state of New York. The last part of Kennedy’s phrasing is pure surplus, and yet he repeats it again and again.  That textual pairing – a right recognized by the state -- is just as strange Windsor is a federalism case.  New York’s decision to recognize same-sex marriage would be protected whether the state was recognizing a constitutional right or just making policy.  Even the doctrinal test used to invalidate DOMA is a mystery – the problem, we are told, is that DOMA is both narrow and broad.  It’s not clear why that’s a magic combination under any account of the harm. 

These mysteries pose a real challenge to anyone attempting to explain Windsor.  Any satisfying account of the opinion must explain them, which is precisely what I hope the paper does.  As I’ll explain tomorrow, in attempting to explain those mysteries, the article focuses on a core but neglected truth at the heart of the opinion – the fact that rights and structure work together to move debates forward, with federalism compensating for the shortcomings of the First Amendment.  Indeed, the paper claims that Windsor is best understood as an effort to clear the channels of political change by allowing proponents of marriage equality to take full advantage of what I've called “discursive benefits of structure” and the regulatory integration of state and federal administrative regimes. 

The Incredible Shrinking Lawsuit: The Decomposition Of King v. Burwell

Guest Blogger

Rob Weiner

A monument on the Civil War battlefield at Gettysburg identifies the “high water mark of the Confederacy,” where General Pickett’s charge temporarily breached the front lines of the Union Army.  A significant issue in that War was the refusal of Southern states to accept the result of the Presidential election.  The Union’s ultimate victory vindicated the principle of majority rule within our constitutional system.
More than 150 years later, this democratic principle is still under siege—not by force of arms, but by the persistent efforts of the losers in legislative battles who seek to overturn the majority vote in the courts.  Nowhere are those efforts more relentless and dogmatic than in the profusion of lawsuits challenging the Affordable Care Act.

The challenges, however, hit their own high water mark when the Supreme Court granted review in King v. Burwell.  Since then, the challengers’ claims, which were insubstantial to start with, have evaporated, laying bare both the absence of any coherent legal basis for the claims and the political nature of the litigation.
Read more »

Thursday, February 12, 2015

Theorists, Get Over Yourselves: A Response to Steven D. Smith

Andrew Koppelman

Steven D. Smith is one of our most powerful critics of contemporary liberal theory. He has an acute sense of the hidden flaws and gaps in contemporary conventional wisdom. Even those who disagree must, if they are honest, carefully consider his arguments.

In his most recent work, he claims that, in our political culture, the case for the specific protection of religious liberty, as opposed to liberty under other descriptions, has been undermined. As a consequence, he fears that although some freedoms will survive, freedom of religion as such may cease to exist.

Even if his argument is sound, his fears are misplaced.  He overstates the importance of one school of theorists for the future of our civilization.

My full response to Smith can be found here.

Tuesday, February 10, 2015

Standing in King v. Burwell

Gerard N. Magliocca

Two recent stories in the The Wall Street Journal raise significant questions about whether any of the named plaintiffs in King v. Burwell have standing to challenge the subsidies going to people enrolled in the federal exchange under the Affordable Care Act.  The stories are here and here.

Under the circumstances, the Court should order supplemental briefing on the issue.  It would be highly improper (and embarrassing) for the Court to decide the merits of such an important case when there are doubts about whether this is actually a "case or controversy" under Article III.

Pop Quiz on judicial proprieties

Mark Tushnet

Citing a conversation with a former FISA Court judge, Margo Schlanger reports that there is "an annual lunch bringing together FISA Court judges and legal advisors (and the Chief Justice) with the heads of the CIA, NSA, and FBI" (Schlanger, "Intelligence Legalism and the National Security Agency's Civil Liberties Gap," 6 Harvard National Security Journal, 122,166 (2015).) I understand that official Washington is a rather small town, and judges bump into executive officials all the time (a point Justice Scalia made in his opinion on recusal in the Cheney case). This strikes me as relevantly different. On a scale from "completely appropriate" to "wildly inappropriate," where do you place this annual lunch?

Monday, February 09, 2015

Distant War and the Politics of Catastrophe

Mary L. Dudziak

My earlier musing on this blog are finally turning into a book that puts war death into the history of the war powers. More particularly, I am taking as my point of departure Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War. During the Civil War, an intimacy with death and dying, and a close experience of war’s brutal after effects, would transform the United States, Faust argues, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” If the experience of war death was somehow constitutive of the republic itself during the Civil War, I have been puzzling over how American identity and politics might be affected or even constituted by its comparative absence.

Initially, I thought that all the important action in the story happens after World War II, and especially after Vietnam, when three developments isolate most Americans from the direct experience of war: the absence of a draft, the rise in military contracting, and changes in war technologies. But I’ve come to understand that the entire 20th century requires rethinking as a century of distant war.

There was deep and broad-based engagement of Americans in the two world wars, but geographic distance mattered to the politics of war declaration and authorization. In essence, distant war required a politics of catastrophe, in which presidents made decisions, and then waited for a disaster of sufficient proportions to generate political support to get strong backing from Congress for what had already been decided. Catastrophe didn’t generate a decision for armed conflict, but instead facilitated political mobilization.

This easily fits the Spanish American War, with a war declaration coming on the heels of public uproar over the sinking of the battleship Maine in Havana harbor, mistakenly attributed to the Spanish. And the World War II chapter of my War Time book illustrates the way this fits WWII (though I don’t develop this argument in that book). What was surprising to me was how well it fits World War I.

The important story comes before Woodrow Wilson sought a formal war declaration, in his failed effort to get an “armed neutrality” bill through Congress (which failed not due to the policy but due to Wilson’s political missteps). The bill would have enabled Wilson to arm merchant ships that would, in certain areas, fire upon German U-boats without warning, and would have certainly launched the U.S. into the war. Amid continuing reports of sunken ships and American deaths, Wilson had announced that an “overt act” by Germany would move the United States closer to war. Wilson, his close advisers, and the press then contemplated whether particular sinkings were the “overt act” he had in mind. Ultimately the “overt act” was the sinking of the Laconia, with only three American deaths. Wilson used the incident to build political momentum. Biographer Arthur Link wrote that  “Wilson’s decision to capitalize on the incident was apparently part of his strategy for focusing public pressure on Congress.” Others were puzzled, since many more were killed in previous incidents that had not been the magic “overt act.” This illustrates an important role of catastrophe in war politics. The terrible event doesn’t always lead to a new policy. Instead, a catastrophe is needed for political reasons: to generate support for a decision already made. And catastrophe itself is defined by politics, not by the event itself. Public opinion scholar David Berinsky has written that “the facts of war do not speak for themselves.” Neither do the facts of catastrophe.

I am continuing to work this out. In the meantime, if you are in the SF Bay Area and want to see how it all turns out, my David M. Kennedy Lecture on the United States and the World, May 12 at Stanford, will be on The Politics of Distant War: 1917, 1941, 1964. You can RSVP here. I'll give a similar lecture at the University of Washington on May 21.

Monday, February 02, 2015

Disclosing How the Justices Vote on Certiorari Petitions

Gerard N. Magliocca

The Supreme Court's lack of transparency is an issue that never dies.  Sometimes the complaint is that the Court does not televise oral arguments.  Sometimes people grumble that retired Justices keep their papers confidential for far too long or don't preserve them at all.  I would like to raise a different concern, which is that I think people are entitled to know how the Justices vote on each cert petition.

A Justice who votes to grant certiorari on a petition that is denied has the discretion to publish a dissent from that denial and disclose his or her vote.  Basically, this is done only when a Justice feels strongly that certiorari should have been granted but was not.  One could imagine a practice, though, where a Justice noted "dissenting without opinion" whenever a petition was denied.  The same could be true when a petition was granted, though it is rare for a Justice to write a dissent from a certiorari grant (indeed, I can't think of any recent cases in which this happened.)

There are a couple of benefits to this sort of disclosure.  First, litigants and attorneys might find it useful to know whether certain kinds of issues or petitions are drawing zero votes for certiorari as opposed to, say, three.  And they might like to know who is voting how so that they can shape the next petition to draw the votes of those who voted no the last time.  Second, in granted cases there would be an advantage to knowing the vote.  Take King v. Burwell as an example.  We are assuming that the four dissenters in NFIB v. Sebelius (and only those four) voted to grant.  Suppose, though, it turned out that Justice Breyer voted to grant, or that Justice Alito voted to deny.  That would change the way that people are thinking about the case going into oral argument.

What are the arguments against this sort of disclosure?  One thought is that the Court does not want to advertise its divisions, and many of the certiorari grants would look bad in that respect.  Another is that the rule that certiorari denials are not precedent would be tested (say in a federal habeas petition), if a litigant could say that two Justices or three wanted to hear the cert. petition on direct appeal.  I do not think that this is a substantial objection, but maybe I'm wrong about that.  A final thought is that the Justices simply do not want to be feel bound by their certiorari votes, which would tend to happen if they were known.

My tentative conclusion is that the benefits outweigh the costs, but I would be curious to hear what folks think or whether I'm missing something important.

UPDATE:  Will Baude has an op-ed in today's (Tuesday's) NYT that makes a broader argument along these lines that I agree with entirely.

Three Paths to Constitutionalism – and the Crisis of the European Union

Guest Blogger

Bruce Ackerman

I’m in Berlin this year as a Fellow at the American Academy, where I presented a lecture last Thursday that sketched out my current project in comparative constitutional law. You can watch the lecture, and the interesting question-and-answer period,  at (Skip the first ten minutes or so, which show preliminaries before the talk begins.)

Here’s a brief summary of my argument.

Three Paths to Constitutionalism – and the Crisis of the European Union

Law legitimates power. Constitutionalism is part of this larger project. But how do Constitutions gain their claim to authority?

I will be exploring this question in the spirit of Max Weber, who famously distinguished three ways in which power seeks to legitimate its authority – by appealing to tradition, charisma or bureaucratic rationality. But this famous list does not enlighten the appeal of constitutionalism as a mode of authority in today’s world. It’s past time to move beyond Weber and build a new series of ideal-types that does justice to constitutionalism’s legitimating logics.

In making this effort, my aim is not to pass philosophical judgment on the merits of constitutionalism.  I am instead inviting you to embark on a sociological and historical inquiry into the ways in which elites, and the general public, may come to believe that their Constitution has transformed the sheer exercise of power into the legitimate exercise of authority.

Under the first scenario, a movement of revolutionary outsiders mobilizes against the existing government at Time one. Many would-be revolutionaries are crushed at this point, but other movements have triumphed over the status quo. This sets the stage for the founding of the new regime at Time two. During this period, the revolutionary movement culminates its triumph by elaborating a Constitution codifying the fundamental principles of their new regime. Twentieth century examples include India, South Africa, Italy, the French Fourth and Fifth Republics, and Poland.

Constitutions also emerge from a very different pathway. In this second ideal-type, the political order is constructed by pragmatic insiders, not revolutionary outsiders. When confronting popular movements for fundamental change, the insider-establishment responds with strategic concessions that split the outsiders into moderate and radical camps. When this strategy works, the insiders reinvigorate their authority by enacting landmark reform legislation which invites “sensible” outsider-groups to desert their more radical brethren and join the political establishment to govern the country.  Britain, Australia, Canada, and New Zealand serves as familiar examples.

Under the third scenario, the old system of government begins to unravel but the general population stays passively on the side-lines. The emerging power vacuum is exploited instead by previously excluded political and social elites, who proceed to play a key role in the creation of a new constitutional order. Modern Spain, Japan, and Germany provide variations on these elitist themes.

I conclude by applying my general theory to suggest that the European Union’s current crisis is cultural as well as economic. Leading members of the Union emerge from different pathways – with the constitutions of France, Italy, and Poland emerging from revolutionary achievements; Great Britain, from insider-adaptations; and Spain and Germany, from elite constructions. This disparity in legitimating logics makes it especially difficult for the Union to sustain European-wide credibility as it seeks to sustain its authority during the present crisis.


Sunday, February 01, 2015

The Amicus Briefs Supporting the Government's Position in King v. Burwell

Guest Blogger

Timothy Jost

On January 28, 2015, thirty amicus briefs were filed in the Supreme Court supporting the validity of the Internal Revenue Service rule in King v. Burwell.  That rule permits the federally facilitated marketplaces (FFM), which administer the Affordable Care Act insurance markets in two thirds of the states, to grant premium tax credits.  King is a lawsuit brought by the Competitive Enterprise Institute, an anti-government advocacy group, claiming that four words that appear in two subsections of the ACA that provide the formula for calculating premium tax credits and refer to exchanges “established by the State” limit premium tax credits to state-operated marketplaces (exchanges).  They ask the Court, therefore, to invalidate the IRS rule and terminate tax credits for more than five million Americans.

The thirty briefs were filed by an extraordinary assemblage of states and state legislators, members of Congress, leading legal scholars, academics from a variety of other disciplines offering a wide range of perspectives, insurers, providers, and patients and their advocates.  By contrast the twenty-one amicus briefs filed last month by the challengers are far more limited in scope.  The challengers submitted briefs signed by a few Republican Congressmen, seven states, and a handful of conservative and libertarian legal scholars.  The rest of their amici were right-wing advocacy groups. 

Among the most important briefs is the brief filed by the Virginia attorney general and the attorneys general of twenty-one other states and the District of Columbia.  Ten of the states have federal exchanges and eight have Republican governors.  By contrast, the six states that filed amicus briefs for the challengers are all dominated by Republicans. Tellingly, the biggest Republican federal exchange states, such as Florida, Texas, Wisconsin, and Ohio did not join. 
Read more »

Sunday, January 25, 2015

'Religion' as a Bundle of Legal Proxies: Reply to Micah Schwartzman

Andrew Koppelman

The American legal tradition of giving religion special treatment is justified, I have argued, because when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. Micah Schwartzman argues, in response, that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. I respond to Schwartzman’s critique in a new piece in the San Diego Law Review, available here.

Thursday, January 22, 2015

Holt v. Hobbs and Third Party Harms

Guest Blogger

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

In Holt v. Hobbs, the Court unanimously and easily held that Arkansas prison officials cannot bar an inmate from wearing a ½ inch beard that he claims is required by his religion. The exemption to hair grooming standards, the Court held, is required by the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing substantial burdens on religious exercise unless its policies are narrowly tailored to achieve a compelling interest.

Holt isn't a hard case. The prison officials could offer no good reason for restricting the inmate’s beard. The prison permitted slightly shorter beards for medical reasons. And the Court pointed to the fact that numerous other states and the federal prison system permit beards. Moreover, the main reason given for the beard length restriction—that prisoners would hide contraband in a ½ in beard—was implausible on its face. 

The result of the case was never really in dispute. What is notable, however, is that Justice Ginsburg (joined by Justice Sotomayor) wrote a two-line concurring opinion, which reads:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommo­dating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

For those following recent developments involving the Religion Clauses, this is a significant statement. Justice Ginsburg’s concurrence signals that the third party harms doctrine is alive and well, at least for the justices who dissented in Hobby Lobby. As we have been arguing repeatedly, accommodations under RLUIPA or RFRA are constrained by the Establishment Clause, which requires the government to refrain from granting religious exemptions that impose significant costs on third-party nonbeneficiaries. Several Supreme Court cases implement this principle and none gainsay it.   

Hobby Lobby was not initially framed as a third-party harm case. The government instead argued that it had a compelling government interest in ensuring that women receive contraception coverage. What the government didn’t argue, until fairly late in the litigation (and after scholars pointed it out), is that exempting Hobby Lobby to protect the owners’ religious rights imposed direct and substantial costs on its employees.    

Avoiding such costs is emphatically an Establishment Clause value. No one should be forced to bear significant costs on account of someone else's religious practice. If an accommodation for a religious practice imposes burdens, or – in the case of prisons – increases the dangers to other inmates, it would violate the Establishment Clause. As the Court has now repeatedly indicated, RLUIPA and RFRA must be read with this constraint in mind.

Justice Ginsburg, joined by the entire Court, said as much in Cutter v. Wilkinson, so this isn’t new. But it is important that she took the time to reiterate the point in Holt. Other decisions by the Court that consider free exercise exemptions are also grounded in concerns about third-party harms.

Indeed, the Hobby Lobby Court signed onto the third party harms limit. Writing for the majority, Justice Alito stated, “[I]t is certainly true that in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’” (quoting Cutter). But the Court held that there were no harms to the employees in allowing Hobby Lobby to avoid paying for contraception coverage because the government could easily supply the coverage at no cost. 

Unfortunately, and as we have previously noted, the Court was wrong as a practical matter.  Though the government may eventually pick up the tab, there is currently a gap in health care coverage for the employees of Hobby Lobby and other companies that have received religious exemptions. Nevertheless, the principle remains: future accommodations under RFRA and RLUIPA cannot impose significant burdens on third parties. 

A final point: some commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents in Estate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance.      

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

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

Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School. You can reach him by e-mail at nelson.tebbe at  

Wednesday, January 21, 2015

Why even the colorblind should embrace disparate impact law

Joey Fishkin

On the surface, Inclusive Communities Project, which was argued today at the Supreme Court, is a statutory interpretation case.  The question presented is straightforward: does the Fair Housing Act (FHA) authorize disparate impact claims?  The statutory text is clearly ambiguous; the Justices spent a reasonable portion of the morning’s argument asking imponderable questions about phrases like “make unavailable” and “adversely affect.”  (None of the major statutes courts understand to authorize disparate impact claims originally used the phrase “disparate impact,” which came later.)  Justice Scalia in particular also vigorously pursued a (pretty strong) argument that when Congress went back and amended the statute to carve out certain exemptions from disparate impact claims under the FHA, it must have thought you can make disparate impact claims under the FHA; otherwise the exemptions make no sense.  So far, so statutory.

But you don’t have to dig very deep beneath the surface of this litigation to hit constitutional bedrock.  It’s right there.  As Texas Solicitor General Scott Keller put it this morning: “There is a serious equal protection question lurking here.”  And that’s where the real action is in this case.  Texas’s statutory arguments are pretty modest and pedestrian.  But its “constitutional avoidance” argument is audacious.  And furthermore, it’s tailor-made to fit the peculiar combination of conservative activism and false modesty that has become a hallmark of the Roberts Court.  Disparate impact, Texas urges, is constitutionally suspect under the Equal Protection Clause—not just in fair housing, but everywhere—because it requires race-conscious thinking.  This is a claim articulated most fully (so far) by Justice Scalia in his brief concurrence in Ricci v. DeStefano (and before that, prefigured perfectly by Richard Primus in this article).  Because of the constitutional cloud hanging over disparate impact law, Texas argues, the Court should read the FHA to disallow all disparate impact claims—and call this reading “constitutional avoidance.”

That would kill two birds with one stone.  One: It ends disparate impact claims under the FHA, on statutory grounds (an outcome devoutly to be wished if you are, for instance, a mortgage lender facing potential liability for redlining or some similar practice, as the lineup of amici in this case suggests).  Two: It furthers the longer-term constitutional project that I’ll discuss a bit more below, of interpreting the Equal Protection Clause to bar disparate impact claims under any statute, on the ground that what we might call “disparate impact thinking”—taking into account the racial effects of one’s actions, even when those actions are facially neutral—is constitutionally suspect.  This larger project would reread the Equal Protection Clause to unravel much of the race-conscious, sex-conscious, or otherwise group-conscious statutory framework that was built in the 1960s-70s on the foundation (or so Congress thought) of the Equal Protection Clause itself.  The goal here is a colorblind constitutionalism that casts constitutional suspicion even on actions that are entirely race-neutral, when they are taken for race-conscious reasons, such as to achieve racial integration in housing.  It’s a breathtakingly audacious project.

It won’t work.

To be clear: I’m not saying ICP will win this case.  I’m not saying disparate impact claims under the Fair Housing Act will survive.  They might; it’ll be close.  What I am saying is that the ultimate project of turning the Equal Protection Clause into a charter of colorblindness, prohibiting even facially neutral actions that are taken for race-conscious reasons, will fail.

If you like the colorblind treatment of individual human beings—that is, if you like making sure A is not treated differently from B because of their race—then there are plenty of things you obviously won’t like.  You won’t much like affirmative action, for instance, as we usually use that term today.  But you should love disparate impact law.  That’s because disparate impact law requires what you advocate: it promotes race-neutral alternatives to affirmative action and other similar policies that treat A differently from B.  There was a great deal of confusion on this point today at oral argument (and that is nothing new), but Solicitor General Don Verrilli correctly hit the point pretty hard.  Disparate impact does not press toward quotas.  Remember, disparate impact law does not mean that there is liability any time a practice has a disparate racial impact.  It just means that when something does have a disparate impact, this triggers a further inquiry: is there some good business reason for the practice, or is it more likely the product of something else—biases that are hidden or unconscious, assumptions built unfairly around one group rather than another, structural forms of discrimination, etc.?  Disparate impact law does not involve jiggering to get a particular numerical result—at least not in Title VII, where the law of disparate impact is the most well-developed and clear.  Instead, disparate impact law requires exactly what conservative Justices say institutions must do before engaging in affirmative action: consider race-neutral alternatives—that is, policies that promote equal opportunity without ever treating A differently from B because of either person’s race.

This last point is the core of an important lecture by Reva Siegel, now published here.  It is a point that I expect Justice Kennedy will be thinking about as he decides how to implement his constitutional vision in this domain.  Justice Kennedy has been especially clear about the fact that race-conscious thinking, per se, is not what is verboten under the Equal Protection Clause.  Indeed at times race-conscious goals are a compelling interest under that clause.  (Kennedy is not the only conservative Justice to see this.  Indeed I think the only Justice likely to consistently embrace the position across the board that all race-conscious action is suspect, is Justice Thomas.)  But, if we have a race-conscious goal that is permissible or even compelling, such as integration or equal opportunity, it still matters what means we use to achieve it.  Justice Kennedy argued in Parents Involved for the superiority of employing facially race-neutral means, rather than means that treat A differently from B on the basis of their race.   This argument is the best conservative argument for disparate impact law.  The remainder of this post will unpack some of these claims—and spell out what’s at stake here for the Fair Housing Act.

Read more »

Tuesday, January 20, 2015

A Golden Ticket for Mark Christeson

Jason Mazzone

Every now and then, in the style of a papal dispensation, the Supreme Court sets aside the normal rules to give a measure of relief to somebody screwed by the system. Today's lucky golden ticket winner is Mark Christeson, a state death row inmate who sought to file a federal habeas petition but whose lawyers didn't get around to contacting him until six weeks after the one-year AEDPA deadline had passed. After the district court dismissed the petition as untimely, Christeson sought to substitute new counsel to argue that equitable tolling was warranted but the district court denied that application also. The Court of Appeals affirmed. Today, in a per curiam opinion the Supreme Court reversed, holding that substitution of counsel was warranted under the circumstances of the case (the original lawyers could not have been expected to argue equitable tolling where the delay was a result of their own error) so as to be able to pursue the equitable tolling claim. Even if Christeson wins on the equitable tolling argument, he might still lose on the merits of the habeas petition. So the golden ticket might serve only to delay the inevitable. But delay is no small victory in a capital case.  

"Thinking About An Agenda for a New Supreme Court"

Mark Tushnet

I have a blog posting with that title at the Harvard Law and Policy Review blog site. The first lines are: "Suppose that a Democratic president makes a “relevant” appointment to the Supreme Court – that is, a replacement for one of the Court’s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court’s agenda?" I hope that this will be the first of a series on that question.

Older Posts