Tuesday, July 25, 2017

How Does This Work? The Senate and Health Care Reconciliation

David Super

     Now that the Senate, defying many pundits’ expectations, has voted to begin debate on a reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it may be useful to review the procedural rules and tactics likely to shape this debate. 

     First, and most obviously, a bill considered under reconciliation rules is immune from filibuster.  Instead, the Congressional Budget Act limits debate to twenty hours, equally divided between supporters and opponents.  Thus, Republicans do not need sixty votes to invoke cloture; they only need fifty votes plus Vice President Pence to break ties. 

     Second, the scope of permissible amendments is quite limited.  Considerable attention has focused on the Byrd Rule, which prohibit provisions with no fiscal effect or whose fiscal impact is merely incidental to their non-budgetary policy purposes.  The Byrd Rule also could cause problems for amendments that have a clear fiscal impact but that change the savings projected from the underlying bill and possibly those that have the effect of taking money from one committee’s jurisdiction and placing it in that of another.  These rules were written on the assumption that bills being debated would be reported out of the various relevant authorizing committees; how they fit with the extraordinary path Majority Leader McConnell has chosen is less clear. 

     Also significant are the Senate’s germaneness rules for reconciliation legislation.  A full treatment of germaneness in the reconciliation context would glaze over eyes faster than a CLE course on parking law, but suffice it to say that the ability to add entirely new material to the bill is limited.  Motions to strike, on the other hand, are liberally permitted.  That means that no senators can excuse their vote for a bill containing a troubling provision by claiming that they had no way to get that provision removed.

     Perhaps most important is the timing of amendments.  Although senators are free to offer amendments at any time, few truly significant amendments appear until the very last moment.  That is true in an ordinary year, and that is emphatically true this year with the Majority Leader placing a premium on stealth.  Once the time for debate has expired, the Senate holds one roll-call vote after another until all amendments have been addressed or withdrawn.

     If you wait for all, or virtually all, of the twenty hours of debate to be exhausted before seeking a vote on your amendment, you can force senators to vote with almost no public information about what is in the amendment.  Typically, senators unanimously consent to extend debate for two minutes (one each for proponents and opponents), but that allows for little more than sound-bites.  Amendments accepted in a “vote-a-rama” can profoundly transform the underlying legislation yet, absent any meaningful debate, senators retain plausible deniability if troubling consequences of such an amendment later emerge. 

     This process allows Majority Leader McConnell to wait until the very end to offer the amendment he believes will get him to fifty votes and leave opponents no time to mobilize opposition (much less get a score from the Congressional Budget Office).  The Majority Leader may file several different amendments, or may have allies file several amendments, and only disclose which one he wants to receive a vote at the very end. 

     It was the fear that he would do just this that caused several Republicans across the ideological spectrum to take the unusual step of declaring that they would vote against the motion to proceed to debate a health care reconciliation bill.  The fact that all but Sens. Susan Collins (ME) and Lisa Murkowski (AK) voted for the motion to proceed suggests that Sen. McConnell has offered some assurances about what might be in his amendments or substitutes at the end, but we will not know what he promised until much later. 

     Vote-a-rama also commonly features numerous “message” amendments, offered to give senators a chance to vote for or against something to provide cover for their final votes on the underlying legislation.  Thus, one can imagine that the Majority Leader has arranged for amendments to be offered that would hit Medicaid even harder, or pound Planned Parenthood even more resolutely, so that senators wishing to be seen as moderates can claim that they voted to save those programs.  Perhaps far-right senators also will get a vote on their ideal bill so that, when it fails, they can argue that the votes just were not there to do the “right thing” and they had to vote for Senator McConnell’s bill as the best they could do. 

     It is important to recognize the trap Senator McConnell has adroitly laid for ACA’s defenders.  News coverage and punditry for the past several weeks has obsessed over which bill the Majority Leader would bring to the floor (to the extent the health debate has not been drowned out by the President’s WWE-worthy feud with his own attorney general).  All this commotion implies that which bill comes to a vote is an extremely important question, that some are “bad” bills and others are “good” or at least “moderate” bills.  This, in turn, empowers Republican senators to claim credit for blocking all the “bad” bills as cover for voting in favor of the final legislation.  Opponents will have no chance to explain that the final bill is “bad” until it is too late. 

     In fact, none of the bills that Republicans have floated this year are very different from one another in their end result:  huge losses of insurance coverage and steep increases in costs for many of those that remain nominally insured.  This is a function of the large amount of money being taken out of the health care system to pay for the bill’s tax cuts.  Even allowing a few of the ACA’s revenue provisions to remain would only provide enough money to very modestly lessen the damage. 

     One also might hear some senators saying that they will vote “yes” on this bill, flawed as it may be, to “move the process along” with the idea of “fixing” it in conference.  Such claims would be disingenuous for several reasons.  Most obviously, as noted, all the proposals are fundamentally similar in impact.

     In addition, conference committees are limited in the scope of what they may consider.  If a provision is in neither House nor Senate bill, rules prohibit included it in the conference agreement.  Some legislation moving with broad bipartisan support ends up outside the scope of the conference with a collective wink and nod, but this is emphatically not that kind of legislation.  Moreover, if a provision made it into neither chamber’s bill, it likely does not have enough support to get serious consideration anyway.

     But the most fundamental reason why “we’ll fix it in conference” is a fake is that this legislation likely will not be going to conference.  The usual path to conference is that the second chamber’s legislation is returned to the first chamber (here, the House), which then “insists on” its version and requests a conference.  But the first chamber can also simply pass the second chamber’s bill and send it to the President for signature.  That is what happened to the Civil Rights Act of 1964, whose sponsors doubted their ability to break a Senate filibuster a second time.  And that is very likely what Speaker Ryan would do here. 

     Finally, we may hear more claims that moving legislation to repeal core parts of the ACA, which various “repeal-lite” proposals floated recently would do, is the key to restoring bipartisanship.  The President and others have argued that doing so would “bring the Democrats to the table.”  One imagines that Senator McCain, who cast the decisive vote for the motion to proceed before and after denouncing the very process he was allowing to move forward, will offer that justification.  But this does not make much sense, either. 

     Expanding health care coverage from pre-ACA levels requires resources.  Not as many as some imagined, but a lot.  If the current legislation eliminates most of those resources by repealing most or all of ACA’s revenue measures, and if Republicans remain steadfastly opposed to any other tax increases, the money to cover the otherwise uninsured will not exist.  What is left is simply deciding which twenty-some million people will lose coverage.  It is not at all clear that Democrats have significantly better ideas about how to answer that grim question than Republicans.  And if they do not, they have little reason to engage in a process whose basic terms, and essential outcome, have been pre-ordained.
     A major part of this debate, and the vote-a-rama, is an allocational struggle within the Senate Republican caucus for two coveted prizes:  the ability to vote “no” on the final legislation.  Much of the posturing we have seen involves competing for that right.  Sen. Collins appears to have locked up one of those slots; until recently, it appeared that Sen. Rand Paul (whose state was one of the biggest winners under ACA) was in a strong position to take the other.  But that second “no” slot is now being aggressively pursued by Sen. Murkowski (whose state’s health care infrastructure would be devastated by repeal), West Virginia Sen. Shelley Moore Capito (whose state may be ACA’s single biggest per capita beneficiary), and Nevada Sen. Dean Heller (who faces an uphill reelection battle next year).  The bill will only fail if the party cannot resolve these competing claims.  Once it has been decided which senators must walk the plank and vote “yes”, much of the rest of the action will be holding votes in which they can cast whatever preliminary “no” votes they feel they need for political cover. 

     As such, conventional notions of momentum have no place in this process.  Majority Leader McConnell knows that only the final vote matters.  He is willing, indeed eager, to lose as many preliminary votes as his senators want.  The initial amendment offered Tuesday night – without any effort to address Byrd Rule violations that made it require sixty votes to pass – was obviously not intended to succeed:  it was merely an early opportunity for Republicans to vote “no” and perhaps give false reassurance to constituents.  Many more such votes can be expected along the way. 

Trump as a Different Type of Failure

Guest Blogger

Calvin TerBeek

After the shock of President Trump’s election, some political scientists and legal scholars turned to Stephen Skowronek’s theory of political time to understand Trump’s place in presidential history. Political scientist Julia Azari, arguing that Trump might best be understood as a “disjunctive,” or failed, president, detailed how to think about Trump as the last gasps of the Regan Revolution and movement conservatism. Corey Robin, a political theorist who has written a popular (if whiggish) history of conservatism, penned a well-circulated n+1 essay arguing that Trump is most akin to Jimmy Carter in the political time model. That is, Carter is our last disjunctive president; the New Deal Coalition, a political regime ushered in by the “reconstructive” presidency of FDR, finally fell apart under Carter’s watch. (In Skowronek’s political time model, Regan was the last reconstructive president whose victory in 1980 marked the triumph of movement conservatism). And in this venue, a few days after Trump’s electoral college victory Jack Balkin wrote a sophisticated analysis of Trump and the politics of disjunction.

Carter, and before him Herbert Hoover, are salient examples of failed (disjunctive) presidencies. Disjunctive presidents, according to Skowronek, have the poor fortune of coming to power when the warrants for presidential action and authority are at their lowest ebb. These presidents come to be seen “as central parts of the governing problem.” Because they are saddled in this way, disjunctive presidents tend to engage in a managerial dialect—Skowronek thinks it no accident that Hoover and Carter were engineers. Carter told the American public there were “no easy answers” to the problems of the day (e.g., the failure of Keynesianism, stagflation, a globalizing economy), but imagined he could solve the issues with managerial acumen. Indeed, Carter so concerned himself with the minutiae of governance that he issued an edict limiting the number of ceremonial pens used for signing ceremonies. Similarly, Hoover, as Skowronek notes, was concerned with finding “appropriate administrative techniques” to combat the Great Depression. Jimmy Carter, somewhat humorously, was tagged with the sobriquet “Jimmy Hoover” because both were seen as ineffectual engineers not up to the presidential task—not leaders, but mere managers, and poor ones at that.

More than that, and perhaps more than Skowronek realized, disjunctive presidents in many ways prefigure the coming regime. Consider Carter’s fiscal conservatism, support for deregulation, his personal pro-life stance and evangelicalism, desire to reform AFDC (welfare), his southern origins, and his support for reducing the individual income tax during the 1980 campaign. For his part, Hoover prefigured FDR in that he took steps toward government intervention in the market after the Great Depression. In addition, Hoover’s technocratic bent prefigured the consolidation of liberalism, the administrative state, and technocratic expertise that congealed during the New Deal and World War II. In other words, inherent in a disjunctive presidency is being caught betwixt and between the seemingly stale ideational solutions of the failed regime and the political framework that will structure politics in the coming regime.
Turn now to Trump. The similarities between (say) Carter and Trump are largely superficial. In some sense, Trump is movement conservatism’s version of a “managerial” technocrat: the businessman who can solve government’s problems by imbuing it with the private sector’s sensibilities (in fact, it is telling that three of the past four GOP presidential nominees have been (variously successful) businessmen before turning to politics). Like Carter, Trump is a political “outsider,” but rather plainly he did not suffer from the initial lack of name recognition (“Jimmy Who?”) that marked Carter’s national ascent. The inability, thus far, of Republicans to achieve any significant legislative goals despite unified control is perhaps reminiscent of the full employment paper tiger legislation of 1978 (Humphrey-Hawkins) and labor’s stinging defeat that same year despite Democratic control of the House and the Senate.

But these surface analogues aside, Trump’s young presidency seems better understood as the distillation of movement conservatism—the ideology of the Reagan Regime taken to its logical extreme rather than, like Hoover and Carter, prefiguring a putative reconstruction. That is, if Trump is a disjunctive president he is operating in a manner deeply inconsistent with how one would expect. This has important implications for how we understand the American presidency in historical context.

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Due Process of Lawmaking and the Obamacare Repeal

Abbe Gluck

                In 1976, former Oregon Supreme Court Justice Hans Linde published a provocative article--Due Process of Lawmaking--which suggested, among other things, that legislation that was the product of lack of deliberation or process could be constitutionally invalid. Today, the U.S. Senate is moving to a vote on a mystery Obamacare repeal the contents of which no one-- not even the Senators being asked to vote--knows.    

                The Republicans excoriated the Democrats in 2010 for passing the ACA without deliberation and using an unorthodox legislative process. They were only partially right. The ACA was passed after two years of extensive hearings and research by a combined five congressional committees.  The deliberative aspect of the statute was possibly unprecedented.  By contrast, the  current Senate has not held a single hearing on health reform. It has now received two sets of budget scores that show their proposals will have devastating effects for more than 22 million Americans who will be forced to go without medical care, and they cannot agree on a replacement.
                So what will they do instead? Instead of having the hard debate about what a health care system really is supposed to do for its citizens  (this is the debate about the tension between solidarity and "every man for himself" that we have seen underlying some of the principled Republican resistance to earlier versions of the repealer), the Republicans are going to pass a bill whose content they don’t know and, if they cannot agree on such a bill, they are going to simply repeal the core components of the ACA without a replacement, throwing the insurance markets that they claim they are working to save from the “Obamacare disaster”  into even greater disarray. (For my previous documentation of how it was largely the Republican sabotage of the law, not the ACA itself, that caused the instability, please see here.)

                As for the unorthodox process, it is true, as I write with Anne O’Connell, that “unorthodox lawmaking” is on the rise.  The ACA was not the first bill to be passed using “reconciliation”--a fast-track procedure devised for the budget process that avoids a filibuster--and any potential ACA repealer won’t be the last.

                But let’s be clear: Only a very small part of the ACA was actually passed by reconciliation. All of the major components--including the insurance exchanges and subsidies and the Medicaid expansion-- were passed by good old fashioned school-house rock voting, filibuster and all.  By contrast, the Republicans, who do not have the votes to avoid a filibuster are going to use the very same unorthodox procedure they pilloried to pull the whole statute down. 
                This is repeal for repeal’s sake.  It’s not about policy. It’s all about politics. And of course, it’s also about human lives.  What would Hans Linde say?

                Our Supreme Court has never been willing to strike down a federal statute for lack of deliberation. Instead it has acted more indirectly, devising deliberation-forcing canons of interpretation that require Congress to speak clearly before a statute would be read to trample on certain values. We have canons that protect federalism, arbitration, bankruptcy, jurisdiction, and countless other subjects, some embracing constitutional values, others simply embracing policy values.  But we do not yet have a canon that protects the basic legislative value of deliberation.  Today's events in the Senate raise the question whether we should. 

No Recess Appointments?

Gerard N. Magliocca

Mao Zedong used to write poems to express displeasure with colleagues who were about to be purged. The President uses tweets. In the case of the Attorney General, though, there is a problem. How can the President get a new person confirmed without making all sorts of commitments to the Senate about the Russia investigation and other matters?

The answer is that he could wait until the Senate is in recess to fire the Attorney General and then make a friendly recess appointment who would not need Senate confirmation. But this is only an option if the Senate chooses to go into recess. Under the Supreme Court's decision in Noel Canning, the Senate can block recess appointments by holding pro forma sessions while in recess.

I think that the Senate Majority Leader should be asked whether the Senate will hold such sessions during the August "recess." If his answer is no, then he is giving his tacit approval to the Attorney General's replacement at that time by someone who not be vetted by the Senate.

Monday, July 24, 2017

Death and the War Power

Mary L. Dudziak

Some time ago, I began thinking about how war death matters to the history of war politics and war power through musings on this blog. Responses to those posts -- even in the comments(!) -- were helpful and thought provoking. It has taken me a while to figure out the pieces of the resulting argument and how they fit together, but this inquiry is now the centerpiece of my current book project.

Today I've posted my first publicly available paper developing the argument that the distance of American civilians from the carnage of their wars matters to how we think about war powers, particularly the atrophy of political restraints. Here's the abstract:

Death and the War Power

In the vast literature on American war powers, attention is rarely paid to the product of war – the dead human body – and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress and courts are in the foreground. Killing in war is thereby a background phenomenon – an aspect of the social context within which the war powers are exercised. This Essay puts death at the center of the analysis. Drawing upon the insights of important recent historical works on death, I argue that the dead body has a political life. The political history of American war death recasts an important problem in the history of American war powers: the atrophy of political restraints on presidential power.

Using historian Drew Gilpin Faust’s idea of a “republic of suffering” in the Civil War as a point of departure, the Essay argues that the culture of American war changed when American wars became only foreign wars. The principal character of American civilians’ relationship to war death in the 20th century was distance from the carnage. Distance accomplished two things: first, a “republic” framed in relation to war death was lost; and second, the U.S. government could exert control over what civilians at home could perceive. Massive mobilization during World War II might appear to be a challenge to the argument that distance from the battlefield matters, so the Essay examines the American civilian experience with war’s violence during that war. Using censored and uncensored World War II casualty photographs, I show the way the very view of war death was managed by the U.S. government for the purpose of maintaining domestic mobilization. Civilians therefore engaged a curated view of death meant to enhance their support for the war effort.

The change over time in the civilian experience with war is not recognized in the literature about war and American law. Instead, legal scholars tend to use the Civil War as a more important historical example than Cold War conflicts, even though the Cold War era bears more resemblance to the present context (militarily and in the impact on U.S. civilians). Meanwhile, cultural distance from war death has increased, helping to produce the profound apathy that characterizes contemporary American war politics. This apathy enables the current legal structure of war authorization: Congress fails to act, and presidents rely on new interpretations of outdated authorizations, or their own constitutional power. Ultimately, I argue, a crucial and unexamined factor in the atrophy of political restraints on presidential power to use military force is the distance between American civilians and the carnage their wars have produced.

Thursday, July 20, 2017

Pardons Are For The Guilty

Gerard N. Magliocca

Tomorrow the Trump du jour will be whether the President might pardon his aides, his family members, or even himself. I want to make one observation about this; a quote from the Supreme Court's 1915 opinion in Burdick v. United States, which addressed the pardon power:

"This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession."

Gerald Ford, the story goes, would carry this quote in his pocket and pull it out as a justification when he was asked about why he pardoned Richard Nixon.

We'll see if "All of This President's Men" are willing to, in effect, confess guilt.

Tuesday, July 18, 2017

Fault Lines in the Constitution

Sandy Levinson

My wife and I have co-authored a book, directed primarily at 10-18 year olds, titled Fault Lines in the Constitution:  The Framers, Their Fights, and the Flaws that Affect Us Today.  It focuses very much on structural features of the Constitution, though rights appear in the context of chapters on habeas corpus and the broader problem of emergency powers.  The book will be published on September 1 by Peachtreec Publishers.  Cynthia and I will talk about the book at the National Book Festival in Washington on September 2.  

One of the central issues raised by the book, both explicitly and implicitly, involves civic education.  What should youngsters be learning about the Constitution?  Readers of Balkinization will not be surprised to learn that we believe that students need to learn far more about the structural aspects of the Constitution and, of course, to learn how crucial these aspects are.  My own hope is that student readers will ultimately argue as vigorously with one another about the presidential veto power or the allocation of voting power in the Senate as they do about the implications of the rights provisions of the Constitution.The general topic of civic education will be the topic of a major conference at the University of Texas on February 16-17.  I am organizing a panel on constitutional law casebooks and their implicit pedagogicalthursts with an all-star cast of casebook editors. There will also be a panel specifically on Fault Lines.  But most of the panels are being organized by my daughter Meira Levinson, who teaches at the Harvard Graduate School of Education and has written extensively on civic education; they will address some of the general problem of civic education in contentious societies and times like our own.  As we get close to the time, I will certainly set out the complete program. 

As part of our efforts to promote the book, we are posting columns on a blog site every couple of weeks of so, The most recent discusses the shooting at the Republican practice for the congressional baseball game several weeks ago and the potential implications had it turned into a genuine massacre of dozens of senators or representatives.  The Constitution is quite terrible with regard to "continuity in government," something we are all too confident is rarely brought up in those few civics courses that continue to be taught.  Indeed, it is interesting to note the consequences even of John McCain's illness, for his inability to vote would have doomed the bill with the loss of two Republican votes, given that the vote would then have been 50-49, whereas if McCain had been there, and voted yes to proceed with the debate, then the vote would have been 50-50, with Pence being able to break the tie. 

Wednesday, July 12, 2017

The Definition of "Emolument" in English Language and Legal Dictionaries, 1523-1806

John Mikhail

I have posted a new paper to SSRN on the historical meaning of "emolument."  It expands on some remarks I gave at a conference on Historical Semantics and Legal Interpretation at the University of Chicago, organized by Alison LaCroix and Jason Merchant.  The abstract of the paper is given below, followed by several tables and figures that summarize the paper’s main findings.  Scroll down to see for yourself why the Trump Justice Department’s narrow definition of “emolument” in CREW v. Trump cannot withstand scrutiny.

In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”

Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.

Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading.

The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning.

Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”

To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
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Monday, July 10, 2017

It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"

Priscilla Smith

It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.

We’ll see about that. Maybe they’ll add back in coverage for preexisting conditions, reduce by a million or two the number of people who will lose health care. We’ll find out. What I doubt will change is the way the bill guts health care provided for women. First, they will undoubtedly mess with the preventive services package, gutting the required coverage for contraception or creating a refusal clause you could drive a truck through. Think women shouldn’t have sex unless they would welcome a pregnancy? No problem. Sign here. How about prenatal and delivery services for those women who get pregnant? Is “maternity” care still on the chopping block? We’ll see.

One thing you can be sure of though is that the new version of the healthcare bill will “defund” Planned Parenthood. The Republicans claim they are “defunding” Planned Parenthood because they don’t want to support Planned Parenthood’s abortion care. Of course, the federal government doesn’t fund abortions, or even Planned Parenthood in any case. They cover non-abortion services for women on insurance programs like Medicaid and in block grants like Title X, and Planned Parenthood is an eligible provider of preventive services. In fact, Planned Parenthood is one of the best providers around of prenatal care, preventive health services, cancer screenings, vaccines, and primary care for kids. In many areas of the country, it’s the only provider of those services. Blah Blah Blah.

You’ve heard it all before – at least I hope you have. The main message we hear is that Planned Parenthood is great health care, vital for many women in the country. Your daughter, sister, wife, mother, cousin have probably gone there if you haven’t gone yourself. There are not six degrees of separation from you and Planned Parenthood. You are closer to PP than you are to Kevin Bacon that’s for sure. It’s a great message; I have nothing against it; it’s true; it probably tests well in focus groups, etc.

But one thing you don’t hear about is that making Planned Parenthood or any otherwise eligible medical provider ineligible to provide covered health care services in a federal program because they provide constitutionally-protected abortions using their own non-government funds is, you guessed it, unconstitutional.

I don’t mean that I think it is unconstitutional or that current case law should be interpreted as saying it is unconstitutional. No. The claim that defunding Planned Parenthood is unconstitutional is far from off-the-wall, because the Supreme Court has already said that it is unconstitutional. In 1986, the Supreme Court summarily affirmed a Court of Appeals decision that held unconstitutional an Arizona law that “defunded” Planned Parenthood because it provided abortions with its own private funds. Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986), aff’g mem., 789 F.2d 1348, 1350 (9th Cir. 1986). In Babbitt, the Supreme Court held that a state cannot withhold family planning funds from an organization that uses its own non-state funds to perform abortions.

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Thursday, July 06, 2017

Gunner Gorsuch

Gerard N. Magliocca

Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.

Is this a fair characterization? Sort of. I think Greenhouse is being too harsh when she calls Justice Gorsuch the President's judicial "avatar." (Though that may have been a title selected by the editor rather than by her.) And I think we can cut Gorsuch some slack--he's new on the job.  Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years. Still, so far I do find the new Justice's prose rather grating.

Here is a small example. In his dissent in Pavan v. Smith, Justice Gorsuch says twice that the Court's summary reversal of the Arkansas Supreme Court was inappropriate because the state court reached its decision in good faith. Early on he says that the opinion below "did not in any way seek to defy but rather earnestly engage Obergefell." Then at the end he says that the Arkansas Supreme Court should not reversed summarily "for seeking faithfully to apply, not evade, this Court's mandates."

With respect, these statements are preposterous. Justice Gorsuch has no idea if the Arkansas Supreme Court was "earnestly" or "faithfully" trying to apply Obergefell. What I assume he meant was that the Supreme Court should presume earnestness or faithfulness and thus not use summary reversal as the method of review of a lower court judgment. These, though, are two very different concepts.

Furthermore, a little digging shows that the trial judge in Pavan, who was reversed by the Arkansas Supreme Court, was not so confident in the earnestness and faithfulness of those Justices and said as much. The State Supreme Court then admonished him in their opinion for criticizing them.

My point is that Gorsuch's conclusion was reasonable in saying the case did not warrant summary reversal and should be full briefed and argued. His way of explaining that--pretty imprecise.

Wednesday, July 05, 2017

"For a Generation"?

Mark Tushnet

According to Paul Booth in the American Prospect, "The Republican power stranglehold is tightening. The Supreme Court is theirs, for a generation." This displays a lack of political imagination. Suppose Democrats regain control of the Presidency and Congress after the 2020 elections. (Bear with me on that assumption.) One item on their legislative agenda might be expanding the Supreme Court to eleven (or more). It's worth having a discussion about whether that's a good idea.

I simply note two arguments about this suggestion I've heard that aren't good ones. (1) "Don't give the Republicans any ideas while they still control Congress and the Presidency." They already know about the strategy of manipulating court size for political reasons -- they tried it in North Carolina. It didn't work (or hasn't worked yet), but saying that legislation can change the size of appellate courts isn't telling Republicans anything they don't know.

(2) "That would set off a cycle of tit-for-tat retaliation once Republicans are in a position to expand the Court's size, as they inevitably will be." I have an article forthcoming in the Pepperdine Law Review explaining why this game-theoretical claim probably isn't a good one (in condensed form: this isn't an iterated game with the same players interacting over time; and succeeding episodes in which court-expansion might become an issue aren't necessarily part of the game that I'm suggesting might be played in 2021).

A good argument would be that trying to expand the Court's size would produce a bloody political battle in which Democratic success is hardly assured, and both success and failure are likely to impose real political costs on Democrats who propose expanding the Court's size. Maybe -- but (also maybe) the argument that they stole Merrick Garland's seat and all we're doing is undoing that theft would be politically effective.

[The Pepperdine article's tentative title is "Constitutional Conventions," and it's obviously of a piece with my earlier article on "Constitutional Hardball."]

Tuesday, July 04, 2017

Complicity: Internal and External View, or, "Well, Mussolini Made the Trains Run on Time"

Mark Tushnet

This is a very tentative stab at elaborating some thoughts that have been rattling around in my mind for a while. The occasion for the attempt is Charles Blow's column in the Times, in which he writes, "Everything that springs from [Trump], every person who supports him, every staffer who shields him, every legislator who defends him, is an offense. Every partisan who uses him — against all he or she has ever claimed to champion — to advance a political agenda and, in so doing, places party over country, is an offense."

One of the things that has sprung from Trump is Neil Gorsuch, whose appointment he claims as one of his (few) achievements so far. Many on the right who purport to oppose Trump-ism generally apparently approve of Gorsuch's appointment. I've thought for a while (and noted it on Facebook) that this struck me as resembling the nominal opponents of Mussolini who are said to said, "Well at least he made the trains run on time." (Apparently he didn't, but that's beside the point.) The phrase is used, I think, to criticize people who, though seeming to distance themselves from the parts of Mussolini's program of which they disapproved, were actually complicit in his entire program.

In Masterpiece Cakes and similar cases, religious (and other) conservatives seem to take the position that -- at least within extremely broad limits -- a person's claim that taking some action would make him her her complicit in a moral evil, has to be taken as conclusive for some constitutional or statutory purposes. (The constitutional part of that involves "hybrid" claims under Smith; the statutory part involves RFRA-type statutes that do more than re-state pre-Smith law.) The complicity claim can be overridden for compelling reasons, but not otherwise. This is what I think of as an internal complicity claim.

The Mussolini "argument" involves what I think of as an external complicity claim. The person being criticized expressly does not think of himself or herself as being complicit with Trump generally, but (not to put a fine point on it) I do. I'm pretty sure that there have to be some limits to external complicity arguments, but I'm not sure what they would be. One candidate would be something like this: Gorsuch's appointment is a happy by-product of an otherwise dreadful event. But, at least as far as I've been able to think this through, the appointment isn't an accidental by-product; it flows from the powers conferred on Trump by his election. So, to get the purported by-product you have to get the whole package.

It's also pretty clear to me that external complicity could be offset by equivalent actions rejecting the loathsome parts of the Trump program. And, in the present context, maybe the people I have in mind are doing no more than expressing approval of the Gorsuch nomination and are elsewhere offsetting that by expressing disapproval of other parts of Trump-ism. At this point in my thinking, that leads me to think that the problem of external complicity imposes an obligation to take offsetting actions -- and, in particular, overrides the usually correct view that bloggers and Facebook posters have no duty to address matters they choose not to address. That is, it is usually true that a fully adequate response to the question, "You've posted on Masterpiece Cakes; why haven't you posted on [fill in the blank]?," is "Because I didn't want to." My current view is that someone who posts approvingly about the Gorsuch nomination, including an approving post about a Gorsuch opinion (the program wants to autocorrect that to "Grouch"!), incurs a duty to offset that post with something critical of some (other) aspect of Trump-ism.

But all that might be entirely wrong. Maybe the only coherent concept of external complicity is that one can be complicit only in the substantively loathsome aspects of Trump-ism, of which the Grouch appointment is not (by assumption) one. Then I wonder about the status of arguments laying out the best legal case for the Trump travel ban, motivated by anything other than the Mill-ian desire to ensure that the ban's opponents will be in a position to counter those arguments.

Sex and the Constitution

Andrew Koppelman

The Supreme Court has held that the Constitution protects most pornography, abortion rights, and same-sex marriage. That would have astonished the framers, and it would have astonished almost all Americans 100 years ago. How did it happen?

Geoffrey Stone’s Sex and the Constitution is, for the most part, a breezy and fast read. It is packed with entertaining stories and revealing details. It chronicles a major shift in the tectonic plates of constitutional law. It is also important for a second reason: it is a remarkably clear articulation of a very common, crude view of the appropriate relation between politics and religion.

Thus begins my review of the book, just published by The New Rambler Review, here.

How Could Religious Liberty Be a Human Right?

Andrew Koppelman

A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class. 

I develop this argument in a forthcoming article in the International Journal of Constitutional Law, now available on SSRN, here.

Friday, June 30, 2017

Carl Schmitt in Contemporary U.S. Legal Theory

Mark Tushnet

No, not in any explicit form. But there's a truly dreadful paper circulating that (without citing Schmitt) structures its discussion of judges around the distinction between friends and enemies. Now, Schmitt was a really smart guy (though a Nazi), but the friend-enemy distinction that's at the heart of his account of politics is probably the most problematic idea he had (even if there is something to it). Of course all of us sometimes think about politics in friend-enemy terms, though generally, I think, as a metaphor rather than as an analytic construct. The paper seems to argue that judges should think of their colleagues as friends and enemies -- which doesn't seem to me altogether, say, desirable (nor, despite the authors' claims about descriptive accuracy, descriptively accurate either.)

[I should note that the paper's dreadfulness lies not in its use of the "friend-enemy" distinction but rather in its amateurish (in the most pejorative sense possible) "reliance" on formal philosophy. It brings to mind Martha Nussbaum's takedown of lawyers attempting to do philosophy. I could go on about the awfulness of the "philosophy" in the paper, but, frankly, doing so isn't worth my time or yours.]

Thursday, June 29, 2017

Some Legal Realism About Legal Theory

David Pozen

Jeremy Kessler and David Pozen

The University of Chicago Law Review has published a response by Charles Barzun to our article Working Themselves Impure: A Life Cycle Theory of Legal Theories. We are grateful to Professor Barzun for his thoughtful engagement with the article. We do not think he has “misunderstood [our] central claims and motivations,” as his author’s footnote anticipates. But we do wish to highlight a few points of agreement and disagreement, because we think they speak to an important divide in contemporary legal theory.

First, agreement. Barzun characterizes our article’s descriptive claims “as plausible and probably correct.” Given that these descriptive claims are the centerpiece of the article, it is heartening that someone otherwise critical of our approach appears to accept its empirical findings. Working Themselves Impure argues that the major prescriptive public law theories of the past forty years have evolved in a manner that undermines (or “impurifies”) their foundational normative commitments. Through historical case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, the article identifies a common pattern of theoretical change over time—a six-stage “life cycle” that each of the theories has undergone:

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"I Don't Care About My Dignity"

Gerard N. Magliocca

The President's recent tweets made me think about Andrew Johnson's ill-fated campaign for Democrats during the midterm elections of 1866. Johnson's conduct during what was termed "the swing around the circle" was widely seen as an fiasco because he got into shouting matches with hecklers and made several wacky statements ("Why don't you hang Thad Stevens?") When some of the President's supporters told him that some of his comments were undignified, the President was heard by reporters to reply "I don't care about my dignity," which became a national headline.

Two years later, one of the articles of impeachment against President Johnson alleged that comments such as these were a high crime and misdemeanor. Article Ten stated:  "Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof" did "make and declare, with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces . . . amid the cries, jeers, and laughter of the multitudes then assembled in hearing." [I love the touch about "with a loud voice."] Article Ten concluded with the following:
Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 
Hail to the Chief.

Wednesday, June 28, 2017

That Syria War Power Debate, Continued

Deborah Pearlstein

Cross-posted at Opinio Juris

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this.  The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.”  As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.”  In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause.  Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the  interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not. 

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad.  Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons.  Indeed, the “de-confliction” zone we are now using force to protect is just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like.  

Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II executive operations), unilateral executive uses of force abroad were taken in concert with UN authorities.  For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI).  Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.   

A Realistic Theory of Law

Brian Tamanaha

At any time, but particularly in critical times like these, it can be useful to step back and take a clear-eyed historical view of the development of law. My new book, A Realistic Theory of Law, presents law as complex of social institutions that develop in relation to surrounding factors. Chapter Five, Law in the Age of Organizations, is particularly relevant to contemporary events. Therein I distinguish three government uses of law: to maintain government power, to structure and carry out internal operations, and to pursue initiatives and achieve objectives in the social arena. These government uses, I assert, "are influenced by people occupying offices with their own interests, ideas, and objectives, as well as externally by interests seeking to control or shape the activities and objectives they carry out." Here is the Cambridge description of the book:
This book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence.
As a side note, the cover images were drawn by my artist daughter. It is my first book with a cover that conveys the content.

Tuesday, June 27, 2017

Two Essays on Constitutional Rot


I have posted two connected essays on the phenomenon of constitutional rot on SSRN; the essays began as posts on this blog. Each approaches the problem of constitutional rot from a slightly different angle.

Here are the abstracts:

Constitutional Rot and Constitutional Crisis

May 15, 2017

The first hundred days of Donald Trump's presidency led many commentators to ask whether the United States was in the midst of a constitutional crisis. Drawing on previous work written with Sanford Levinson, this essay explains why that is not the case. Trump's demagogic rise to power, however, suggests that a different phenomenon is at work: constitutional rot.

When politicians disregard norms of fair political competition, undermine the public's trust in government, stroke polarization, encourage mutual fear and hatred of fellow citizens, and repeatedly overreach to rig the political system in their favor, they cause the system of democratic and republican constitutionalism to decay. The decay of norms that maintain a democratic republic is the phenomenon of constitutional rot. Many claims about "constitutional crisis" during Trump’s presidency reflect a growing recognition of the constitutional rot in our nation’s political institutions.

The essay explains the differences between constitutional crisis and constitutional rot and how the two are connected. Whereas constitutional crises normally occur over brief periods of time, constitutional rot is often a long and slow process of change and debilitation, which may be the work of many hands over many years.

The election of a demagogue like Trump is evidence that our institutions have seriously decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption. The constitutional system in the United States may well be able to survive even Donald Trump’s misadventures. But Trump’s rise to power, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. At some point, if we put too much weight on our democratic institutions, they will snap. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.

* * * * *

Constitutional Rot

June 14, 2017

Constitutional rot refers to the decay of features of a constitutional system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has generated the country's current state of dysfunctional national politics. Constitutional rot has made American politics increasingly less democratic, less republican, and more oligarchical.

The causes of constitutional rot are four interlocking phenomena, which we might call the Four Horsemen of Constitutional Rot: (1) political polarization; (2) loss of trust in government; (3) increasing economic inequality; and (4) policy disasters--important failures in decisionmaking by our representatives, such as the Vietnam War, the Iraq War and the 2008 financial crisis. Each of these four phenomena exacerbates the others. In addition, America's inadequate response to globalization has hastened constitutional rot.

As a political system becomes increasingly oligarchical, it also becomes less equal, more polarized, and generates greater distrust, both of government in general and of political opponents. People not only lose trust in government, but in other people who disagree with them. Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.

When people lose faith in government, they are likely to turn to demagogues who promise to make everything right and restore former glories. The rise of Donald Trump, who has many of the traits of a traditional demagogue, is a symptom of constitutional rot, rather than its cause.

Constitutional rot not only allowed Trump to gain power; he also has incentives to increase constitutional rot to stay in power; for example, by increasing polarization, and sowing distrust and confusion. Many of his actions as president—and his media strategy—make sense from this perspective.

Moreover, Trump, like many populist demagogues before him, has maintained populist rhetoric while abandoning any serious effort at pushing for genuinely populist policies. Once populist demagogues take power, they often discard the people who helped put them there; instead, they substitute new backers who are easier to deal with and/or pay off to stay in power.

The United States still retains many structural advantages that might allow it to halt and reverse constitutional rot, including an independent judiciary, a free press, and regular elections. In fact, Trump's presidency likely represents the end of an enervated political regime, and not the necessary future of politics. Although the present situation looks bleak, the next several election cycles offer the possibility of political renewal if Americans can rise to the challenge.

Your Travel Ban Isn't Safe Yet, Mr. Trump

Corey Brettschneider

Here is my piece for the New York Times today about the travel ban.

Yesterday President Trump tweeted that he was “grateful” for the Supreme Court’s unanimous opinion on his travel ban, which allowed some of it to stand pending the court’s review this fall. But he shouldn’t celebrate just yet: The decision is a loss, not a win, a distinction totally lost on our rapid-fire media.

Read carefully, the opinion makes it clear that most of the Supreme Court justices think Mr. Trump’s executive order, which restricts travel from six Muslim-majority countries, is likely to be struck down if the court hears the case in the fall, as scheduled.

Monday, June 26, 2017

Is Now a Good Time to Go Back to that Presidential War Power Debate?

Deborah Pearlstein

 Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad.  The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014.  But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken.  Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations.  In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.
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Taxes, program cuts, and reconciliation: the path forward

David Super

     In two recent posts, I discussed the procedural and political context for efforts to repeal the Affordable Care Act’s revenue provisions and reduce federal spending on health care assistance.  This legislation does not, however, exist in a vacuum.  It is part of, and interacts with, congressional Republicans’ broader policy agenda centered on steep cuts in taxes and social programs.  This post explains how Congress’s procedural rules will shape those initiatives.

     In order to preclude a Democratic filibuster in the Senate, Republicans must move their agenda under special rules for “budget reconciliation”.  As I explained in more detail last December, reconciliation is possible when Congress approves a concurrent budget resolution for a fiscal year that sets revenue and direct spending targets and instructs specific committees to report out legislation that closes the gap between current law and those targets. 

     Senate precedent holds that each budget resolution may authorize only one reconciliation bill dealing with direct spending and only one reconciliation bill dealing with revenues; if a reconciliation bill, such as the pending health care proposal, contains both direct spending and revenue provisions, that is the only reconciliation bill allowed.  Therefore, as long as the health care bill is in progress, it makes reconciliation procedures unavailable for either additional tax legislation or further reductions in direct spending.  This likely explains much of the urgency the Republican leadership has felt to move the highly unpopular health legislation quickly.

     The health care legislation has been moving under a budget resolution Congress approved for fiscal year 2017 – the year that is now almost three-quarters over – shortly after convening in January.  Once the health care bill is out of the way, Congress can pass a new budget resolution for fiscal year 2018 with reconciliation instructions for other tax and budget cuts, together or separately.  (Budget resolutions, like reconciliation bills, are immune from filibusters.) 

     Thus, as long as Republicans are trying to pass their health care bill, they cannot finalize a budget resolution to authorize reconciliation procedures to pass their tax and programmatic cuts.  Conversely, once they give final approval to the 2018 budget resolution, they strip the health care bill of reconciliation status and essentially write its epitaph.  (Republicans apparently believe that, if they can win initial Senate passage of their health care bill before finalizing a 2018 budget resolution, any resulting conference agreement would retain reconciliation protection.  This far from clear:  once Congress has established new targets under a new budget resolution, the old targets no longer apply and hence do not need current law to be "reconciled" with them.)

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Sunday, June 25, 2017

Constitutional Rot-- A Discussion on MSNBC


This evening Ari Melber had a segment on my speech to the Yale Law School Alumni, "Trumping the Constitution," which analyzes Donald Trump's rise to power as a symptom of long-term constitutional rot in our political institutions.

Melber did a good job of summarizing several key themes in the speech in only a few minutes, and then followed it up with a panel discussion.

This is not the health care bill you were looking for. Move along.

David Super

     After weeks of suspense, built up with teases and process controversies, there is an understandable temptation to seize upon the newly released Senate Republican health care bill like a piece of next-generation consumer electronics.  One set of writers reviews its features and bugs.  Another prognosticates on the market’s receptivity to this new product.  Eventually, when these reviews and predictions are starkly negative and key market participants announce that they will have no part of it, a new line of commentary arises about how the designer could have so badly miscalculated.

     Yet this is not the final McConnell substitute.  It is not McConnell 1.0.  It is not even a particularly serious McConnell beta.  It is just the first step in an extended dance whose basic moves are quite well-known.  Like Swan Lake, however, when entrusted to a skilled choreographer – and Sen. McConnell certainly is that – this dance surprises and delights audiences each time it is performed, as though they had never seen it before. 

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Saturday, June 24, 2017

Ending Medicaid As We Know It: The Court's Role

Stephen Griffin

Perhaps the Senate's health care bill will be a political fizzle but if it passes, we should at least mark the Supreme Court's role in permitting Republicans to advance a proposal that would make one of the biggest changes to the welfare state ever -- ending the role of Medicaid as an entitlement program.  As this WaPo story notes, with respect at least to Medicaid, the Senate bill is consistent with an aim Republicans at the national level have had for years.  They have wanted to cap federal Medicaid spending either through block grants or per capita limits.  As the story says, the Bush 43 administration made a run at a block grant proposal.  But it doesn't say why it didn't pass.

In the past, proposals to cap Medicaid usually ran afoul of the nation's governors, and on a bipartisan basis. Medicaid is jointly funded by the state and federal governments.  Governors know what would happen if federal spending is capped -- they will be left holding the bag for a lot of very ill poor people.  This is particularly the case during recessions when state revenues decline sharply yet budgets must still be balanced due to constitutional mandates.  In fact in many past recessions, including the Great Recession of 2008, states requested and got additional money from Congress to cover the gaps that opened up in state budgets for financing Medicaid.  Governors are sensitive to this issue because they know they will be blamed for all the poor people who can't get medical care when state revenues decline.  And if the Senate bill passes, that result is probably guaranteed in the next recession.

You might figure that governors would oppose the Senate bill and some (including some Republicans) do oppose it.  But my sense is GOP governors in particular are not speaking with one voice this time around.  They aren't because the Court created the option, unforeseen by Congress, of not expanding Medicaid in NFIB v. Sebelius.  If all states had expanded Medicaid, they all would be in the same position with respect to the Senate bill, which is a very bad one, as it rolls back the expansion.  Parenthetically, I haven't seen much commentary on how the different parts of the ACA are intended to work together.  Reverse the Medicaid expansion and more poor people will show up at emergency rooms, recreating the cost shifting problem that the ACA tried to solve.  In any case, GOP governors in non-expansion states appear to be supporting the House and Senate bills.  The unity that characterized governors in the past on Medicaid has been broken. For that, we have the Supreme Court to thank.

Texas boys speak, and what they want is secession

Sandy Levinson

Like many states, Texas has an annual "Boys State," as well as a Bluebonnet Girl's State, both sponsored by the American Legion, where presumably talented and ambitious youngsters descend on Austin to take on the role of would-be leaders of the State.   Both met earlier this month, but I am interested in the boys and their enthusiastic endorsement that America's second-largest state secede from the United States.  I can do no better than quote its own website and the excitement it conveys:

Today the Statesmen of Texas Boys State marched to capital to visit the various offices of elected officials and to tour the facility. The day began with the Statesmen lining up to march together with the band in the lead playing different music pieces. The capitol building of Texas is an amazing feat of architecture. Many people were able to see the march and many were impressed by the uniformity of the Statesmen. The House and Senate members reported to their respective chambers and began debating and passing laws.  One bill in particular was highly favored by both chambers, the bill for secession. The senators and representatives of the Texas Boys State government passed the bill and created a constitution and a declaration of independence. This is the first time in Texas Boys State history that the government body decided to secede from the United States.
The gallery of each chamber were cheering and celebrating because they have now made history by becoming a nation....

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Policy Complexity vs. Political Sustainability: The Case of the ACA

Frank Pasquale

Usually, federal guarantees of health benefits are hard to unravel, especially when a critical mass of the middle class relies on them. But the ACA's complexity has made it much harder to defend politically. If the GOP were about to end Medicare, outraged resistance would swamp them. But the proposed ACA & Medicaid cuts will affect diverse groups in diverse ways. Sure, you can argue to a middle class 27-year-old in Alaska that her premiums will likely increase if something like the BCRA passes:
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Thursday, June 22, 2017

The Lawyers Briefly Seize Control of POTUS Twitter

Gerard N. Magliocca

Today part of the news is that the President does not, in fact, have recordings of his conversations with former FBI Director Comey.  The President's Twitter account (in two tweets) explained:

"With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are "tapes" or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings."

Something is amiss here. Read the sentence again. This does not sound like the President's normal language on Twitter.  It sounds, instead, like something that a lawyer writes.  The giveaways are the use of the quotes around the word "tapes," and the formal phrase "any such." Lawyers say things in this way because they are more precise.

As a House committee was requesting the disclosure of any "tapes" of any such conversations, it is not surprising that the President would run his answer by the lawyers before hitting Tweet.  Hopefully he'll start making that a regular habit.

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