The Volokh Conspiracy

I’ve now made it through the full transcript of this morning’s argument. Here are four thoughts:

1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today’s argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn’t seem to me consistent with Wickard v. Filburn, which stated that “[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” But putting aside precedent, the four key Justices all appeared to accept Randy’s basic framing. That was an enormous accomplishment for the challengers.

2) Based on today’s argument, I think it’s a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It’s a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, “It’s entirely possible he doesn’t know yet which way he’s going to go.” And yet assuming the Justices feel bound to the usual practice of finishing up the Term’s opinions by late June, there isn’t much time. These opinions are hugely important and yet will have to be written very quickly, which doesn’t bode well for their likely quality.

3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

4) Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. Continue reading ‘Florida’s Self-Defense Laws’ »

Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government’s claim that the mandate is a tax authorized by the Tax Clause of the Constitution.

Today’s oral argument directly considered the constitutional tax issue, and at least three of the four liberal justices – Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – remain skeptical. Sotomayor suggested that the government’s Tax Clause argument is flawed because it has no “limiting principle.” Ginsburg again contended that the mandate is not a tax because it isn’t a “revenue-raising” measure. And Kagan pressed the Solicitor General on why it should be considered “irrelevant” that “Congress determinedly said, this is not a tax.” Needless to say, the conservative justices were no more supportive of the federal government’s Tax Clause claim than the liberals.

I don’t know who is going to win on the Commerce Clause and Necessary and Proper Clause questions. The plaintiffs’ position is looking pretty good. Still, I would not be surprised if the federal government managed to pull it out. But I am now quite confident that the feds are not going to prevail on the Tax Clause.

If Kagan and Sotomayor do end up concluding that the mandate is not a tax, that will be consistent with the views of the president who appointed them.

Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Unfortunately for the law’s defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli’s performance).  Justice Breyer later tried to step in and articulate three such principles:

First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

So (1) even Breyer was unable to articulate exactly (or even approximately) what limiting principle the SG had come up with; (2) everyone knows that defeating Lopez’s limitations on the commerce power has largely become a statutory drafting game to find a federal jurisdictional hook, however remote, and an unsuccessful ACA challenge would make it that much more difficult to find any examples regarding which such a hook couldn’t be found.  Moreover, reliance on Lopez is a bit rich coming from Breyer, who dissented in Lopez and would undoubtedly vote to overturn it tomorrow if he could;  and (3) this is not a limit, it’s judicial abdication, though it’s what Breyer really believes. Even though he knew–and said!–that his colleagues aren’t going to be persuaded by this, he apparently couldn’t resist throwing it in anyway, as the “greatest limiting principle.” Ego over effectiveness, I suspect.

So far, we seem to be left with the “health care is special” argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is “special.”  Not a good day for limiting principles.

Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other mandate Congress might impose (e.g. here and here). All of the conservative justices raised this exact issue during the course of today’s oral argument, with the exception of the usually silent Clarence Thomas, whom few doubt will vote to strike down. And none of them seemed satisfied with Solicitor General Donald Verrilli’s answers. This does not bode well for the mandate.

I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses
what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably
adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something
that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was
implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an
equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a a
government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or
in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government.

Scalia makes the key points that 1) a state must be both “necessary” and “proper” to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.

I’m not saying that Scalia necessarily got the argument from us, or even that he read the brief. But whatever led him to take up this point, I’m very happy that he raised it. It is the key weakness in the federal government’s Necessary and Proper Clause argument, which is otherwise fairly strong – a weakness that the federal government almost completely ignored in their Petitioner’s brief for the Supreme Court. The federal government has tried to turn the Necessary and Proper Clause into a mere “necessary clause.” But, if Scalia’s views are any indication, the Supreme Court majority doesn’t seem to be buying.

As I explain in the amicus brief (pp. 28-29), this point also enables Scalia to distinguish his concurring opinion in Gonzales v. Raich, which many defenders of the mandate have been relying on. Raich did not address the issue of propriety. And in his concurring opinion in that case, Scalia emphasized (as he had in previous opinions) that “proper” is an independent limit on congressional power under the Clause, separate from necessity.

Before the oral argument, I thought that the plaintiffs had about a 30-40% chance of winning. I believed it was likely that the federal government would manage to persuade at least one conservative justice to buy one of their many “health care is special” rationales for the mandate. Now, I think the chances of the mandate being invalidated is at least 50%. The conservative justices just don’t seem to be biting on the “health care is special” hook.

On the other hand, it is still too early for mandate opponents to celebrate. The federal government has a whole raft of different “health care is special” arguments (I go through them and their weaknesses in Part I of this article). If the feds can persuade just one of the conservative justices to accept just one of these theories, they can still win. We certainly cannot rule out such a scenario. It could still easily happen. But unlike in high school debate, quantity of arguments in a major Supreme Court case is rarely a good substitute for quality. And the quality of the government’s “health care is special arguments” is at the very least highly suspect.

UPDATE: I have changed the original reference to “all five of the conservative justices” to exclude Clarence Thomas, who – as usual – did not ask any questions.

Those conservative hypocrites! Here they oppose the individual mandate in the name of “freedom,” and yet then they turn around and vote against a woman’s freedom to choose abortion. So argued a liberal professor on a discussion list I’m on, and I’ve heard lots of liberals make the same arguments.

Those liberal hypocrites! Here they argue for sexual liberty in the name of “freedom,” and yet they support freedom-restricting gun controls. So argue plenty of conservatives (and some libertarians), including on this blog.

Those libertarian hypocrites! Here they talk about how people should have freedom, and yet they are just fine with big corporations constraining employees’ and consumers’ freedom. So argue still other people.

I’m quite skeptical of all these claims of hypocrisy, because they ignore the reality that many people sincerely and plausibly have different understandings of “freedom.” No-one really thinks that everyone should be free to do whatever they please. To everyone, “freedom” means freedom to do those things that don’t sufficiently harm others (and often also means freedom from constraint imposed by particular actors, such as government using the threat of legal action, and not other actors, such as churches using moral or spiritual sanctions).

And that judgment necessarily requires making contested moral and pragmatic decisions: What, as a moral matter, constitutes “harm”? (Does paying someone a low wage for their work count as harming them? How about discriminating against them in various transactions? Interfering with their business relations? Libeling them? Alienating their spouses’ affections?) What, as a practical matter, causes such “harm”? (Does legal private gun possession really cause more crime and injury than would be present if guns were prohibited?) When can avoiding some kinds of harm justify restrictions on people’s freedom? Who counts as “others” who should be protected against “harm.” (Fetuses? Animals?) Well-intentioned people can easily answer these questions differently than we would; and that they answer them differently doesn’t mean that they’re hypocrites.

Now one can certainly argue that people who believe in the freedom to do X should also believe in the freedom to do Y because of this-and-such similarity and because the supposed differences are actually overstated for this-and-such reason. But claims of hypocrisy are more than just claims of honest error. They are claims that people are consciously pretending to be for freedom when they know they are actually against it — claims of dishonesty.

Occasionally, such claims of conscious pretense are supported with actual evidence, but usually they aren’t: The view often seems to be “those people must be lying when they say they are for freedom,” even when there is no evidence for this beyond the fact that those people have a different understanding of the boundaries of freedom than the speaker does. (Something similar happens with regard to constitutional debates, where people often claim that someone is hypocritical for interpreting two provisions differently, without at all considering the possibility that there is an honest disagreement about how the provisions are to be interpreted.)

So such accusations of hypocrisy are factually unsupported. And such unsupported accusations of hypocrisy, as with all unsupported accusations that the other side is consciously dishonest or morally corrupt, are also destructive of helpful public debate. They may energize one’s base, but they make it much harder to persuade people who are leaning towards the other side, and I suspect that they also alienate the middle as well. Instead of substantive discussion of how we should understand freedom, we get accusations of deception, accusations that don’t really advance understanding. I’d much rather see more arguments that recognize that they stem from honest disagreement, and fewer claims that the other side is just a bunch of hypocrites.

UPDATE: A commenter writes, “What about people who are against racial discrimination, but for the affirmative action? People who say that life begins at conception (and therefore against all ‘after’ contraception), but allow for rape exception?” My suggestion — when faced with such situations, each of us should ask ourselves: Can I think of reasons why decent people might distinguish (even if not fully persuasively in my view) affirmative action from various other forms of discrimination, or abortion in rape cases from abortion in other cases? If not, can I think a little more, since there almost always are such reasonable distinctions (again, even if not fully persuasive ones)? And if I can think of those distinctions, why should we assume that our adversaries actually aren’t thinking of them, too, and are instead being hypocrites?

There’s an interesting Slate article discussing the question. An excerpt:

Rep. Dave Camp, the Republican chairman of the House Ways and Means Committee, is Roman Catholic, and he represents a district, the Michigan 4th, with few Jews. But as anyone with access to Twitter, Facebook, or the rest of the Internet can learn, Rep. Camp has a big Jewish problem. And it’s one he may be powerless to solve.

The congressman is under attack because of his aide, Aharon Friedman, an Orthodox Jewish graduate of Harvard Law School. Friedman has been legally divorced from another Orthodox Jew, Tamar Epstein, since 2010 — but has refused to give his ex-wife a get. In Orthodox Judaism, this is the document that a man must give to his wife in order for a religious divorce to go into effect. So long as Friedman refuses to give a get, Epstein cannot remarry within the faith and is considered an agunah, or chained wife.

Epstein’s limbo status has sparked an outcry in the Orthodox world…. Insisting that Friedman’s conduct amounts to domestic abuse, [Epstein's supporters] have used the Internet, including social media and the petition site change.org, and the national media to demand that Rep. Camp pressure Friedman to religiously divorce Epstein….

Note that Congressmen, as employers, are bound by the constitutional constraints that apply to the government generally. See, e.g., Davis v. Passman (1979). And while high-ranking Congressional employees are excluded from the normal constitutional protections against government discrimination based on employees’ political activity, I don’t know of any authority for the proposition that such employees are excluded from the normal protections against government compulsion of religious conduct.

After all, what’s a controversial Supreme Court case without multiple gratuitous references to Lochner?  First, the SG:

And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process.

Roberts shoots him down:

The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. [Roberts might have added that it's hard to have "substantive due process" without the due process clause]

But later Roberts add his own gratuitous reference to Lochner that undermines his previous point:

And it would be — it would be going back to Lochner if we were put in the position of saying no, you [Congress] can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways.

Even later, Sotomayor makes yet another reference to Lochner, and, like the SG, somehow associates federalism considerations with substantive due process:

Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the states can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the Federal Government is no longer permitted to legislate in this area?

For a short explanation on why the Justices are bringing up Lochner in a doctrinally irrelevant context, see my op-ed last week.

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine [but not Randy's, Ilya's, Jonathan's or mine!], that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Toobin may or may not be right, but after reading the oral argument transcript it’s pretty darn hard to see this as a slam-dunk 8-1 ruling favoring the government.

I’ve briefly mentioned the case on the blog — though I haven’t followed it in any detail — so I thought I’d note this development. (Note that the Double Jeopardy Clause has been read as precluding the government from appealing grants of a motion for judgment of acquittal.) In the words of today’s Detroit News,

A federal judge acquitted seven members of the Hutaree militia Tuesday of the most serious charges following six weeks of testimony in a high-profile terror case.

On the second anniversary of the Hutaree arrests, U.S. District Judge Victoria Roberts granted a defense motion Tuesday to acquit the militia members on seven charges, including seditious conspiracy and conspiracy to use weapons of mass destruction. The most serious charge could have resulted in 30-year prison sentences.

She ordered the trial to continue against Hutaree leader David Stone Sr. and his son Joshua Stone on weapons-related charges….

I’ve uploaded the judge’s opinion. Here’s an excerpt from the judge’s decision:

[W]hile the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime — perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

As explained more fully in Subsection 3 below, the evidence is not sufficient for a rational factfinder to find that Defendants came to a concrete agreement to forcibly oppose the authority of the Government of the United States as charged in the Indictment; that would be an agreement to retreat to rally points after drawing federal law enforcement from across the country to Michigan to engage in a large-scale uprising or “war” with these agents.

Reading the tea leaves of Justice Kennedy’s questions in the transcript of this morning’s argument, Kennedy seems to be of the view that requiring a mandate under the Commerce Clause requires a “heavy burden of justification,” and that his major question is whether the uniqueness of the health care market satisfies that heavy burden. Here are Kennedy’s comments, with the first block of questions to SG Verilli arguing in defense of the mandate, and the second to Michael Carvin challenging the mandate:

1) Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

2) But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

And then later, to Michael Carvin, arguing on behalf of the challengers:

[T]he government tells us that[] . . . the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case. The unanswered question in this case is whether the special economics of the health care market justifies the mandate here.

As I’ve consistently maintained, the Supreme Court will not uphold the individual mandate if the majority is unconvinced that there is a limiting principle.  While we await the transcript of today’s oral argument, we can consider Justice Scalia’s question, as reported by the Washington Post: “Government is supposed to be a government of limited powers,” he said. “What is left if the government can do this? What can it not do?” I wonder what the SG said in response.

From the Times: “The conventional view is that the administration will need one of those four [conservative] votes to win, and it was not clear that it had captured one.”

The audio and transcript will be posted here shortly.

UPDATE: Lyle Denniston reports:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Last week’s State v. Christian (Ore. Ct. App. Mar. 21, 2012) considered a Portland, Oregon that provides,

It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm [with a bunch of exceptions, including for people with concealed carry licenses -- Oregon is a shall-issue state].

Jonathan Christian, who was prosecuted for violating the ordinance, challenged it on overbreadth grounds, arguing that it covered a substantial amount of constitutionally protected conduct. (Such challenges are apparently allowed in right to bear arms cases under the Oregon Constitution, much as they are allowed in First Amendment cases.) Oregon courts had in the past recognized that the right to bear arms including a right to carry weapons in public, though an Oregon Court of Appeals decision had upheld a ban on carrying loaded guns in public. And the 4-judge dissent viewed this as a dispute about the right to carry loaded guns in public, concluding that the Oregon Constitution does protect such a right. (Judge Edmonds’ dissent, joined by Chief Judge Brewer, goes into this in great detail as a historical matter, concluding that this right was generally recognized in American law at the time the Oregon Constitution was adopted in 1859.)

But the 5-judge majority takes a different approach: The ordinance, the majority says, isn’t a ban on loaded carry — it’s a ban only on loaded carry that creates a known and substantial risk to the public beyond “a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified.” As I read this, it probably means that the ordinance doesn’t ban most loaded carry at all, but just loaded carry for criminal purposes, or in unusually dangerous ways. And because it reads the ordinance so narrowly, the majority concludes that the ordinance is not unconstitutionally overbroad.

The dispute is about the interpretation of the word “recklessly.” The dissenters reason, in my view persuasively, that,

In context, the reference to a reckless failure to unload the firearm describes circumstances in which the person “is aware of and consciously disregards a substantial and unjustifiable risk” [the general Oregon definition of "recklessly" -EV] that the firearm is loaded. In other words, the person carries the firearm notwithstanding a substantial risk that it is loaded and under circumstances in which the person’s contrary belief is unjustified. So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang’s purported territory and a person who carries a gun to a shooting range that the person’s parent has said is unloaded.

But the majority interprets “recklessly” as referring not to the carrier’s recklessness as to whether the gun has been unloaded, but his recklessness as to the possible consequences of having the loaded gun:

A violation of the ordinance occurs … when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway.

Defendant (and the dissent) under-appreciate the effect of the term “recklessly,” apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of … a loaded firearm. To take an action recklessly — that is, aware of and disregarding the fact that the action creates a risk — the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving “endangers the safety of persons or property.”

Here, for whatever it’s worth, is the Oregon general definition of “recklessly,” which is borrowed from the Model Penal Code: “‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

An interesting dispute, which I thought I’d note.

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

Tags: ATS, Define and Punish Clase, Kiobel, universal jurisdiction

The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA.  I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich.  The standard view in the legal academy for many years has been that Congress’s Commerce power is virtually unlimited, with perhaps minor largely symbolic exceptions, as in Lopez and Morrison. But in representing Raich, Randy read all of the relevant cases closely, and discovered that they don’t quite say what people think and assume they say.  Sure, the precedents give Congress vast powers.  But they don’t control the outcome in the ACA litigation, or at least one can make a very powerful argument that they don’t.

I’m pretty confident that the challengers will get at least at least three votes, and I won’t be at all shocked if they get five.  The Times quotes professors Charles Fried and Doug Laycock as being very dismissive of the challenges, but if any of our readers happen to run into Fried or Laycock, I’d be curious to know the answer to this question: How many votes did you think Lopez would get, and how many votes did you think Raich would get?  If they are like the vast majority of their fellow constitutional law professors, the answers are (a) I didn’t take the Lopez case seriously enough to even spend time thinking about it (Lopez got five votes); and (b) either one or zero (Raich got three votes).

The Washington Post reports the Environmental Protection Agency will release proposed regulations governing the emissions of greenhouse gas emissions from power plants this week, perhaps as early as today.   As described by the Post, this New Source Performance Standard regulation could put a halt to the construction of new coal-fired power plants unless and until carbon sequestration or some other GHG-emission-reducing technology becomes economically viable.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a coal-fired plant that does not have costly carbon controls.

“This standard effectively bans new coal plants,” said Joseph Stanko, who heads government relations at the law firm Hunton and Williams and represents several utility companies. “So I don’t see how that is an ‘all of the above’ energy policy.”

The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls.

These new regulations are but one piece of the surge in GHG regulations the EPA is adopting under the Clean Air Act as a consequence of Massachusetts v. EPA.

UPDATE: Here is EPA’s release and website on the new standard

A report by the Inspector General of the National Labor Relations Board concludes that a current member of the Board, Terence Flynn, shared confidential information about Board deliberations with outside parties in violation of NLRB ethics rules.  Flynn, a Republican, is one of President Obama’s recent recess appointees to the Board.  Among those to whom he is alleged to have leaked information is a former NLRB member who is now, among other things, a labor policy advisor to Mitt Romney.  In a statement, the AFL-CIO called on Flynn to resign.

CNN reports that French authorities have charged former International Monetary Fund chief and alleged sex offender Dominique Strauss-Kahn with “aggravated pimping.”  The charges stem from DSK’s alleged involvement with a prostitution ring.  Here is how CNN explains the charge:

The charge alleges involvement in the habitual operation of a prostitution racket. Specifically, “aggravated’ means on a regular and involved basis, and “pimping” means actually facilitating a prostitution operation, not just being a customer.

The opinion is here. From the introduction:

In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it. Parliament has, however, enacted laws that indirectly restrict the practice of prostitution by criminalizing various related activities. At issue in this case is the constitutionality of three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament‟s response to prostitution:

1. Section 210, which prohibits the operation of common bawdyhouses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another‟s prostitution; and

3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

In the court below, the application judge held that these provisions are unconstitutional and must be struck down because they do not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms. She reasoned that the challenged laws exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety. Those steps include: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)).

As we will explain, we agree with the application judge that the prohibition on common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down. However, we suspend the declaration of invalidity for 12 months to give Parliament an opportunity to redraft a Charter-compliant provision.

We also hold that the prohibition on living on the avails of prostitution infringes s. 7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between prostitutes and other people. However, we do not strike down that prohibition, but rather read in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation. This cures the constitutional defect and aligns the text of the provision with the vital legislative objective that animates it.

We do not agree with the application judge‟s conclusion that the ban on communicating in public for the purpose of prostitution is unconstitutional, and we allow the appeal on that issue.

A commenter writes, apropos my post that discussed how the word “slut” could some times be pejorative and sometimes not,

So now we’ve gone from offensiveness as determined by what the speaker said, through what the subject “felt”, and back to what the speaker “intended”. Isn’t postmodernism grand?

IMHO, a word is a word. If the word has no purpose but to be offensive, then it’s an insult (the C word). If the word is purely descriptive, it’s not an insult — it’s a description. If it’s an insulting way of describing someone, it’s rude/insensitive. If it’s used positively by the class of persons that the speaker thinks the person would be a member of, then it may still be rude, but the subject hardly has room for much of a moral objection.

I can’t claim any expertise on postmodernism, but it seems to me that my point was something that many people, postmodern, modern, and premodern, should easily agree on. “What the speaker said” generally speaking has meaning because of what listeners infer is “what the speaker intended.” Likewise, “what the subject felt” is likewise influenced by the subject’s judgment about “what the speaker intended.” The purpose of language is communicating ideas from the speaker to the listener, so the meaning of words naturally depends on what listeners are likely to infer the speaker really intends. (The purpose of legal language is somewhat different, so I set aside here discussions about how to interpret statutes or constitutions.)

Consider the title of my original post about the Rush Limbaugh “slut” diatribe, “How Charming.” What I said was “how charming.” In context, though, what I intended was “how rude,” since it was clear to reasonable people who read the post that my title was intended to be sarcastic. If Rush Limbaugh had read the post, he would have probably felt reproached (whether or not he would have agreed with the reproach), precisely because of what he thought I was intended. If he had said, “what Volokh said was that I was charming, so I’ll take it as a compliment,” we would have assumed that he either didn’t read very carefully, or was being either deceptive or sarcastic in his own statement.

All reasonable theories of the meaning of words have to account for this reality — if postmodernism says so, it’s only because other theories do, too. All words have multiple meanings in multiple contexts. Even “cunt” might in some contexts not be an insult, but a quotation, or (depending on one’s tastes in such matters) a sexual turn-on between lovers, or other things as well. Conversely, descriptive words can often be used in an insulting context. “Jew,” as a noun, is descriptive, but “don’t be such a Jew” would presumably be seen as an insult both of the target and of Jews generally — unless, of course, it’s said humorously.

There are no words that have “no purpose but to be offensive,” and no words that are “purely descriptive.” However much we might sometimes want a pure world in which each word has a unique, unambiguous meaning independent of context, that is a world of computer language or mathematical language (and then only sometimes), not of human language.

Snips (Being1732.com) points to what it sees as inconsistency between condemnations of Rush Limbaugh for calling Sandra Fluke a slut (see, e.g., here) and a Harvard “Sex-Positivity and Slut-Pride” event:

Harvard University kicks off Sex Week this Monday, coordinated by the student-run organization Sexual Health Education & Advocacy throughout Harvard College (SHEATH)…. One of the event’s sponsors is the Harvard chapter of Law Students for Reproductive Justice(LSRJ). The Harvard LSRJ will sponsor and lead several events during the week, including co-hosting Monday’s “Sex-Positivity and Slut-Pride: Sex Tips for a Modern World from Good Vibrations.” …

A notable LSRJ member is Sandra Fluke of the organization’s chapter at Georgetown Law. As Fluke became a national figure following her testimony before a congressional committee regarding contraception costs and her opinion on the mandate controversy, LSRJ released a statement supporting Fluke as outcry grew against radio-host Rush Limbaugh following his comments about the law student.

“Law Students for Reproductive Justice (LSRJ) is proud of our member Sandra Fluke for her courage and commitment in the face of cruelty. Fluke is the Georgetown law student whose contraceptive access advocacy has been called into question with language that falls, as Fluke said in her press statement, ‘far beyond the acceptable bounds of civil discourse.’ Such personal attacks are intended to shame women out of advocacy and into silence, but Fluke refuses to back down, ‘No woman deserves to be disrespected in this manner. This language is an attack on all women, and has been used throughout history to silence our voices.’”

But do events hosted by LSRJ’s Harvard chapter that use language like “Slut-Pride” follow the same standards advocated by the LSRJ national organization and Fluke in rejection to her critics? …

What do you think of the LSRJ national organization should do? Support the event or condemn language that some may perceive as ”an attack on all women.”

I don’t find this argument persuasive. The problem with Rush Limbaugh’s criticism of Sandra Fluke was (among other things) that he used “slut” as a pejorative to attack someone. This attack was, I argued, illogical and factually unfounded — there was no reason to think that Fluke was indeed having sex with a large number of men — but beyond that it would be rude even if it were factually sound: Whatever one might think of the moral propriety of having sex with more than some number of people, you should make these arguments substantively rather than using vulgar insults.

But not all uses of “slut” are pejorative. Sometimes they might involve humorous banter among friends. Sometimes, as here, they could be used in a context where the speaker clearly means them positively, to convey the message that there’s nothing wrong with promiscuity. (Consider the Retail Slut store.) Sometimes they can have other meanings. In those situations, the criticisms aimed at using “slut” as an insult don’t apply. Perhaps one might still criticize the use of “slut” for other reasons; but the analogy to Rush Limbaugh’s tirade strikes me as quite inapt. The problem with insults is that they’re insulting. There’s nothing inconsistent about treating the same word differently depending on whether or not it’s insulting.

And this is of course true for a vast range of other words. Using “nigger” to insult and using it to quote what someone is saying (or in a hypothetical such as this) are vastly different. Insulting someone whose parents weren’t married to each other by calling him a “bastard” is different from using “bastard” in lots of other contexts, even when it does mean illegitimacy.

Using “yid” as an insult against Jews is different than when a Jew labels his Web site Dixie Yid. (Conversely, even the word “Jew,” used as a noun, could be an insult if used in a particular context or with a particular tone, as can many other words.) The same is true for other terms that are often used as ethnic and religious pejoratives — not because members of some groups should get a free pass from the rules of civility, but because whether a term is rightly perceived as insulting understandably turns on the context in which it’s used.

The notion that a word is either always bad to use or always fine to use strikes me as inconsistent with the way language operates, whether the notion comes from those on the left or those on the right (or elsewhere). “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” That’s not “political correctness” or “relativism” (in any properly pejorative sense): It is simply a reality of how humans use language, and of what words mean in context.

UPDATE: Some commenters suggest that the Harvard panel shows that many feminists don’t think there’s anything wrong with promiscuity, and therefore “slut” is not really an insult to them.

That can’t be right, I think, precisely because whether a word is insulting depends on whether we think the speaker intends to use the term as a pejorative. That’s why saying that Eugene Volokh is a Jew might be perfectly descriptive in one situation, and quite insulting in another (e.g., “Volokh is a Jew” said with a particular tone, or “Volokh is such a Jew” used in a context which suggests that I have bad character traits that the speaker associates with Jews). The insulting quality would stem not from my thinking that there’s anything wrong with being a Jew, but from the fact that a word used by a speaker as a pejorative is rightly understood by listeners as a pejorative precisely because of how the speaker visibly intended to use it.

In today’s argument, Chief Justice Roberts had an interesting series of questions on a matter that we debated a bit here at the blog: If the penalties for violating the individual mandate are really weak, is the regulation really a “mandate”? The exchange arose when Greg Katsas (a lawyer challenging the mandate) argued that the Tax Anti-Injunction Act does not apply because the real purpose of the lawsuit is to challenge the individual mandate, not the collection of taxes, and that the mandate and the penalty for violating the mandate should be construed as two very different things. That led to this exchange:

CHIEF JUSTICE ROBERTS: The whole point -the whole point of the suit is to prevent the collection of penalties.
MR. KATSAS: Of taxes, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.
MR. KATSAS: It’s entirely separate, and let me explain to you why.
CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. If there is nothing behind the command. It’s sort of well what happens if you don’t
file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
MR. KATSAS: I’m not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
They are put in separate sections. The mandate is described as a “legal requirement” no fewer than 20 times, three times in the operative text and 17 times in the findings. It’s imposed through use of a mandatory verb “shall.” The requirement is very well defined in the statute, so it can’t be sloughed off as a general exhortation, and it’s backed up by a penalty. . . .
CHIEF JUSTICE ROBERTS: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.

It’s hard to make any firm conclusions from the exchange, of course. But the challenge to the minimum coverage provision is premised on the idea that the mandate is really a genuine mandate, not just some sort of generalized incentive, and that argument rests in significant part on seeing the mandate as separate from the penalty. We’ll have to wait and see tomorrow how many Justices accept that framing of the statute.

UPDATE: A commenter suggests that the audio leaves a different impression than the transcript; you can listen yourself at the 1:15 mark. Also, it’s obviously not the case that framing the minimum coverage provision together with the penalty provision as a single entity necessarily means that one doesn’t see it as a mandate. But my sense is that it does change the optics of the issue.

ANOTHER UPDATE: Talking Points Memo has a story on this exchange here.

Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is not a tax), but to tomorrow’s argument about the constitutionality of the mandate. The federal government has argued that the mandate is constitutional because it is an exercise of Congress’ power under the Tax Clause. Lower courts have almost uniformly rejected this constitutional tax argument, and today’s questioning suggests that the Supreme Court is unlikely to accept it either.

Justice Stephen Breyer suggested that the mandate is not a tax because “Congress has nowhere used the word “‘tax.’” Justice Ginsburg noted that the mandate may not be a tax because it isn’t a “revenue-raising measure,” and because the monetary penalty is separable from the mandate itself. Justice Sotomayor also expressed doubts about whether the mandate is a tax, as did several for the conservative justices. As far as I can tell, none of the justices seemed to support the argument that the mandate is a tax.

Thus, today’s events do not bode well for the federal government’s constitutional tax argument. However, there are two caveats to this conjecture. First, the justices sometimes ask questions for rhetorical effect or play devil’s advocate. I don’t think they are doing so here, but obviously I can’t be sure. Second, it is theoretically possible that the constitutional definition of what qualifies as a “tax” is broader than the AIA definition. This is not the usual view of the matter. Indeed, the one lower court that ruled that the AIA applies to this case did so precisely because they thought that the AIA’s definition of “tax” is broader than the Constitution’s. However, it’s not completely impossible that the Court will reach the exact opposite conclusion, and the Solicitor General actually argued for such an approach today. However, there is no indication that the justices are leaning in that direction, or that any of them believe that the constitutional definition of a tax is broader than the AIA definition.

Even if the federal government loses on the tax argument, they could still win on the Commerce Clause or the Necessary and Proper Clause. The latter is probably their strongest point. Still, it’s interesting that the tax argument – which has attained great popularity among academic supporters of the mandate – has been overwhelmingly repudiated by the courts, including several judges who voted to uphold the law on other grounds. And it looks like the Supreme Court may well go the same as the lower courts on this issue.

The audio is available here, and the transcript has been posted here.