Tongue-Twister

Ken Kersch

Say it ten times fast:

“Ryan is Rand to Romney’s Roark”
Posted 1:33 PM by Ken Kersch [link]

Absentee ballots and undocumented citizenship

Joey Fishkin

[Updates below.]  Today a state trial court in Pennsylvania refused to enjoin that state’s new voter ID law.  Barring something very unexpected, Pennsylvania voters will not be able to cast ballots on election day this November unless they show a government-issued ID with a photo and a (future) expiration date.  The ruling is a huge disappointment to the civil rights groups challenging the statute, in part because in this case, unlike in the federal case from Indiana that the Supreme Court decided in 2008, the plaintiffs came prepared: they brought affidavits and testimony from numerous individual voters, such as lead plaintiffs Viviette Applewhite and Wilola Lee, who have voted for decades but will not be able to satisfy the requirements of the new law because they have no way to obtain the documents (birth certificate, etc) that Pennsylvania requires before it will issue a driver’s license.  With evidence like that, why were the plaintiffs unable to obtain their preliminary injunction?  One important factor, threaded through the opinion, was the possibility that most of the plaintiffs could in fact cast absentee ballots.

Absentee ballots have become something of an embarrassment for advocates on both sides of the voter ID debate, for very different reasons.  Republican advocates of voter ID laws argue that the laws are needed to prevent fraud.  But they concede, and all sides agree, that impersonation fraud at the polls—the only kind of fraud that voter ID laws would reduce—is incredibly rare in comparison to absentee ballot fraud, which crops up regularly in local election scandals around the country.  The embarrassment arises because the last thing these Republican advocates want is new anti-fraud measures that would make absentee ballots harder for their own voters to cast.  (They perceive that those who will be blocked by voter ID laws are disproportionately Democrats while absentee voters are more likely on their side.)  The game is the same one we see here in Texas, where the Republican-dominated legislature passed a new, urgent voter ID law under which state-issued student IDs do not count, but concealed handgun permits do count.  Or take Ohio, where Republican officials are apparently making sure there will be early voting in the evening and on weekends in Republican-dominated suburbs, but not in Democratic cities like Cincinnati or Cleveland.*  In other words, for partisans, the game here is all about partisan skew.  The notable lack of Republican zeal for applying the same new standards to absentee ballots that they are imposing on in-person voting makes the game awfully obvious, which is why absentee ballots are an embarrassment.

For wholly different reasons, absentee ballots are also becoming something of an embarrassment for the civil rights groups and Democrats who oppose voter ID.  The plaintiffs in Applewhite v. Pennsylvania face large, and in some cases frankly insurmountable, burdens that prevent them from obtaining the documents they need to get a Pennsylvania driver’s license.  But almost all of these voters, the judge noted repeatedly, fall within one or more of the groups Pennsylvania law allows to cast an absentee ballot instead.  As for the rest, there just aren’t that many of them, and the judge (in perhaps the most controversial part of the opinion) expressed sufficient confidence that Pennsylvania could get IDs to these individuals before the election under a special new program to justify not enjoining the law.  The reasoning about absentee ballots draws on a brief, elliptical sentence in the Supreme Court’s Indiana voter ID case: “[A]lthough it may not be a completely acceptable alternative, the elderly in Indiana are able to vote absentee without presenting photo identification.”  This sentence raises many questions.  How would we decide whether the right to vote encompasses a right to vote in person, and not just by absentee ballot? 

Read more »
Posted 11:10 PM by Joey Fishkin [link]

Is Paul Ryan a Real American?

Ken Kersch

I’m concerned.

In the oft-repeated list of major intellectual influences on Ryan – Ayn Rand, Ludwig Von Mises, Milton Friedman, Friedrich von Hayek – only Friedman was American-born. Although the others lived in the United States when they were older, all were Mitteleuropeans. We hear a lot about Ryan’s Tea Party associations and appeal (that Revolutionary War branding, of course, like patriots at a Sarah Palin rally, screams “USA! USA! USA!”). But Ryan’s tutoring was in what is called “Austrian Economics” – a label that wears its Mitteleuropean provenance on its sleeve.

How American is Austrian Economics – that European import, honed, since World War II, in tutorials and transatlantic tete-a-tetes in the Swiss Alps?

Two qualifications. First, the fact that Paul Ryan’s political philosophy has been strongly formed by these Mitteleuropean intellectuals doesn’t mean he subscribes to everything they say. And, second, there’s no denying that there has always been a home-grown form of Red-White-and-Blue anti-statism and penchant for work, markets, and business. Still, something about the tone and style of Austrian economics, it could be argued, make it distinctively Mitteleuropean. If Obama is a European-style socialist (though I doubt it…), then devotees of Austrian Economics are European-style anti-socialists. In many of its iterations, Austrian economics is the apodictic mirror-image of that which it opposes – a cast utterly self-evident in Ayn Rand (who, in (albeit lesser) mind and temperament, is Vladimir Lenin, flipped).

There are lots of ways to be an American anti-socialist. But the case can be made that Ryan -- deer-bagging and fish-gutting notwithstanding -- has made of himself a highly-ideological Mitteleuropean anti-socialist. In the process, he may have jettisoned some good old (can-do, pragmatic, anti-ideological) American values along the way. Might real Americans deserve better?

With a bromance ticket comprised of an uber-capitalist and Austrian-tutored intellectual worshipper of uber-capitalists, it’s no wonder that the two habitants of the Republican ticket (reportedly) can’t bare to be separated: each has found his other half.

Since Austrian economic thought has been a major influence on today’s Republican Party, and since Austrian thought might soon be the governing philosophy in the White House, it might be time for Americans to bone up on the intellectual output of interwar Vienna and postwar Switzerland.

After all, my fellow Americans: The Austrians have seen the future – and it works.


Posted 3:48 PM by Ken Kersch [link]

Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment

David Gans

Posted 2:29 PM by David Gans [link] (35) comments

Medicaid's Near and Far Future

Frank Pasquale

Legal blogs have covered the effects of NFIB v. Sebelius on the Medicaid expansion in great detail. Now the law review scholarship is starting to emerge. Here's one piece sure to make an impact: Huberfeld, Weeks Leonard, and Outterson on "Medicaid and Coercion in the Healthcare Cases." From the abstract:

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution.

The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation. NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine.

For the near future, at least, the authors believe we are "plunged into Justice Cardozo’s 'endless difficulties.'” For the long term, policymakers may want to take the advice of political science professor Andrea Louise Campbell:
Read more »
Posted 5:37 PM by Frank Pasquale [link]

Fractal Inequality and Politics

Frank Pasquale

According to the Fed, the the net worth of the typical American household was $77,300 in 2010. The new vice presidential candidate, Paul Ryan, had a net worth of $3,207,000 in 2010---about 40 times that of the median household. The man who picked Ryan has about 80 times more wealth than him, with a net worth of $250,000,000. And one of the Romney/Ryan ticket's greatest supporters, David Koch, has about $25,000,000,000, about 100 times Romney's fortune. David's brother and Sheldon Adelson are about that wealthy, too, and very politically active.

If this example sounds terribly partisan to you, just substitute in your favorite left wing billionaire and Obama/Biden, or consider the fabulous lives of Bill Clinton or Tony Blair after they retired from office. Romney/Ryan is more interesting here because of the fractal inequality on display.

Numbers like these take a little time to sink in (and perhaps they never do, given our cognitive limitations). They need to be explored and illuminated. What does it mean that, say, David Koch could double each half of the GOP ticket's net worth by giving Romney one-hundredth of his fortune, or giving Ryan one five-thousandth of his fortune? Consider how readily you might give 1/5,000th of what you own to a charity, or use it to pay for a magazine subscription, or a dinner out. The median household might not think twice about using its $15 (about .0002 * $77,000) to buy a pizza.

What does it mean for politics when leading figures of either party can leave office and expect lucrative sinecures from tycoons or corporations? Who really is in charge?

X-Posted: Concurring Opinions.
Posted 1:15 PM by Frank Pasquale [link]

Some Praise for Law Review Editors

Mark Tushnet

Footnote 44 on page 925 of 92 Boston University Law Review reads, in its entirety: "Eggplants."

The note is attached, of course, to the word "aubergines" in an article written by a British law professor. I imagine that there were some, perhaps strained, negotiations between the editors and the author, and the outcome seems to me a genial one.
Posted 9:36 AM by Mark Tushnet [link]

Amending the American People

Mark Graber

1. A constitutional democracy can be operated only by a people who accept such basic findings of science and social science as global warming is accelerating and that failing to tell teenagers about contraception does not decrease pregnancy.  Notwithstanding any other provision in the Constitution, therefore, I propose that the American people be hereby amended so that enough a sufficient number of citizens have understanding and respect for science and social science necessary to support a political class whose proposals are always consistent with basic science and social science findings.
2. A contemporary constitutional democracy requires a strong middle and upper-middle class.  Many crises, most notable the bubble of 2008 can be traced directly to the behavior of persons whose primary motivation was to improve substantially their normal.  Luxurious lifestyle.  Nothwithstanding any other provision in the Constitution to the contrary, therefore, I propose that the American people be hereby amended so that members of the most politically influential class aspire only to middle or upper-middle class status.  Neither the political nor economic behavior of any member of an amended American family earning a regular income of over six-figures changes merely because government proposes or enacts a sing-digit percentage increase to their income tax.
3. Constitutional democracies function best when citizens have substantial cross-cutting relationships or what Robert Putnam calls bridging capital.  Notwithstanding any other provision in the Constitution, therefore, the American people are hereby amendment so that all citizens have friends and associates who they recognize to be reasonable and morally decent individuals, even though they disagree with them on the fundamental political issues of the day.  Provided, all Americans are allowed one issue (abortion, aid to foreign countries, the designated hitter rule) in which they may deem all opponents to be either intellectual morons or moral cretins.
4. In order to create and maintain constitutional citizens who are capable of operating constitutional institutions to achieve constitutional values, capital punishment is hereby abolished, except for university and college administrators who spend more attention on sports teams and promoting their institution as an engine for economic growth than they do on ensuring that students are becoming good democratic citizens.

Posted 2:22 PM by Mark Graber [link]

The Deep State

Gerard N. Magliocca

One idea that I'm exploring for an article is that the United States possesses a "deep state" that wields tremendous influence that is not captured by traditional constitutional analysis. The term "deep state" comes from semi-authoritarian states and describes the secret institutions (usually the military and the security services) that hold the real power at the expense of the formal or legal ones. I'm not using the term in the same way.  What I want to examine are institutions and norms that are practically important but under-theorized.

Numero uno on my list is the Federal Reserve.  It is common wisdom that the Chairman of the Fed is one of the most powerful officials in Washington.  That was made clear during the 2008 financial crisis, and is especially true in a period (like now) where fiscal policy is at a deadlock.  Nevertheless, the Fed is usually ignored by constitutional lawyers.  It looks like just another administrative agency, but it is not.  First, the central bank's governing board consists partly of private individuals, which is not true for any other agency. Second, the Fed can finance itself (by printing money or dipping into its reserves) in a way that makes it impervious to the budgetary controls the Congress uses to discipline other agencies. Third, there is a strong political norm (though eroding) that the Fed should not be subjected to political control when it comes to the conduct of monetary policy, even though those decisions have enormous political implications.

In a way, the Federal Reserve is the fourth branch of government. In one key respect, though, the Fed now looks more like the third branch.  In recent years, the Federal Open Market Committee (FOMC) has released a statement to accompany its monetary decisions, and there are sometimes dissents to that statement.  These "opinions" are carefully scrutinized by economists for clues about future actions, and in some respects they purport to set down a rule of action.  (The current one, for example, is trying to make a credible promise that interest rates will not be raised until 2014.) There is no custom that a Fed statement binds any future Fed meeting, but that principle may emerge over time.

Anyway, the point is that someone should be doing more serious work on the Federal Reserve's place within the living Constitution.  
Posted 3:13 PM by Gerard N. Magliocca [link] (13) comments

As we await the monarch's choice of a VP

Sandy Levinson

[FURTHER UPDATE: Joel Goldstein, the ranking expert in the American academy on the vice-presidency, has an interesting contribution in the comment section below that is very much worth reading. I think the most compelling point he makes is that the duty of the VP to campaign throughout the country undoubtedly develops contacts and alliances that might well stand him/her in good stead should events lead to inhabiting the Oval Office. There's no doubt that my proposal would reduce that reality. The question is whether we should continue to risk a presidential candidate's picking someone for crass short-term political reasons as against a measured view that the person selected in fact possesses the skill set, including demonstrated judgment, to become president. I think it can safely be said that reasonable persons can disagree; my hobby-horse, of course, is the necessity to have such discussions and to decide, either for ourselves or as a nation, what serves us best in the 21st century rather than to feel stuck with institutions created more than two centuries ago. In any event, I thank Prof. Goldstein for his contribution.]

[UPDATE: I hope it is clear, as it seemed not to be to a couple of commenters below, that under my proposal the incoming President would nominate the VP. Congress's role would be limited to confirmation (or rejection, which would mean that the President would nominate someone else). There is no plausible reason to believe that Congress could force the nomination of someone from what is stipulated to be Congress's own party, as opposed to a President of the opposite party). They could, to be sure, keep rejecting nominees, but at some point this would surely create a mixture of a political and perhaps even constitutional crisis. To suggest that this is a realistic possibility is to have an even more despairing view of the Ameican political system that I currently have. It really does evoke Weimar full scale, i.e., the complete breakdown of a governmental system, as opposed to "mere" dysfunctionality.

Further, for the life of me, I can't figure out what is partisan, either Democratic/Republican or liberal/conservative about suggesting a modification in our system designed to increase the likelihood that a Vice President would actually have demonstrated at least some skills relevant to stepping into the role of president, which almost by definition would be at a time of great national nervousness, if not outright crisis (as with an assassination).]

We are being treated to the quadrennial spectacle when we should realize exactly how monarchical our system has become: I.e, the candidate-designate, on the basis of God only knows what criteria, appoints a running mate. Sometimes, one can believe they were picked because the pickers actually believed they could be effective presidents if need be--see, e.g., Biden and Cheney (whose resume was that of an excellent president-in-waiting, whatever one thinks of the actual VP). Sometimes it is impossible to take the choice seriously in that regard--e.g., Palin and John Edwards. Sometimes it's hard to tell--e.g., Joe Lieberman, whose main qualification was that he was/is a Jewish prig who led the moralistic attack on Bill Clinton and was thought to be helpful in Florida, or Bob Dole, in 1976, whose main qualification was his willingness to be an attack dog, a typical function for VP candidates, though he had also demonstrated some capacity to work well with Democrats like George McGovern re food stamps. But then there are Geraldine Ferraro and Dan Quayle (though at least Ferraro was politically explicable re appealing to women, as distinguished from the justifiably forgotten Quayle).

Of those being mentioned as within Romney's gaze, only Rob Portman could possibly be taken seriously for an instant as a possible president. The others--Rubio, Christie, Paul Ryan, Bob McConnell--are all jokes in that regard. Their selection would be just another example of the degradation of American politics. Which element of the "base" does Romney want to pander to?

Do we need a VP at all? Perhaps. But there is no reason at all for the VP to be selected in the current manner, which, as suggested back in 1803 by some opponents of the 12th Amendment, generates a strong incentive to pick second-raters, a prediction amply confirmed throughout American history (with, obviously, some exceptions). What would be preferable? The answer is easy: The winner of the election should simply follow the model set out by the 25th Amendment, when there is no VP, and nominate someone, subject to confirmation by both houses of Congress. (My own preference would be a majority of Congress meeting collectively so as to limit the power of the indefensible Senate.) We would be almost certain to get more qualified VPs, including, among other things, VPs who might in fact know how Capitol Hill operates. Certainly Romney has not the slightest idea (nor, for that matter, would one give Obama high marks in that respect), which is another reason that suggests Portman instead of one of the governors or fledgling senators or even Paul Ryan, whose talent for compromise in negotiation appears minimal.

There is only one downside: The VP would be "unelected." But this criticism depends on taking seriously the premise that we really-and-truly "elect" our VPs. No political scientist would argue that the VP candidate accounts for more than a fraction of the voter's ultimate decision. It's the equivalent of claiming that we "elect" the First Lady or First Children (or First Dog).

Unfortunately, such a sensible change in our system would require a constitutional amendment (unless a candidate was so bold as to state publicly that our present practice is indeed monarchical and idiotic and, therefore, that she/he will await the actual election before naming a choice for VP, though even here one would have to trust electors simply not to turn rogue and name someone as VP). And we all know that requiring an amendment even for "innocent" changes--i.e., those without genuine partisan valence--is basically the kiss of death.
Posted 1:14 PM by Sandy Levinson [link] (65) comments

For those with time on their hands

Sandy Levinson

Here are three links to recent appearances. The first is by far the longest: It is the Kogod Lecture that I gave in Jerusalem in June, on the general subject of "dual sovereignty" where the conflict is between ostensible Divine sovereignty and the demands of a secular government. The other two are from my participation in the Aspen Ideas Festival. The theme of the first is fairoly obvious from the title of the link. The second jumps off from the fact that Tom Friedman had called for an "Arab Spring" within the United States in order to overcome our dysfunctional "vetocracy": I agree with him, but, needless to say, believe that he should not the role that the Constitution plans in creating that situation. I will open this for comments, but I do think that a condition of commenting should be listening to the clip you wish to comment on. That will be quite easy for the latter two, each of which is about 5 minutes or so, as against the lecture, which ran about 45 minutes, followed by a commentary by Cardozo Prof. Suzanne Last Stone and then questions from the floor.

http://www.youtube.com/watch?v=9CgtzySnUIo


http://www.dailymotion.com/video/xrwgv7_a-parliament-system-would-resolve-congress-gridlock_news



http://www.youtube.com/watch?v=X60sfFf5hTg
Posted 10:51 AM by Sandy Levinson [link] (1) comments

Why Care about the Post Office?

Guest Blogger

Rebecca E. Zietlow

The United States Postal Service needs help from Congress and, so far, it doesn’t look like it is going to get it. Instead, anti-Postal Service advocates in Congress and at the Cato Institute have seized on a congressionally-created fiscal “crisis” to argue that the Post Office should be fundamentally restructured, or even replaced by a private entity which could compete in the private market. The Post Office is currently a captive of the anti-federal government ideology that has swept this nation, the same ideology that almost led to the default of our government a year ago today. Though the postal service is not really a branch of the government (for example, it is not funded by federal taxes), it is a large federal program which has contact with all of us, every day. The debate over the Post Office reflects divisions over the role that the federal government should (or should not) play in our daily lives, but there is more. What’s really at issue in this controversy is the role that the Post Office plays in our constitutional democracy.

Stop and consider for a moment the fact that the Framers of our constitution included the power “to establish Post Offices and Post Roads” on the paltry list of the enumerated powers of Congress in Article I, along with the power to regulate commerce, establish a uniform rule of naturalization, organize and provide for the armed forces, coin money, and a few other things. Why did the Framers consider a national post office to be so important that they included it on this short list? Because there is a unifying theme behind all of these enumerated powers – they wanted to give Congress the authority to enact measures that would help to create and sustain a healthy, functioning democratic nation.

Just as the power to regulate the national economy and coin money enable Congress to enact measures to strengthen the national economy, the power to create a post office and post roads empowers them to create a network of communication to strengthen national unity and democracy. Post offices and post roads provide an affordable means of communicating with people who live throughout the country (and beyond). Communication, especially about political issues, is a concept which is recognized as essential to democracy in our First Amendment jurisprudence. The Post Office is also required to deliver mail to every person living in this country, regardless of how remote their address, how undesirable their neighborhood, or how few their financial resources. This is a fundamentally democratic mission.

True, in today’s digital world, much of our communication occurs not through old fashioned “snail mail,” but through electronic measures such as e-mail, Facebook, and Twitter. Maybe Congress’ power to create the postal service is an Eighteenth century anachronism. However, a significant portion of our population still does not have access to electronic communication and still depends on the postal service to receive and pay bills and communicate with family members.

More fundamentally, though, what is really at stake here is our vision of what it means to be American, and the role of the federal government in that vision. Our Constitution gives the Federal Government a significant role in establishing a national community. The United State Postal Service fosters this community, and reflects this vision of national unity. Indeed, that may be exactly why the postal service is under attack. But I say, neither rain, not sleet, nor snow, nor Tea Party activist, should be allowed to stop the postal service from serving its function in our constitutional democracy.

Rebecca E. Zietlow is Charles W. Fornoff Professor of Law and Values at the University of Toledo School of Law. You can reach her by e-mail at Rebecca Zietlow at utoledo.edu
Posted 6:45 AM by Guest Blogger [link]

Indiana Court Autopsies Welfare Privatization Effort

Guest Blogger

David Super

Lively debates continue in both the academy and the political arena about the potential and risks of privatization. One of the most hotly-contested areas has been the administration of social welfare programs.

On July 18, a Superior Court in Indiana ruled on the lawsuits between the State and IBM concerning that state’s path-breaking attempt to privatize public assistance program administration. The story it tells provides a fascinating cautionary tale that can inform in evaluating similar proposals in the future.

The court provides a nice summary of its entire 66-page opinion in the first paragraph: “Neither party deserves to win this case. This story represents a ‘perfect storm’ of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame and Indiana’s taxpayers are left as apparent losers.”

Shortly after being elected governor in 2004, Mitch Daniels declared his intention to transfer administration of Temporary Assistance to Needy Families (TANF), food stamps (now the Supplemental Nutrition Assistance Program, or SNAP), Medicaid, and other programs for low-income people to private contractors. They made their determination to privatize broadly clear from the start “then proceeded methodically, resisting accommodations that might have compromised their goals.”

Part of the rationale for the change was improving client service, in particular by reducing the number of mandatory trips to the office. In fact, a great many of these trips had been deliberately required by the Department to increase the burden of receiving benefits and drive down caseloads. Others resulted from policies seeking rapid reductions in food stamp error rates. The rapid decline in Indiana’s food stamp participation by eligible working poor families resulting from the error-reduction drive had already demonstrated how vulnerable people can be affected by hasty, radical changes in program administration. Unfortunately, Indiana failed to heed that lesson.

Read more »
Posted 6:30 AM by Guest Blogger [link]

Caretaker Governments and Inauguration Day

Gerard N. Magliocca

OK, let's try a more serious post.  Many people (especially Sandy) criticize the length of the transition period following a presidential (and corresponding congressional) election.  Why wait for two months for new leadership? Significant problems could arise during that time that would have to be addressed by officials who lack democratic legitimacy.  Parliamentary systems, the argument continues, do not work this way.  The opposition party takes over immediately (unless it takes a long time to assemble a coalition government).

I'm not sure, though, that the criticism of Inauguration Day is warranted.  Lame-duck sessions are often quite productive. Why? Precisely because they offer breathing space for the parties to cooperate without the pressure of electoral politics.  Parliamentary systems have the option of a caretaker or "technocratic" government (such as the one in Italy now) that are formed without an election for a limited time or for a limited purpose.  The only way to accomplish that in the United States is in a lame-duck session.  And that is not a bad thing every once in a while.  A deal on the debt ceiling increase, for example, would have been much easier at the end of 2010 than it was in the summer of 2011.

There are are limits to this idea, of course.  Lame-duck sessions went until March before the ratification of the Twentieth Amendment, and that was probably too long.  Is two months too long though?  I'm not convinced.
Posted 9:01 AM by Gerard N. Magliocca [link] (30) comments

Is Washington DC Unconstitutional?

Gerard N. Magliocca

No, this is not an anti-government manifesto.  Article One, Section Eight, Clause Seventeen of the Constitution provides that Congress shall have the power:

"To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States . . . ."

The current size of the District of Columbia, though, is about sixty-eight miles square.  How, then, are the boundaries of the District constitutional? Couldn't any resident of the so-called "District" bring a suit alleging that every Act of Congress governing them as residents of Washington DC is invalid?

What is the answer to this puzzle?
Posted 7:11 PM by Gerard N. Magliocca [link] (19) comments

I'm shocked, I tell you, shocked

Sandy Levinson

The Times has just posted a story, Partisan Rifts Hinder Efforts to Improve U.S. Voting System. Who would believe it? (I see no reason to allow the statement of further opnions, since I assume that everyone is as shocked as I am to discover yet more evidence that Madison's vision of "virtuous" government is totally absent in the contemporary United States. With regard to those who are not shocked by Ethan Bronner's reportage, I have no patience for any argument that the two parties are equally culpable with regard to hindering the improvement of the U.S. voting system, unless one defines "improvement" as suppressing the vote of those deemed likely to be one's potential political opponents.)
Posted 5:30 PM by Sandy Levinson [link]

The Debt Ceiling Crisis, One Year Later

JB

It may seem like the distant past, but only one year ago the United States--and the world--were on the brink of economic catastrophe due to a remarkable episode of hostage-taking by congressional Republicans, who refused to raise the debt ceiling unless President Obama capitulated to their demands. The debt ceiling crisis of 2011 culminated in fevered last-minute negotiations in July 2011 leading to the Budget Control Act of 2011, signed on August 2nd.

Over at the Atlantic, I have an essay discussing the history of the debt ceiling crisis, the constitutional arguments raised, and the larger political meaning of the struggle.

The debt ceiling crisis was an attempt to stage a political revolution with control of only one House of Congress. It ultimately fell short, and damaged the economic recovery in the process. Generally speaking, political movements usually do not succeed in making significant changes in governance unless they also control the presidency. That is one reason why an earlier attempt, the Gingrich revolution, also failed. To be sure, both the Gingrich revolution and the debt ceiling crisis had important effects, but they did not produce the lasting changes in American politics that Republicans had hoped for.

For this reason, the key issues in the debt ceiling crisis will be fought out again after the election, and, depending on who wins the Presidency, the Republicans will either complete their revolution or they will once again be frustrated, as they were in 1995.
Posted 12:07 PM by JB [link]

Anything Goes: Compelled Physician Speech in the Eighth Circuit

Guest Blogger

Jennifer Keighley

Last week’s en banc decision from the Eighth Circuit on South Dakota’s requirement that physicians inform women seeking abortions that they will be at an “increased risk of suicide ideation and suicide,” in the face of medical evidence demonstrating that there is no causal relationship between abortion and suicide, suggests that the Eighth Circuit believes there is virtually no limit on the state’s power to coerce physician speech in connection with an abortion procedure. Under Planned Parenthood v. Casey, state laws that require the giving of truthful, non-misleading, and relevant information do not impose an undue burden on the abortion right, and under the Eighth Circuit’s prior precedents, such laws also do not interfere with physicians’ First Amendment rights. Even though the en banc majority conceded that there was no evidence showing that abortion causes an increased risk of suicide, the majority concluded that the compelled statement was truthful, non-misleading and relevant. The majority found evidence of causation to be unnecessary as long as some studies show that women who abort have a higher rate of suicide than “women in other relevant groups, such as women who give birth or do not become pregnant.” The fact that other underlying characteristics, such as pre-existing mental health difficulties, shared by women who abort might be the actual cause of the increased rate of suicide and that women who are not pregnant are an improper group for comparison was of no import. Instead, the majority concluded that the term “increased risk” merely required a correlation between abortion and higher rates of suicide and that as long as a causal link between abortion and suicide remains a theoretic possibility, the Casey standard was not violated.

The en banc decision is remarkable for a number of reasons. First, there is the stark ideological cohesiveness of the judges voting to uphold the statute. Of the seven judges who voted to uphold, six were nominated by President George W. Bush. The only judge appointed by another president who voted to uphold the statute was Judge Loken, who was appointed by President George H.W. Bush, and whose brief concurrence expressed his strong reservations about the statute. In contrast, while two of the dissenters were nominated by President Clinton, including the dissent’s author, Judge Murphy, the first and only woman to have ever served on the Eighth Circuit, the remaining two members of the dissent were appointed by H.W. Bush and President Reagan, respectively. Thus, while judges appointed by Presidents of both parties joined the dissent, those voting to uphold express a single ideological outlook.

This stark ideological cohesiveness is nothing new—the en banc court’s 2008 decision on an earlier challenge to the South Dakota law broke down along the exact same lines. All six W. Bush appointees joined the majority opinion, again written by Judge Gruender, upholding the statute’s requirement that physicians inform women “that the abortion will terminate the life of a whole, separate, unique, living human being.” The majority concluded that the statute did not require physicians to engage in any untruthful or ideological speech because the statute separately defined “human being” as “an individual living member of the species of Homo sapiens ... during [its] embryonic [or] fetal age.” Judge Murphy’s dissenting opinion in the 2008 decision, which concluded that the statute impermissibly required physicians “to espouse theological or philosophical beliefs,” was joined by the same three judges who joined last week’s dissent. Both the 2008 decision and this latest decision demonstrate that, at least according to the W. Bush appointees on the Eighth Circuit, compelled physician speech raises little, if any, constitutional questions when this speech is in the context of an abortion procedure.

It is worth considering how the majority’s analysis would have differed if they had engaged in a separate analysis of physicians’ First Amendment rights, rather than collapsing this inquiry with the Casey undue burden standard. Physicians’ ability to transfer expert medical knowledge and advice to their patients is severely compromised by state regulations that require physicians to engage in speech that (1) is not supported by the medical literature, (2) goes against the physicians’ best medical judgment, and (3) undermines patients’ trust in their physicians. The suicide advisory-risk does precisely that—it requires physicians to advise their patients of a risk that is not supported by the weight of medical evidence, and that will undoubtedly confuse and mislead their patients. While physician speech may be more extensively regulated by the state because it is within the context of medical practice, state regulations that require physicians to give their patients information that interferes with the communicative relationship between physicians and their patients implicate physicians’ First Amendment rights. I am currently writing an Article on compelled physician speech that outlines this argument, and that deals more specifically with the First Amendment issues raised by mandatory ultrasound laws. While both the Eighth and Fifth Circuits have concluded that the undue burden standard is the only applicable constitutional standard in the abortion context, even when physicians’ First Amendment rights are implicated, my Article argues that Casey does not support this conclusion, and that a separate constitutional inquiry is warranted.

Turning to the majority opinion, its conclusion that the compelled statement does not require any reliable evidence of causation is untenable given the statute’s text. The statute requires physicians to provide women with a written statement providing “[a] description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including . . . [i]ncreased risk of suicide ideation and suicide.” Even putting aside the dispute over whether the phrase “to which the woman would be subjected” applies to the earlier phrase “medical risks of the procedure,” the statute still suggests a causal relationship. An increased risk of suicide is allegedly a “known medical risk of the procedure.” But if the abortion does not cause women to have an increased risk of suicide or suicide ideation, then it is not a known risk of the procedure—to the extent there is a correlation between abortion and higher suicide rates, women who have abortions were likely already in a group with a higher risk of suicide before they made the decision whether to terminate the pregnancy.

In addition, given that the state has compelled this statement as part of the “informed consent” process, the majority’s conclusion that the statement does not require any evidence of causation makes absolutely no sense. When getting a patient’s informed consent, a physician discloses information that a patient should consider in deciding whether to undergo the procedure—again, if having the abortion has no effect on a woman’s risk of suicide, there is no reason why this information would be relevant to getting the woman’s informed consent whether to terminate. While the majority decides that the term “increased risk” does not require evidence of causation because the medical literature sometimes uses the term “increased risk” to refer to the relative risk of an adverse outcome in one group as compared to another group, this conclusion also completely ignores how women will interpret the information about their “increased risk” for suicide, especially when given this information in the context of informed consent. This willingness to ignore the patient’s perspective, however, is a logical extension of the en banc court’s 2008 decision, which completely overlooked how women would interpret the statement that they were terminating the life of a whole, separate, unique, human being, even if the statute separately defined “human being” in biological terms. For the en banc majority, construing the South Dakota statute based on definitions that go against common understanding is par for the course.

There is much more to discuss about the majority opinion, including its dubious reading of the scientific and medical literature, and its willingness to rely substantially on the declaration of an expert, Dr. Priscilla Coleman, whose research methodology in this field has been strongly criticized. The dissent summarizes this nicely in stating that “a woman's ability to make a wise, mature, and informed choice is hindered by being told that the increased risk of suicide is a ‘known medical risk[]’ ‘to which . . . [she] would be subjected’ by having an abortion when the weight of the medical research indicates the opposite and she is not informed of the debate.” Given the Eighth Circuit’s interpretation of Casey’s requirement that the information be truthful, non-misleading, and relevant, getting the courts to engage in a separate inquiry into the First Amendment rights of physicians might be the only way to limit attempts to structure the ‘informed consent’ dialogue to serve the state’s anti-abortion agenda.

Jennifer Keighley is a resident fellow at the Program for the Study of Reproductive Justice at Yale’s Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com

Posted 11:59 AM by Guest Blogger [link]

Another Bizarre and Troubling Texas Execution by August 7?

Frank Pasquale

As Danielle Citron observes at Concurring Opinions today, Texas has become the United States' "most extreme outlier on all issues pertaining to capital sentencing."  In yet another bizarre twist, Texas appears ready to ignore the report of a "board certified neuropsychologist with 22 years of clinical experience" in favor of a seat-of-the-pants characterization of a death row inmate's cognitive capacity.  The case involves "Marvin Wilson, a man who received [an IQ] score placing him below the first percentile of human intelligence."  As Citron notes: 

Texas . . . has translated the Supreme Court’s categorical ban on executing offenders with mental retardation in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  

Posted 11:35 AM by Frank Pasquale [link]

Whose Gun, Whose Head? Gaming Out The Medicaid Expansion

Joey Fishkin

In NFIB v. Sebelius, Chief Justice Roberts told a tale of coercion with some harrowing imagery.  “[I]t is a gun to the head,” the Chief said.  But whose gun, and whose head?  To the Chief, it was obviously the overbearing federal government telling the states, “[y]our money or your life.”  I think it’s not that simple.

In the Chief’s view, the Court’s Spending Clause holding “limits the financial pressure the Secretary may apply,” so that states are free to say either “yes” or “no” to the Medicaid expansion.  A genuine choice.  But what if it’s not really about a simple “yes” or “no” at all—but instead, about leverage in a more complex game?

A series of conversations is about to begin, or may already have begun, between states, especially Republican states, and the Department of Health and Human Services (HHS).  In these conversations, the states are essentially saying to HHS: “We want certain changes to the Medicaid expansion in our state.  If you do not give us the changes we want, we will opt out of the whole Medicaid expansion.”  In particular, some states may be tempted to demand: “we want to expand Medicaid only partway—to 100% of poverty, not all the way to 138%.”  For somewhat wonky reasons I’ll discuss below, changing Obamacare in that particular way might enable states to extract more money from the federal government and/or pay less themselves.  A new CBO report out this week suggests that HHS will take this kind of exit threat very seriously—and may well cave.

Now step back a moment.  Counterfactually, imagine that the Spending Clause holding had gone the other way.  Essentially the same conversation would be taking place right now between a state like Texas and HHS.  The difference is that the state’s only exit option in that case would be to abandon the Medicaid program entirely—a kind of nuclear option.  But for some states, including Texas, that nuclear option would most definitely have been on the table.  If Governor Rick Perry had started making threatening noises about ending Medicaid entirely if HHS didn’t allow Texas to make the expansion smaller, one way to describe the situation is that HHS has a gun to Texas’ head.  The other way of describing the situation is that Governor Perry is the one with the gun, and he is pointing it at the heads of millions of Texans who are uninsured or on Medicaid.  (There's a third party here; it’s not a mugging, but a hostage situation.)  The Governor is saying to HHS: “give me the changes I want, or I drop coverage for all these people—and oh by the way, if I do that, then President Obama’s signature achievement will be a sharp reduction, instead of an increase, in coverage for the poor in Texas.  You wouldn't want that, I'm sure."

These two conversations, the real one and the counterfactual one, are surprisingly similar.  Either way, the ultimate equilibrium—how much of what Texas wants will HHS end up giving—depends on the same basic variables.  How serious is Texas about shooting the hostage (i.e. opting out of either the expansion, in the real conversation, or the entire Medicaid program, in the counterfactual)?  How willing is HHS to risk allowing the hostage to be shot?  In both cases, it seems to me, HHS might be very inclined to strike a deal.  If I were Secretary Sebelius, in a game of chicken with Rick Perry, with poor people’s health care hanging in the balance, I would not underestimate the Governor’s resolve.

But the Court’s Spending Clause holding does change one big thing.  It makes Texas’ threat far more credible (since shooting the hostage is a somewhat smaller and therefore more plausible thing to threaten).  Thus, the Spending Clause holding will give more negotiating leverage to states like Texas and help them get exactly what they want.

In other words, far from preventing a mugging of the poor defenseless states (“[y]our money or your life”), what the Court has really done is give states the leverage to make more credible threats of their own—taking a more realistic hostage—so that they can more thoroughly restructure the Medicaid expansion to wheedle more money out of the federal government.  It's a ransom that the federal government will likely pay.

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Posted 8:02 AM by Joey Fishkin [link]

Penny Wise, Euro Foolish

Gerard N. Magliocca

The European Union has one of the world's most dysfunctional constitutions. This should come as a shock to nobody, but the consequences of this legal failure could be profound.

One part of the original understanding of the EU, to use that term, was to end the national rivalries and autocratic regimes that twice plunged the world into war.  A single currency without central fiscal and regulatory institutions, though, is reviving national tensions in Europe. Moreover, the politics of harsh austerity in countries like Greece are the best friend the enemies of democracy could have. It is ironic that Germany, which fell into the abyss in part because of unrelenting demands by its creditors to pay its World War One indemnity, is now playing a similar role for Southern Europe. They still have time, though, to make a U-Turn before it is too late.      
Posted 5:49 PM by Gerard N. Magliocca [link] (27) comments