Sunday, August 02, 2015

The Next Wave of Court Challenges to Obama’s Legacy—Part Three: Could King v. Burwell Mean Trouble for Obama’s Global Warming Agenda?

Guest Blogger

Simon Lazarus

The Challenge to the EPA’s Clean Power Plan regulations

Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014— which attempt to drastically cut carbon pollution from power plants,—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.
But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.

Prior to King v. Burwell, defenders of the agency’s authority to proceed with CPP, specifically including Professor Freeman, have relied heavily on the pre-King “bedrock legal doctrine” of deference to expert agency judgment.  But their argument could fall flat, if reviewing courts decide – as well they may – that CPP presents the sort of “extraordinary political and economic” question that King spotlighted. EPA’s choice of which version of Section 111(d) to follow, however reasonable, could get zero deference.  The point has not been overlooked by EPA’s litigation adversaries.  Already, on July 23, New York State’s Office of the Attorney General supplemented a recently filed brief in a Second Circuit appeal challenging an EPA Clean Water Act regulation, with a letter spotlighting King’s contraction of prior standards for deference to agencies,. 

But the news is not all bad for EPA.  Even if courts reviewing the CPP rules, most particularly the Supreme Court, rely solely on their own take, EPA’s case may actually be strengthened by King v. Burwell -- assuming courts track the new interpretive algorithm Chief Justice Roberts spelled out.  In King, the Administration’s opponents relied on a phrase in a single subsection of a vast and complex law – “established by the state.” Read in isolation, Roberts acknowledged, this phrase could “most naturally” be understood to bar tax credits and subsidies from exchanges run by the federal government.  But, he repeatedly emphasized, such a snippet of text could not bear a reading that subverts the “legislative plan.” 

The dispute at the heart of the case against the CPP concerns how to read, prioritize, and/ or reconcile dual, inadvertently enacted versions of a subsection of the CAA.  If anything, this oversight was a more egregious example of the sort of “inartful drafting” overridden by the Court’s contextual analysis of the ACA in King.  Indeed, the eery similarity between the two situations makes out a strong case that Roberts’ new decision is directly on point with the question of EPA’s CAA authority to adopt the CPP – in a way that strongly favors EPA.  This is because, after King, that question should not be resolved by scrutinizing arcane points of congressional procedure to determine which version was “correct,” or by parsing their respective provisions to determine whether, linguistically, they can be reconciled; on the contrary, the principal focus must be on what interpretation, so long as consistent with pertinent text, fits the goals, overall design, and operational structure of the law as a whole. 

To be sure, the CAA is, if anything, even more complicated than the ACA, and CPP opponents can no doubt conjure arguments within that framework to challenge its stringent limits on power plant carbon emissions.  But the agency and its allies would seem in a strong position to brand fatally “implausible” a claim that, in effect, renders the federal government impotent to control emission of a major pollutant, CO2 – one that the Court itself specifically held to come within EPA’s regulatory authority – from one of that pollutant’s most significant sources.  As EPA defenders have noted, if the challengers were to prevail, EPA would largely lose its authority to regulate existing sources’ emissions, not only of CO2, but other dangerous pollutants, including “methane, landfill gas, and total reduced sulfur” – certainly “the type of calamitous result” that Roberts flagged as an outcome “Congress plainly meant to avoid.”   

No doubt the Justice Department, and other EPA defenders, will make ample use of the Chief Justice’s peroration in King:

"[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done.  A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.  Section 36B [the section on which King challengers relied] can fairly be read consistent with what we see as Congress’ plan, and that is the reading we adopt."

Re-read that passage, but, for “Affordable Care Act” and “health insurance markets,” substitute “Clean Air Act” and “air quality.”  That should indicate why the new regime outlined in King v. Burwell, even though, as Professor Freeman notes, it “shift[s] the balance of power in statutory interpretation back to the courts and away from agencies,” need not – if faithfully applied – stack the deck against judicial approval of President Obama’s CPP global warming initiative.     

Is King v. Burwell a Game-Changer or a One-Off?

Chief Justice Roberts’ King v. Burwell opinion breaks sharply with the heretofore dominant conservative interpretive jurisprudence championed by Justice Scalia.  Roberts also rebuked the politically driven attacks on the ACA that other conservative judges have welcomed.  But can those doctrinal departures and sharp caveats be taken at face value?  Will they be respected in future politically charged cases, specifically, those just now topping the horizon?

On the one hand, it is difficult to toss Roberts’ carefully crafted interpretive catechism off as flippant rhetoric. On the other hand, it is also difficult to square his expansive focus on Congress’ “legislative plan” and “plausible” intent with cramped Supreme Court interpretations in which he has joined.  Just two business days after King v. Burwell was released, Roberts joined a Scalia opinion in Michigan v. EPA, a 5-4 decision that overturned an important EPA rule on the ground  that the agency should have performed a cost-benefit analysis when it first decided to regulate power-plant emissions of mercury and other “hazardous” pollutants, even though such an analysis was in fact performed before the rule was finalized.  That bit of judicial micro-management – unsupported by any specific statutory language – smacks more of the conservative bloc’s policy preferences than it does of a “plan” fairly attributable to Congress. 

Or, take a notorious example from his second term as Chief Justice, Ledbetter v. Goodyear Tire & Rubber.  In that case, Roberts joined another 5-4 majority opinion that construed a neutrally worded statute-of-limitations provision in Title VII of the Civil Rights Act, in a manner that made it realistically impossible for victims like the plaintiff in that case, Lilly Ledbetter, to recover damages for a secret pay discrimination scheme initiated decades before she uncovered it upon her retirement. It would seem difficult to find a more glaring example of a-contextual interpretation inconsistent with Congress’ legislative plan. So whether, how much, and how often King’s statutory interpretation rationale shifts past patterns or future outcomes remains to be seen. 

Similarly, the half-life of Roberts’ aversion to litigation driven by partisan politics, reflected in King and public statements, is as yet indeterminate.  We will know more when the Court considers Texas’ and House Speaker Boehner’s immigration and ACA challenges now percolating through the lower courts. Roberts’ sincerity might be demonstrated simply by enforcing the barriers to standing for governmental units that Roberts and his conservative colleagues have long championed. 

In all events, there should be no doubt about the staying power of Roberts’ gloss on Chevron announced in King v. Burwell. Whatever the outcome of future blockbusters of “extraordinary political and economic significance,” his Supreme Court will not shrink from resolving them (in cases where the parties’ standing and other appropriate jurisdictional requirements are met), and resolving them on the basis of its own grasp of – or gloss on – what drove Congress to enact them.

The Chief Justice has staked out high ground with his insistence on broad-gauged fidelity to Congress’ ”plan,” and to steering clear of cases and results that appear to politicize the Judiciary.  We can only hope that these will not prove one-off pronunciamentos, because King v. Burwell was not a one-off happening.  On the contrary, conservative ideology and tea party obstructionism have generated and will continue to generate copycat attempts to recruit sympathetic federal judges to pursue political agendas.  If the Chief Justice gives into temptation in these lawsuits, he will become part of the very problem he has sought to avoid. 

Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.  You can reach him by e-mail at simon at

Saturday, August 01, 2015

The Next Wave of Court Challenges to Obama’s Legacy—Part Two: Texas’ Lawsuit to Undo Obama’s Immigration Initiative and Speaker Boehner’s Challenge to ACA Implementation

Guest Blogger

Simon Lazarus

The Texas challenge to DAPA

In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

How will the Court respond?  If Chief Justice Roberts stays focused on shielding the judiciary from politically driven, legally flimsy lawsuits that invite perceptions of judicial partisanship, the answer should be straightforward.  The Court will dissolve the District Court’s injunction, and dismiss the case on the ground that Texas has asserted no injury that gives it legal “standing” to get into court to present it.  That should be a straightforward call, based on the precedents and underlying policies strictly limiting the standing of government entities to involve the federal courts in inter-governmental political fracases.

The alleged injury on which the lower court judges relied to allow Texas to challenge DAPA is that, under Texas law, recipients of deferred action status are entitled to obtain drivers’ licenses, the processing of which will cost the state $130.89 each.  But, as Andrew Pincus has pointed out, unlike individual would-be litigants, governmental entities cannot  seek federal redress simply for incidental monetary loss, certainly not alleged loss on such a trivial scale.  Were the law otherwise, state or local politicians could turn virtually any policy dispute into a court case, simply by alleging adverse cost effects, however minuscule and indirect, from federal policies with which they have a beef.  The courts would be deluged, and government programs at all levels could be threatened with gridlock – just as the federal government’s program for implementing its national immigration enforcement priorities is gridlocked by this lawsuit.

 Conservative jurists, very much including Chief Justice Roberts and, indeed, Justice Scalia, have been notably strict about enforcing standing rules that keep separate the federal courts from this type of harm’s way.  At least, given Roberts’ King v. Burwell admonishments against transparently political litigation, one would expect no departure from those rules, if and when Texas v. United States reaches the Court.  Lawsuits by politicians like the notoriously litigation-happy Governor Abbott, after all, put political disputes before the courts more overtly than suits by private activists.

 Established standing doctrine, reinforced by Chief Justice Roberts’ aversion to politicization of the judiciary, should preclude the Supreme Court – and should have precluded the lower courts – from reaching the merits of Texas’ claim that the Obama DAPA immigration initiative is illegal and unconstitutional.  But it is worth noting that the Administration’s substantive defense of the legality of DAPA, which was powerful before King, is also reinforced by Roberts’ opinion -- in particular, his emphasis on evaluating Executive implementation of statutes in terms of Congress’ “plan.”  In the case of the immigration laws, the crux of that plan, pervasively manifest throughout federal immigration statutes, is to delegate broad discretion to the Executive Branch as to how to tailor enforcement priorities to funding resources, consciously limited by Congress,  sufficient to remove only a fraction of the total number of undocumented immigrants (400,000 annually, out of a total of more than 11 million).

As recently as 2009, a House of Representatives Committee Report specifically confirmed Congress’ direction to the Department of Homeland Security not to “simply round up as many illegal immigrants as possible,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”  As repeatedly noted by the Justice Department, the DAPA Directive simply sets out guidelines for conferring “deferred action” treatment in accord with enforcement priorities perfectly matching that instruction.  As noted above, authorization for such deferred action recipients to work and receive work-related benefits arises from longstanding regulations (promulgated by the Reagan Administration) and statutory provisions – a fact repeatedly stressed by the Administration and its allies, and flatly ignored by the lower court judges who have made this work-authorization consequence the nub of their argument for halting DAPA in its tracks.

Speaker Boehner’s Challenge to ACA Implementation

Even more starkly than in Texas’ assault on Obama’s immigration initiative, standing strictures applicable to inter and intra-governmental policy and political disputes, reinforced by the Chief Justice’s evident concern about perceptions of judicial politicization, should make short shrift of a second pending threat to a major Obama priority – once again, the ACA.  This suit, House of Representatives v. Burwell, engineered by House Speaker John Boehner to challenge aspects of the Administration’s implementation of the ACA, has flown under the radar since it was filed in November of last year.

The suit seeks to enjoin payments by the Administration to provide ACA-prescribed subsidies that help cover the cost of deductibles and co-pays that low-income insureds cannot afford when they require medical treatment (even though they have been able to purchase insurance with the help of premium tax credits).  The House  claims that no funds were specifically appropriated to fund these subsidies.  The Administration counters that funding authority comes from other statutory sources that provide for permanent spending authority. 

Though the House’s lawyer, George Washington law professor Jonathan Turley, dresses up his claim as an effort to rein in a lawless executive branch spending billions with no authorization, the case is actually a dispute about statutory interpretation – whether the Administration has correctly construed the provisions to which it attributes authorization to fund the cost-sharing subsidies, or not.  Were standing granted here, there would be little to stop either house of Congress from casting every policy disagreement with the Executive as similarly “unauthorized,” and put the dispute in the lap of the courts, rather than tussling it out by exercising its myriad routine oversight and legislative options.   

Turley argues that applicable precedents denying standing should be disregarded, because the House, by failing to make a specific appropriation for the cost-sharing subsidy reimbursements, had exhausted all available remedies to rectify the alleged Executive misconduct.  But that beef is simply incorrect, since the House never attempted to – as, obviously, it could have, and could still – pass a law specifically countermanding the Administration’s interpretation that alternative permanent appropriations authority is available.   

On the merits, the Chief Justice’s emphasis, in King  v. Burwell, on the ACA as “a series of interlocking reforms” could augur well for the Administration’s common sourcing of appropriations for ACA tax credits and cost-sharing subsidies, under challenge in House v. Burwell.  But the principal signal from the Court’s stern King rebuff should be to bar courts from taking jurisdiction over House Speaker Boehner’s litigation venture altogether, without reaching the merits.  

Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.  You can reach him by e-mail at simon at 

Friday, July 31, 2015

Yale Global Constitutionalism Seminar Announces Publication of Free E-books


The Yale Global Constitutionalism Seminar, part of the Gruber Program for Global Justice and Women’s Rights at the Yale Law School, brings together judges and legal scholars from around the world to discuss current topics.

Each year the Seminar publishes an annual collection of legal materials for the participants to read and discuss.

The Seminar is now distributing these materials free to the public in pdf, mobi, and epub formats.  The 2014 materials are available here.  In the coming weeks, the Seminar will also publish materials for prior years; and it plans to publish e-books for each succeeding year.

The e-book series is edited by my colleague Professor Judith Resnik, with technical support by Jason Eiseman and the Yale Law School library. The series is sponsored by the Yale Law School’s Information Society Project and is supported by a grant from the Oscar M. Ruebhausen Fund at Yale Law School.

The Next Wave of Court Challenges to Obama’s Legacy—Part One: The Meaning of King v. Burwell

Guest Blogger

Simon Lazarus

            Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. Burwell, Roberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

Read more »

Thursday, July 30, 2015

Corporate Nullification

Frank Pasquale

In a recent piece on the gig economy, Siva Vaidhyanathan and I explored the idea of corporate nullification--when businesses decide that they are simply going to flout the law. While we focused on tech firms like Uber, we could have easily extended our perspective to large banks or other multinational firms. But tech firms are in a class by themselves in terms of PR. You won't find bankers bragging about the LIBOR scandal, for instance. Yet rechristen defiance as "permissionless innovation," and all of a sudden you're a DC sweetheart.

Some commentators have taken us to task for failing to adequately appreciate the regulatory capture perpetrated by, say, local taxi monopolies. But few of them have grappled with the full range of consumer, traffic, and environmental concerns raised by transport and logistics. Olivier Blanchard is particularly smart on this:
If, like me, you really want to see who comes out on top of a fair market competition between an Uber and an incumbent taxi company, then you have to level the playing field: “Ride sharing” services need to pay the same fees as the cabbies. They have to apply for the same licenses and permits. They have to submit to the same requirements in regards to driver qualifications, vehicle inspections, insurance coverage. They have to pay the same fees. If and when they start to do that, you’ll have a level playing field, and may the best business model win. Until that happens, good luck convincing authorities and the public that they aren’t running illegal taxi services and engaging in fare piracy.
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Wednesday, July 29, 2015

My comments at SEALS on the Roberts Court at Ten

Mark Tushnet

This is a short summary of a short, broad-brush account I gave at yesterday's SEALS panel on the Roberts Court at Ten. I argued that the best way to understand the Roberts Court is to see it in the context of the recent transformation of the US party system. For some decades/generations, the major parties were coalitions with some groups in each sharing ideological views with some other groups in the other party (the classic examples are Northeastern moderate Republicans and Southern conservative Democrats, but there are other more complicated ones). Constitutional doctrine and the conventions of politics that generate substantive policy outcomes were predicated on the existence of that party system, particularly but not exclusively in connection with structural constitutional issues.

Over the past decade or so, the party system has changed into one in which the parties are substantially more ideologically coherent within themselves (that's a comparative judgment, not a claim about complete internal coherence), and able to assert discipline over potential "defectors" through various mechanisms of support from national parties and contributors. The result is a system of hyper-partisanship in which (again oversimplifying) the most liberal Republican is more conservative than the most conservative Democrat. That party system generates new constitutional problems, for which doctrine predicated on the understandings developed under the older party system isn't entirely suitable. And the result is a certain amount of thrashing around as the Justices on both sides of the partisan divide try to figure out new doctrine appropriate to the new party system. (The clearest example, I think, is Noel Canning, but again there are others).

Most of what I've just written is about how (distinctive) constitutional conflicts are generated. What of the Roberts's Court's response? Here I reverted to a discussion in my book on the Roberts Court, In the Balance: Law and Politics on the Roberts Court. The Court's conservatives, currently in the majority, have a choice between two strategies, which I called the "long game" and "shoot the moon." The long game is incremental movement in a more conservative direction; shoot the moon involves getting as much as you can as fast as you can. Both strategies have risks ("relevant replacement" Justices after the 2016 elections would prevent the long game from winning; you might not pick up the necessary fifth vote when you shoot the moon). I suggested that on current evidence (which I concede can be read differently), the Roberts Court has chosen to shoot the moon. The best evidence, I think, is the composition of the Court's docket -- precisely because sometimes the outcomes of the shoot-the-moon strategy are "failures" from the conservative point of view.

My presentation was sprinkled with additional qualifications about evidence and confidence in the analysis. One thing I didn't say, but which might be true, is that the relative attractions of the two strategies depend in substantial part on what you think the likely outcome of the 2016 elections will be, with shooting the moon more attractive the more likely you think a Democrat will win the presidential election then.

Constitutional History: Comparative Perspectives (call for papers)

Jason Mazzone

I am posting the following call for papers which may be of interest to readers.

Constitutional History: Comparative Perspectives

Chicago, Illinois
April 12 & 13, 2016

Sponsored by:
University of Illinois College of Law
University of Bologna School of Law
Center for Constitutional Studies and Democratic Development
University of Illinois Law Review

Paper proposals are invited for the Second Annual Illinois-Bologna conference on Constitutional History: Comparative Perspectives.

The conference will be held in Chicago on April 12 & 13, 2016.

The conference keynote speaker will be Justice Rosalie Silberman Abella of the Supreme Court of Canada.

(Conference description and submission information below the jump.)
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Tuesday, July 21, 2015

Is Obama a reconstructive president? We'll only know later on.


I am very sympathetic to Gerard's continuing uncertainty about whether Obama counts as a transformational or reconstructive president.  (Given the latest events, he now thinks that the odds have increased.) But there is a reason for this, which concerns a general feature of these kinds of theories of large-scale political change.

Theories like Stephen Skowronek's theory of political regimes, or, Bruce Ackerman's theory of constitutional moments, work best only in hindsight. They make sense of changes that have already occurred and whose significance has already become clear to us.  These are narrative accounts of political or constitutional change, and as narrative accounts, they depend on later events that bestow meaning on earlier ones.

We know that Reagan is a reconstructive president after George H.W. Bush's election, and Bill Clinton's statement that "the era of Big Government is over."  Then the elements of the narrative all seem to fit nicely together: we know that Bush is an affiliated president and  Clinton is engaged in the politics of preemption.  While Reagan's presidency was going on, we could certainly *guess* what would happen, but we couldn't be sure.

For example, if the economy had gone into recession in late 1987 or early 1988, the Democrats might have won the 1988 election, and Reagan's reputation would look quite different today. A recession in 1987 might also have gotten a different cast of characters to run for president in 1988, leading to a very different contest.

Any number of other things might have happened between 1987 and 1988 that would have put the Republicans in a worse position than they actually were. And if a second, steep, recession had arisen  in 1986, Democrats might have tried to push harder on Iran-Contra, and then Reagan would look a bit more like Richard Nixon.

In short, Reagan's status as a transformative or reconstructive president is based on a narrative of events constructed with the benefit of hindsight-- a narrative that we have come to see as the best way of explaining the past. But the course of that narrative isn't always certain during a particular presidency, nor is it really fixed for many years afterwards.

What does this mean for Obama? Simply this. It's possible that the Democrats will win in 2016, in which case Obama's presidency will look much more important and consequential to later generations. People will point to Obama's various domestic accomplishments, the Iran deal, the changing demographics of the Democratic coalition, Hillary Clinton's election, and a federal judiciary filled with liberal Democrats, as a sign that we are in a new political era.

But suppose that the economy declines sharply in January 2016, Hillary's campaign is plagued by scandals and incompetence, and Jeb Bush, Marco Rubio, or Scott Walker-- or someone else-- steadily gathers steam, and marches to victory. Then Obama will look more like Bill Clinton and less like Ronald Reagan.

Our judgments of the kind of presidency that Obama has had, and will have had, in other words, still depend on the future.

The Yugoslavian politician and writer Milovan Djilas once remarked that "[t]he hardest thing about being a Communist is trying to predict the past."  The same thing might be said about predicting reconstructive presidencies, not only while they are still ongoing, but even for years after they have ended.

The Oxford Handbook of the U.S. Constitution

Mark Graber

Mark Tushnet, Sandy Levinson and I are happy to announce that The Oxford Handbook of the United States Constitution is now available to order at  The below will hopefully give people some sense of the contents and contributors.

Efforts to provide comprehensive guides to the United States Constitution date from the framing and ratification of the United States Constitution.  The Federalist was the first self-conscious handbook on the United States Constitution.   Unlike the original and subsequent treatises or comprehensive guides, we were not motivated by a cheerleading impulse when we edited the 2015 Oxford Handbook of the U.S. Constitution.  Although our Handbook contains no specific chapter on what might be termed the “adequacy” of the  Constitution in the 21st century, the very structure of this text, as well as many  specific entries raise questions relevant to such an inquiry.  Comparing our contemporary Handbook of the United States Constitution with the original may shed some light on the incongruities that have manifested over time as contemporary citizens of the United States employ concepts grounded in late eighteenth century constitutional thought when operating a constitution in the early twenty-first century, as well as convincing many of you, we hope, to read the book and the many wonderful essays written by very distinguished scholars.   

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Wrong, Wrong, Wrong

Gerard N. Magliocca

That would be me, last November, when I wrote on this blog that President Obama was not a "reconstructive" leader in the mold of Andrew Jackson, Ronald Reagan, or some of the others described by Steven Skowronek that were the focus of my first book.  November was, of course, a low point in the Obama Presidency.  The GOP won the midterm elections, and the Court granted certiorari in King v. Burwell.  With the consolidation of the Affordable Care Act and the inability of Congress to push back much against the Administration, though, things are looking different now.

I am not saying that Obama has realigned the electorate.  The Democrats would need to win in 2016 to make that statement.  But you also can't say that he hasn't.

Monday, July 20, 2015

Update on the contraception coverage regulations and litigation [Further UPDATED to add fifth and sixth cert. petitions, in Little Sisters and Southern Nazarene]

Marty Lederman

It's been almost a year since my last series of posts on the fallout from Hobby Lobby--in particular, on the challenges by nonprofit organizations to the government's augmented religious accommodation.  (See my posts of July 18, July 24 and August 22 at this link.)

A lot has happened since then, and further Supreme Court review is now a distinct possibility (although hardly inevitable).  And so, here's a post devoted to catching up, in three parts.  First, a quick note on the government's new final rules regarding the religious accommodation (including its extension to some for-profit employers such as Hobby Lobby, Inc.).  Second, a summary of the courts of appeals' treatment of the nonprofit challenges.  And third, I'll discuss the handful of cert. petitions that already have been filed in the nonprofit cases--with particular emphasis on the theories of complicity that those petitions allege in support of the argument that the accommodation imposes a "substantial burden" on the plaintiffs' religious exercise.

Before getting to all of that, here's one other noteworthy development:  In October, the New England Journal of Medicine published a study indicating that teenagers' cost-free access to long-acting, reversible contraceptive methods, including intrauterine devices (IUDs) and implants, can have a dramatic impact on the rates of unwanted pregnancies, births and abortions.
Read more »

Wednesday, July 15, 2015

Graduate Conference in Public Law, University of Texas at Austin, September 24-26, 2015


The Department of Government at the University of Texas, Austin invites submissions for the second annual Graduate Conference in Public Law, to be held September 24-26, 2015.

The conference welcomes abstracts on all aspects of public law, including but not limited to:
• Security and International Law
• Human Rights
• American and Comparative Constitutionalism
• Jurisprudence and Judicial Behavior
• Statutory Design and Implementation

Details are available here.

Tuesday, July 14, 2015

The Constitution Writ Large, Part Two

Guest Blogger

Larry Tribe

[This is the second part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part One appears here.]

Moved by the tragedy in Charleston and the inspiring response of forgiveness that the victims’ families displayed, there has been a national tidal wave to take down the emblematic Confederate Flag from one State Capitol after another. What I’m suggesting here is that the tidal wave was too long in coming, and that the Constitution itself requires that tidal wave to continue – and requires it to extend even to State-issued vanity plates. To grasp this constitutional truth we must look, as Jackson would have looked in Zivotofsky, beyond formal categories to the real-world effects of a symbol, and deny government even the option of speaking in a way that significantly threatens to silence vulnerable groups.

Jackson would’ve had plenty of doctrinal support for treating government approval of racist practices as itself a denial of the Equal Protection of the Laws:

Recall Korematsu v. United States, the case in which the Court reviewed military orders requiring tens of thousands of American citizens of Japanese ancestry to surrender up to military authorities for indeterminate confinement in detention camps – or be deemed criminals. Jackson dissented from the Court’s opinion upholding the orders and Fred Korematsu’s conviction for violating them. What troubled the Justice most was that the Court was giving manifestly racist military orders its constitutional blessing, sending the Nation and future decision-makers a MESSAGE that the Constitution tolerates racism by our government.

Jackson insisted on viewing governmental messages through the eyes of those who would receive them and feel the full brunt of their impact.

That was the salient insight at the heart of Jackson’s Barnette opinion, which was all about the necessity, under our Constitution, of avoiding any governmental practice that puts down or silences some groups by proclaiming the supremacy of others.

The concurring opinion Jackson drafted but never published in Brown v. Board of Education suggests that it was the message of White Supremacy that he found most clearly unconstitutional about racial segregation by force of law.

When the Court extended Brown’s principles in 1967 to anti-miscegenation laws in Loving v. Virginia, it emphasized that, even if Virginia’s laws formally treated Whites and Blacks the same way, it was not free under our Constitution to proclaim Whites the Master Race.

So too, Jackson might very well have said that the demand made by the Sons of Confederate Veterans may be rejected – because it must be rejected. If the Reconstruction Amendments’ promise of equal citizenship means anything, it means that no branch or level of government may issue an official message that all but disenfranchises some citizens, telling them they are inferior to others.

We saw that promise again realized in the Court’s Obergefell decision. At its heart was the Court’s recognition that telling same-sex couples that they’re unfit to share in the institution of civil marriage sends LGBT individuals an official message of inferiority – teaching a lesson government officials are forbidden to teach, whatever their intentions.

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Monday, July 13, 2015

The Constitution Writ Large, Part One

Guest Blogger

Larry Tribe

[This is the first part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part Two will appear tomorrow.]

Thanks so much, John, for that too-generous introduction. And thanks to the Chautauqua Institution for making this day possible and to Greg Peterson of the Jackson Center for your terrific hospitality.  I’m especially grateful to all of you who are here this (sunny? rainy?) afternoon.  

It’s a great privilege to be delivering this annual lecture in honor of Robert H. Jackson. At his high school graduation over a century ago, Jackson compared this lovely place on the shores of Chautauqua Lake to a “little city . . . built upon hills and set gem-like within the seven encircling ends of a silver stream.”

The towering figures who have spoken in this magical setting, which Jackson described as “so cunningly fashioned by Nature’s matchless handicraft” – and the extraordinary man this lecture series honors – present a formidable challenge for anyone who steps to this podium – especially because, as you all know, we’re surrounded here by historians and experts on Jackson’s jurisprudence.  So, just to set the record straight, I am neither a Jackson historian, nor an expert on all things Jacksonian. Nor have I ever played one on TV!

But, like many others, I’ve greatly admired Robert Jackson ever since I was in my twenties. What grabbed me first, I must confess, was his wickedly clever turns of phrase – a way of expressing himself that, as the late Louis Jaffe wrote, was “magnificent and athletic in exposition, powerful and ingenious in argument, racy, sardonic, alive with the passion and wit of his personality.”

Instead of saying he had changed his mind, Jackson would say: “the matter does not appear to me now the way it appears to have appeared to me then,” or “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” And he’d wind up with: “If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all.”

Winston Churchill once said: “Words are the only things that last forever.” And a word, as Justice Holmes wrote, is but the “skin of a living thought.” It wasn’t just the freshness of Justice Jackson’s words that made his opinions unforgettable. It was the vibrancy of the living thoughts embedded in those words that made them so worthy of being remembered. They endure because the ideas they embody reach out to us beyond the frame defined by their particular context, the way Mona Lisa’s eyes famously follow us as we cross the room in front of her portrait.

The timelessness of Jackson’s thought was underscored when the second half of June arrived, with its series of thunderclaps – momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions.

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Wednesday, July 08, 2015

Constitutional Problem-Solving

Joseph Fishkin

In an end-of-the-term flurry that was not lacking in forceful dissents, Chief Justice Roberts’ dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission [Legislature v AIRC] certainly held its own. (In case some readers were unsure how to keep score at home, Justice Scalia, writing separately, opined that the Roberts dissent he joined was “devastating.”) One moment of particularly high dudgeon stood out to me: the Chief’s back-of-the-hand dismissal of the argument of the first page or so of the majority opinion. “The majority begins by discussing policy,” he writes, “I begin with the Constitution.” Elsewhere he accuses the majority opinion of consisting in substantial part of “naked appeals to public policy.” What he’s mainly talking about is the start of Justice Ginsburg’s majority opinion. It reads as follows:

This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power. “[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.” Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); id., at 316 (Kennedy, J., concurring in judgment). Even so, the Court in Vieth did not grant relief on the plaintiffs’ partisan gerrymander claim. The plurality held the matter nonjusticiable. Id., at 281. Justice Kennedy found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation. Id., at 317. 

Legislature v. AIRC is not a partisan gerrymandering suit, but a case about the Elections Clause. That clause says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The question in Legislature v. AIRC was whether the phrase “by the Legislature thereof” means independent redistricting commissions like Arizona’s are unconstitutional. The majority and dissent agree that this is what the case is about. But they seem to disagree in an interesting way, not fully spelled out by either side, about the relationship between this question and the question in Vieth.

In Chief Justice Roberts’ view, the problem of partisan gerrymandering is a “policy” problem rather than a constitutional problem. In other words: Partisan gerrymandering is something we might all agree is not good. It would be nice to have less of it. But there are lots of things it would be nice to have less of—traffic jams, for instance. Rain on the Fourth of July. We do not alter our readings of the Constitution to achieve such goals. On this view, reducing partisan gerrymandering might be a “noble” aspiration, but whatever its merits, it is a policy goal external to the Constitution, and it would be improper to allow such a policy goal to distort constitutional interpretation. Roberts draws this line sharply, complaining that the majority opinion shows “greater concern about redistricting practices than about the meaning of the Constitution.”

Justice Ginsburg obviously sees it differently. Her choice to open the opinion with the paragraph quoted above says as much. But Ginsburg never exactly spells out her answer to the “policy” charge. To understand how that side of the argument runs, it helps to remember exactly what happened in Vieth.

Vieth left partisan gerrymandering in a kind of doctrinal limbo: it is a constitutional wrong without a clear remedy. Five Justices (the four liberals + Kennedy) believed that there could be some judicial remedy in the future. The other four did not. But, all nine signed opinions that suggested that partisan gerrymandering is a fundamental problem for our constitutional order—a phenomenon “incompatible . . . with democratic principles.” (That particular sentence, which Ginsburg quotes above, is not from any of the liberal dissents or Kennedy—it’s from Justice Scalia. Scalia is in turn paraphrasing Souter; he adds, “We do not disagree.”). In other words, the divide in Vieth was not really about whether partisan gerrymandering was a constitutional problem. It was about whether courts had a judicially manageable solution. At the moment, it seems like they don’t.

This raises an important question. What is a constitutional problem without a judicial solution? We are living in an era in which the Supreme Court is so super-supreme, so utterly dominant in its authoritative command of the field of constitutional interpretation, that this question may sound almost like a philosophical riddle. (If part of the Constitution falls in the forest and no judiciary is there to hear it, does it make a sound…?) It is actually a little counterintuitive today to think of how any part of the Constitution could be alive and yet not directly enforceable by courts. Holdings of nonjusticiability, in this light, can read almost as though they say that the relevant constitutional provision is mere rhetoric, aspirational talk without legal consequence. In Vieth there were arguably only four votes for nonjusticiability, but even there, the court’s inability to articulate a rule for judicial intervention feels almost like a statement that partisan gerrymandering is not really unconstitutional. In popular culture and even in our present legal culture, we tend these days to think of the real Constitution as the judicially enforced Constitution, so if something is really unconstitutional, that would mean some party can go to court and get an injunction against it, right?

This way of thinking is a big mistake. And it’s one with far-reaching and occasionally surprising consequences, not only outside the courts but also (and this is my focus in the rest of this post), inside the courts. Thinking this way not only impedes non-judicial actors from solving constitutional problems. It also impedes courts from solving constitutional problems.

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Monday, July 06, 2015

Richard Glossip

Mark Graber

The Supreme Court’s decision in Glossip v. Gross (2015) cleared the way for Oklahoma to execute a person who may be innocent of murder and for whom Oklahoma admits merits a lesser sentence.  The precise issue in Glossip was whether the manner in which Oklahoma executes persons constitutes cruel and unusual punishment.  One unfortunate consequence was that no justice mentioned the disturbing facts of Glossip’s case, not even Justice Breyer, who wrote a powerful dissent urging the justices to rethink the constitutionality of capital punishment. In fact, Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.

On January 6, 1997, Barry Van Treese, the owner of the Best Budget Inn in Oklahoma City was brutally beaten to death with a baseball bat.  Justin Sneed, a handyman at the inn, confessed to the murder.  In return for a life sentence, he agreed to testify that Glossip, then managing the Best Budget Inn, had agreed to pay him $10,000 to murder Van Treese.  At trial, Glossip admitted that, scared, he had helped cover up the murder after the fact, but denied either encouraging or soliciting Sneed to commit murder.  He was nevertheless found guilty and sentenced to death.  That verdict was reversed by the Oklahoma Supreme Court on the ground that counsel was ineffective.  More than seven years after the murder was committed, a second jury found Glossip guilty and sentenced him to death.  The Oklahoma Supreme Court sustained this death sentence, with two justices dissenting on the ground that prosecutorial behavior had unduly biased the jury.  Throughout this period, Glossip was informed, possibly repeatedly, that he would not be executed and be eligible for parole in twenty years if he confessed to the murder.

What is wrong with this picture?

Richard Glossip is likely to be executed even though the evidence that he solicited the murder of Barry Van Treese, interpreted with a great deal of charity, barely gets over the reasonable doubt hurdle, if that.  Consider how the Supreme Court of Oklahoma characterized the evidence when finding Glossip’s first trial counsel incompetent.

The State concedes that the only “direct evidence” connecting Appellant to the murder was Sneed’s trial testimony.  No forensic evidence links Appellant to murder and no compelling evidence corroborated Sneed’s testimony that Appellant was the mastermind behind the murder.

The evidence at trial tending to corroborate Sneed’s testimony was extremely weak.

Richard Glossip is likely to be executed, even though the Oklahoma Supreme Court implied if not stated outright that, given the inconsistencies in the trial record and police reports in his first trial, and decent counsel would have beaten the murder charge, if not the entire conviction. 

Richard Glossip is likely to be executed even though the witnesses at his second trial were trying to recall events that happened more than seven years ago and at least two justices not known for their liberalism think prosecutorial misconduct biased the jury.

Richard Glossip is likely to be executed even though Justin Sneed, who provided the only evidence that directly ties Glossip to the murder of Barry Van Treese, was induced to testify by the promise that he would not be executed.  Not exactly the most reliable testimony. 

Richard Glossip is likely to be executed because no physical evidence can exonerate him.  There is no physical evidence in this case.  The central issue is whether Justin Sneed lied or exaggerated in order to save his skin.

Richard Glossip is likely to be executed even though Oklahoma has decided not to execute the person who actually committed the murder, Justin Sneed.  This seems particularly arbitrary given that one of the aggravating factors in the case was the brutality of the murder and Sneed was the person who actually committed the murder.

Richard Glossip is likely to be executed even though for almost a decade, Oklahoma was prepared to promise Glossip that he would not be executed if he confessed to the crime.  Glossip is being executed because he exercised his constitutional right to a jury trial.

In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.  Oklahoma police quickly came to the conclusion that Sneed certainly murdered Van Treese and that Glossip may have solicited the murder.  That clear physical evidence demonstrated that Sneed was the perpetrator perversely enhanced Sneed’s plea bargaining leverage.  Oklahoma needed Sneed to testify against Glossip.  They had no case otherwise.  They did not need Glossip to testify against Sneed.  The result is that the person who committed a murder beyond all reasonable doubt will not be executed, while the person who may or may not have solicited that murder is out of appeals.

Sunday, July 05, 2015

Vallier on liberal politics and public faith

Andrew Koppelman

One of the smartest young philosophers working in the area of law and religion is Kevin Vallier, who has just published his first book, Liberal Politics and Public Faith: Beyond Separation.  It is an important and distinctive argument,with which even those who disagree will need to engage.  Here is the jacket description:

 In the eyes of many, liberalism requires the aggressive secularization of social institutions, especially public media and public schools. The unfortunate result is that many Americans have become alienated from the liberal tradition because they believe it threatens their most sacred forms of life. This was not always the case: in American history, the relation between liberalism and religion has often been one of mutual respect and support. In Liberal Politics and Public Faith: Beyond Separation, Kevin Vallier attempts to reestablish mutual respect by developing a liberal political theory that avoids the standard liberal hostility to religious voices in public life. He claims that the dominant form of academic liberalism, public reason liberalism, is far friendlier to religious influences in public life than either its proponents or detractors suppose. The best interpretation of public reason, convergence liberalism, rejects the much-derided “privatization” of religious belief, instead viewing religious contributions to politics as a resource for liberal political institutions. Many books reject privatization, Liberal Politics and Public Faith: Beyond Separation is unique in doing so on liberal grounds.

Vallier discusses the book in a podcast interview at New Books in Philosophy, here. 

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