Eugene Volokh's Blog, page 2581
March 28, 2012
American Bar Association's Second Amendment Civil Rights Litigation Subcommittee
ABA members who are interested in this subject might want to join:
The Civil Rights Litigation Committee of the American Bar Association (ABA) Section of Litigation has formed a Second Amendment Subcommittee.
Subcommittee Goals/Objectives & Ways You Can Get Involved.
• Case/Law Updates: If you hear of a Second Amendment-related case decision or major development in Second Amendment law, send us a write-up about it. Your update will be emailed to the subcommittee's membership and posted on the Civil Rights Committee page. These updates do not need to be long. You can do them case brief style or more like an opinion piece.
• Conference Calls & Events: The Subcommittee plans to hold conference calls every 2-3 months or so to discuss the current status of Second Amendment Jurisprudence and recent developments. Additionally, the subcommittee plans to be represented at relevant events (e.g., ABA conferences, etc.).
• Increased Membership: Another goal of the subcommittee is increased membership. If you have not done so already, please join the ABA and the Section of Litigation Civil Rights Committee officially. We would like to be able to show the ABA that there is a great interest in Second Amendment civil rights. We encourage everyone to join and spread the word to anyone who is interested in the Second Amendment or supporting civil rights in general! …
• JOIN! Again, it is important to have increased membership for the subcommittee. The more members that the subcommittee has officially, the more likely the subcommittee is to remain next year, and the year after that, etc. Eventually, we would like the subcommittee to become a full-fledged committee.
• CONTACT [SUBCOMMITTEE CHAIR BOBBIE] ROSS TO PARTICIPATE. If you are interested in participating in any of the aforementioned ways, and/or have any questions or need any more information, please contact Ms. Ross.
Email: rossbk@gmail.com
Profile: http://www.linkedin.com/profile/view?id=10372665
Precedent-setting Dutch Civil Universal Juris. Case
One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction ("UJ") in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.
That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)
So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff's case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of "impunity" has abated. Now a federal judge must now ask in a UJ ATS case – why wasn't it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn't Holland where all the international lawyers are? Does plaintiff's presumptive choice of forum apply to UJ cases?
Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.
UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:
[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a "sufficiently close connection" to the U.S. is entirely absent.
I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows "can dish it out, but …can't take it no more," to quote Edward G. Robinson's Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.
Lithwick's Lament
Shorter Dalhia Lithwick: The mandate must be constitutional because it's compassionate to care about others.
Less short Dalhia Lithwick: The mandate must be constitutional because it's about the freedom to have the government make sure we take care of each other.
Lithwick's column makes the common mistake of evaluating a measure's constitutionality based upon the desirability of it s purpose. Yet as Paul Clement noted in yesterday's oral argument (and we've noted repeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance. Lithwick argues opposition to the mandate is grounded in a "dark vision" of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.
Throughout American history when we, as a people, have decided that it is important to help those in need we have relied upon the power to tax and spend for the "general welfare." Rather than impose upon individual Americans an obligation to act directly on behalf of others (or even themselves) we have raised monies that can be devoted to charitable and risk-management purposes and created financial incentives for charitable behavior. The federal government could have done that here, either by further expanding Medicare and Medicaid, subsidizing insurance for those in need, or raising taxes on everyone and offsetting the increase with deductions for insurance. In short, there are many constitutional ways for the government to demonstrate "compassion" without a mandate. Yet Lithwick and others continue to insist that if their ends are pure, the means adopted must be constitutional.
If I wanted to be snarky, I'd also point out that it's easy to be compassionate with other people's money, and progressives should be careful before accusing those who oppose the mandate or other redistributionist policies as hard-hearted neanderthals. After all, those on the right tend to donate a greater proportion of their own incomes to charitable purposes than those on the left.
March 27, 2012
Four Thoughts on the Individual Mandate Argument
I've now made it through the full transcript of this morning's argument. Here are four thoughts:
1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today's argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn't seem to me consistent with Wickard v. Filburn, which stated that "[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon." But putting aside precedent, the four key Justices all appeared to accept Randy's basic framing. That was an enormous accomplishment for the challengers.
2) Based on today's argument, I think it's a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It's a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, "It's entirely possible he doesn't know yet which way he's going to go." And yet assuming the Justices feel bound to the usual practice of finishing up the Term's opinions by late June, there isn't much time. These opinions are hugely important and yet will have to be written very quickly, which doesn't bode well for their likely quality.
3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President's strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President's opponents heralded the Court's new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President's allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we'll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.
4) Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.
Florida's Self-Defense Laws
Media coverage of Florida's self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida's "Stand your ground" law, that law is legally irrelevant to case. So let's take a look at what the Florida laws actually say.
Fla. Stat. § 776.012. Use of force in defense of person
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
So the general rule is that deadly force may be used only to "imminent death or great bodily harm," or "the imminent commission of a forcible felony." A person may only use deadly force if he "reasonably believes" that the aforesaid factual conditions exist. These standards are the norm throughout the United States.
Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let's call this the "M narrative." In Zimmerman's account, he followed Martin, caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the pavement. Let's call this the "Z narrative."
I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida's retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.
The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman's firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.
Under Florida law, there is another set of circumstances in which deadly force is permitted is:
(2) Under those circumstances permitted pursuant to s. 776.013
The cross-references is to a statute involving self-defense in one's home or automobile. Neither of these is relevant to the Martin-Zimmerman case.
Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim's home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.
Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.
Next is the issue of retreat:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.
Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown's excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):
[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.
Beard involved a victim on his own land. The Court unanimously re-affirmed Beard's no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else's property; there, the Court upheld a jury instruction in favor of a duty to retreat.
Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:
Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.
It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a knife.]
The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases "of a sudden brawl or quarrel" outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop's Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).
In sum, Florida's non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.
Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person's termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack. Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.
Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:
(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
The next part of the Florida Code concerns "Use of force in defense of others." Fla. Stat. § 776.031:
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Deadly force is permitted only when "reasonably" believed "necessary to prevent the imminent commission of a forcible felony." The no-retreat rule is the same as for self-defense.
We have now covered the entire relevant sections of Florida's self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.
Florida law provides some protections for persons who have lawfully used force against a criminal attack.
Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force
(1) A person who uses force as permitted in s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal's relatives be able to harass the victim by filing a civil suit.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that "The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized." As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have "probable cause" in order to arrest someone.
Another protection:
(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
So if a lawful defender is sued, then the court will attorney's fees and costs to the victim of the improper suit, who was, of course, also the crime victim.
Finally, Florida law guaranteeing self-defense rights express excludes anyone who "Initially provokes the use of force against himself or herself." Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights if:
(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.
In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman's story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman's self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida's "Stand Your Ground" and "Castle Doctrine" laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman's actions were or were not lawful.
More Bad News for the Federal Government's Argument that the Individual Mandate is a Tax
Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government's claim that the mandate is a tax authorized by the Tax Clause of the Constitution.
Today's oral argument directly considered the constitutional tax issue, and at least three of the four liberal justices – Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – remain skeptical. Sotomayor suggested that the government's Tax Clause argument is flawed because it has no "limiting principle." Ginsburg again contended that the mandate is not a tax because it isn't a "revenue-raising" measure. And Kagan pressed the Solicitor General on why it should be considered "irrelevant" that "Congress determinedly said, this is not a tax." Needless to say, the conservative justices were no more supportive of the federal government's Tax Clause claim than the liberals.
I don't know who is going to win on the Commerce Clause and Necessary and Proper Clause questions. The plaintiffs' position is looking pretty good. Still, I would not be surprised if the federal government managed to pull it out. But I am now quite confident that the feds are not going to prevail on the Tax Clause.
If Kagan and Sotomayor do end up concluding that the mandate is not a tax, that will be consistent with the views of the president who appointed them.
Has the Pro-ACA Side Come up with a "Limiting Principle?"
Sorry to keep reiterating this point, but I've contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.
Unfortunately for the law's defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli's performance). Justice Breyer later tried to step in and articulate three such principles:
First, the Solicitor General came up with a couple joined, very narrow ones. You've seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I'm not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.
So (1) even Breyer was unable to articulate exactly (or even approximately) what limiting principle the SG had come up with; (2) everyone knows that defeating Lopez's limitations on the commerce power has largely become a statutory drafting game to find a federal jurisdictional hook, however remote, and an unsuccessful ACA challenge would make it that much more difficult to find any examples regarding which such a hook couldn't be found. Moreover, reliance on Lopez is a bit rich coming from Breyer, who dissented in Lopez and would undoubtedly vote to overturn it tomorrow if he could; and (3) this is not a limit, it's judicial abdication, though it's what Breyer really believes. Even though he knew–and said!–that his colleagues aren't going to be persuaded by this, he apparently couldn't resist throwing it in anyway, as the "greatest limiting principle." Ego over effectiveness, I suspect.
So far, we seem to be left with the "health care is special" argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is "special." Not a good day for limiting principles.
Thoughts on the Individual Mandate Oral Argument
Today's oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law's defenders. I have long argued that the weakest point in the federal government's case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn't also justify virtually any other mandate Congress might impose (e.g. here and here). All of the conservative justices raised this exact issue during the course of today's oral argument, with the exception of the usually silent Clarence Thomas, whom few doubt will vote to strike down. And none of them seemed satisfied with Solicitor General Donald Verrilli's answers. This does not bode well for the mandate.
I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:
JUSTICE SCALIA: Wait. That's — it's both "Necessary and Proper." What you just said addresses
what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably
adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something
that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was
implicit in the constitutional structure.
The argument here is that this also is — may be necessary, but it's not proper, because it violates an
equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a a
government that has all powers; that it's supposed to be a government of limited powers. And that's what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
not do?
GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or
in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -
JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that
exists.
GENERAL VERRILLI: But it -
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government.
Scalia makes the key points that 1) a state must be both "necessary" and "proper" to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.
I'm not saying that Scalia necessarily got the argument from us, or even that he read the brief. But whatever led him to take up this point, I'm very happy that he raised it. It is the key weakness in the federal government's Necessary and Proper Clause argument, which is otherwise fairly strong – a weakness that the federal government almost completely ignored in their Petitioner's brief for the Supreme Court. The federal government has tried to turn the Necessary and Proper Clause into a mere "necessary clause." But, if Scalia's views are any indication, the Supreme Court majority doesn't seem to be buying.
As I explain in the amicus brief (pp. 28-29), this point also enables Scalia to distinguish his concurring opinion in Gonzales v. Raich, which many defenders of the mandate have been relying on. Raich did not address the issue of propriety. And in his concurring opinion in that case, Scalia emphasized (as he had in previous opinions) that "proper" is an independent limit on congressional power under the Clause, separate from necessity.
Before the oral argument, I thought that the plaintiffs had about a 30-40% chance of winning. I believed it was likely that the federal government would manage to persuade at least one conservative justice to buy one of their many "health care is special" rationales for the mandate. Now, I think the chances of the mandate being invalidated is at least 50%. The conservative justices just don't seem to be biting on the "health care is special" hook.
On the other hand, it is still too early for mandate opponents to celebrate. The federal government has a whole raft of different "health care is special" arguments (I go through them and their weaknesses in Part I of this article). If the feds can persuade just one of the conservative justices to accept just one of these theories, they can still win. We certainly cannot rule out such a scenario. It could still easily happen. But unlike in high school debate, quantity of arguments in a major Supreme Court case is rarely a good substitute for quality. And the quality of the government's "health care is special arguments" is at the very least highly suspect.
UPDATE: I have changed the original reference to "all five of the conservative justices" to exclude Clarence Thomas, who – as usual – did not ask any questions.
Freedom and Hypocrisy
Those conservative hypocrites! Here they oppose the individual mandate in the name of "freedom," and yet then they turn around and vote against a woman's freedom to choose abortion. So argued a liberal professor on a discussion list I'm on, and I've heard lots of liberals make the same arguments.
Those liberal hypocrites! Here they argue for sexual liberty in the name of "freedom," and yet they support freedom-restricting gun controls. So argue plenty of conservatives (and some libertarians), including on this blog.
Those libertarian hypocrites! Here they talk about how people should have freedom, and yet they are just fine with big corporations constraining employees' and consumers' freedom. So argue still other people.
I'm quite skeptical of all these claims of hypocrisy, because they ignore the reality that many people sincerely and plausibly have different understandings of "freedom." No-one really thinks that everyone should be free to do whatever they please. To everyone, "freedom" means freedom to do those things that don't sufficiently harm others (and often also means freedom from constraint imposed by particular actors, such as government using the threat of legal action, and not other actors, such as churches using moral or spiritual sanctions).
And that judgment necessarily requires making contested moral and pragmatic decisions: What, as a moral matter, constitutes "harm"? (Does paying someone a low wage for their work count as harming them? How about discriminating against them in various transactions? Interfering with their business relations? Libeling them? Alienating their spouses' affections?) What, as a practical matter, causes such "harm"? (Does legal private gun possession really cause more crime and injury than would be present if guns were prohibited?) When can avoiding some kinds of harm justify restrictions on people's freedom? Who counts as "others" who should be protected against "harm." (Fetuses? Animals?) Well-intentioned people can easily answer these questions differently than we would; and that they answer them differently doesn't mean that they're hypocrites.
Now one can certainly argue that people who believe in the freedom to do X should also believe in the freedom to do Y because of this-and-such similarity and because the supposed differences are actually overstated for this-and-such reason. But claims of hypocrisy are more than just claims of honest error. They are claims that people are consciously pretending to be for freedom when they know they are actually against it — claims of dishonesty.
Occasionally, such claims of conscious pretense are supported with actual evidence, but usually they aren't: The view often seems to be "those people must be lying when they say they are for freedom," even when there is no evidence for this beyond the fact that those people have a different understanding of the boundaries of freedom than the speaker does. (Something similar happens with regard to constitutional debates, where people often claim that someone is hypocritical for interpreting two provisions differently, without at all considering the possibility that there is an honest disagreement about how the provisions are to be interpreted.)
So such accusations of hypocrisy are factually unsupported. And such unsupported accusations of hypocrisy, as with all unsupported accusations that the other side is consciously dishonest or morally corrupt, are also destructive of helpful public debate. They may energize one's base, but they make it much harder to persuade people who are leaning towards the other side, and I suspect that they also alienate the middle as well. Instead of substantive discussion of how we should understand freedom, we get accusations of deception, accusations that don't really advance understanding. I'd much rather see more arguments that recognize that they stem from honest disagreement, and fewer claims that the other side is just a bunch of hypocrites.
UPDATE: A commenter writes, "What about people who are against racial discrimination, but for the affirmative action? People who say that life begins at conception (and therefore against all 'after' contraception), but allow for rape exception?" My suggestion — when faced with such situations, each of us should ask ourselves: Can I think of reasons why decent people might distinguish (even if not fully persuasively in my view) affirmative action from various other forms of discrimination, or abortion in rape cases from abortion in other cases? If not, can I think a little more, since there almost always are such reasonable distinctions (again, even if not fully persuasive ones)? And if I can think of those distinctions, why should we assume that our adversaries actually aren't thinking of them, too, and are instead being hypocrites?
May Congressman Order a Staffer to Give His Wife a Religious Divorce?
There's an interesting Slate article discussing the question. An excerpt:
Rep. Dave Camp, the Republican chairman of the House Ways and Means Committee, is Roman Catholic, and he represents a district, the Michigan 4th, with few Jews. But as anyone with access to Twitter, Facebook, or the rest of the Internet can learn, Rep. Camp has a big Jewish problem. And it's one he may be powerless to solve.
The congressman is under attack because of his aide, Aharon Friedman, an Orthodox Jewish graduate of Harvard Law School. Friedman has been legally divorced from another Orthodox Jew, Tamar Epstein, since 2010 — but has refused to give his ex-wife a get. In Orthodox Judaism, this is the document that a man must give to his wife in order for a religious divorce to go into effect. So long as Friedman refuses to give a get, Epstein cannot remarry within the faith and is considered an agunah, or chained wife.
Epstein's limbo status has sparked an outcry in the Orthodox world…. Insisting that Friedman's conduct amounts to domestic abuse, [Epstein's supporters] have used the Internet, including social media and the petition site change.org, and the national media to demand that Rep. Camp pressure Friedman to religiously divorce Epstein….
Note that Congressmen, as employers, are bound by the constitutional constraints that apply to the government generally. See, e.g., Davis v. Passman (1979). And while high-ranking Congressional employees are excluded from the normal constitutional protections against government discrimination based on employees' political activity, I don't know of any authority for the proposition that such employees are excluded from the normal protections against government compulsion of religious conduct.
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