Eugene Volokh's Blog, page 2586
March 24, 2012
My Speech on C*SPAN at Cato, and my Cato Podcast
Just in case you have not grown tired of hearing me explain why the individual mandate is unconstitutional, you can listen to my presentation yesterday at the Cato Institute, which was broadcast live on C*SPAN. My talk starts at the 20:00 minute mark
Then there is a 6 minute interview with me on the Cato Podcast discussing the subject I blogged about below on the recent preemptive attacks on Justice Scalia and Chief Justice Roberts for being political if they fail to uphold the mandate.
(Randy Barnett) Lots has been said recently about how the...
Lots has been said recently about how the "conservative" justices would have to abandon their previous decisions in order to invalidate the individual insurance mandate. As this flurry of punditry cannot hope at this late stage to influence the Justices, and is also demonstrably inaccurate — which no one knows better than the Justices themselves — I think it unintentionally reveals the mandate defenders' growing fear that they may well lose what they sincerely see as an "easy" case. They are now "preparing the battlefield" to characterize an adverse decision as unprincipled and "political," just the way they did before the decision in Bush v. Gore was handed down, and after Citizens United was announced. There has been some pushback (here and here) against some particularly empty assertions along these lines made recently by Linda Greenhouse and Dahlia Lithwick, two left-of-center Supreme Court analysts of whom I am personally fond despite our frequent disagreements.
But Dahlia Lithwick's latest effort to politicize an anticipated loss [to which Ilya also responds below] includes a distortion of an argument I made here a week ago that cannot go without response. She writes (bold added by me):
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—"without breaking a sweat." I suspect that's right.
If that's true, we should stop fussing about old precedents. These old milestones of jurisprudence aren't what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama'shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.
In fact, as Volokh readers will recall, this is the opposite of what I blogged. My point was to show how the reasoning of Justice Scalia's concurring opinion in Raich in no way bound him to uphold the mandate. In part, my analysis stressed that, while Raich involved an "as applied" challenge, our challenge to the ACA is a facial one. Perhaps easier to appreciate is that Justice Scalia's argument concerned only the meaning of the word "necessary" in the Necessary an and Proper Clause, whereas our arguments accept this analysis while stressing the meaning of "to carry into execution" and "proper." As his opinion in Raich says absolutely nothing about these these portions of the Necessary and Proper Clause, Justice Scalia is neither committed to accepting or rejecting our arguments. Perhaps most importantly, it is Justice Scalia who, above all Justices, who has most greatly stressed (in Printz) that the issue of "proper" is distinct from that of "necessary."
I admit that my analysis was somewhat complex legally and was intended for our legally sophisticated audience, rather than for the general public. But Lithwick is a Stanford law graduate and Supreme Court reporter and legal commentator who should be able to handle grasp the difference between claiming that Justice Scalia was not bound by anything he said in his opinion in Raich to uphold the mandate, and that he could "break from his previous opinions." The readers of Slate deserve a correction.
UPDATE 1: I had one additional thought. Even if one is not persuaded by my arguments as to why Justice Scalia need not "break from" his prior decisions to invalidate the mandate, Lithwick's distortion is to represent me as having claimed that he should or "could break from his previous opinions" when the whole point of my point was to contend — however persuasively — the exact opposite of this.
UPDATE 2: Phil Klein of the Examiner, one of the more astute journalist who as followed this case from the beginning made the same point yesterday that the defenders of the law doth protest too much:
It's hard to believe that, at this point, anybody following the issue closely would dismiss the substance of the legal challenges to the health care law. But it makes sense from a political perspective. This is a pre-emptive attack by the left so that they can brand any decision to overturn the law as illegitimate.
He examines the coherence of several recent spinners. In addition to Greenhouse and Lithwick, there are Adam Winkler (UCLA) and Sahil Kapur of "Talking Points."
More here by Peter Suderman of Reason.
Dahlia Lithwick Distorts My Blog Post on Justice Scalia
Lots has been said recently about how the "conservative" justices would have to abandon their previous decisions in order to invalidate the individual insurance mandate. As this flurry of punditry cannot hope at this late stage to influence the Justices, and is also demonstrably inaccurate — which no one knows better than the Justices themselves — I think it unintentionally reveals the mandate defenders' growing fear that they may well lose what they sincerely see as an "easy" case. They are now "preparing the battlefield" to characterize an adverse decision as unprincipled and "political," just the way they did before the decision in Bush v. Gore was handed down, and after Citizens United was announced. There has been some pushback (here and here) against some particularly empty assertions along these lines made recently by Linda Greenhouse and Dahlia Lithwick, two left-of-center Supreme Court analysts of whom I am personally fond despite our frequent disagreements.
But Dahlia Lithwick's latest effort to politicize an anticipated loss [to which Ilya also responds below] includes a distortion of an argument I made here a week ago that cannot go without response. She writes (bold added by me):
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—"without breaking a sweat." I suspect that's right.
If that's true, we should stop fussing about old precedents. These old milestones of jurisprudence aren't what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama'shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.
In fact, as Volokh readers will recall, this is the opposite of what I blogged. My point was to show how the reasoning of Justice Scalia's concurring opinion in Raich in no way bound him to uphold the mandate. In part, my analysis stressed that, while Raich involved an "as applied" challenge, our challenge to the ACA is a facial one. Perhaps easier to appreciate is that Justice Scalia's argument concerned only the meaning of the word "necessary" in the Necessary an and Proper Clause, whereas our arguments accept this analysis while stressing the meaning of "to carry into execution" and "proper." As his opinion in Raich says absolutely nothing about these these portions of the Necessary and Proper Clause, Justice Scalia is neither committed to accepting or rejecting our arguments. Perhaps most importantly, it is Justice Scalia who, above all Justices, who has most greatly stressed (in Printz) that the issue of "proper" is distinct from that of "necessary."
I admit that my analysis was somewhat complex legally and was intended for our legally sophisticated audience, rather than for the general public. But Lithwick is a Stanford law graduate and Supreme Court reporter and legal commentator who should be able to handle grasp the difference between claiming that Justice Scalia was not bound by anything he said in his opinion in Raich to uphold the mandate, and that he could "break from his previous opinions." The readers of Slate deserve a correction.
UPDATE: I had one additional thought. Even if one is not persuaded by my arguments as to why Justice Scalia need not "break from" his prior decisions to invalidate the mandate, Lithwick's distortion is to represent me as having claimed that he should or "could break from his previous opinions" when the whole point of my point was to contend — however persuasively — the exact opposite of this.
March 23, 2012
A Quick Koch vs. Cato Comment
I don't have time right now to say anything in-depth about the latest developments ongoing Cato Institute vs. Koch conflict. And, in any event, my view of the situation has not changed: I still think that all concerned would be better off if the Kochs were willing to drop their suit. But for those who may be be interested, I largely agree with co-blogger Jonathan Adler's take on both the Kochs' most recent statement and the dispute as a whole.
Public Opinion, Sympathetic Plaintiffs, and the Individual Mandate Case
In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion:
Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that's right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.
In a recent post at The Volokh Conspiracy ("Public Opinion, the Individual Mandate, and the Supreme Court"), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party's redevelopment efforts. The idea was that this would serve a "public use" by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.
Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals….
It's certainly true that sympathetic plaintiffs are always helpful for public relations. But they are not essential. The anti-mandate forces are winning the public relations battle even without them, as we can see from polls showing that the vast majority of the public wants the Court to strike down the mandate. Sometimes, focusing on general principles is as much or more effective than focusing on tearjerking individual stories.
This is not the first major constitutional case in which the plaintiffs' lawyers managed to win in the court of public opinion while downplaying the individual stories of their clients. As co-blogger Dale Carpenter shows in his excellent recent book on Lawrence v. Texas, the lawyers in that case deliberately shielded their clients from public scrutiny in large part because they were likely to seem unsympathetic to the public (both men had criminal records for minor offenses, they were not in a longterm relationship with each other, and they quite likely did not actually have sex the night they were arrested).
By focusing on the general principle that it is wrong for the government to prosecute people for consensual gay sex, the pro-gay rights side in Lawrence managed to win over the majority of the public, as well as the Supreme Court justices. The anti-mandate forces are trying to pull off a similar victory by focusing on the general idea that it is dangerous to give Congress a blank check to enact whatever mandates it wants. This strategy has been very successful with the general public, though it remains to be seen whether it will work with the justices.
Walsh also argues that the diverse circumstances of individual plaintiffs justify 6th Circuit Judge Jeffrey Sutton's approach of barring facial challenges to the mandate and instead forcing plaintiffs to make individual as-applied challenges. I criticized Sutton's theory in detail in this post.
UPDATE: Timothy Sandefur of the Pacific Legal Foundation points out that at least some of the anti-mandate cases do have sympathetic plaintiffs:
Prof. Kevin Walsh thinks opponents of the Individual Mandate should have found a sympathetic client. How about PLF client Matt Sissel?
A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn't buy health insurance because it doesn't make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he's forced to buy insurance he doesn't need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick.
Sissel tells his own story here. He certainly seems like a sympathetic plaintiff to me.
Sissel's case, of course, is not the one before the Supreme Court right now. But one of the plaintiffs that is before the Court is the National Federation of Independent Business, the nation's largest small business organization, which likely has members who are small businesspeople that find themselves in a situation similar to Sissel's.
Crime to "Regularly" Read Sites That "Promote Terror or Hatred or Violence"?
That's what French President Nicolas Sarkozy is reported (by the AP) to have told a campaign rally. An excerpt from the AP story:
France's president proposed a sweeping new law Thursday that would jail those who visit extremist web sites — one of several tough new measures floated in the wake of a murderous shooting spree….
"Anyone who regularly consults Internet sites which promote terror or hatred or violence will be sentenced to prison," he told a campaign rally in Strasbourg, in eastern France. "What is possible for pedophiles should be possible for trainee terrorists and their supporters, too." …
Ken Paulson (First Amendment Center) has a column on the subject.
More on the Politics of The Hunger Games
Today is the premier of the Hunger Games movie, and debate continues over the political message of the book series by Suzanne Collins on which the movie is based. Last week, I commented on conservative blogger James Delingpole's claim that the the series promotes a pro-Tea Party, antigovernment ideology. In my view, there are multiple plausible interpretations of the series' politics, including left-wing ones. I think Delingpole may have been reading his own views into the book, just as more left-wing readers could plausibly do the same with theirs.
However, it's worth noting that Delingpole is not the only one who thinks that The Hunger Games promotes a Tea Party-like ideology. Liberal Slate commentators Emily Bazelon and David Plotz advanced the same interpretation back in 2010. So does Bernie Quigley at The Hill. This Tea Party-aligned site describes both left-wing and conservative interpretations of the series.
For now, I'm sticking to the view I outlined in my last post on the subject:
Collins does indeed convey a very skeptical view of government. Not only the Capitol but even the government promoted by its opponents turns out to be tyrannical, which suggests that the flaws of government are institutional and not merely the result of the wrong leaders being in power. However, it is far from clear that Collins promotes libertarianism or Tea Party-like conservatism as the solution to this problem.
Moreover, a left-wing interpretation of the series' politics is at least as plausible as Delingpole's is. The "sybarite class" of the Capitol and their oppression of the twelve districts can be seen as a classic leftist parable of the oppression of the poor by the rich. The game show-like nature of the Hunger Games can be interpreted as an indictment of commercialism. And perhaps the true way forward for Panem is a government that cracks down on commercialism, redistributes wealth to the poor, and gives everyone free food and health care.
The series is subject to such widely disparate interpretations in part because Collins' world-building is relatively weak. We don't learn very much about the political and economic system of Panem, and some of what we do learn is internally inconsistent. We don't even know whether Panem's economy is primarily capitalist or socialist.
However, it's interesting that commentators on different sides of the political spectrum have all discerned an anti-government and anti-centralization message in The Hunger Games. As a libertarian decentralizer myself, part of me hopes that the series' millions of young fans came away with the same impression, even if it is not the most accurate possible interpretation of the text.
Obviously, politics is not the only or even the most important interesting element of The Hunger Games. In my view, the series' real strength is in its drama and characterization. But it's still interesting to consider the political themes of such a popular series, one that may have at least some effect on the worldviews of millions of readers.
All of the above analyses of the politics of The Hunger Games are based on the books. Perhaps the movie has a different – or at least clearer – political message. If time permits, I hope to write a review sometime in the next few days, after I see it.
UPDATE: I am well aware, as some readers have pointed out, that Suzanne Collins has made various public statements about what inspired her to write the series. The most thorough is probably this April 2011 interview with the New York Times. But Collins is very vague about the book's political message, and in any event a work of literature often has a meaning that goes beyond the specific intentions of the author. Even if you endorse the original intent approach to constitutional interpretation, you don't necessarily have to apply the same theory to literary interpretation. The two enterprises have very different purposes.
Audio of My Recent NPR Individual Mandate Discussion with Professor Vikram Amar
Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here:
One thing I notice about these radio exchanges is that there is a tremendous advantage to whoever gets to respond to a question last. Both Amar and I were more effective when we got to respond after the other, in large part because that position allows you to rebut whatever the other person said, as well as make your own points. That said, I think we at least did a fairly good job of laying out some of the major arguments on both sides.
The Individual Mandate Case is Not Easy
Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise.
Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. They are even more dubious now, after several lower court decisions have ruled against the mandate. Even the decisions upholding it all acknowledge that the case raises novel issues. And all of them spend many pages explaining their reasoning, which is not what you would normally see in an easy open and shut case.
It's also worth noting that many leading constitutional federalism scholars believe that the law is unconstitutional, including Gary Lawson (one of the top experts on the Necessary and Proper Clause), Steve Calabresi (who is one of the legal scholars who signed on to the amicus brief I wrote for the Washington Legal Foundation), Richard Epstein, and, of course, co-blogger Randy Barnett. If the case were an easy one, we would not have such a deep division among legal experts and jurists.
You can say that the experts who think the mandate is unconstitutional are just politically biased. But of course the same charge can be levied at Greenhouse, Lithwick and the overwhelming majority of commentators on the other side. Greenhouse makes much of the fact that two conservative judges have voted to uphold the mandate. But a liberal judge – Frank Hull of the 11th Circuit – has voted to strike it down. These exceptions do not change the fact that the overwhelming majority of conservative and libertarian experts believe that the law is unconstitutional, while the overwhelming majority of liberal ones believe the opposite. Such ideological polarization among experts is actually yet another sign that the issue is not an easy one. If it were, we would be more likely to see an expert consensus developing.
Greenhouse and Lithwick's argument is not helped by the various factual and analytical errors they make in their pieces. Ed Whelan catalogues them here and here. Perhaps the most important is Greenhouse's fallacious assertion (seemingly endorsed by Lithwick) that the plaintiffs' argument is "Basically just one word…: "unprecedented." In reality, the plaintiffs have never argued that the unprecedented nature of the mandate by itself proves that it is unconstitutional. Rather, their brief repeatedly emphasizes that the main reason to strike down the mandate is that there is no logical way to uphold it without giving Congress virtually unlimited authority to impose other mandates. So far, the federal government has failed to come up with any limiting principle that proves otherwise, as I explain in some detail in this article. If the federal government loses this case, it will be because of that failure, not because only ignorant or politically biased people can believe that law is unconstitutional. As David Bernstein puts it, the Court majority is not going to buy the notion of a "Congress-can-do-whatever-it-wants power."
Greenhouse also claims that Gonzales v. Raich and United States v. Comstock clearly dictate the outcome of the mandate case. She does not even consider ways in which these cases differ from the mandate issue, which I described here and here. As I explained in the WLF amicus brief, some elements of Comstock actually help the anti-mandate plaintiffs. Ironically, Greenhouse previously cited my article explaining why Comstock does not dictate the outcome of the mandate case as evidence that even "critics of the newly enacted health care law" believe that Comstock requires the mandate to be upheld.
I do not mean to suggest that there isn't a substantial case in favor of the constitutionality of the mandate. Some of the law's defenders have made serious and insightful arguments on its behalf (e.g. Brian Galle, Neil Siegel, and my former colleague Max Stearns). The Supreme Court's precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.
Be that as it may, public debate over this important issue is not improved by claims that the case for the mandate is so obviously right that no informed person can reasonably disagree with it.
Koch and Cato–The Board
In the process of trying to figure out exactly what is going on in the Koch-Cato dispute, I was struck by one thing: as near as I could figure out, the Kochs, according to Cato itself, had offered a compromise in which each side would choose eight board members. Meanwhile, as of the last board meeting, the Cato board was composed of sixteen board members, seven of them Koch appointees. Could all this acrimony at this point be over the identity of one board member, or were the Kochs insisting on retaining control beyond the initial selection of half of the board? Surely if the former, the Kochs could be persuaded to give up their legal battle given that the stakes were only 50% influence versus 42+% influence?
I haven't had a chance to clarify whether the Kochs were indeed willing to move to board control of Cato if they got to choose 50% of the board, but David Weigel's post yesterday explains why Cato's nine to seven board majority was more significant than it might first appear:
Today, the board's majority agreed to simply expand to 20 members, invoking a bylaw that allows that many people to serve if it's so desired. They added four people — William A. Dunn, John C. Malone, Lewis E. Randall, and Donald G. Smith — who are more supportive of the non-Koch faction. "We now have a 13-7 majority," said Ed Crane, Cato's president since 1977.
On the other hand, Crane also told Weigel that the crisis would end if "we end the shareholder agreement and we have a majority on the board of directors who are not part of the Koch group." So maybe going back to a nine to seven board majority would satisfy Crane, so long as the board thereafter had control of Cato. If so, the onus is on the Kochs to acknowledge that given their relative lack of involvement in Cato for the last two decades, they should be more than content with that level of influence over Cato's future direction. Shareholder agreement aside, is there anyone out there who thinks that the Kochs deserve a 50% say in Cato? Or that this would be good for Cato, and libertarianism?
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