Eugene Volokh's Blog, page 2588
March 21, 2012
Unanimous Supreme Court Rules in Favor of Property Owners in Sackett v. EPA
The Supreme Court today issued a unanimous decision in favor of the property owners in the important case of Sackett v. EPA [HT: GMU law student Matthew Roberts]. The opinions in the case (an opinion for the court and two concurring opinions by Justices Ginsburg and Alito) are available here. Justice Alito's concurring opinion includes a particularly clear description of what was at stake:
The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.
The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA's bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.
The Court bases its decision on statutory grounds, ruling that the property owners are entitled to judicial review of their case under the Administrative Procedure Act. It therefore did not reach the issue of whether such review is also required by the Due Process Clause of the Fifth Amendment, which states that the government may not deprive individuals of life, liberty, or property without due process of law. The scope of the decision is therefore limited. And, as Justice Alito goes on to explain, "the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune." He urges Congress to clarify the scope of the CWA so that property owners will at least have a clearer indication of the scope of EPA authority over their land. Despite these limitations, the decision is a significant victory for property rights, and a rare case of unanimity on an important property rights issue.
I leave it to others to debate whether it is appropriate for a Supreme Court justice to urge Congress to clarify the law in one of his opinions. But it's worth noting that this is not the first time such a thing has happened. Justice Ruth Bader Ginsburg famously urged Congress to reverse the Court's interpretation of Title VII of the Civil Rights Act in her dissent in the Lily Ledbetter case.
UPDATE: As co-blogger Orin Kerr pointed out in this 2007 post, Justice Ginsburg later stated that one purpose of her dissent in Ledbetter was ""to attract immediate public attention and to propel legislative change."




New York Trial Court Dismisses Lawsuit by Against New York Law School For Allegedly Fraudulent Employment Numbers
The decision is here, via ATL, arising in a case filed by several graduates who claim that they relied on the law school's employment numbers and thought their degrees would be worth more than they are. The judge reasons that a reasonable consumer would not have been misled by the published employment statistics, and that the damages to the plaintiffs are too remote and speculative.
At the end of the opinion, the judge offers an op-ed of sorts about the market for legal services. He suggests that the real reason for the lawsuit is that the market for legal services has tanked, and that the plaintiffs are trying to blame their law school for not foreseeing the changes in the legal economy. He expresses his view that the downturn in the legal market is unprecedented and that we should all help recent graduates find jobs.




Jonah Goldberg on Heather Gerken's Progressive Case for Federalism
Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken's progressive case for federalism:
A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically…..
Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.
The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears "states' rights" — which is then immediately, and unfairly, translated into, "Bring back Bull Connor."
But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for "A New Progressive Federalism."
Gerken's chief concern is how to empower "minorities and dissenters." Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well…
Allowing local majorities to have their way, Gerken continues, "turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority."
She's right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah majority. Hence, Utah takes on Mormon characteristics. It's no theocracy, but it is more representative and distinctive. In areas where Latinos or blacks are the majority, what's so terrible about having institutions that reflect their values?
Whereas I think Gerken sometimes doesn't give federalism enough credit, Goldberg sometimes gives it too much. For example, he ignores the problem that federalism is often ineffective in protecting the rights of immobile people and rights to immobile assets, such as property rights in land.
Be that as it may, Gerken's progressive defense of federalism continues to get favorable notice in conservative and libertarian quarters (see also this comment by libertarian Damon Root). It will be interesting to see whether it will be equally well received by the intended left of center audience. There is already this moderately favorable piece in the Nation.




March 20, 2012
"Patentable Subject Matter, The Supreme Court, and Me"
Michael Risch has a post by that title over at Madisonian.Net, commenting on today's Supreme Court decision in Mayo v. Prometheus.




Whitman on Harcourt on Prisons
Lawprof James Q. Whitman is one of my favorite legal writers. Writing style is a matter of taste, but I find his style wonderfully engaging. Whitman's new book review of former VC guest-blogger Bernard Harcourt's latest book is a good example. I can't comment on whether Whitman's characterizations of Harcourt's book are accurate. I haven't read the book, so I don't know. But I find Whitman's writing delightful. Here's a taste:
Harcourt['s] book is an exercise in discourse analysis of the kind associated with Michel Foucault.
Now here I should rush to reassure those who might be unduly put off by the phrase "discourse analysis." Too many of us have learned to associate "discourse analysis" with the portentous and jargon-ridden writings of second-rate literature scholars and specialists in cultural analysis — with the writings of what a recent critic sneeringly calls "Foucaultphiles." I do not by any means think that Harcourt has avoided all of the pitfalls in doing Foucauldian discourse analysis, but it should be said immediately that he has not written that sort of Foucaultphile book. The Illusion of Free Markets is a serious, able, and mostly jargon-free piece of scholarship.
. . . .
Of course, there are some obvious intellectual risks in analyzing the world in this Foucauldian way. It is no easy trick to write like Foucault without slipping into the language of a kind of New Left libertarianism — of Tea Party–like cries of alarm at the creeping progress of government-as-bodysnatcher. So once again, it should be said immediately that Harcourt's book is much better than that. In mounting his version of a "discipline" argument, Harcourt displays an exceptional range of scholarly abilities. He chews carefully over methodological issues. He takes a nuanced and skeptical view of many of Foucault's claims. He makes important and interesting discoveries in intellectual history and even ventures into the eighteenth-century Paris archives, something few scholars without professional historical training dare to do. It goes without saying that he gives able accounts of contemporary American legal argument. He also makes pointed and sardonic observations about the regulation of the Chicago Board of Trade. There are not many scholars of any school who can range so widely.
. . .
All of this adds up to a study with many fine and perceptive observations — a book that is a pleasure to read. Nevertheless, I fear that more about this enjoyable book is wrong than is right. The shortcomings of the book have partly to do with its claims about the birth of the discourse of liberty, which are argued in ways that seem uncomfortably sloppy by the standards of professional intellectual history; but they also have to do, more deeply, with fundamental weaknesses in Foucauldian historiography and Foucauldian social science.
This is, to say it once more, not the sort of academic book that gives Foucaultphilia its bad name, but it remains the case that there is simply too much Foucault in this book, and too little effort to justify all the Foucault.




FAA Reconsidering Pointless Plane Prohibition
As I noted here, the Federal Aviation Administration requires airplane passengers to shut off all electronic equipment during takeoff and landing without regard to whether such devices can actually interfere with the plane's instrumentation, which is the ostensible reason for the restriction. Now the NYT reports the FAA is taking a "fresh look" at the policy, a step that is long overdue.




The Politics of Mandates
In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because "mandates are just political losers."
Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly linked to, the federal government's rationales for the health insurance mandate open the door to almost every other conceivable mandate. In that vast universe of possibilities, there are going to be some political winners, including some that are likely to cause serious harm. There are numerous industries that would love to lobby for laws requiring people to buy their products. And at least some of them will achieve political success if the Court gives Congress a blank check to impose whatever mandates it wants. Even if only a small percentage of these possible mandates are ever enacted, the absolute number of political winners might turn out to be substantial.
Some mandates may go through because their supporters can effectively portray them as public health measures, efforts to stimulate the economy, or otherwise beneficial to the public. Others might succeed because much of the public is simply unaware of thema due to political ignorance. People may well not be aware of a mandate imposed on them, either because they happen to already be in compliance or because it is only selectively enforced. The minority who do get penalized for violating such a mandate will eventually become aware of it, of course. But they may not have enough political clout to get it abolished.
Orin says that mandates are likely to be unpopular because "[n]o one likes to be told what to do." This is true to some extent. However, many people do like to tell others what to do, especially if they believe that those others are making poor decisions. That's why many paternalistic policies are political winners.
The health insurance mandate is an unusual case for a variety of reasons. It was part of a major new law that dominated the headlines for many months. Most other mandates are unlikely to attract so much public scrutiny. In addition, precisely because it was part of such a massive bill addressing an important issue, the health insurance mandate quickly became a major focus of partisan conflict. Most legislation is far less controversial, and leads to far less political countermobilization, if any. Finally, the "adverse selection" policy rationale for the mandate is complex and difficult to explain to voters with little knowledge of economics and public policy. For these reasons, and perhaps others, the unpopularity of the health insurance mandate is likely to be a poor predictor of the politics of future mandates.
Lastly, I would emphasize that the unpopularity of the individual mandate was not enough to keep it from getting enacted in the first place. It was not enough to keep President Obama from supporting it, despite the fact that he had earlier denounced the idea as comparable to trying "to solve homelessness by mandating everybody to buy a house." And if the Court upholds the mandate, it's far from clear that it will ever be repealed. Sometimes, even an unpopular mandate can be a political winner.




Holtz-Eakin and Smith on the Individual Mandate
Former CBO Director Douglas Holtz-Eakin and Nobel Laureate economist Vernon Smith had an op-ed in today's WSJ on the "flawed economic foundations" of the Affordable Care Act. On the individual mandate, they write:
The Obama administration defends the mandate on the ground that a person's decision to not buy health insurance affects commerce by materially increasing the costs of others' health insurance. The government adds that health care is unique and therefore can be regulated constitutionally in ways other markets cannot.
In reality, the mandate has almost nothing to do with cost-shifting. The targeted population—the young, healthy and not poor who choose to forgo coverage—has a minimal role in the $43 billion of uncompensated health-care costs. In 2008, for example (the latest figures available), the Department of Health and Human Service's Medical Expenditure Panel Survey showed that the uncompensated care of the mandate's targeted population was no more than $12.8 billion—a tiny one-half of 1% of the nation's $2.4 trillion in overall health-care costs. The insurance mandate cannot reasonably be justified on the ground that it remedies costs imposed on the system by the voluntarily uninsured.
The government's other defense is that the health-care market does not exhibit textbook competition. No market does. The economic features relied upon by the government—externalities, imperfect information, geographically distinct markets, etc.—are characteristic of many markets.
The presence of externalities and other market imperfections does not justify a departure from the normal rules of the constitutional road. Health care is typically consumed locally, and health-insurance markets themselves primarily operate within the states. The administration's attempt to fashion a singular, universal solution is not necessary to deal with the variegated issues arising in these markets. States have taken the lead in past reform efforts. They should be an integral part of improving the functioning of health-care and health-insurance markets.




The Unpopularity of the Mandate — And How It Cuts Both Ways
In a recent post, my co-blogger Ilya Somin points out the polls showing that the individual mandate is very unpopular. The mandate polls just terribly. Few people like it, and most people would be happy for it to go. Ilya suggests that the unpopularity of the mandate gives the Court more freedom to strike down the mandate. To the extent the Justices might want to strike down the mandate but fear political backlash, the thinking runs, they need not worry. From that perspective, the mandate's unpopularity puts a legal realist thumb on the scale of striking down the mandate.
Perhaps that's right. But there's a counterargument worth noting: The unpopularity of the mandate also rests in some tension with a major argument challenging its constitutionality. As Ilya has explained in a forthcoming article, the argument against the mandate is based in part on a predicted slippery slope. The mandate is unprecedented, the argument runs. If the Supreme Court upholds the mandate and legitimates the mandate as constitutional, then that will usher in a new period of mandates that will effectively destroy any notion of the federal government as a government of limited power. As Ilya notes, this argument rests in part on a prediction as to the political popularity of mandates. The argument is strongest if mandates are popular enough to be enacted into law:
The empirical aspect of the issue is more difficult to assess. It depends in part on future political dynamics that are hard to predict. Nevertheless, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups. Such mandates could be made more palatable to public opinion by posing as public health measures or efforts to strengthen the economy. They could be promoted by classic "Baptist-bootlegger coalitions," combining public health advocates and industry interest groups. Such a coalition can effectively portray an effort to benefit an influential interest group as a measure promoting the public good of the general public.
The polls on the unpopularity of the mandate don't say much about why so many people oppose the mandate. But one plausible interpretation of the polling numbers is that mandates are just political losers. The reason why is probably obvious: No one likes to be told what to do. When the government mandates action, it infringes on liberty in a way that most folks intuitively get, and many people intuitively oppose. So if you're a politician, it's more politically palatable to achieve the same regulatory result by creating an entitlement. Lots of people love a handout but abhor a mandate, even if they end up operating similarly in practice (because we have to pay for the handout somehow). To the extent that reaction explains the unpopularity of the mandate, it arguably undercuts the slippery slope argument made by the challengers.
Anyway, I don't know in the end how these two arguments play out against each other. If our many posts on the mandate suggest anything, there will be sharp disagreement on how strong these arguments may be. But I did want to point out that the polls showing the unpopularity of the mandate arguably cut both ways.




John Samples on the Cato vs. Koch Controversy
John Samples of the Cato Institute has an interesting recent piece on the conflict between Cato and the Kochs [via Gene Healy]:
The politically engaged have offered much commentary on the conflict over the future of the Cato Institute. Some prominent people on the left have spoken of their respect for the current Cato. In today's polarized political world, an endorsement from the left often serves as a negative signal to conservatives. That reaction would be a mistake. Conservatives have something at stake in the continuation of Cato.
What is the issue here? Each reader will reach his or her own conclusions based on the evidence we have about the Kochs' intentions in this takeover attempt. I would suggest that we look at the big picture about the recent development of think tanks. A few years ago a number of wealthy liberals including George Soros decided to contribute considerable sums to a new think tank. They deemed the old liberal think tanks (e.g. Brookings) ineffective and too removed from politics. They sought instead a think tank engaged with daily partisanship, grassroots mobilization, and electoral politics….
[T]he conservative will immediately recognize that the Kochs are proposing a "new model" think tank to replace the "old school" Cato. Of course, the conservative will not oppose all innovations though he will always insist on repair rather than reconstruction. But the conservative will ask, "What exactly needs repair here? What reasons counsel innovation at Cato?" Under Ed Crane, the Cato Institute has built a strong reputation for principled engagement in public policy….
[A] more partisan Cato wouldn't necessarily further conservative ends of principled limits to government power. I am particularly concerned about an issue area I have worked in for over a decade: campaign finance regulation. It is true that the Republican party has supported the First Amendment by and large in these matters. However, partisanship sometimes requires divergence from principle. After all, the GOP is a party that seeks to win elections, a goal that might be served by restrictions on campaign finance. Indeed, the Republicans have supported a ban on political action committees and more recently, congressional Republicans tried to prohibit 527 committees when it served their electoral purposes….
The Koch brothers have done much to advance the cause of individual liberty and limited government. The "new model" they propose for Cato, however, is an innovation whose utility conservatives should doubt. The "old school" Cato has done much to raise doubt about Progressivism among Americans with an independent outlook. It has also contributed (and will contribute) to the valiant effort to preserve the core values of the American tradition. The conservative will wonder why such an institution should be cast aside in the pursuit of the latest political fad, an innovation fostered by none other than George Soros. On this matter at least, the conservative will judge the Kochs to be all too progressive.
I have myself commented on this issue several times, including here and here. I noted my various ties to the two sides in the dispute here.




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