Eugene Volokh's Blog, page 2589
March 20, 2012
Eugene Volokh Speaking at George Mason on Wednesday
Senior Conspirator Eugene Volokh will be speaking at George Mason University School of Law at 4 PM this Wednesday in Room 121, in a talk organized by the GMU Federalist Society. The topic will be slippery slopes, the subject of my personal favorite among Eugene's many excellent articles. The issue is a very timely one, given that the individual mandate case is scheduled to be argued before the Supreme Court next week. Both sides in the case have advanced various slippery slope arguments, which I assessed in this article.
I will be commenting on Eugene's presentation, so this will be a rare coming together of the East and West Coast branches of the Conspiracy. Welcome to GMU, Eugene!
Repeat First Amendment (Speech-Side) Players
Which litigants have been the main named parties in at least two opinon-producing First Amendment (speech/press/association/assembly/petition, not Free Exercise Clause or Establishment Clause) United States Supreme Court merits cases, as the free speech claimants?
One example is the New York Times, which was involved in (at least) New York Times Co. v. United States (1971) (the Pentagon Papers case) and New York Times Co. v. Sullivan (1964). But I can think of four more as I'm writing this, and I imagine there must be others. A single lawsuit that goes to the Court twice in its life counts only as one case. Dissents from the denial of certiorari, or opinions respecting the denial of certiorari, don't count. To count, a majority of the Justices must have discussed the First Amendment issue (though perhaps among other issues). Special praise goes to those who can attest that they gave their answers from memory, without running online searches or checking reference works, [UPDATE:] but please check your submissions before posting them, unless you have no doubt that you're correct.
University of North Carolina Talk on Property Rights Since Kelo
This Thursday at noon, I will be speaking at the University of North Carolina Law School on "Property Rights Since Kelo." Much has happened on both the legislative and judicial fronts in the last few years. Considerable progress has been made in protecting property rights against abusive takings, but much work remains to be done in many states. University of North Carolina law professor Carol Brown – a leading expert on the impact of eminent domain on low-income and minority communities – will comment on my talk, which is sponsored by the UNC Federalist Society.
This may be one of the few events at UNC Law School over the next few days that does not involve either the NCAA tournament or the individual mandate litigation!
LSAT Takers Continue to Decline
The NYT reports that the number of people taking the LSAT test has declined for the second year in a row.
The Law School Admission Council reported that the LSAT was given 129,925 times in the 2011-12 academic year. That was well off the 155,050 of the year before and far from the peak of 171,514 in the year before that. In all, the number of test takers has fallen by nearly 25 percent in the last two years.
The decline reflects a spreading view that the legal market in the United States is in terrible shape and will have a hard time absorbing the roughly 45,000 students who are expected to graduate from law school in each of the next three years. And the problem may be deep and systemic.
Criminal Defendant Outs Anonymous Web Site Commenter — Who Turns Out to Be One of the Prosecutors
Ars Technica reports; the New Orleans Times-Picayune reports that the prosecutor is being investigated by the Justice Department for possible violations of Justice Department policies. An excerpt from Ars Technica (read the whole thing, which also includes many links):
A federal investigation involving New Orleans landfill magnate Fred Heebe took a surprising turn this week. Heebe filed a court petition (PDF) claiming a frequent commenter on local-news site NOLA.com was in fact Sal Parricone, one of the prosecutors assigned to his case. Heebe turned out to be right.
The commenter took regular shots at Heebe and his family, seeming to know more about the case than an average reader of the site might….
So Heebe hired a former FBI forensic linguist, James R. Fitzgerald, to analyze 598 comments made over the course of 6 months by a commenter using the handle "Henry L. Mencken1951″. Fitzgerald, who also worked on the arrest and prosecution of Unabomber Ted Kaczynski, compared the comments made by "Mencken1951″ to the language in a 9-page proceeding filed by three Assistant U.S. Attorneys, including Parricone, against the CEO of Heebe's company, River Birch Landfill. The language was strikingly similar. Given that Parricone was born in 1951, Heebe singled him out in the court petition. On Thursday afternoon, U.S. Attorney Jim Letten confirmed Perricone had used the "Henry L. Mencken1951″ handle.
A Bug or a Feature?
Jonathan Cohn notes that the question of whether the ACA's (Obamacare's) Medicaid mandate is unduly coercive to the states is the "sleeper issue of the case: " The Affordable Care Act expands Medicaid eligibility guidelines significantly, so that, starting in 2014, anybody with income below 133 percent of the poverty line can receive it. The result will be approximately 15 million more people with Medicaid coverage."
Given that the U.S. Supreme Court has never defined precisely how far the federal government may go in "bribing" states before the bribes become an offer the states can't refuse and thus unconstitutionally coercive, some of the Justices might find that this is a mechanism for overturning the ACA without having to revisit the Court's Commerce Clause precedents.
Cohn reprints an email from University of Michigan law professor Sam Bagnsstos, in which he details the potential consequences of such a ruling:
If the Court holds that the ACA's Medicaid expansion is unconstitutional, such a holding could put any number of cooperative state-federal programs at constitutional risk. The most obviously vulnerable would be Medicaid itself — even as it existed before the ACA's amendments to it. If the petitioners are right that the large amount of federal money at stake coerces states into accepting new Medicaid conditions by leaving them with no realistic choice but to accept them, then it is hard to explain why the same large amount of federal money does not coerce states into continuing to accept the conditions that have long applied to Medicaid funding. The many federal statutes that impose conditions on federal aid to education would also be at severe constitutional risk, because those conditions are attached to large amounts of federal funding that states may feel they cannot realistically turn down. These statutes include Title I of the Elementary and Secondary Education Act — the most recent reauthorization of which was the No Child Left Behind Act — and Title IX of the Education Amendments of 1972.
Cohn (and Bagnestos) obviously think they are recounted a parade of horribles, but these sorts of programs are among the worst the federal government has to offer, not necessarily because of their substance but because they undermine political accountability. The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit for spending the money without being accountable for raising it. But local citizens who are unhappy with the relevant "strings" have no recourse to their local government, because the locals are just following orders from the feds. It's the worst of all worlds and a great example of a very dysfunctional version of federalism–Congressional overspending, centralized rules from agencies in Washington, D.C., and no accountability at the level where the money is spent and the rules implemented. If the ACA challenge leads to a constitutional rethinking of (mostly) funded federal mandates, that strikes me as a feature, not a bug. (Note that there is nothing stopping any or all of the states from enacting their own, self-funded versions of Medicaid, NCLB, Title IX, etc., and that at least some federal mandates, even if coercive, are constitutionally valid under Congress "Section 5″ power to enforce the Fourteenth Amendment.)
Mayo Collaborative Services v. Prometheus Labs Reversed
The opinion is here; congratulations to my Mayer Brown LLP colleagues Stephen Shapiro, Timothy Bishop, Jeffrey Sarles, and Charles Rothfeld, and to Fish & Richardson's Jonathan Singer, John Dragseth, and Deanna Reiche, all of whom represented the winning side, Mayo. For more on the case, see the SCOTUSblog page.
Scrubbing of Many News Outlets' Stories About Malia Obama's Mexico Trip
TechDirt has what strikes me as a good take on the story. (For more, see Politico, Hit & Run (Reason), and Atlantic. The brief summary: Agence France Press ran a story about President Obama's daughter's Mexico trip (not clear whether this was just a trip with friends that she chose to go on, or a school class trip that would have happened even without her), chaperoned by, among others, 25 Secret Service agents. Many outlets picked it up. Then the story vanished from the outlets, sometimes replaced with Error 404 (Page Not Found) and sometimes with completely different stories.
Now the removal might well have been voluntary. There is apparently a tradition of keeping the Presidents' children largely out of the limelight, and the story might have posed a security hazard to Malia Obama. (Contrary to some initial comments, the State Department Mexico travel advisory doesn't list the state to which Malia Obama was traveling as a general high-risk area, but having a story in the news about the President's daughter's visit can still create a particularized risk.) It might be that the White House asked the news outlets for an accommodation on this score, and the outlets in their editorial judgment agreed.
But, as TechDirt points out, simply vanishing the story strikes me as quite the wrong move, either on the outlets' part or on the White House's part if that's what it asked for (or on Agence France Press's part if it asked its recipients to do this). Redacting the location of the trip and so noting, or even replacing the story with a note explaining that the outlet's policy is to try to let the President's children maintain their privacy, would have been a much better approach, both in minimizing public attention and in setting a good precedent for the future.
I should note, by the way, that I generally agree that the President's children should generally be left in peace to the extent possible, and while the initial story had some newsworthy elements — the risk not just to the President's family but to the nation's foreign affairs in case the President's daughter was attacked in Mexico, and the use of the 25 Secret Service agents, which seems to make the trip pretty expensive for taxpayers — my inclination is to defer to the judgment of the White House about such matters. But at this point, the scrubbing has become the story, and thus seems to me a legitimate basis for writing about this (plus I quite doubt that the repetition of the story on this blog will pose any security risk).
March 19, 2012
Racial "Obligations" of Mixed-Race People
Co-blogger David Bernstein links to a New York Times column by Thomas Chatterton Williams which argues that "[m]ixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look." He justifies this by the moral imperative of overcoming the legacy of anti-black racial oppression, claiming that "the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression."
Such claims are not unusual. We often hear arguments that blacks, Jews, and members of other racial and ethnic groups have special obligations to their fellow group members. But there is no good justification for such claims. No one has a special moral obligation to another person merely because they happen to share the same race or ethnicity. Do I have a special moral duty to other whites or other Russian Jews that does not extend to nonwhites or gentiles? For reasons well articulated by Randall Kennedy, I reject any such notion.
Williams' argument in regards to blacks has superficial plausibility because blacks have been victims of major historic injustices in this country. But it is not clear why other blacks – or mixed-race individuals – have a special obligation to combat those injustices that is greater than that of other people. If anything, the duty to combat an injustice falls most heavily on those who inflicted it – who, in this case, were mostly white.
Even if we accept Williams' notion that interracial parents should consider the benefits to the "black community" from the contributions of "mixed-race parents," how does he know that those benefits really do "outweigh the private joys of freer self-expression?" For many people, living their lives unburdened by a sense of tribal loyalty is a very important good.
Furthermore, it is not clear why mixed-race people should necessarily choose to "contribute" to one racial "community" rather than another. It is true that the black community has a history of great injustice. But other communities can make similar claims. Asian-Americans, for example, also have a history of victimization in this country. Under Williams' criteria, it is far from clear that the children of a black-Asian couple have a duty to identify as black rather than Asian.
Or consider my own situation. I am a Russian Jew married to a gentile. When it comes to comparative victimology, Russian Jews are formidable contenders. There is the history of severe discrimination and pogroms under the czars, official anti-Semitism under the Soviets, and of course the Holocaust. Do I therefore have an obligation to raise my future children to identify as Russian Jews? Maybe. But on the other hand, my wife is half-Ukrainian (her grandfather fled Ukraine in 1919). Ukrainians have their own history of oppression, including a massive terror famine inflicted by the Soviet government in the 1930s, and years of repression under both the czars and the communists. Does the Ukrainian claim to my children's "contributions" outweigh that of the Jews? What criteria should my wife and I apply in judging the question?
Finally, we should recall that many of the historic injustices noted above occurred precisely because people thought they had special moral obligations to their racial and ethnic compatriots and therefore felt justified in oppressing other groups for the supposed benefit of their own. This is what makes nationalism so pernicious, and racial and ethnic loyalty often creates similar dangers. Perhaps we can all make a greater contribution to society if we teach the next generation not to define their moral obligations in terms of race or ethnicity.
That is not to say that we have to ignore racial and ethnic injustices. But addressing them does not require us to define our own moral duties in racial and ethnic terms. As Randall Kennedy puts it:
[I]f one looks at the most admirable efforts by activists to overcome racial oppression in the United States, one finds people who yearn for justice, not merely for the advancement of a particular racial group. One finds people who do not replicate the racial alienations of the larger society but instead welcome interracial intimacy of the most profound sorts. One finds people who are not content to accept the categories of communal affiliation they have inherited but instead insist upon bringing into being new and better forms of communal affiliation, ones in which love and loyalty are unbounded by race.
Jeffrey Toobin on Judge Brett Kavanaugh
In Seven-Sky v. Holder (D.C. Cir. 2011), the D.C. Circuit case on the individual mandate, Judge Brett Kavanaugh dissented as to jurisdiction and declined to reach the merits: He concluded that the federal courts lacked jurisdiction to consider the case, because of "the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters." In the process, he also wrote that, "The principle that we avoid premature or unnecessary constitutional decisions applies with special force here. That's because if we do not decide the constitutional issue now, we may never have to decide it." And one reason he gave was that,
Second, but far more broadly, by 2015 Congress might choose to eliminate Section 5000A altogether—that is, eliminate this financial disincentive for failing to have health insurance. Or the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.[43] In one of those events, the courts would likewise never have to opine on the constitutional issues presented in this case.
[Footnote 43] Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. See Freytag v. Commissioner, 501 U.S. 868, 906, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (the President possesses "the power to veto encroaching laws or even to disregard them when they are unconstitutional") (citation omitted). Similarly, Congress may repeal or decline to pass a statute based on its own constitutional interpretation even if the courts have (or would have) upheld the statute as constitutional.
This power does not work in reverse, either for the President or Congress. In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution. See, e.g., Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990).
The first sentence in footnote 43 — "Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional" — might seem surprising to a layman, but it's certainly well within the mainstream of constitutional thought, and I suspect that it might even be the dominant view among constitutional scholars. The Freytag opinion that it cites was written by Justice Scalia and joined by Justices O'Connor, Kennedy, and Souter. Indeed, a quick Google search for president refuse to enforce unconstitutional laws pops up a 1994 Memorandum to White House Counsel Abner Mikva by Assistant Attorney General Walter Dellinger, which says (in its second sentence):
Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
Dellinger is a highly prominent and respected liberal lawyer, Duke University law professor, and former Acting Solicitor General.
Now Freytag and the Dellinger opinion do not say that the presidential power not to enforce certain statutes endures even once "a court" has upheld them. But their logic, and especially the logic of the Dellinger opinion, strongly suggest this power is not automatically erased by a decision from some court. To be sure, the Dellinger opinion seems to suggest that the President should defer (at least "[a]s a general matter") to the Supreme Court's decisions, and even to his predictions about the Supreme Court's decisions. ("As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue.")
But Judge Kavanaugh's opinion does not speak of the President's ignoring the Supreme Court, though some scholars would argue that the President has that power, in the circumstances that the opinions suggests. (Ed Whelan (National Review Online) sets forth the argument, but others — such as liberal Stanford Law School Dean Larry Kramer — have taken the same view, as have other scholars; see, e.g., pp. 1031-33 of this article, which briefly discuss Kramer's and other scholars' views.) Rather, he speaks of a situation where "a court has held or would hold the statute constitutional"; "a court" does not seem to necessarily refer to the Supreme Court. Indeed, the opinion's view was that the issue should have been dismissed for lack of jurisdiction, so that the Supreme Court should not have heard the merits.
This makes Jeffrey Toobin's column, which is an extended criticism of this one footnote sentence — and of Judge Kavanaugh more broadly — especially odd. Here is an excerpt of what Toobin writes:
Late last year, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama's health-care reform, known as the Affordable Care Act (ACA). Kavanaugh dissented, primarily on the ground that the lawsuit was premature. In a sixty-five-page opinion, Kavanaugh appeared to offer some advice to the Republicans who are challenging Obama in the election this year. "Under the Constitution," Kavanaugh wrote, "the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional."
In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he "deems" the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, "deem" laws unconstitutional, or uphold them. "It is emphatically the province and duty of the judicial department to say what the law is," Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn't interpreting the Constitution; he was pandering to the base.
In the nineteen-nineties, during Kavanaugh's first brush with prominence, it was said that some conservatives suffered from Clinton derangement syndrome — an obsessive belief that the President and the First Lady had committed every misdeed that was attributed to them. (Hillary Clinton was involved in Vince Foster's death; Bill Clinton had trafficked narcotics through Mena, Arkansas; and so on.) Kavanaugh's bizarre opinion confirms that a contemporary analogue to the Clinton malady has taken hold: health-care derangement syndrome.
But, as I mentioned, Judge Kavanaugh's opinion never said that the President may ignore the Supreme Court; rather, he said the President may ignore "a court," in an opinion that set forth a view under which the Supreme Court should never even consider the case. Presidents as well as courts may deem laws unconstitutional, in the view of Justices Scalia, O'Connor, Kennedy, and Souter, as well as Walter Dellinger and many others. Chief Justice John Marshall in Marbury spoke of the courts' duty to say what the law is in deciding cases before them; he wasn't saying that the President had the obligation to follow the courts' view, in the absence of a court order commanding the President to do something or in the absence of private rights that would be violated by the President's taking a contrary position (which is what the last passage of footnote 43 discusses).
And of course, as Ed Whelan points out, "Recall that Kavanaugh concluded that the courts do not even have jurisdiction to consider the challenge to Obamacare's individual mandate. I would have thought that someone who would be accused of 'pandering to the base' and of displaying symptoms of 'health-care derangement syndrome' might, at a minimum, have actually voted to strike down the individual mandate (rather than bury an unobjectionable passage in footnote 43 on page 58)." Unless I'm missing something here — and please tell me if I am — Toobin's criticism of Judge Kavanaugh's opinion seems rather ill-founded.
Disclosure: Judge Kavanaugh and I clerked the same year on the Supreme Court, and before that clerked (though in different years) for the same circuit judge; we have talked on various occasions since then.
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