Eugene Volokh's Blog, page 2598

Judge Tries to Pressure Ex-Husband to Give Ex-Wife an Islamic Divorce; Court of Appeals Reverses

(Eugene Volokh)

The case is Hammoud v. Hammoud (Mich. Ct. App. Mar. 8, 2012). An excerpt:

Defendant next contends that the award of spousal support was excessive and improperly imposed as a sanction for defendant's refusal to grant plaintiff an Islamic divorce…. "The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished; spousal support is to be based on what is just and reasonable under the circumstances of the case." The factors traditionally to be considered by a trial court in awarding spousal support include:

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties' ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties' health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party's fault in causing the divorce, (13) the effect of cohabitation on a party's financial status, and (14) general principles of equity.

… The trial court awarded plaintiff modifiable spousal support in the amount of $602 a month for a minimum of four years, with early termination upon the death or remarriage of plaintiff. The spousal support figure was based on the imputation of annual income of $14,616 to plaintiff. The trial court imposed the continuation of modifiable spousal support, in this amount, for an indefinite period unless terminated by plaintiff's receipt of an Islamic divorce by defendant, her death or remarriage.

In awarding spousal support, "a judge's role is to achieve equity, not to 'punish' one of the parties." For the length of this marriage and given the disparity in the parties' history of earning abilities, use of the spousal support prognosticator by the Friend of the Court indicated an appropriate case for short-term spousal support restricted to a period of "four and a half to five years." Not only did the trial court exceed the recommended length of spousal support for this marriage, the implication of the trial court's ruling is that it was indeed attempting to pressure defendant to grant plaintiff an Islamic divorce, despite the trial court's acknowledgement that it had no authority or jurisdiction over the parties obtaining a religious divorce.

The trial court recognized that plaintiff was an intelligent and capable woman with a potential to earn monies now and into the future. Both the length of this marriage and plaintiff's potential ability to earn an income contraindicate an award of permanent spousal support. While the award is designated as being modifiable in accordance with MCL 552.28, the implication that the ongoing award of spousal support was for an indefinite duration and was designed by the trial court to force or pressure defendant to agree to an Islamic divorce is improper….

While there is an argument for an award of rehabilitative spousal support in this matter, an award of permanent spousal support could result in defendant's ongoing obligation to support plaintiff for more years than the marriage lasted. As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum. The trial court also failed to address or seek further clarification of plaintiff's contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant's consent. Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff's control to prolong her receipt of spousal support.

This is in some respects a similar issue to the Jewish religious divorce (get) controversy, though it sounds like the Islamic rules are somewhat different from the Jewish ones. My view, for the reasons I mentioned as to the Jewish religious divorces, is that the trial court in this case was wrong and the court of appeals was right: Given the Establishment Clause, it should be no business of a secular court to try to pressure someone into performing a religious act.

As I mentioned in the earlier post, I recognize that the religious act (or the absence of the act) has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law.

"Why Won't Christian Men Date Women Who Go to Their Church?"

(Eugene Volokh)

I found this column quite interesting, even though I'm not religious and never dealt with this problem myself. (I suppose my interest in relations between the sexes is ecumenical.)

My sense is that some of the column's observations reflect some of the problems with dating one's coworkers or classmates, but it seems to me that there are also important differencesL The very fact that church is supposed to be a community for people with shared moral values, which seems to cut in favor of people trying to meet prospective spouses there, might well make it a more dangerous (or at least a differently dangerous) place to look for such prospective spouses. But I'd love to hear what readers who have had such experiences — or experiences with dating, or choosing not to date, at synagogue — have to say. Thanks to InstaPundit for the pointer.

UPDATE: I originally failed to link to the column; sorry about that.

A Metaphor Will Take You Only so Far

(Eugene Volokh)

From In re MF Global Holdings Ltd. (Bankr. S.D.N.Y. 2012):

Furgatch requests that these chapter 11 cases be administered for the benefit of the commodity customers of MFGI. Namely, Furgatch seeks an order from this Court that MFGH immediately pay "child support" payments. Such payments, in the case of individual debtors, are excepted from discharge pursuant to section 523(a)(5) of the Bankruptcy Code and given a first priority right of payment pursuant to section 507(a)(1)(A) of the Bankruptcy Code.

According to Furgatch's counsel, "over the past fifty years, U.S. courts have consistently and aggressively broadened the scope of corporate personage and have afforded corporations more and more rights and obligations once reserved solely for individuals." Movant cites 1 U.S.C. § 1, which defines "person" to include "corporations, companies, associations, firms, partnerships …, as well as individuals." Additionally, the Motion draws language from a United States Supreme Court decision that conferred upon corporations the constitutional right to free speech. See Citizens United v. Federal Election Commission, 130 S.Ct. 867 (2010). The Motion also discusses the definition of the word "parent" as found in Merriam–Webster Dictionary Online and posits the derivation of the meaning of "parent company" in furtherance of the argument. The Motion concludes that corporations "must necessarily have a parent-childlike relationship," and "[t]he parent company, which brings into existence and exerts control over the child subsidiary, should be subject to the same obligations for on-going support and welfare to which the parent-child relationship of natural persons is subject."

The Motion quotes the language of sections 523(a)(5) and 507(a)(1)(A) of the Bankruptcy Code and asserts that these sections dictate that MFGH should "provide (i) immediate and full recovery" of customer funds, "or, in the alternative, (ii) first-ranking priority status in the recovery of [the Chapter 11 Debtors'] debt owed to commodities customers to the extent of their segregated accounts at MFGI."

Furgatch's Motion is procedurally improper and substantively meritless to the point of bordering on frivolous. Therefore, the Court denies the Motion in its entirety with prejudice and cautions Furgatch's counsel that the Court has the power to impose sanctions for frivolous arguments….

Corporations are often treated by the law as "persons," and for perfectly good reasons: For instance, it makes sense that corporations should be able to enter into contracts, sue and be sued, and even have protection under constitutional provisions such as the Free Speech Clause, the Free Exercise Clause, the Due Process Clause, and the Takings Clause. This is both practically useful for our legal and economic system to function effectively, and necessary to fully protect the constitutional rights of individuals. If you deprive a corporation of property without due process, you are wrong the corporation's owners. (The court, incidentally, is mistaken in saying Citizens United "conferred upon corporations the constitutional right to free speech"; the Supreme Court has recognized that corporations have free speech rights at least since NLRB v. Virginia Electric & Power Co. (1941), only 10 years after the Court first struck down a law on free speech grounds. Citizens United simply involved the question whether those rights extend to speech about candidates the same way that they extend to speech about a vast range of other matters.)

But, as I've noted in the past, that the corporation-as-person metaphor makes sense in many situations doesn't follow that the Cruel and Unusual Punishment Clause has any meaning as to corporations, which I don't think can be punished in a way that we would see as "cruel" (unless someone persuades me that the Unusual Punishments component has some meaning as to corporations). An order dissolving a corporation should not require a jury to decide on the punishment using all the procedures the Court has developed in death penalty cases.

Neither does it follow that the Self-Incrimination Clause has any direct meaning as to corporations, which can't actually be witnesses. Similarly, restrictions on corporate ownership of firearms should be constitutional or not depending on your views about whether the individual right to bear arms includes the right to associate with others in certain ways to do so. They shouldn't turn on the neat but unsound syllogism that a corporation is a person, persons have the right to bear arms, and corporations therefore have the right to bear arms.

What is true of the metaphor of the "corporation" is even more true of the metaphor of the "parent corporation": That the parent-child analogy might be illuminating in some ways doesn't mean that we should have corporate "child support," corporate custody disputes, or prosecutions for corporate incest. Never fall into the trap of actually believing that our legal fictions and our metaphors are real.

Richard W. Bourne on the Coming Crash in Legal Education

(Kenneth Anderson)

This paper, by University of Baltimore's Richard W. Bourne, deserves wide attention.  I fear it won't get it, however.  The Coming Crash in Legal Education: How We Got There, and Where We Go Now.  It is written in clear, plain, and personal language; it is factually well-informed about the roots of the impending economic crisis for law schools as well as conditions now; and Bourne has thought hard about the alternatives.  They are none of them happy and all sobering, unless one happens to be sitting as a student or professor at one of the T-14 schools.  Here is the SSRN abstract:

This paper will first track the ways in which the legal services market has grown and changed over the past forty years. It will then track the major changes that have attended legal education during the same period and the increasing dependence of the legal education industry on student debt. The paper will then explore why, at long last, the boom-times may have run their course and why, at some point, painful changes will likely occur. Though they cannot be described in detail, the author will attempt to outline the likely nature of the changes that will occur. Finally, the paper will briefly explore how the predicted reckoning may yet lead to an improvement in the marketing of legal services and an enhanced role for law schools in preparing new attorneys for the new bar they will be joining.

He points out that although today's entry level attorneys are not well-prepared for practice and this is a problem, the sorts of solutions that are proposed – more clinical education, particularly – are often prohibitively expensive.  One might produce better prepared attorneys, but that does not address either an oversupply or tuition prices leading to indebtedness that cannot be supported at the salaries that, even looking over the longer run, even the employed lawyers can support.  Something – several things – have to give.  One of them, he says, will be faculty-student ratios; and the drive for scholarship as the mission of the law school.

Although he hopes to see an undermining of the importance of the USNWR rankings, I don't think he believes that the new metrics will actually do so.  It is true that USNWR rankings favor almost entirely increasing resources; it is, as he says, a proxy for  institutional wealth.  The rankings overwhelmingly take into account factors that raise the price of education; and of course they are pro cyclical.  That dominance is unlikely to end, however, in part because what employers seek at the end result of the process is, paradoxically, not the best trained junior lawyers – but the best talent.  Apart from a certain common core, taught pretty much by any school, employers do not so much differentiate by training as see school for as proxy for basic talent.

Employers don't much care if I teach law and robots (which I don't), because if they had to choose, talent over training, they choose talent, or at least their marker for perceiving it, any day over training.  That marker is irrespective of any big value-added from law school in other words. "Law school" adds a certain basic value in training lawyers, but that is actually about the same across schools, and what separates the schools is who walked in the door in the first place, as reflected in LSAT scores particularly.  I suspect most professors think the same way as the employers do, more so the more elite the school; whether their perception of their students is accurate, however, it does provide a ready-made reason not to worry overmuch about how well one teaches.  The die was cast more or less in the genes.

I don't think that's quite fair to us as teachers, however.  I would indeed favor professors teaching more classes and, in many doctrinal classes, larger classes.  But we also have to understand that the law is wider and deeper, the doctrinal areas that lawyers need to know and interrelate with one another, the background disciplines that we expect them to have absorbed as practicing lawyers – all that has gotten vastly more complicated since my days in law school.  Teach students attorney skills?  The same folks demanding that are also demanding greater exposure to doctrinal law, and they're demanding that they know something about accounting and basic business and finance, too.  Expectations of lawyers have gone up, too.  Which is one reason I find talk of making law an undergraduate degree somewhat peculiar.

Conversely, if law school does not provide very much in the way of value added; the die was cast, as indicated by LSAT scores; then eventually students will simply skip the purchase of the education and look at their LSAT score first and see what it will buy them.  Anecdotally, I think that is happening now to some extent, despite the hope springs eternal of the young and naive.  As purchasers of the service figure out that it's basically just sorting, they can do that themselves, and the result?  Law schools, Bourne says, have lived in a bubble of good times for years, and now the reckoning is upon us.  What will it look like?  Among other things, he focuses on those schools in the first tier below the T-14:

Curtailment of the market for law schools is going to be extremely painful for many schools. The going consensus is that the truly elite schools should survive easily. As their reputations are likely to continue to draw plenty of students and their graduates are likely to be able to retain dominance in the smaller but still powerful large firm market in which entry-level salaries make paying off student loans a reasonably painless operation, truly elite schools are likely to survive if not prosper. What happens just below the elite is more subject to doubt.

Beyond the truly elite institutions, difficulties are likely to reverberate all down the law school pecking order. Many schools with strong national reputations, such as those that fill out the rest of the first tier of U.S.News' rankings, may have great difficulties surviving in the current environment unless they engage is massive cost cutting. These schools have cost structures that rival "top ten" schools but pay for their status by raising tuition rates for the bottom half of their classes so as to afford discounted tuition and financial aid to well-credentialed students whose admission can enhance their standing in the U.S. News rankings. The shrinking number of jobs available to pay the high cost of going to one of these schools may force them to pull back from the financial aid arms race rather than pay more for what little return they will get from picking up the few top paying jobs available for schools of their rank. As their graduates fight for private employment in mid-sized firms that at least allow them to "break even," schools in mid-tier positions will find it harder to place their graduates in even "break even" jobs without cost cutting of their own.

Recent commentators have suggested, not without justification, that a number of schools that lack high national reputations may nevertheless be able to weather the storm. Particularly well suited are schools in small, less served markets that never did bite the BigLaw apple, have modest cost structures and strong alumni bases upon which to rely.  State-supported schools, because of the lower student debt levels needed to attend and graduate, are much better off than private institutions with debt levels that are fully 50 percent higher on average.  Downsizing may not be enough.

Cassandra?  Realist?  Moralist and scold?  Your call.

Gloria Allred Calls for Criminal Prosecution of Rush Limbaugh

(Eugene Volokh)

Noted lawyer Gloria Allred, writing on the letterhead of the Women's Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….

Readers of the blog know of my disapproval of Rush Limbaugh's "slut"/"prostitute"; but while I condemned those remarks, they can't be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person's reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

Thus, for instance, say that A asserts that B is guilty of "blackmail." Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is "rhetorical hyperbole, a vigorous epithet used by those who considered [B]'s negotiating position extremely unreasonable," then the accusation is constitutionally protected opinion — it is basically an assertion that B's accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass'n, Inc. v. Bresler (1970).

Limbaugh's saying that Fluke's testimony "makes her a slut" and "makes her a prostitute" falls into the same category: Listeners would understand is as "rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable," an assertion (however logically unsound, in my view) that Fluke's demands are morally similar to a prostitute's insistence on getting money for sex. That is a statement of opinion and constitutionally protected.

[UPDATE: Some comments led me to conclude that I should elaborate on this, so I added the following paragraph.] The same is so for the "slut" claim, for a related reason: Limbaugh isn't claiming any private knowledge of Fluke's number of sexual partners; he is simply expressing his opinion that people who are as concerned about contraceptive costs as Fluke are probably sexually promiscuous, and that Fluke fits that mold. Reasonable listeners would understand that as an opinion expressing a generalization about how people tend to behave. To borrow an analogy from Restatement (Second) Torts § 566 cmt. c ill. 4, "A writes to B about his neighbor C: 'He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.' The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation." In the illustration, the statement is seen as an opinion about what to infer from the facts, and is thus not actionable; that is even more clearly true as to the statement that, "What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right?"

Milkovich v. Lorain Journal Co. (1990) suggests that the First Amendment doesn't fully constitutionalize the § 566 principle. But I think that Limbaugh's broad generalization-based inference — and one that uses a term, "slut," that is itself so vague and opinion-laden, given that it basically means "more sexual partners than I think is proper" — would in context be seen as constitutionally protected opinion and not the sort of particularized fact-based accusation at issue in Milkovich. And in any event, as a state law matter, Florida courts have apparently adopted the § 566 cmt. c approach. (See, e.g., Stembridge v. Mintz (Fla. Ct. App. 1995).)

If Limbaugh had called Fluke "prostitute" or "slut" in a different context, in which he was asserting that she actually was paid money for sex in a normal prostitution transaction, or that he knew that she actually had sex with many partners, then it might well be actionable. But I don't think that this is how Limbaugh's statements would be perceived by listeners. Marc Randazza (Citizen Media Law Project) has much more on this.

2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).) This doctrine has long been used to invalidate laws that ostensibly favor women but are based on, and perpetuate, sex-based norms of proper behavior; and at least two cases, Ivey v. State (Ala. 2001) and Rejent v. Liberation Pubs. (N.Y. App. Div. 1994), have specifically concluded that such sex-based rules in libel law are unconstitutional — here's what Rejent said:

It is, as one commentator has noted, 'quite blatantly sexist and discriminatory, and is based on outmoded assumptions about sexual behavior. Sex-based classifications very similar to the 'unchastity of a woman' rule have been struck down by the United States Supreme Court as violative of the equal protection clause…. The Restatement (Second) takes a laudable lead in this area, modifying the traditional rule to a sex-neutral standard that renders any imputation of 'sexual misconduct' by a man or woman slanderous per se.

And since I quite doubt that Florida courts would be willing to cure the discrimination by broadening the criminal law to cover accusations against men — courts in most states generally aren't allowed to essentially criminalize behavior that the legislature hasn't criminalized — I think the Florida statute would have to be struck down as an Equal Protection Clause violation, leaving it to the legislature to decide whether to reenact a sex-neutral statute. Such a sex-neutral statute would probably be considered a constitutional criminal libel statute if limited to knowing falsehoods;Garrison v. Louisiana (1964) suggests that such criminal libel statutes are constitutional if suitably limited, and I suspect that the focus on accusations of sexual impropriety would be constitutional despite R.A.V. v. City of St. Paul (1992), because it seems unlikely to be aimed at the suppression of ideas. But it would be up to the Florida Legislature to create such a sex-neutral statutes, and not to the Florida courts to broaden it. (For an extremely rare case where a court solved a constitutional problem with a criminal statute by broadening the criminal prohibition, see People v. Liberta (N.Y. 1984), a case that was driven by felt moral imperatives that are likely not to be present here.)

Understanding Justice Scalia's Concurring Opinion in Raich

(Randy Barnett)

There has been a lot of chatter lately about how Justice Scalia's concurring opinion in Raich somehow binds him to rule for the government in the challenge to the ACA. As the lawyer for Angel Raich, I admit to being disappointed by the outcome of the case, by Justice Scalia's vote, and by his opinion. But during the course of that litigation I became very familiar with the issues raised by that case, and since then have come to appreciate the problem with which Justice Scalia was wrestling. There are two very important implications of his opinion in Raich, and neither benefit the government's case.

First, as I explained in my 2010 NYU Law & Liberty article, Justice Scalia clearly locates the "substantial affects" doctrine of Darby and Wickard, as well as the "essential to a broader regulation of interstate commerce" dicta in Lopez, in the Necessary and Proper Clause, not in the Commerce Clause — and in particular in the word "necessary" in that clause. Why is this so important? Because if the substantial affects doctrine is viewed as resting on the Commerce Clause, then there is a temptation to add the Necessary & Proper Clause to it as an additional theory of power, and failing to realize that Lopez and Morrison were actually limiting the scope of the Necessary & Proper Clause, not the Commerce Clause.  In short, there are judicially enforceable doctrinal limits to the scope of the Necessary  & Proper Clause.

Moreover, if the substantial effects and essential to a broader regulatory scheme doctrines are both grounded in the word "necessary," then there is still the issue of whether a particular means deemed "necessary" is also proper.  In Printz, for example, Justice Scalia concluded that imposing a mandate on – or "commandeering" of – state legislatures to enact legislation, however essential it might have been to the regulatory scheme in that case, was still an improper means of effectuating Congress's Commerce power.  True, Printz was based on the protection of states afforded by the Tenth Amendment, but the Tenth Amendment applies equally "to the people" as it does to the states. And, in Comstock, Justice Scalia joined Justice Thomas's dissenting opinion that reaffirmed Justice Scalia's characterization of the Necessary and Proper Clause as "the last best hope of those who defend ultra vires congressional action."

In Raich, we never denied the proposition that the "essential to a broader regulatory scheme" doctrine was grounded in the Necessary and Proper Clause, but argued instead throughout the litigation that whether a law was "essential" and therefore "necessary" had to be survive greater scrutiny than mere rational basis review. When Justice Scalia adopted a rational basis approach to ascertaining "necessity," however, we lost his vote.  (Significantly, Justice Kennedy, in his concurring opinion in Comstock, recently advocated a heightened rational basis scrutiny in Commerce Clause cases.)

In our challenge to the Affordable Care Act we are not asking for any heightened scrutiny of the "necessity" of the mandate for the broader regulatory scheme of the ACA, so neither are we challenging this crucial aspect of Justice Scalia's opinion in Raich. Indeed, our severability analysis hinges on Congress's finding that the mandate was "essential" to its scheme of regulating insurance companies.  Rather, we are making two claims not addressed in Raich by either the majority or by Justice Scalia.

First, that the mandate is not necessary "to carry into execution" Congress's power over interstate commerce. Unlike in Raich, those who fail to purchase health insurance in no way obstruct the ability of Congress to enforce its regulations on insurance companies. Instead, Congress wants to ameliorate the negative consequences of successfully executing its insurance company regulations by forcing these citizens to compensate the insurance companies for the cost of the regulation by transferring their wealth to these companies. These consumers are being forced to buy expensive policies priced far above their actuarial risk for the purpose of providing what amounts to a subsidy or transfer payment to the insurance companies. In other words, the need for the mandate assumes that insurance companies will comply with Congress's commerce power regulation, but suffer economically as a result. Neither the Court in Raich nor Justice Scalia were addressing this claim of power by the government in any way.
Second, unlike in Raich, we are claiming that, however "necessary" they may be, mandates of this sort are an improper means of executing the Commerce Power of Congress.   I won't elaborate on this claim here, except to note that it is precisely Justice Scalia's opinions in Raich and  Printz that make so very clear why this claim is one is a serious one that must be addressed.

But there is a second important lesson to be drawn from Justice Scalia's opinion in Raich.  Put simply, Raich was an "as applied" Commerce Clause challenge. In Raich, we conceded that Congress had the power to prohibit the interstate commerce in marijuana, but claimed that a subset of the national market in marijuana – namely wholly intrastate cultivation and possession that was authorized by the laws of some states – was outside of the power of Congress to reach. Yet no such challenge has ever succeeded. (Think Wickard, Heart of Atlanta, Perez, etc.) Recently, my colleague, Nick Rosenkranz has argued here that, on textualist grounds, no such challenge should ever succeed.  When we litigated Raich the significance of this aspect of the case was not well understood, but I think it accounts for why Justice Scalia was moved to offer the Necessary & Proper Clause analysis he did.

In Raich, we were asking the court to carve out a subset of the class of activities Congress sought to regulate and find that this subset was beyond its power under the Commerce Clause. In his concurring opinion, Justice Scalia was wrestling with the following practical issue: Given the fungible nature of the commodity, what if "to carry into execution" its power to prohibit interstate marijuana, Congress decided it was "necessary" to regulate the subset of activities involving the identical commodity inside a state — regardless of whether it was being bought and sold and was therefore "noneconomic"?  He concluded that Congress could draw the circle, that is define the class, as widely as it had a rational basis for believing it needed to be drawn to enable it to effectively enforce its regulation of interstate commerce that is within its powers.  If so, as Justice Stevens suggested during his questioning of Paul Clement in oral argument, there was simply no way to win an "as applied" Commerce Clause challenge by identifying a subset of the class of activities that Congress sought to regulate.

But the challenge to the individual mandate is a facial challenge like that in Lopez and Morrison.  Unlike "as applied" challenges, facial challenges have succeeded (even where a subset of the class, like guns that had moved in interstate commerce, might well have been within the power of Congress to reach).  Indeed, in his dissenting opinion in Raich, Justice Thomas noted in a footnote that the majority's decision had no affect on future facial challenges, such as those brought in Lopez and Morrison.  Unlike Raich, we are facially challenging the claim that Congress has the power to impose mandates to engage in economic activity by entering into contracts both because (a) such mandates are not necessary to carry into execution the regulation of the insurance companies and because (b) the unprecedented claim of power to impose a mandate to enter into contracts with private companies is highly improper. The "subset" enforcement problem Justice Scalia was grappling with in the "as applied"  challenge in Raich simply does not exist here.

Just because the individual insurance mandate is unprecedented does not automatically render it unconstitutional – though, in Printz, Justice Scalia affirmed that the fact that so attractive a power has never before been claimed by Congress is evidence the power does not exist. But the unprecedented nature of the mandate does make this a case of first impression, which means it is not directly covered by either the majority's or Justice Scalia's opinion in Raich.   To distinguish his opinion in Raich from this case, Justice Scalia would not even have to break a sweat.

Koch v. Cato – Skip Oliva's Observations

(Jonathan H. Adler)

Skip Oliva, who has been collecting links galore on his blog "Under Penalty of Catapult," has several must-read posts for those following the Koch-Cato controversy.  First, as noted below, he has an interview with Cato Chairman Bob Levy responding to Charles Koch's public statement.  This interview provides lots of detail about the steps each side took before the Koch brothers filed their lawsuit.  If Charles Koch's statement contained equivalent detail it would be easier to evaluate his claims.

Second, Oliva comments on the Cato Institute's legal position, which has now been detailed by Cato.  As he notes, some aspects of Cato's position are straightforward.  Others involve a contestable reading of the underlying legal documents.  One thing is clear, the shareholders agreement was not a model of legal draftsmanship.

Third, Oliva has two insightful comments on the dispute, "The Balance of Power" and "And Now We Play the Leverage Game."  The latter of these two posts, in particular, is worth a read. He notes that there are really multiple issues here, including the "long-simmering feud" between Cato President Ed Crane and the Koch brothers.  Their personal differences have certainly contributed to the conflict, and any final resolution will likely turn on Crane's future as Cato President and the selection of his successor.  Oliva writes:

Any resolution to this dispute must include a clear timeline for Crane's retirement and selecting a new Cato president. The Kochs will definitely play a role in this. Levy himself conceded that Crane offered the Kochs veto power over the choice of successor in exchange for dissolving the shareholder agreement. The Kochs also offered to delay this entire matter until after the 2012 elections. That suggests there's room for compromise, say, if Crane were to publicly announce his retirement effective March 1, 2013.

Of course, there's still the issue of board composition. Levy was adamant the Kochs not be allowed to control half the board. Crane's only real leverage here is to cling to power—he still controls a majority of the board, pending the outcome of the lawsuit—until the Kochs concede that point. The Kochs' leverage, in turn, was time-consuming litigation that, as Levy acknowledged, cripples Crane's ability to raise money. So now we're left to see who blinks first while everyone else—Cato's staff and donors—is held hostage.

Charles Koch's Recent Statement on the Cato v. Koch Conflict

(Ilya Somin)

Co-blogger Jonathan Adler has posted Charles Koch's recent statement on the Cato vs. Koch confrontation. I think there are some positive elements in the statement, especially this part:

Some have speculated that we would micro-manage the enterprise. Others have suggested we would turn Cato into a partisan Republican organization. These rumors are absolutely false.

My objective is for Cato to continually increase its effectiveness in advancing a truly free society over the long term. This was my objective when, in 1976, I came up with the idea of converting the Charles Koch Foundation to a public policy institute and recruited Ed Crane to run it. My observation was that there was an urgent need for an institute that would flesh out the policy implications of the general principles of a free society. I still believe there is a great need for this work and that Cato can fill that need.

To that end, we would seek to elect board members and officers who will ensure that Cato becomes increasingly effective in advancing liberty while remaining dedicated to its core principles. These officers and board members would act independently from me or any other individual – instead, their role, as should be with any non-profit board, would be to ensure greater accountability and effectiveness. As someone who has created and helped build many organizations in both the profit and non-profit sectors, I know from first-hand experience that sustainable growth can be achieved only through leaders who are committed to core principles. Recognizing all that Cato has accomplished in the past, I envision a Cato that can accomplish even more in the future.

In my last post on this subject, I urged the Kochs to announce that, if they win their lawsuit and get control of Cato, they will "appoint board members who are well-known independent libertarian academics, policy experts, and activists and are not Koch employees." I happy that Charles Koch has expressed an intent to appoint libertarian "officers and board members would act independently from me or any other individual." But this laudable statement would be more persuasive if it were more specific. It would help if the Kochs gave at least a few examples of the kinds of people whom they intend to name who would qualify as "independent."

In my post, I urged the Kochs to select "big-name libertarian scholars and commentators such as Tyler Cowen, Richard Epstein, Virginia Postrel, and co-blogger Randy Barnett." I am not suggesting that they necessarily have to name these specific people. But it would help if they presented a list of individuals similar to the above, even if it does not include any of these particular individuals.

As I see it, the biggest problems we face right now are the atmosphere of distrust that has arisen between the Kochs and much of the libertarian community, and the cloud of uncertainty that hangs over Cato's future arising from the widespread (even if erroneous) perception that the Kochs will fundamentally alter the Institute's mission if they get control. Both of these problems would be greatly alleviated if the Kochs gave more specific details about the people they would name to Cato's board and their plans for the Institute more generally.

Like Jonathan Adler, I am not endorsing all the actions of Cato's current leaders. It is quite possible that both sides deserve at least some of the blame for the breakdown in negotiations that precipitated the Koch lawsuit. And, obviously, I am in no position to judge who deserves how much blame for what seems to be longstanding bad blood between the Kochs and Cato President Ed Crane. Nor do I believe that Cato's present policies are perfect. There is surely room for improvement, as in any large organization.

However, Cato has played a very valuable role in the public policy debate over the last 35 years, and it is important that it continue to do so in the future. If the Kochs were to make the sorts of specific commitments I described above and in my last post, it would be a major step towards ensuring that Cato can continue its important work regardless of who prevails in the lawsuit.

Washington Legal Foundation Debate on the Individual Mandate Litigation

(Ilya Somin)

Next Tuesday, March 13, from 9:30 to 10:30, I will be taking part in a debate on the individual mandate litigation at the Washington Legal Foundation. Joining me will be Andrew Pincus of Mayer Brown, counsel for a group of constitutional law professors who filed an amicus brief supporting the constitutionality of the mandate. I myself authored a brief against the mandate on behalf of WLF and a different group of constitutional law scholars. Tom Goldstein of SCOTUSblog will moderate.

Reassessing Our Federal and State Constitutions

(Ilya Somin)

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a "Jeffersonian" approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as "happy endings." The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff….

I have recently published a new book, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to "argue about" in the only sense that lawyers and their professors define that term, which involves debates about meaning…

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear "hardwired" parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy's important book will help change that.

On the other hand, I am far less confident than Sandy that we should push for a major restructuring of the Constitution at this point in our history. As Richard Epstein notes in his response to Sandy's post, such an effort could easily do more harm than good. We should not abjure all efforts constitutional reform. But I would prefer to use a scalpel rather than a meat cleaver. For that reason, I am skeptical of calls for a new constitutional convention, which has been advocated by some on the political right, as well as by Sandy himself.

I also disagree with some of Sandy's specific criticisms of federal and state constitutions. For example, he writes that California's state constitution is flawed because of "the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of 'direct' democracy." However, California has in fact been quite successful in raising taxes. It has the third-highest state income tax rate of any state (trailing only Hawaii and Oregon). The highest rate (9.3%) kicks in at an annual income of just $48,029. The state also has an above average state sales tax rate (6.25%). California's fiscal crisis is the result of unusually high spending, not unusually low tax rates.

However, Sandy is not entirely wrong to believe that California's problems have a constitutional dimension. As I explained in this post, the state's dysfunctions are in part the result of its vast size and its favorable geographic location, which make it difficult for citizens to "vote with their feet" against excessive taxation and regulation. Only in the last few years have things gotten so bad that the state has begun to suffer net outmigration to other states. Californians would have been better off if the state were broken up into several smaller jurisdictions that would have to compete with each other for residents. But that option is rendered almost impossible by the federal Constitution.

UPDATE: The Tax Foundation reports that California has an additional 10.3% tax rate on incomes of over $1 million per year.