Eugene Volokh's Blog, page 2707
September 21, 2011
The Subject of the Commerce Clause
In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve. For this discussion, we will use an example near and dear to the Conspiracy's heart: the scope of the Commerce Clause, and whether it can justify the individual mandate of ObamaCare.
But first, the puzzle. The Court has intuited that there are two basic forms of judicial review. It has called these two forms "facial challenges to statutes" and "as-applied challenges to statutes." But the distinction between them is quite confused. Under current doctrine, an "as-applied challenge" is somehow narrower, turning on the challenger's specific facts and implying a remedy tailored to those facts. A "facial challenge" is broader and more general, implying, somehow, that the statute is rotten to the core, and perhaps suggesting a sweeping remedial declaration that the statute is "void." An as-applied challenge is mostly about facts, whereas a facial challenge is mostly about text. But when is the former appropriate and when the latter? Precisely what remedy is appropriate in each case? Indeed, what exactly do these terms — "facial" and "as-applied" — even mean?
The Court has issued precious little guidance on the matter, merely emphasizing that it considers "as-applied" challenges to be the norm, and "facial" challenges to be a "disfavored" exception to the rule. In a case called Salerno, the Court said: "A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." That may sound like a clear rule, but courts and commentators have struggled mightily to figure out what it means. And in any case, the Court itself often ignores this rule, in some contexts but not others, without explanation.
One such context is the Commerce Clause. In 1990, Congress enacted the Gun-Free School Zones Act, which made it a federal offense "for any individual knowingly to possess a firearm . . . at a place that the individual knows, or has reasonable cause to believe, is a school zone." Alfonso Lopez was charged with bringing a gun to a high school in San Antonio. He presented a constitutional defense, claiming that the Act "exceeded Congress' power to legislate under the Commerce Clause." The Court agreed and, for the first time in fifty-eight years, struck down a statute on Commerce Clause grounds.
But here is the puzzle. Why did the Court tolerate a "facial" challenge here, when it usually insists that they are "disfavored"? Why is there no mention of Salerno and no inquiry into whether "no set of circumstances exists under which the Act would be valid"? And why is there no inquiry into Mr. Lopez's specific facts? Why is there no substantial discussion of whether Mr. Lopez's personal gun had travelled in interstate commerce?
The puzzle may be solved by focusing on the answer to the who question, the subject of the Clause. The Commerce Clause says: "The Congress shall have power . . . To regulate commerce . . . among the several states . . . ." Like the First Amendment, it is written in the active voice and it has a clear subject: Congress. So, a Commerce Clause challenge, like a First Amendment challenge, is a challenge to an action of Congress. Congress is the subject of the claim and the answer to the who question. And the answer to the when question follows: if Congress makes a law in excess of its power under the Commerce Clause and thus violates the Tenth Amendment, the constitutional violation occurs when Congress makes the law.
As the Court has intuited but not explained, a claim that Congress violated the Constitution by making a law, when it made the law, is inherently a "facial" challenge. Facial challenges cannot be "disfavored" here; in this context, they are logically required. Conversely, "as-applied" challenges cannot be "favored" here; in this context, they make no sense. The specific facts of enforcement cannot matter in a Commerce Clause case, for the simple reason that the constitutional violation is complete before those facts arise. It cannot matter whether Mr. Lopez's gun travelled in interstate commerce, because Congress violated the Constitution long before, by making the law.
This is how to make sense of the Court's muddled distinction between "facial" challenges and "as-applied" challenges. The distinction the Court is grasping for is a distinction based on subject. An as-applied challenge is a challenge to executive action (as in the Search and Seizure Clause of the Fourth Amendment). A facial challenge is a challenge to legislative action (as in the First Amendment and in the Commerce Clause).
This explains what happened in Lopez, and it explains what happened in the cases that followed. The next Commerce Clause case, Morrison, was also a purportedly "disfavored" facial challenge — and it also succeeded. Here, too, there was no analysis of specific facts, just analysis of the action (or "Act") of Congress.
The one after that, Raich, argued by Conspirator Randy Barnett, took the opposite approach from Lopez. Raich insisted that the Court should focus on her particular facts, and whether they affected interstate commerce. One would have thought that this was a sensible strategy — the "as-applied" approach that the Court purports to favor. But here, the Court would have none of it. Raich's facts were irrelevant to whether Congress did or did not exceed its power years before.
In light of these cases, it is enormously important that the healthcare litigation has been properly framed — with Randy's wise guidance — as a facial challenge. In the healthcare litigation, the challengers have carefully answered the who question, arguing that Congress exceeded its power by enacting the statute. Thus, they are not arguing about the hardship to any particular person, just as Lopez did not argue about his particular gun. Those facts don't matter to the merits of the claim, because the culprit is Congress and the alleged violation is already complete. As Randy has explained, that framing — that correct answer to the who question — is a crucial reason why this challenge may succeed.
Why Do Journalists Prefer Twitter to Blogging?
This is the question posed by a blogger at Lead and Gold. (It's a riff on a conversation between Howard Kurtz and Ben Smith on Reliable Sources.)
My answer, based on the comments of many professional print journalist friends over the last two years or so? For professional, paid journalists, Twitter is partly a way to gather new information quickly, on the demand side. But for professional journalists, it's mostly a channel of distribution. It's a way of getting your stuff out there, in one sentence an an automatically generated link that you can send from your smartphone. It's not about furthering the conversation in any qualitative sense, it's just about advertising your stuff in the medium that everyone else is following. It's distribution.
Twitter for the paid professionals is also about signaling behavior to your peers. It's about showing that you're part of the conversation. (Stendhal once referred to this utterly crucial social behavior of the salon, as "keeping oneself in countenance." It's an interesting and telling phrase; this use of a word for "face." That's the social signaling function of Twitter.)
Blogging, by contrast, is content. That content might be new, in which case it is time-consuming to create. Or it's some form of recycled content. Nearly all my journalists friends talk about the pressures from managers, desperate to find ways to produce new page views with some online ads attached, to take something already done and repackage it as some "new" thing on the web. The pressure is intense to produce "content" — but "content" is a particularly ambiguous word in this new economy. It covers both genuinely new reporting and information, or merely recycled and re-packaged stuff, and the difference doesn't necessarily matter much in the new journalistic economy.
And the work involved is either paid — but done on speed, as it were, mostly recycling old content, but still time-consuming to reconfigure as "new." Or else it's unpaid, and of course — "no man but a blockhead ever wrote, except for money."
(PS. I should add that I've started a new comment policy for my posts; most of them I'm not opening to comments, and I'll indicate if a post is opened for comments, as this one is. I simply don't have time to review comments to screen out the offensive, annoying, or simply off-topic. If it's the kind of post where I think it would be helped by asking what readers think, and so I'd plan to read the comments anyway, I'll open comments; otherwise not.)
Should Libertarians Prefer the Single-Payer Model to the Individual Mandate? A Response to Adler and Burrus
I appreciate the responses of Jonathan Adler and Trevor Burrus to my post questioning whether the mandate challenge would further libertarian ends. To recap, in my post I agreed that in the short run, given prevailing political winds, the mandate challenge would further libertarian preferences. But I questioned whether that would be true in the long run: It seemed to me that given shifting political views, the argument against the mandate might have the ironic effect of ruling out a less bad option (mandates) and thereby resulting in Congress embracing more bad options in the future (traditional 1960s Great Society government benefit programs). Adler and Burrus have both disagreed, and I want to respond here.
1. In his response, Jonathan Adler argues that I have presented a false choice between two lousy options, and that better options are available:
Orin's post suggests a false dichotomy insofar as it implies that the only relevant options for health-care reform are something like the individual mandate and government monopoly provision. In reality, there are many ways to expand health care coverage or otherwise reform health care. Not only are there less intrusive ways of subsidizing health care for those in need, there are less intrusive (and more effective) ways of enhancing competition within health care markets. So invalidating the mandate does not necessarily mean that we'd eventually get something worse . . .
Just to be clear, I agree that it doesn't necessarily mean that. I'm only asking about the chances that it would.
I realize that, for us smaller-government types, my framing of the issue is a little like the game "would you rather," in which someone poses two terrible options and asks you which would you prefer. If someone asks if you would you rather be eaten alive by hungry mountain lions or torn limb from limb by a grizzly bear, it's natural to say that neither sounds good and you would prefer option C. But it seems to me that although Adler, Burrus and I have preferences that are significantly more market-oriented than either of the options on the table — and significantly more market-oriented than most voters — our being out-of-sync with majority preferences means that having views on the relatively desirability of bad options is an important concern. (It's not something you hear much in politics, as everyone fears that acknowledging a result is less bad will be misconstrued as saying it is good. But, fortunately, none of us are running for office.)
2. Jonathan Adler argues that a single payer model would actually be preferable to an individual mandate from a libertarian perspective:
Traditional welfare programs, for instance, involve the direct provision of cash or vouchers that the recipients decide how to spend. Even though there are sometimes restrictions placed on how such assistance may be used, this approach remains far more market-oriented — and "libertarian" — than a mandate. Indeed, individual providers of eligible goods and services are compete against each other more in this context than insurance companies will under the individual mandate and the health care reforms other measures.
I think there are two different questions here: First, what a person has to do to get a benefit, and second, what a person can then do with the benefit following receipt. Jonathan focuses on the latter, and notes that in the model of a government-provided benefit program, the recipients may be able to do as they please with the benefit. But I would think the comparison here is the former question, not the latter. Whether the government provides health insurance or a person buys it, once a person has that insurance, they use it in the same way. The relevant distinction is in how a person obtains the benefit, not what they do with it. In the 1960s model, the government just provides it. In the mandate model, individuals buy it with their own money from one of the approved sellers.
Both are bad options from a libertarian perspective, but I would think that the former is at somewhat worse. I'm certainly not an expert in this, so if I am missing the boat I'd be happy to change views. But here's my perhaps amateurish thinking. First, in general, permitting private companies to compete means choice and competition, which generally lead to more freedom and incentives to improve. That's the thinking behind school vouchers, for example, and I would think it applies to health insurance, too.
Second, my sense is that a mandate approach is easier to limit and control. In a 1960s benefit system, benefits seem to magically appear, and recipients become deeply invested in seeing those benefits preserved and expanded. People don't feel like they're buying something, and thus should expect value for their money: Instead they feel like they're getting free stuff and they pretty much always want and welcome more. The taxes that are imposed to pay for the program become largely hidden, as they are deducted from employee paychecks before employees ever see the money. That's why entitlement programs are so hard to keep in check once created.
In contrast, I would think that a mandate approach leads to more accountabililty. When the law forces people to buy something, it forces people to confront what the law is doing. The coercion and the trade-offs are more in the open, as people are forced to repeatedly buy a product and to give up their money for it. They are forced to see what the products are, and to see how much they cost, and they are much more sensitive to those costs and the effect of government regulation on them when they choose which plan to buy. My sense is that that would be preferable to us smaller-government types: The urge to limit government is much sharper when people are regularly confronted with the fact that the government is forcing them to pay for something they may or may not want.
3. I read Trevor Burrus as arguing that a single payer model would be preferable to the mandate because it is politically tougher to enact. The individual mandate is really a tax-and-benefit program, the argument runs, but styling it as something other than a tax lets the Administration pass it more easily — and thus get all the big government Obama wants without having to admit he wants higher taxes. As a result, we may be better off if a mandate approach is off the table and the government has to pitch taxes as taxes.
I can appreciate that argument in the short term, but I'm not sure it works in the long term. While today raising taxes is a political non-starter in today's GOP, that hasn't been nearly as much the case in the past. That's how taxes got to where they are today; why they used to be higher (think of the marginal tax rates of 70% on high income earners in the 1970s); and why even anti-tax President Reagan raised taxes a number of times. Taxes have never been popular, obviously. But I don't think we can assume that today's attitudes towards taxes are fixed.
Is the Mandate More "Market-Oriented" than Available Alternatives (and Does It Matter?) — A Response to Orin
Orin Kerr's post below suggesting that the individual mandate is less of a threat to liberty than some of the available alternatives has drawn quite a response. See, for instance, these posts by Timothy Sandefur at PLF and Trevor Burrus at Cato@Liberty. They make some important points, but I wanted to add a few of my own.
First, I think there's too much attention paid to whether the individual mandate is or is not "unprecedented," and what conclusions we should draw from that observation. As a simple factual matter, it is true that the federal government has never sought to use the commerce power to mandate the purchase of a good or service from private firms. But this fact, by itself, does not establish that the mandate is unconstitutional. At most, it requires greater analysis as there is no clear analog from prior cases or government actions to which one can turn, and may justify some resort to constitutional first principles (as in Lopez) to answer the question. (As a related matter, whether one program or another is more or less of a threat to individual liberty may or may not be relevant to the constitutional question.)
Second, many of the prior, government-run programs adopted in the past are actually far more market oriented than the individual mandate, let alone the entire health care reform law. Traditional welfare programs, for instance, involve the direct provision of cash or vouchers that the recipients decide how to spend. Even though there are sometimes restrictions placed on how such assistance may be used, this approach remains far more market-oriented — and "libertarian" — than a mandate. Indeed, individual providers of eligible goods and services are compete against each other more in this context than insurance companies will under the individual mandate and the health care reforms other measures. Indeed, even Medicare, despite all of its problems, is more market-oriented in many ways than the current reforms, in that recipients still get to choose among providers, and does less to distort health care markets than regulatory mandates. Further, as the example of Medicare shows, direct government provision of a benefit does not necessarily become "monopoly" provision. Medicare is a "mandatory" program, but recipients are free to decide whether tehy will partake in the program and may supplement it as they choose. Of course, that one program is more "market-oriented" than another is a different question from whether one is more or less constitutionally suspect.
Third, it is generally accepted that the primary constraints on the federal government's exercise of its taxing and spending are political, not judicial. That is, we let the political process discipline the federal government's excesses when it taxes or spends too much, or on the wrong things. Judicial intervention is generally reserved for ensuring that the government does not subvert political accountability or use these powers to achieve otherwise unconstitutional ends (as with the unconstitutional conditions doctrine). The "political safeguards" approach to federalism advocated by Herbert Wechsler and Justice Blackmun has been decisively rejected because it is too easy for the federal government to subvert political accountability when it is using other powers.
Fourth, there are many areas in which it is recognized that allowing the federal government to compel activity by others is a greater threat to liberty and does more to undermine political accountability than to allow the government to act directly. I'll give just two quick examples.
Commandeering: Under cases like New York v. U.S. and Printz v. United States, the federal government may not compel state governments or state officials to implement a federal program. Part of the rationale is that it is better to force the federal government to implement such measures itself, and that the risk of the federal government over-reaching as a result is less than the threat to political accountability of letting the federal government be the states' puppet-master.Compelled vs. Government Speech: Current doctrine concerning compelled commercial speech (marketing orders and the like) subject government mandates that private parties speak to a greater level of scrutiny than the government's use of taxes or special assessments to fund the same message. In other words, current doctrine is more suspicious of efforts by the government to force, say, fruit growers to espouse the government's message than it is of efforts by the government to tax the very same fruit growers so that the federal government can itself promulgate the same message. As with commandeering, part of the concern here is political accountability. It is easier to hold the government accountable when it must openly raise revenues and act itself than when it can dictate that others devote their resources in a manner the government prefers.Finally, Orin's post suggests a false dichotomy insofar as it implies that the only relevant options for health-care reform are something like the individual mandate and government monopoly provision. In reality, there are many ways to expand health care coverage or otherwise reform health care. Not only are there less intrusive ways of subsidizing health care for those in need, there are less intrusive (and more effective) ways of enhancing competition within health care markets. So invalidating the mandate does not necessarily mean that we'd eventually get something worse — but even if it did, that would not resolve the constitutional question.
September 20, 2011
Who Has Violated the Constitution?
In yesterday's post, I argued that the first question in any constitutional controversy should be the who question: who has allegedly violated the Constitution? I gave one reason why: constitutional accountability. Knowing who the constitutional culprit may tell us whom to blame, whom to vote against, whom to impeach. Simply put, if you care about the Constitution, you should care about who is violating it.
Today I will present the other reason why we should care. One cannot determine whether the Constitution has been violated without first identifying who has allegedly violated it. The Constitution binds all government actors. But — and this is the crucial point — it binds these different actors differently. It turns out that the answer to the who question dictates both the structure and the substance of constitutional review.
Start with a simple example. On July 14, 1798, Congress passed the Sedition Act, forbidding certain political speeches and writings. Months later, someone is arrested and tried pursuant to the Act. Who has violated the Constitution?
The question is easy, because the First Amendment is written in the active voice, with a single, explicit subject: "Congress shall make no law … abridging the freedom of speech." The answer to the who question must be Congress. And the answer to the when question follows. Congress violated the First Amendment on July 14, 1798, the day that it made the law.
These simple facts structure the constitutional claim. When our defendant is on trial, exactly what he wrote will, of course, be essential to the criminal case against him. But, crucially, it will be irrelevant to his constitutional defense. Exactly what the defendant wrote (or whether it could have been criminalized pursuant to some other statute) cannot matter to his defense, because Congress violated the Constitution long before he took pen to paper. Analysis of the constitutional claim requires, in the Court's words: "lay[ing] the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." In current parlance, the challenge is inherently a "facial" challenge: the violation is visible on the face of the Sedition Act and subsequent facts cannot matter to the analysis.
Thomas Jefferson understood all this, which is why his Kentucky Resolution declared this "act of the Congress" (small "a") to be "altogether void, and of no force," and why he later pardoned everyone convicted under the Sedition Act, regardless of what exactly they had written: "I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity . . . ."
But not all constitutional claims work this way. Consider a second example. Imagine that Congress makes a law authorizing the FBI to search anyone, at any time, for any reason. The FBI breaks down someone's door at 3:00am and proceeds to search. Who has violated the Constitution?
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." This provision is not as clear as the First Amendment, because it is written in the passive voice. The question, here, is: violated by whom?
Constitutional structure answers the question. Searching is a paradigmatic executive activity. This provision is not violated by making a law; it is violated by executing an unreasonable search. Here, the Executive branch is the answer to the who question. In this case, the Constitution was violated, not when Congress made the law, but rather at 3:00am, when the Executive executed the search.
So, notice how different this constitutional inquiry will be. In the First Amendment context, exactly what the defendant wrote was irrelevant to the constitutional claim, because Congress violated the Constitution long before he took pen to paper, and so the law was, in Thomas Jefferson's words, "a nullity." But here, in the Fourth Amendment context, the specific facts of the case — whether the FBI knocked first, whether they had any cause for suspicion, etc. — will be profoundly relevant to the constitutional inquiry. Here, the facts of execution are the constitutional violation. Current parlance would, confusingly, call this an "as-applied challenge to the statute," but it is really not a challenge to the statute at all; it is a challenge to the executive action of searching. As the Court said in a similar case:
The parties . . . have urged that the principal issue before us is the constitutionality of [an authorizing statute] "on its face." We decline . . . to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of [the statute] next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.
So, the answer to the who question structures the entire inquiry. Judicial review of a legislative action under the First Amendment is inherently "facial," and it is fundamentally, structurally different from judicial review of an executive action under the Fourth Amendment.
Tomorrow, I will discuss which provisions are like the First Amendment and which ones are like the Fourth Amendment, and how to tell.
Gov. Gary Johnson Gets to Debate
The Daily Beast's Howard Kurtz reports that former New Mexico Governor Gary Johnson will finally get to participate in a televised national debate of GOP presidential hopefuls because he is now polling above one percent in the polls
Judge Curtails Salmon Plan, Rips Fed Scientists
Today a federal judge threw out portions of the federal government's plan to protect several fish species, including some salmon and steelhead in California, under the Endangered Species Act for the second time.
The Fresno Bee reports:
U.S. District Judge Oliver Wanger invalidated parts of the U.S. National Marine Fisheries Service's so-called biological opinion, calling the plan "arbitrary, capricious, and unlawful."
Wanger still held that pumping operations negatively impact the fish and adversely modify their critical habitat, but his decision means the agency will rewrite its plan again.
In the 279-page decision, Wanger wrote that some of the agency's analyses relied on "equivocal or bad science" and didn't clearly demonstrate why the measures it imposed were essential.
The opinion is quite critical of the scientists who helped develop the federal government's biological opinion. But it's nothing compared to what the judge reportedly said from the bench. E&E News (subscription required) reports:
"I have never seen anything like what has been placed before this court by these two witnesses," U.S. District Judge Oliver Wanger said in his ruling on the smelt case, according to a transcript obtained by E&ENews PM. "The only inference that the court can draw is that it is an attempt to mislead and to deceive the court."
Wanger did not use the term "scientific misconduct," or "lying," but he used nearly every other adjective that describes deception by scientists as he built the record in his ruling for a finding of "bad faith." He called their testimony "false," "outrageous," "incredible," "unworthy of belief" and more. . . .
Wanger called a Fish and Wildlife Service scientist who had testified in the case a "zealot" who did not let facts get in the way of her goals.
"She may be a good scientist. She may be honest, but she has not been honest with this court," he said.
He called a Bureau of Reclamation scientist "untrustworthy as a witness."
"And I will note that he is a government agent," Wanger said. "And the United States, as a sovereign, has a duty not only in dealing with the court, but in dealing with the public to always speak the truth, whether it's good or bad." . . .
"Protecting endangered species is crucially important," Wanger said. "But when it overwhelms us to the point that we lose objectivity, we lose honesty, we're all in a lot of trouble. Serious, serious trouble."
Despite these conclusions, Judge Wanger still upheld large portions of the government's plan. For those who don't want to wade through the entire opinion (I sure didn't), the concluding summary is posted here.
John Mearsheimer Endorses Book by a "Proud Self-Hating Jew"
according to the publisher's website. The proud individual in question would be Gideon Atzmon, who has remarked
I'm not only a self-hating Jew, I'm a proud self-hating Jew! When you try to think of the biggest humanists ever, Spinoza Marx [sic: Marx was born and raised a Christian, albeit of Jewish descent] and Christ were basically proud self-hating Jews also. Why? Because of growing up in this kind of racist, nationalist, tribalist, chauvinist, supremacist society — and this is exactly what they stood up against.
If the book, The Wandering Who? was about Atzmon's vocation, jazz, that wouldn't be news, but in fact the book in question seems to be what one might call a meditation on Jewish identity–but an anti-Semitic, or, if you prefer, self-hating one. (Among other things, we learn that his hero and role model is one of modern history's best-known Jewish anti-Semites, Otto Weininger.)
Mearsheimer's take: "Should be widely read by Jews and non-Jews alike." Says David Schraub: "we should recognize the tragedy of [Mearsheimer's] fall. It has been swift, shocking, and very, very ugly."
I wrote five years ago that "many of [Mearsheimer and co-author Stephen Walt's] critics are erring in accusing the authors of anti-Semitism without supporting evidence." That now seems hasty on my part, especially given that this isn't Mearsheimer's first foray into very questionable territory.
Added bonus: The Harry's Place blog's revelation of Mearsheimer's endorsement of an anti-Semitic book by a self-described self-hating Jew came the same day that Glenn Greenwald wrote a post entitled The Mainstreaming of Walt and Mearsheimer, in particular expressing typical Greenwaldian sputtering outrage that some of their critics had accused them of anti-Semitism.
UPDATE: Pejman Yousefzadeh: "Either John Mearsheimer–via his endorsement of the vile and repulsive 'ideas' of the loathsome Gilad Atzmon–has outed himself as an anti-Semite, or he is completely ignorant of what Atzmon professes, and Mearsheimer has outed himself as a fool."
Bleg for News We Can Use re the Euro
What's the best way to short the Euro? There are a couple of "ultra-short" funds, but my recollection is that the way these funds are structured they are best for very short-term trading, not for a long-term short.
September 19, 2011
Connecticut Supreme Court Justice Apologizes to Susette Kelo for his Vote to Uphold the Condemnation of Her Home — But then Lets Himself off the Hook Too Easily
In the Hartford Courant, journalist Jeff Benedict, author of a major account of the Kelo case, reports on an interesting encounter last year, where Connecticut Supreme Court Justice Richard Palmer apologized to Susette Kelo for voting to uphold the the taking of her home for "economic development" [HT: Cory Andrews]:
If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?
I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court's infamous 5–4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book "Little Pink House."
Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4–3 majority against Susette and her neighbors. Facing me, he said: "Had I known all of what you just told us, I would have voted differently."
I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.
Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words "I'm sorry."
It was all she could do to whisper the words: "Thank you."
Then Justice Palmer let go of her hand and walked off.
Justice Palmer's statement is yet another indication that, at least at the state level, many judges have become more skeptical about economic development takings since Kelo was decided by the Connecticut Supreme Court in 2004 and the US Supreme Court in 2005. I document that skepticism more systematically in this article on the judicial reaction to Kelo.
In a later interview with Benedict, Justice Palmer partially retracted his apology:
Justice Palmer sent me a "personal and confidential" letter dated Nov. 8, 2010. In it he didn't dispute my account. Nor did he ask me not to publish. Rather, he provided some important context.
"Those comments," he wrote, "were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence...."
Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?
A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law's constitutionality.
Justice Palmer lets himself off the hook too easily. It is true that the justices could not have known for certain that the Kelo condemnations would fail to produce the economic development that supposedly justified the use of eminent domain in the first place. But they could and should have known that such results have often occurred in similar cases, that the New London development plan justifying these particular condemnations was flimsy, and that there was no legal requirement compelling either the city of New London or the new private owners of the condemned property to produce enough development to offset the destruction caused by the takings. Some of these points were in fact noted in Justice Zarella's dissenting opinion in the Connecticut Supreme Court. As he pointed out:
In my view, the development plan as a whole cannot be considered apart from the condemnations because the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement. Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence, that the anticipated public benefit will be realized. The determination of whether the taking party has met this burden of proof involves an independent evaluation of the evidence by the court, with no deference granted to the local legislative authority. In the present case, the evidence fails to establish that the foregoing burden has been met....
The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty. To the contrary, the evidence establishes that, at the time of the takings, there was no signed agreement to develop the properties, the economic climate was poor and the development plan contained no conditions pertaining to future development agreements that would ensure achievement of the intended public benefit if development were to occur.
The evidence Justice Zarella relied on was also available to the majority justices. In fact, the latter did not dispute the evidence, but concluded that most of it was irrelevant to the question of whether the taking really promoted a "public use," as required by the state and federal constitutions. They held that courts could not consider the actual economic costs and benefits of the takings. This, despite the logical point that, even if "economic development" qualifies as a public use, it surely cannot justify a taking that doesn't actually produce any economic development or is not likely to do so.
Justice Palmer is right that previous US Supreme Court precedent probably justified the takings under the federal constitution. Only the federal Supreme Court could reverse or narrow those earlier decisions. However, the Connecticut Supreme Court was applying not only the federal Public Use Clause but also that of the Connecticut state constitution. The latter is not controlled by federal Supreme Court precedent. Indeed, long before Kelo, many state supreme courts interpreted their state public use clauses more restrictively than the federal Supreme Court interpreted the Public Use Clause of the Fifth Amendment. The Connecticut Supreme Court could and should have done the same thing in Kelo.
UPDATE: It is not entirely clear whether Justice Palmer now believes that the court was justified in upholding the taking under the Connecticut state Public Use Clause. His statement that he and the other majority justices "made the right decision insofar as [they] followed governing U.S. Supreme Court precedent" could be interpreted to mean that they were wrong on those aspects of the case that were not governed by US Supreme Court precedent, including the question of whether the New London takings were justifiable under the Connecticut Constitution.
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