Eugene Volokh's Blog, page 2713

Federal District Court in Pennsylvania Strikes Down Individual Mandate

(Ilya Somin)

Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor's opinion is unusual for striking down the mandate despite rejecting the view that upholding it would give Congress unlimited authority to enact other mandates. My own view is that upholding the mandate would indeed lead to an unconstrained slippery slope of this kind, as I explained here. On the important severability question, Connor argues that the preexisting conditions coverage requirement cannot be severed from the mandate, but that the rest of the bill can be.

We now have three district courts and one court of appeals that have voted to strike down the mandate, and three district courts and one court of appeals that have voted to uphold it. Of the twelve federal judges who have considered the question, six have gone one way and six the other, with ten of the twelve (including Judge Connor) splitting along partisan and ideological lines.

It is now more clear than ever that there is no expert consensus on this subject, and that this is not a frivolous case that only ignorant or misguided extremists could possibly support.

UPDATE: The court in question is actually the Middle District of Pennsylvania, not the Eastern District, as I originally stated in the post. I apologize for the error, which has now been corrected.

AEI Panel on the Individual Mandate

(Orin Kerr)

This Thursday morning, I'll be participating at an event at the American Enterprise Institute on how the individual mandate litigation might fare at the Supreme Court. The panelists include Eric Claeys, Gregory Katsas, James F. Blumstein, and Thomas Miller.

And if you're looking to make the rounds of conservative/libertarian think tanks that day, don't forget about Cato's Constitution Day event, which begins right after the AEI panel.

"This bill is about democracy"

(Dale Carpenter)

That's how the North Carolina state senator who's sponsoring the anti-SSM amendment began his speech today. Others are citing "statistics" that show a married mother and father provide the best structure for raising children — though the studies compare opposite-sex couples to single parents, not gay parents. You can watch the debate live here.

UPDATE: The amendment passed the state senate, 30–16.

Bachmann Embraces Irresponsible Anti-Vaccine Views

(Jonathan H. Adler)

Going on the offensive against Texas Governor Rick Perry for issuing an executive mandate that young girls receive a vaccine against HPV, Rep. Michele Bachman embraced the fringe (and thoroughly discredited) claim that vaccination can cause mental retardation.  Details here and here.  It is understandable that a parent whose child experiences difficulties will be distraught and search for answers, but to give credence to the claim that vaccination causes mental retardation, autism, or other disabilities is thoroughly irresponsible.  It is one thing to debate whether a state government should mandate that children are vaccinated against something like HPV, and whether a voluntary opt-out provision is protective enough of parental prerogatives.  It is quite another to suggest that mandated vaccination creates serious health risks when there is no evidence to support such a claim.

For what it's worth, I criticized Senator John McCain for a similar offense in 2008

CIA Does Not Have to Release Drone Records

(Kenneth Anderson)

The ruling by Judge Rosemary Collyer was not unexpected; it provides that the CIA does not have to release records related to its drone-targeted killing program, as sought by the ACLU in a Freedom of Information Act (FOIA) suit.  The opinion is here, and Politico gives a brief summary of it here (h/t Lawfare).  Politico's Josh Gerstein sums it up:

Ruling in a Freedom of Information Act case brought by the American Civil Liberties Union, Judge Rosemary Collyer said records about the use of drones could be withheld under the rubric of "intelligence sources and methods." She rejected the ACLU's arguments that lethal drones aren't really involved in acquiring intelligence.

"At first blush, there is force to Plaintiffs' argument that a 'targeted-killing program is not an intelligence program' in the most strict and traditional sense," Collyer wrote, before concluding: "The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence."

Gerstein goes on to note that this ruling does not address other agencies of the government, such as State, which do not have these specific exemptions related to intelligence; without having done an exhaustive survey of FOIA cases, however, I would be surprised if something that the CIA could withhold on intelligence exemptions could be got sideways from other federal agencies.

From a substantive standpoint, I thought the ACLU's attempt to sever "intelligence gathering" from drone strikes as targeted killing was clever as a litigation ploy, but not sustainable in real life.  The fundamental point is that drone strikes in targeted killing are the last kinetic step in what is a massive intelligence operation — "intelligence-driven uses of force," as I've been calling them.  Drones in their surveillance role are part of that intelligence gathering, but in Afghanistan and Pakistan, the effectiveness of the drones program of targeted killing depends enormously on the CIA's ground level intelligence gathering, a network that has taken years of effort to get underway, and which — among other things — angers Pakistan because it has allowed the US to determine its own targets without having to rely on Pakistani military and intelligence.

There is no ability to sever the gathering from the strikes; they are all part of the same operation, from the fat middle of intelligence gathering and assessment from many different sources to the thin tail of the drone strike at the end, followed by more surveillance afterwards to determine what happened.  (I talk about this at the beginning of a working paper in v2 I've put up at SSRN, When "Efficiency" Jus in Bello Creates "Inefficiency" Jus ad Bellum: Does Targeted Killing Through Drone Technology Make the Resort to Force "Too Easy"?.  There was an earlier draft of the paper, messy and very first draft; this is a drastically re-organized and re-written version, and frankly a lot better — though it won't be the final published version.  The paper is mostly a philosophy paper, not directly on targeting operations, but the opening section, on disentangling drone use from targeted killing, addresses some of these issues.)

Sixth Circuit Splits on Juror's Ex Parte Communication

(Jonathan H. Adler)

Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd's appeal of the district court's denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd's claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what "paranoid schizophrenia" means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd's paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury's deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror's improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror's conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court's decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are "presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215–17 (1982), a point Chief Judge Batchelder stressed in her concurrence.

I don't know the case law in this area to know which side offers the better interpretation of the Supreme Court's precedent or how such ex parte communications should be handled. The dissent notes that the majority of Circuit's reject the view that Smith abrogated Remmer, and the majority of circuits may be right. Only one circuit disagrees — but therein lies the problem for Judge Merritt's argument. As he acknowledges in footnote 1 of his opinion, that one circuit is the Sixth. The circuit concluded Smith abrogated Remmer in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984). Moreover, as Judge Batchelder notes, the Sixth Circuit has followed this holding since. Therefore, even if Judge Merritt offers what is ultimately the better argument, the panel was bound to conclude otherwise, as this is the law of the circuit unless and until the question is revisited en banc or reaches the Supreme Court.

Could the Individual Mandate Really Be This Unpopular?

(Jonathan H. Adler)

This morning the Associated Press and National Constitution Center released their latest survey on American attitudes toward governmental institutions and constitutional questions. Among other things, the poll shows that Americans appear to be increasingly comfortable with giving the President greater authority to address economic concerns. One of the results that caught my eye was a question on the individual mandate. Here's the question:

Do you think the Federal Government should have the power to require all Americans to buy health insurance, and to pay a fine if they don't or do you think the Federal Government should not have that power?

Eighty-two percent of respondents answered "no" to this question, and only sixteen percent answered yes. According to the AP and NCC, these results are nearly identical to a similar question asked a year ago. This is an opinion poll, so all the usual caveats about how a question is worded, etc., apply. Nonetheless, I found this result quite striking, and a bit surprising.

Sex, Lies, and Videogames:

(David Post)

Over the summer, I wrote a piece about the Supreme Court's decision in the "violent videogames" case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I'll be speaking there on the first panel about the Court's evolving First Amendment jurisprudence.

VC'ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas' thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict "originalist" position in constitutional law better than any other text:

Justice Thomas' dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, "the goal is to discern the most likely public understanding of [that] provision at the time it was adopted." McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, "its meaning does not alter." McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). "That which it meant when adopted, it means now." Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment's protection against laws "abridging the freedom of speech" did not extend to all speech. . . . In my view, the "practices and beliefs held by the Founders" reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood "the freedom of speech" to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents. . . . The founding generation would not have considered it an abridgment of "the freedom of speech" to support parental authority by restricting speech that bypasses minors' parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth's "The Well-Ordered Family" of 1712, Cotton Mather's "A Family Well-Ordered" (1699), "The History of Genesis" (1708), Locke's "Some Thoughts Concerning Education" (1692), Burgh's "Thoughts on Education" (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed "absolute authority" over their children, and that "total parental control over children's lives" was the governing societal norm—what then? The question in this case is not "do parents have absolute authority over their children?" The question in the case is, rather, "how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for 'the freedom of speech'?" That's a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state's power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas's historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• "The government has just decreed that children can't attend religious services. Can it do that?"
• "The government has just decreed that all schoolbooks must include endorsements of John Adams's candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?"
• "The government has just decreed that adults may not sing to children who are not their own. Can it do that?"

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that "eighteenth century society" would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what "the answer" to any of those questions would have been—in 1791, 1891, or 1991—because there is no "answer" that "society" can give to those questions. They're contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas' position!), you're of course invited to do so.

Raise Revenue, Not Taxes

(Jonathan H. Adler)

Bruce Bartlett makes the case for raising government revenue through "offsetting receipts" and user fees for government-provided services.

Once upon a time, it was a principle of conservative budget analysis that the federal government ought to impose user fees wherever possible, because it was unfair for taxpayers to subsidize programs that benefited only a limited group of people or businesses.

For example, user fees were a big part of the recommendations put forward by the Grace Commission, established by Ronald Reagan to find ways of reducing federal costs. It published an entire volume detailing opportunities to impose fees and raise those insufficient to cover benefits received by users of government services. . . .

The Government Accountability Office and the Congressional Budget Office periodically publish reports on user fees that can easily be consulted for ideas on how they can be improved. Budget conventions that treat such fees as reduced spending offer a way out of the budget impasse imposed by the tax pledge. And they could make a major contribution to meeting the $1.5 trillion deficit-reduction target that the Joint Select Committee on Deficit Reduction must meet by Nov. 23.

Recent Case Discussing Rights Under Magna Carta

(Eugene Volokh)

It's an Irish case, Lough Swilly Shellfish Growers Co-operative Society Ltd & Anor v. Bradley & Anor, and it deals with the claim that, "[u]nder English law, as a result of Magna Carta, [private] fisheries could not be created in tidal waters unless they existed prior to the death of Henry II." But that provision of Magna Carta, the court says, is yesterday's news, having been repealed in relevant part by subsequent legislation (if I understand the matter correctly).

Thanks to Prof. Seth Tillman for the pointer.