Eugene Volokh's Blog, page 2755

In Defense of the Debt Limit's Constitutionality

(Jonathan H. Adler)

The Honorable Michael McConnell responds to claims that the debt ceiling is unconstitutional and that Section 4 of the 14th Amendment authorizes the President to issue additional debt if necessary to meet existing debt obligations.  Here's a taste:

Section Four of the Fourteenth Amendment does not create a back-door method for the Administration to borrow more money without congressional authorization. For Congress to limit the amount of the debt does not "question" the "validity" of the debt that has been "authorized by law." At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending. Each month, the Treasury takes in about $175 billion in new revenues. These are more than sufficient to pay principal and interest when due, as well as pension obligations. . . .

. . . the real effect of Section Four of the Fourteenth Amendment is almost the opposite of what hopeful voices in Washington are saying. Section Four puts the onus on the President to reduce spending in order to avoid default on the debt. It does not permit him to borrow more.

Mountain Lion Kill Blogging in the Eastern Sierra

(Kenneth Anderson)

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Breaking radio silence here in the Eastern Sierra Nevada ... this is not bear-blogging, but mountain lion-blogging — well, not actually a mountain lion, but a mountain lion kill in the snow.  The mountain guide at Sierra Mountain Center (which is a great resource for all forms of backpacking, rock climbing, trekking, etc.) thought it was a mountain lion kill,  probably taking a mule deer, which the lion then dragged and probably hid somewhere in the brush.

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With so much snow this year in the Sierras, it has been hard to get very far in on trails which we normally take.  So we've spent most of our hiking time in the White Mountains, which form the other wall of the Owens Valley, up around the Bristle Cone Pine forest — quite spectacular mountains, and deceptively high.  They look like gently folded hills from some vantage points, and then you realize the "hill" is White Mountain, and it is over 14,000 feet, only two hundred feet lower than Whitney, and the third (4th?) highest peak in California.  I've become quite entranced with the White Mountains, which are having a late wildflower bloom on account of the cool spring, and with the Great Basin.

I'll be back to DC momentarily, but here's wishing everyone a lovely July 4th. Meanwhile, for those of you Easterners who might lose your way in The Empty Quarter, here is the official highway sign at the beginning of Highway 6 as it leaves Bishop for the Nevada desert.

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And Speaking of the Inalienable Right to the Pursuit of Happiness . . .

(David Post)

. . . Happy Fourth to you all! Along with 90 (and still counting) other Internet law and IP law professors, I have signed a letter (drafted by Dave Levine, Mark Lemley, and me) in opposition to Sen. Leahy's "PROTECT IP Act." [The letter is posted below — the text of the bill, if you're into that sort of thing, is posted here.]
PROTECT-IP Letter, Final

The bill, which will allow the government to obtain injunctions against domain names hosting allegedly copyright-infringing or trademark-infringing material, and to have those domain names deleted from the Internet's databases, represents a serious assault on the fundamental principles that have built the Net — the design principles at the heart of its technical infrastructure, and the free speech principles it has done so much to foster and cultivate around the globe, all at the behest of your friends in the recording and motion picture industries. [If you want to see why it's a dreadful piece of legislation purely from the technical side, take a look at this white paper prepared by some of the most respected members of the Internet technical community]. We've seen this before — in last term's COICA legislation, which thankfully died in Committee (thanks to Oregon Senator Ron Wyden, who has continued his opposition to the Protect IP Act, and whom we should all thank for his efforts). It's always hard to gauge how likely a bill is to become law, but I'm told there's some momentum around the Protect IP Act, and hopefully those who actually care about the Net and its potential will rally in opposition.

And speaking of our old friend Thomas Jefferson ... Larry Lessig, a friend and colleague, has contributed a very interesting short Foreword to what will become (soon?) the paperback edition of my book — you might find it of interest as you contemplate Jefferson's contributions on this day ...

Commemorating an End to Commemorative Resolutions

(Jonathan H. Adler)

Thus far Republicans have kept their pledge to end the practice of passing commemorative legislation in the U.S. House of Representatives, the Washington Post reports.  So this has been a year without a Congressional remembrance of the fabled battle of Marathon or Multiple Sclerosis Awareness Week.  Unlike last year, the House is not marking Independence Day passing resolutions honoring the flag or the bald eagle.  Some members are unhappy about this; Rep. Barbara Lee (D-CA) said it's just wrong.  Other observers note the lack of symbolic resolutions makes it harder to hide the lack of substantive legislation.  It's also worth keeping mind of the cost.  Though each resolution, by itself, did not cost much, they would add up.  Back in 1993, CRS cited estimates ranging from $340,ooo to $1 million per year, given the printing and other associated expenses.  Whatever else taxpayer dollars should be spent on, National Pi Day and National Beer Day are not it.

Is the Debt Limit Constitutional? — Part Deux

(Jonathan H. Adler)

Treasury Secretary Tim Geithner has picked up on suggestions that the debt limit violates Section 4 of the Fourteenth Amendment, though stopped short of saying the Administration would refuse to abide by the ceiling to avoid default.  Meanwhile, much bandwidth is being spilled over the various constitutional arguments.

Jack Balkin points to the drafting history of Section 4 that could support the argument against the debt ceiling.  In particular, he notes that this portion of the 14th Amendment was intended to prevent subsequent repudiation of Civil War debts.  Michael Stern responds noting, among other things, that repudiation and default are not one and the same (a point I also made to Balkin in an e-mail  on Thursday).  Repudiation cancels a debt, whereas default is a failure to pay a valid debt.  In other words, default presumes that the debt is still valid, and does not call into question the validity of the obligation.  Further, even if Section 4 precludes repudiation of valid debts,  this does not mean default is equally unconstitutional, or that the President is authorized to issue new debt obligations to cover the old without Congressional approval.  Balkin responds here, but I am still not convinced.  His argument boils down to a claim that since debt repudiation is off the table, so is all political gamesmanship over how and when debts get paid.

Gerard Magliocca adds an interesting wrinkle, noting the Public Debts Clause could be read to preclude Congressional default as well, though Calvin Massey does not believe the clause grants the President unlimited authority to borrow money.  Michael Abramowicz — one of the few scholars to have focused on these questions — also notes that broad readings of Section 4 and the Public Debts Clause have implications for other laws and would, among other things, cast a constitutional pall over Medicare.  On this basis, he urges a more "modest" approach — an approach Michael Stern does not find so modest.  Meanwhile, Mark Tushnet finds the mere suggestion the President has constitutional authority to violate the  debt ceiling "off-the-wall" (which is not the same thing as saying it is wrong).  Brad DeLong responds to Tushnet here.

Whatever the correct constitutional interpretation of Section 4, there is another question: Whether this question could ever come before the Courts.  I don't think so.  (Nor does Jonathan Zasloff, who addressed the question a while back.)  First, it would be difficult to find someone who would have Article III standing.  Second, even if standing could be established, courts would likely avoid the issue on political question or other grounds. Brad DeLong is not convinced.  Michael Stern has thoughts on this question too.

A Thought-Provoking Look at Independent Agencies

(John Elwood)

So as all of you doubtless already know (and probably discussed over lunch), today the D.C. Circuit in In re: Aiken County rejected as unripe a challenge to the Department of Energy's decision to withdraw its application to the Nuclear Regulatory Commission for a license to build a permanent nuclear waste repository at Yucca Mountain, Nevada (the site Congress selected).

The Bush Administration (after a long delay) filed the application in June 2008, but in March 2010, the Obama Adminstration's DOE filed a motion to withdraw the application with prejudice.  The NRC's Licensing Board denied the motion.  The NRC is now simultaneously considering DOE's license application and reviewing the Licensing Board's decision to deny the motion to withdraw. The Court, in an opinion by Judge Sentelle, agreed with the government that there is a lack of finality and thus the petition for review is unripe until the independent Nuclear Regulatory Commission grants the motion to withdraw or rules on the license application.

Back in August 2008, Judge Brett Kavanaugh argued that the removal restrictions for members of the Public Company Accounting Oversight Board were "Humphrey's Executor squared,"  after the Supreme Court decision, Humphrey's Executor v. United States, that upheld the constitutionality of removal restrictions on personnel at independent agencies.  His conclusion in that case was vindicated by the Supreme Court.  Today, in a scholarly and lengthy (18 pages, vs. 16 for the majority) concurring opinion in Aiken County, Judge Kavanaugh explored the problems that plain old Humphrey's Executor to the first power causes for "accountability, liberty, and government effectiveness."  

He wrote:

This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project.

     * * * *
Reading only the text of Article II, one would assume that the Nuclear Regulatory Commission would report to the President, not the President to the Nuclear Regulatory Commission. If two agencies in the Executive Branch were not on the same page (as may happen in this case if the Nuclear Regulatory Commission rejects the Department of Energy's withdrawal application), the President presumably would have the authority to resolve that disagreement. If an agency were departing from the President's preferred course (as the Nuclear Regulatory Commission may do), the President presumably would have the authority to prevent that. And if an agency were taking too long to make a critical legal or policy decision (as appears to be the case with the Nuclear Regulatory Commission), the President presumably would have the authority to fix that as well.

But of course, that "turns out to be inaccurate with respect to independent agencies" such as the NRC because of Humphrey's Executor.  Kavanaugh argued that "[t]his case is a dramatic illustration of the continuing significance and implications of Humphrey's Executor":

If the Commission rejects the President's policy decision . . . by rejecting the pending application by the Department of Energy (the President's subordinate) to withdraw the licensing application for Yucca Mountain – then the President may be forced to continue with the Yucca Mountain project simply because the Nuclear Regulatory Commission has told him so.

Reproducing ten lengthy block quotes from the Supreme Court's opinion in Free Enterprise Fund, Judge Kavanaugh concluded that the opinion's "wording and reasoning are in tension with Humphrey's Executor and are more in line with Chief Justice Taft's majority in Myers [v. United States, 272 U.S. 52 (1926)]," which recognized the President's authority to remove subordinate officers in the Executive Branch.

The most interesting passage of the opinion for me was when Judge Kavanaugh placed Humphrey's Executor in historical context, noting that the case was "one in a line of decisions issued in 1935 and 1936 . . . by a Supreme Court seemingly bent on resisting President [Franklin] Roosevelt and his New Deal policies."  Indeed, the case was decided on the day (May 27, 1935) that "became known as Roosevelt's 'Black Monday,'" when the Court announced three decisions relevant to FDR's programs:  Humphrey's Executor, Louisville Joint Stock Land Bank v. Radford (invalidating provisions of the Frazier-Lemke Farm Mortgage Act), and Schechter Poultry Corp. v. United States.   Judge Kavanaugh noted that "[t]he other cases in that line have long since been discarded as relics of an overly activist anti-New Deal Supreme Court," but somehow, Humphrey's Executor is the one product of the age of the Four Horsemen that "lives on." 

For more on Black Monday, see here, beginning at page 96.  For more on Judge Kavanaugh and Black Monday, see here.

What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?

(Orin Kerr)

In his initial reaction to the Sixth Circuit decision upholding the mandate, Cato's Ilya Shapiro made the following comment:

While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does—a "reasonable fit" between the means it chooses and the ends of regulating interstate commerce—to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law.

To me, the striking thing about such criticisms is that they take the analysis in Judge Sutton's opinion as if they represented Judge Sutton's personal views. But Judge Sutton's opinion is pretty clear that he's not providing his own opinions: the rational basis test was the Supreme Court's in Comstock. Similarly, Judge Sutton's statements about as-applied challenges have been much criticized on this blog, but in fact are directly rooted in recent Supreme Court precedent, see, e.g., Sabri.

The underlying question, I think, is what conservatives and libertarians want conservative lower-court judges to do with liberal Supreme Court precedents. There are two basic options, I think. My sense is that some conservatives and libertarians want those lower-court judges to bend the law to try to correct what they see as the Supreme Court's mistakes. They should construe ambiguity to push the law in the right direction, and generally try to push and prod the law in to make it better ("right" and "better" at least from a conservative/libertarian perspective). From that perspective, Judge Sutton's opinion is a failure, much like Judge Easterbrook's opinion in McDonald was a failure.

On the other hand, others would say that lower-court judges should apply those liberal Supreme Court precedents honestly and fairly just as they should all Supreme Court precedents. From this perspective, lower court judges should be ignoring the perceived correctness or incorrectness of Supreme Court precedents (or their political valences) and instead should just apply them as legal technocrats would: The job of lower court judge is just to be faithful to the Supreme Court's precedents, and not to be faithful to some broader vision of the Constitution. From that perspective, Judge Sutton's opinion is a success, I think, much like Judge Easterbrook's opinion in McDonald was a success.

As regular readers no doubt can guess, my own view is the latter. As I see it, a conservative Reinhardt is still a Reinhardt: Given that no two judges agree on the "right direction" of the law, letting every lower court judge decide cases in furtherance of their own vision of rightness is perilously close to just letting everyone do what they feel like doing. Of course, this doesn't mean that the Supreme Court can't change the law: The Justices aren't bound by their own precedents, and they are free to change course if they think it proper to do so. But lower court judges have a different job than do Supreme Court Justices: They're stuck following existing Supreme Court law, and we should want them to follow that law whether we like that law or not.

Judge Graham's Deft Analysis of Economic Activity

(Randy Barnett)

In my post yesterday, I did not discuss dissenting Judge Graham's intriguing treatment of the "class of activities" being regulated by Congress. In it, he makes three moves.

First, he rejects the utility of the activity-inactivity line as a constitutional distinction:

Much has been made in this litigation of the distinction between activity and inactivity. The Supreme Court has often employed the word "activity" to describe the regulatory subjects of Congress's power over interstate commerce. Yet I do not interpret those cases as drawing a constitutional line between activity and inactivity. That distinction would suffer from the same failings as the "direct" and "indirect" effects test of prior Commerce Clause jurisprudence. See NLRB v. Jones & Laughlin Steel Corp. (1937) (rejecting the direct/indirect distinction and stating that the question of Congress's authority is "necessarily one of degree"); Lopez (Kennedy, J., concurring) (noting that questions of constitutional law are often "not susceptible to the mechanical application of bright and clear lines"). Imposing an activity/inactivity line could hinder Congress in future cases from removing burdens on commerce that certain classes of individuals have passively enabled.

Second, he then identifies the "class of activities" as the decision not to purchase health insurance.

Congress here attempts to regulate a class of individuals who have refrained from purchasing health insurance. The conduct being regulated is the decision not to enter the market for insurance. Plaintiffs have not bought or sold a good or service, nor have they manufactured, distributed, or consumed a commodity.

Third, in the crucial move, he asks whether this class of activities is "economic" as it must be under Lopez and Morrison and concludes that it is not.

In the government's view, plaintiffs' financial planning choices and position on risk are quintessentially economic in nature because they inevitably lead to cost-shifting when the uninsured obtain care they cannot afford. The mandate concerns a failure to pay for services obtained, argues the government, not a failure to engage in economic activity.

This argument deftly switches the focus from the private, non-commercial nature of plaintiffs' conduct (the decision to be uninsured) to the perceived economic effects of their absence from the insurance market. Certainly, plaintiffs' conduct may be considered in the aggregate with the conduct of similarly-situated individuals, see Raich; however, the Commerce Clause cannot be satisfied when economic activity is lacking in the first instance.

This is itself a "deft" move by Judge Graham. Lopez and Morrison rejected the proposition that an activity was "economic" solely because it affected interstate commerce. In Raich, despite some hard questioning of me during oral argument by Justice Souter, who was making this argument, Justice Stevens instead relied on a 1966 Webster's dictionary definition of "economic" rather than the economic effects theory.

"It is true that decisions not to purchase insurance are in some sense economic ones," Judge Graham continues. "They are choices about risk and finances. When viewed in the aggregate, these decisions have economic consequences." But nevertheless,

Lopez and Morrison rejected a view of causation whereby the cost-shifting to society caused by violent conduct can satisfy the substantial effects test. See Lopez (rejecting the government's "costs of crime" and loss of "national productivity" reasoning); Morrison (same). The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government's line of reasoning here is that it has no logical end point. . . .

Judge Graham then responds to the government's contention that "a decision not to buy insurance is more clearly financial in nature than the acts of crime at issue in Lopez and Morrison."

But the statutes struck down in Lopez and Morrison at least waited to impose their criminal penalties until the commission of the acts that allegedly caused the cost-shifting. Here, several layers of inferences must materialize for the government's cost-shifting reasoning to work, but the mandate waits for none of them. See Lopez (rejecting as too attenuated a substantial effects theory that "pile[s] inference upon inference"). The mandate and its penalty are not conditioned on the failure to pay for health care services, or, for that matter, conditioned on the consumption of health care. Congress instead chose a more coercive and intrusive regulation. The proper object of Congress's power is interstate commerce, not private decisions to refrain from commerce.

In other words, the financial decision not to buy insurance — even if it be considered "activity" and even if it can be characterized as "economic" on the basis of its economic effects (though the latter is barred by Lopez, Morrison, and Raich) — does not have a substantial affect upon interstate commerce until a person presents himself for treatment at an emergency room and is unable to pay for it. Until that point there is no cost shifting, and no economic consequences.

So, while seemingly eschewing any general bar on reaching "inactivity," Judge Graham is focusing on one particular type of inaction: "private decisions to refrain from commerce." If the cost-shifting of carrying a gun within a 1000 feet of a school are too remote and attenuated to constitute economic activity, then even more remote and more attenuated is the decision to refrain from entering the marketplace at all. At least until a person who has refrained from market activity seeks medical care and cannot pay for it. Such an event may or may not happen, and if cost-shifting justifies regulation under the Commerce Clause, the point when cost-shifting occurs would provide a line circumscribing Congressional power.

In this analysis, while not acting figures prominently in this analysis of remoteness, no general activity-inactivity principle need be established. It is not any or every inactivity that is beyond the commerce power, it is the decision to refrain from engaging in economic activity that is too remote.

Judge Graham's conclusion that the decision to refrain from entering the marked is noneconomic activity raises the issue of whether it could be reached under Justice Scalia's theory, in his concurring opinion in Raich, that Congress can reach even noneconomic activity when doing so is essential to a broader regulation of interstate commerce. In what could be considered a fourth step in his analysis, Judge Graham addresses this issue in a footnote:

Justice Scalia has stated that under the Necessary and Proper Clause, "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." Raich (Scalia, J., concurring). I do not believe that this view of the Necessary and Proper Clause would save the mandate. As Judge Vinson correctly explained, an attempted exercise of power – the mandate – cannot be justified because it is "necessary" to cure the economic disruption caused another part of the legislation – the "guaranteed issue" provision, ACA § 1001.

This response raises separate and additional issues. But we must bear in mind that this essential to a broader regulatory scheme theory is quite underdeveloped. No doubt Justice Scalia never anticipated how the unprecedented economic mandates imposed here would fit within his analysis.

So Judge Graham's opinion is very interesting indeed. I am not completely confident that I have accurately unpacked each step in his analysis. But I am unaware of any party challenging the individual mandate who has offered this exact analysis to date (though some parties have made the "cost shifting" point in his third step, and I have contended that the regulation of economic inactivity is too "remote" to be reached under the "necessary" prong of the Necessary & Proper Clause). Whether or not his approach is ultimately satisfactory, however, it is well worthy of careful study and discussion.

All three opinions in the Sixth Circuit vindicate the normal procedure of letting cases develop in the district courts and courts of appeals before they are heard by the Supreme Court. And it also highlights a benefit of having twelve appellate court judges on four courts of appeals panels, as well as all the parties who are appearing before them, thinking hard about this thorny constitutional question.

My Jurist Op Ed on the Sixth Circuit Decision Upholding the Individual Mandate

(Ilya Somin)

The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate:

This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents....

Before this decision, judges in these cases had split along ideological and partisan lines.... Judge Jeffrey Sutton, however, a well-known conservative jurist, has now become the first exception to the trend....

At the same time, the opinions by Martin and Sutton highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the law. Their reasoning has very radical implications, giving Congress unlimited power to impose mandates of any kind, free of any structural limits on its authority.

The Jurist has also published a piece by Charles Fried defending the decision. I criticized a previous Charles Fried column defending the mandate in this post.

Cory Maye to Be Set Free

(Orin Kerr)

Radley Balko has the excellent news in the Cory Maye case, which some readers will remember from a few years ago (and which I helped out on myself at the death penalty stage back in 2006). For more, Maye's wikipedia page has useful background.