The Volokh Conspiracy

That’s the gist of this L.A. Times front page article by David Savage, but the headline instead promises
Signs of Supreme Court activism worry Reagan administration lawyers.

It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008.  Kmiec, in fact, was rewarded with an ambassadorship for his service.

The article does note  that Reagan appointee Laurence Silberman voted to uphold the mandate.  But as an appellate judge Silberman is bound to interpret precedent as best he can.  We don’t know from his ruling (a) what he would do if he were on the Supreme Court, where he could feel free to interpret precedent as he wished, or ignore it entirely; (b) what he would like the Supreme Court do do; much less (c) whether he’s “worried” about “signs of Supreme Court activism.”

So all the article tells us is that two prominent  lawyers who endorsed Obama, both of whom by all indications think his health care law was a good idea (Fried authored an amicus brief supporting it, and calls it a “free market alternative”; note to Fried: you don’t need a 2,700 page bill, supplemented by thousands and thousands more pages of regulation, to establish a “free market”) want it to be upheld.  That’s worth a front page article?

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein’s theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein’s theories at all.  He said, “no, I don’t even mention them.”  I asked why.  He said, “I don’t think anyone takes Epstein’s book seriously.”  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein’s book.

Now I’m sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that “no one” was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

(As an aside, ironically the one judge who didn’t ask me about Epstein’s book was Clarence Thomas, who wound up having the book waved at him by Joe Biden at the beginning of his confirmation hearing).

Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy.

Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)

At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.

UPDATE: I probably should add that I’m not at all sure the Court should have the level of legitimacy it currently has.  I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do.  But as a positive matter, I don’t see the ACA litigation as a threat to that legitimacy.

FURTHER UPDATE: Oh, and of course, why undermine the Court’s legitimacy when your side is one appointment away from taking it over?

In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli  urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA.  His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the best way to deal with America’s health care problems.  But he also referred, twice, to the fact that the Medicaid provision and the ACA more generally are important to “secure the blessings of liberty” for those individuals who would otherwise face health care crises.

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It’s not uncommon for liberals to refer to the Constitution’s preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government’s powers are significantly limited by their enumeration.  But I’ve never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate.  He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices.  Given his reputation as one of the country’s top appellate lawyers, a tempting explanation is that he couldn’t believe that anyone except perhaps Thomas was really concerned about that issue.

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.

UPDATE: Links to sources for each quotation added.  Also, the point is not that leading Democratic politicians are especially ignorant or dismissive of the constitutional bases for what they do.  I doubt Republicans would do better.  The point is, as suggested above, that this ignorance/dismissiveness undermines the argument that the Supreme Court should defer to Congress as a co-equal branch making independent constitutional determinations.  For such deference to make sense, members of Congress have to actually be making such determinations.

Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Unfortunately for the law’s defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli’s performance).  Justice Breyer later tried to step in and articulate three such principles:

First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

So (1) even Breyer was unable to articulate exactly (or even approximately) what limiting principle the SG had come up with; (2) everyone knows that defeating Lopez’s limitations on the commerce power has largely become a statutory drafting game to find a federal jurisdictional hook, however remote, and an unsuccessful ACA challenge would make it that much more difficult to find any examples regarding which such a hook couldn’t be found.  Moreover, reliance on Lopez is a bit rich coming from Breyer, who dissented in Lopez and would undoubtedly vote to overturn it tomorrow if he could;  and (3) this is not a limit, it’s judicial abdication, though it’s what Breyer really believes. Even though he knew–and said!–that his colleagues aren’t going to be persuaded by this, he apparently couldn’t resist throwing it in anyway, as the “greatest limiting principle.” Ego over effectiveness, I suspect.

So far, we seem to be left with the “health care is special” argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is “special.”  Not a good day for limiting principles.

After all, what’s a controversial Supreme Court case without multiple gratuitous references to Lochner?  First, the SG:

And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process.

Roberts shoots him down:

The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. [Roberts might have added that it's hard to have "substantive due process" without the due process clause]

But later Roberts add his own gratuitous reference to Lochner that undermines his previous point:

And it would be — it would be going back to Lochner if we were put in the position of saying no, you [Congress] can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways.

Even later, Sotomayor makes yet another reference to Lochner, and, like the SG, somehow associates federalism considerations with substantive due process:

Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the states can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the Federal Government is no longer permitted to legislate in this area?

For a short explanation on why the Justices are bringing up Lochner in a doctrinally irrelevant context, see my op-ed last week.

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine [but not Randy's, Ilya's, Jonathan's or mine!], that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Toobin may or may not be right, but after reading the oral argument transcript it’s pretty darn hard to see this as a slam-dunk 8-1 ruling favoring the government.

As I’ve consistently maintained, the Supreme Court will not uphold the individual mandate if the majority is unconvinced that there is a limiting principle.  While we await the transcript of today’s oral argument, we can consider Justice Scalia’s question, as reported by the Washington Post: “Government is supposed to be a government of limited powers,” he said. “What is left if the government can do this? What can it not do?” I wonder what the SG said in response.

The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA.  I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich.  The standard view in the legal academy for many years has been that Congress’s Commerce power is virtually unlimited, with perhaps minor largely symbolic exceptions, as in Lopez and Morrison. But in representing Raich, Randy read all of the relevant cases closely, and discovered that they don’t quite say what people think and assume they say.  Sure, the precedents give Congress vast powers.  But they don’t control the outcome in the ACA litigation, or at least one can make a very powerful argument that they don’t.

I’m pretty confident that the challengers will get at least at least three votes, and I won’t be at all shocked if they get five.  The Times quotes professors Charles Fried and Doug Laycock as being very dismissive of the challenges, but if any of our readers happen to run into Fried or Laycock, I’d be curious to know the answer to this question: How many votes did you think Lopez would get, and how many votes did you think Raich would get?  If they are like the vast majority of their fellow constitutional law professors, the answers are (a) I didn’t take the Lopez case seriously enough to even spend time thinking about it (Lopez got five votes); and (b) either one or zero (Raich got three votes).

I wonder if folks at HHS were in contact with folks at Justice before they decided to announced a few weeks back that health insurers must cover contraceptives.  While this requirement isn’t directly pertinent to the constitutionality of the ACA, it weakens the government’s defense in two extra-legal respects.

First, the laws’ defenders want to focus on the issue of  how the individual mandate alleviates the problem of the uninsured facing unexpected and catastrophic medical costs, which they then impose on the public to the tune of tens of billions of dollars.*  But the headlines have been dominated by the issue of health insurers being required to pay for the very expected and relatively minimal (as low as $9 a month for birth control pills) cost of non-OTC contraceptives.  This very much makes it seem like the ACA is as much about expanding federal power for the benefit of liberal constituencies as about the need for coordination in the interstate market for medical services to avoid problems related to the uninsured.

Second, while liberals don’t typically associate federalism with the protection of liberty, conservatives do, and it’s the conservative Justices whose votes the government needs.  One of the “swing” Justices, Anthony Kennedy, waxed eloquent on the importance of federalism to individual rights just last term.  Meanwhile, every one of the five conservatives on the Court is a Catholic.  So pretty much the last thing you’d want if you were an Obama Administration lawyer defending the ACA is for HHS to announce just before oral arguments that henceforth under the ACA Catholic organizations, over the strong objections of the Church, will be compelled by the federal government to violate what they see as their Catholic religious obligations and provide contraception coverage to their employees.  While the Flukes of the world see this as a victory for women’s rights, I suspect that Kennedy and Roberts see it as a federal infringement on religious liberty [and not just any religious liberty, but their co-religionists' religious liberty!], with more to come if the ACA is upheld.

I don’t know what the odds are that the Supreme Court will rule in favor of any of the plaintiffs’ challenges, but I’m pretty confident that the odds in favor are higher than they would have been if HHS had kept its bureaucratic mouth shut about the contraception mandate for several more months.

*Just after I posted this, I ran across a great example, this statement by former acting Solicitor General Neal Katyal:

The challengers to the reform say that never before has the government forced people to buy a product. We’re not forcing you to buy a product. Health care is something all Americans consume, and you don’t know when you’re going to consume it. You could get struck by a bus, you could have a heart attack and the like. And if you don’t have health insurance, then you show up at the emergency room. The doctors are under orders to treat you — as any Western, any civilized society would do. And who pays for that? Well, ordinary Americans pay for that. They’re the ones who have to pick up the tab for those who don’t have insurance. We are not regulating what people buy, we’re regulating how people finance it.

Notice how little the contraception mandate fits with this argument.

I was trying to think of a good example to illustrate the Federal government’s lack of a general police power as opposed to the states’ inherent police power, with an example that doesn’t implicate serious “substantive due process” concerns.  So here goes: All states have compulsory schooling laws, some to age 18, others to age 16.  No one seriously questions the constitutionality of these laws.

But let’s say the Federal government decided to pass legislation, modeled on longstanding state laws, requiring all residents of the United States to attend school until age 18 or face [some penalty--a fine, or being drafted into "national service" or whatever].  A resident of a state where schooling is only mandatory until age 16 sues, claiming that this is beyond Congress’s enumerated powers.

The government claims that it has the authority under its Commerce power to require school attendance.  After all, not only is education is a huge percentage of the American economy, the federal government already regulates the education market to a substantial degree and spends tens of billions of dollars annually for education, money that will to some extent be wasted if children don’t continue their education at least through high school. Thus, it’s both necessary and proper that the government impose an education mandate to ensure that it’s education policies will be successful.

To the argument that a sixteen year old dropout isn’t engaged in economic activity, the government argues that staying out of school is itself an economic activity, because, among other things, it reduces the amount of federal and state aid to one’s school, makes one less marketable in the employment market, reallocates resources that would otherwise be spend on the dropout’s education, and makes it more likely that one will need to spend money on education in the future.  Moreover, no one is really “out” of the education market, because everyone is learning things all the time, whether from t.v., one’s friends, Facebook, or formal schooling.  Finally, by dropping out of school, a sixteen year old is raising the expected costs to the government and society of future crime, welfare payments, and the like.

Anyone think the government should win?

UPDATE: The government has at least one more argument: Given interstate mobility, the dropouts from “16″ states may move to other states and impose costs on them due to their lack of education. Nevertheless, I have a hard time seeing these arguments getting five votes from the current Court.

In the process of trying to figure out exactly what is going on in the Koch-Cato dispute, I was struck  by one thing: as near as I could figure out, the Kochs, according to Cato itself, had offered a compromise in which each side would choose eight board members.  Meanwhile, as of the last board meeting, the Cato board was composed of sixteen board members, seven of them Koch appointees.  Could all this acrimony at this point be over the identity of one board member, or were the Kochs insisting on retaining control beyond the initial selection of half of the board? Surely if the former, the Kochs could be persuaded to give up their legal battle given that the stakes were only 50% influence versus 42+% influence?

I haven’t had a chance to clarify whether the Kochs were indeed willing to move to board control of Cato if they got to choose 50% of the board, but David Weigel’s post yesterday explains why Cato’s nine to seven board majority was more significant than it might first appear:

Today, the board’s majority agreed to simply expand to 20 members, invoking a bylaw that allows that many people to serve if it’s so desired. They added four people — William A. Dunn, John C. Malone, Lewis E. Randall, and Donald G. Smith — who are more supportive of the non-Koch faction. “We now have a 13-7 majority,” said Ed Crane, Cato’s president since 1977.

On the other hand, Crane also told Weigel that the crisis would end if “we end the shareholder agreement and we have a majority on the board of directors who are not part of the Koch group.”  So maybe going back to a nine to seven board majority would satisfy Crane, so long as the board thereafter had control of Cato.  If so, the onus is on the Kochs to acknowledge that given their relative lack of involvement in Cato for the last two decades, they should be more than content with that level of influence over Cato’s future direction. Shareholder agreement aside, is there anyone out there who thinks that the Kochs deserve a 50% say in Cato? Or that this would be good for Cato, and libertarianism?

As I’ve argued several times before, the Supreme Court’s conservative majority will not uphold the individual mandate if the mandate’s defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress’s power to regulate interstate commerce.  (Which is not to say that the majority will necessarily uphold the law if such a limiting principle is articulated).

I leave it to those who have studied the briefs in detail to discuss whether the government and its amici have come up with such a principle.  But with friends like New York Times columnist Linda Greenhouse, they don’t need enemies.  Greenhouse:

If  the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

Greenhouse’s reasoning is sloppy.  First, Wickard v. Filburn didn’t apply to “backyard” wheat growing, the farm in question was a large commercial operation, and the wheat in question was fed to the farm’s cattle, who were sold on the interstate market.  But more important, Wickard and Raich were both as-applied challenges, while the challenge to the individual mandate is a facial challenge.

So what Greenhouse is arguing is that because the Supreme Court has in the past refused to countenance as-applied challenges that sought to exempt local activity from a concededly broader scheme of the regulation of interstate commerce, facial challenges to laws that on the grounds they don’t regulate interstate commerce to begin with are also out of bounds.  In other words, Congress can do whatever it wants, at least so long as it identifies an important economic “sector” to which its regulation pertains.

In the health care area, can Congress in fact require everyone to eat broccoli? Exercise twice a day in government-run health care facilities, with a government-mandated exercise program? Prohibit people from picking wild blueberries for their own consumption?   According to Greenhouse, Congress can do any of those things, even though there is no commerce, much less interstate commerce, involved, so long as it can argue that by doing so it’s really trying to regulate the “health care sector.”

Maybe it’s a good idea to give Congress the power to regulate whatever and however it wants, though I really doubt it.  More to the point, I’m quite sure that the conservative majority is not willing to endorse the proposition that the commerce power is really the Congress-Can-Do-Whatever-it-Wants Power.

Bonus foolishness from Greenhouse: She touts Nancy Pelosi’s infamous “Are you serious?” response to questions about the ACA’s constitutional basis as evidence that the ACA is in fact constitutional, as opposed to what is really is, evidence that Pelosi and her allies treated the idea that the health care law needed to be within Congress’s enumerated powers with thinly-veiled contempt.  As I discussed here (with further examples of such contempt), this in turn is a very good reason for the Court not to defer to Congress’ view of the scope of its commerce power, though of course lack of deference doesn’t dictate the outcome one way or the other.

James Taranto and Ed Whelan also have sharp words for Greenhouse.

I have an op-ed up at Jurist Forum.  Here’s how it starts:

With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting Lochner, legal briefs supporting the government argue.

Yet the holding in Lochner, which found that the Due Process Clause of the Fourteenth Amendment protects a robust right to “liberty of contract,” was overruled decades ago and is not at issue in the health care litigation. Plaintiffs have challenged the individual mandate primarily as being beyond Congress’s Article I, Section 8 power to regulate interstate commerce. They argue that this power must have substantive limits, or the Constitution would have simply given Congress the power to regulate everything.

So why are defenders of the mandate so eager to talk about Lochner? The answer lies in the peculiar status of Lochner in American constitutional discourse.

Jonathan Cohn notes that the question of whether the ACA’s (Obamacare’s) Medicaid mandate is unduly coercive to the states is the “sleeper issue of the case: ” The Affordable Care Act expands Medicaid eligibility guidelines significantly, so that, starting in 2014, anybody with income below 133 percent of the poverty line can receive it. The result will be approximately 15 million more people with Medicaid coverage.”

Given that the U.S. Supreme Court has never defined precisely how far the federal government may go in “bribing” states before the bribes become an offer the states can’t refuse and thus unconstitutionally coercive, some of the Justices might find that this is a mechanism for overturning the ACA without having to revisit the Court’s Commerce Clause precedents.

Cohn reprints an email from University of Michigan law professor Sam Bagnsstos, in which he details the potential consequences of such a ruling:

If the Court holds that the ACA’s Medicaid expansion is unconstitutional, such a holding could put any number of cooperative state-federal programs at constitutional risk. The most obviously vulnerable would be Medicaid itself — even as it existed before the ACA’s amendments to it. If the petitioners are right that the large amount of federal money at stake coerces states into accepting new Medicaid conditions by leaving them with no realistic choice but to accept them, then it is hard to explain why the same large amount of federal money does not coerce states into continuing to accept the conditions that have long applied to Medicaid funding. The many federal statutes that impose conditions on federal aid to education would also be at severe constitutional risk, because those conditions are attached to large amounts of federal funding that states may feel they cannot realistically turn down. These statutes include Title I of the Elementary and Secondary Education Act — the most recent reauthorization of which was the No Child Left Behind Act — and Title IX of the Education Amendments of 1972.

Cohn (and Bagnestos) obviously think they are recounted a parade of horribles, but these sorts of programs are among the worst the federal government has to offer, not necessarily because of their substance but because they undermine political accountability.  The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit for spending the money without being accountable for raising it.  But local citizens who are unhappy with the relevant “strings” have no recourse to their local government, because the locals are just following orders from the feds.  It’s the worst of all worlds and a great example of a very dysfunctional version of federalism–Congressional overspending, centralized rules from agencies in Washington, D.C., and no accountability at the level where the money is spent and the rules implemented.  If the ACA challenge leads to a constitutional rethinking of (mostly) funded federal mandates, that strikes me as a feature, not a bug. (Note that there is nothing stopping any or all of the states from enacting their own, self-funded versions of Medicaid, NCLB, Title IX, etc., and that at least some federal mandates, even if coercive, are constitutionally valid under Congress “Section 5″ power to enforce the Fourteenth Amendment.)

A delegation of Israeli Jews representing the “Alliance of Israeli LGBT Educational Organizations, a network of groups that support LGBT youth and families,” was visiting the West Coast last week.  The Israeli delegation’s visit was sponsored by A Wider Bridge, which describes itself as “a San Francisco–based national organization that seeks to educate people about Israeli LGBTQ society, politics, and culture, and to build connections between the North American LGBTQ and Jewish communities and the LGBTQ communities of Israel.”  But in response to pressure from some left-wing activists, Seattle’s LGBT commission canceled a scheduled reception for the visitors.

Several aspects of this story deserve attention: the cravenness of the commission in bowing to a few vocal activists, the absurdity of a transgender activist leading the charge against Israel, a liberal nation on such issues, after a visit to the West Bank, where his life expectancy if he were an “out” local would be calculated in months, if not days.

But there is also a law professor angle to the story.  According to the Seattle Times, “the first sign that the [Israeli] group would encounter trouble in Washington state began with a posting Monday on the Facebook page of Seattle University law professor [and the transgender activist noted above] Dean Spade, in which he called the delegation’s visit ‘apartheid and occupation’ wrapped in the rainbow flag.” The text of Spade’s letter to the Commission, in which he urges the commission to cancel the event, can be found here.

So Professor Spade is an advocate of  shunning and boycotting on political grounds Israeli LGBT activists who came to talk about LGBT issues because of his opposition to Israeli government policy.  I wonder how Professor Spade would like it if those in the legal community who find his views on Israel and Israelis as morally repugnant as he finds Israeli policies–conference organizers, law review editors, and so on–turned his own tactics against him and similarly shunned him? If anything, such a boycott would be better-grounded, as it would be based on his personal political views, rather than guilt-by-association based on his nationality.

I’d oppose such a reaction on practical grounds: once members of the legal academy got into the business of boycotts, it’s unlikely that the limits would be drawn sensibly [and indeed, there are already plenty of legal academics who in a non-sensible and haphazard way engage in various levels of boycott against people they disagree with].  But I have to admit not being able to think of any moral reasons against hoisting such individuals on their own petards.

UPDATE: A pretty good indication of where Spade is coming from politically can be found in this short essay, in which he criticizes the movement for same-sex marriage as “part of a conservative gay politics that de-prioritizes people of color, poor people, trans people, women, immigrants, prisoners and   people with disabilities.” Gay marriage is a distraction from spending one’s time, as one should, “opposing the War on Terror and all forms of endless war; supporting queer prisoners and building a movement to end imprisonment; organizing against police profiling and brutality in our communities; fighting attacks on welfare, public housing and Medicaid; fighting for universal health care that is trans and reproductive healthcare inclusive; fighting to tax wealth not workers; [and] fighting for a world in which no one is illegal.”

New York Times op-ed:

Mixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.

The reason is simple. Despite the tremendous societal progress these recent changes in attitude reveal in a country that enslaved its black inhabitants until 1865, and kept them formally segregated and denied them basic civil rights until 1964, we do not yet live in an America that fully embodies its founding ideals of social and political justice.

As the example of President Obama demonstrates par excellence, the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.

I’m always skeptical of arguments that one’s children should be used for political and social ends rather their flourishing being treated as the primary parental goal.  But I’m curious as to what VC readers think about the various points embedded in the author’s argument.

RL:

Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other Justices who are said to have properly put their political views to one side to enforce the Constitution as written.

From the promotional materials for Judge J. Harvie Wilkinson’s just-released Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism…. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance….

I was actually a bit surprised to see that Wilkinson invokes Holmes and Hand.  When I talk about Holmes and the heroic role he has traditionally played in constitutional history, the usual retort is that Holmes, though he turned a good phrase,  is passe as a role model now that he’s been widely recognized as a misanthrope with Social Darwinist tendencies who cared not a whit about the rights of minorities, or of anyone else for that matter.

As for Hand, true to his Progressive (as in the early 20th century Progressive movement) ideology, his valedictory lectures at Harvard Law School in the late 1950s denounced Brown v. Board of Education, First Amendment protection for Communists, and the use of the Fourteenth Amendment’s Due Process Clause to protect any substantive rights including those “incorporated” from the Bill of Rights. I  would have thought that invoking his legacy would be rather unlikely to inspire 21st century readers.  I”ll report further after  I read the book.

Yesterday, I got a request from the Harvard Law Review to undertake an anonymous “peer review” of an article HLR is considering for publication.  I thought I’d share my response, below.

In considering your request, I had in mind some comments that Professor Stephen Bainbridge has made about the one-sided nature of these referee requests [here is one of Bainbridge's posts on the subject, he had an earlier more extensive one that I can't find].  I thought Steve was a bit too prickly about it, but I decided to look up who the Harvard Law Review has been asking to comment on its articles in its on-line publication [Note: HLR can claim that it picks the best submitted articles from its pool regardless of authors' affiliation, but it clearly has discretion with regard to whom it invites to comment on articles].

In reverse chronological order, I see Harcourt (Chicago),  Spiesel (research scholar Yale), Graber (Maryland), Levinson (Texas), Slobogin (Vanderbilt), Sherry (Vanderbilt), Tushnet (Harvard), Strauss (Chicago), Lawson (B.U., formerly Northwestern), Ackerman (Yale), Morrison (Columbia), Chafetz (Cornell), Sachs (Duke), Vazquez (Georgetown).  The logical conclusion is that the editors of the Harvard Law Review think that it’s okay to ask professors not affiliated with top 20 law schools, like George Mason, to be anonymous referees for articles (as I already was last year for the [___] piece), but that with very rare exceptions you don’t think we’re good enough to grace even your on-line “pages.”  This, I also note, was not true until recently, as in the past you published authors from U. Baltimore, Cardozo, Temple, and other non-elite law schools, so it’s not like it’s impossible to find competent and willing authors from such schools.

So, while I do appreciate the nice review you published of my book in the current volume, I’m afraid I’ll have to decline the opportunity to review this article; consider it an informal boycott until the HLR is willing to ask the likes of me to participate in a non-anonymous way.

The point, if I may mimic the language of some famous Harvard professors, is that the law review has chosen to reinforce status hierarchies, and yet expects those disadvantaged by those hierarchies to be complicit in their perpetuation, while not even recognizing their own abnegation and exploitation.

Readers will recall the controversy over the University of Chicago’s John Mearsheimer’s endorsement of a recent anti-Semitic book, The Wandering Who, by notorious anti-Semitic provocateur Gilad Atzmon.  When Atzmon’s background and anti-Jewish passages from the book were called to Mearsheimer’s attention, to even his harshest critics’ surprise instead of backing down he reaffirmed his endorsement.  Almost no one defended Mearsheimer, save his University of Chicago colleague Brian Leiter, and, less prominently, libertarian activist Sheldon Richman (who I’ve known and otherwise liked for years, but who has a serious blind spot when Israel-related issues come to his attention.)

The latest news is that the “Electronic Intifada” website, which is exactly what its name suggests, has published an open letter signed by various self-described “Palestine Solidarity Activists,” calling for “the disavowal of Atzmon by fellow Palestinian organizers, as well as Palestine solidarity activists, and allies of the Palestinian people, and note the dangers of supporting Atzmon’s political work and writings and providing any platforms for their dissemination.” Perhaps to preempt Atzmon’s inevitable claim that this is further evidence of a Jewish conspiracy against him, all of the signers have noticeably Arab names.

Signators include such dubious characters as Columbia’s Joseph Massad.  As the Elder of Ziyon blog puts it, these activists found “Atzmon’s nutty anti-semitic rantings too crazy – even for them.” But not, apparently, too crazy for Mearsheimer and friends.

H/T Reader Louis Offen

UPDATE: I missed an earlier letter along the same lines, signed by dozens of far left “Palestine Solidarity” activists.  Apparently, though, not everyone has gotten the message–I see that Atzmon spoke today at the Mount Vernon Place United Methodist Church in D.C., and is speaking tomorrow at “Peace House.”

A postscript to this earlier letter states, “We wish to reiterate that we consider many of those promoting Atzmon’s work to be allies, but would ask that they reconsider their decision to do so. This is not a call for censorship, but for consistency and accountability.”  Maybe it should occur to the letter writers that their “allies” might be supporting Atzmon not because they are unaware of his views, but because they are aware of them and agree with them, and that the source of their “anti-Zionism” is not “solidarity with Palestine” but something much uglier.

are up on USN’s website a bit early.  I’ve grown weary of all the hoopla around U.S. News, but here they are for what there worth.  The one thing that stands out is that Arizona State somehow managed to propel itself to number 26. Comment away.  Please keep in mind, though, that US News ranking should at most be a guide to the general reputation of law schools, with a significant margin of error.  For the vast majority of prospective law students, the most important criteria to narrow down law school choice should be where you want to practice, followed by how much debt you are willing to take on.  And I’ll repeat the advice I’ve given before: incoming students’ LSAT scores, reflecting an objective indication of the decisions of tens of thousands of law students, is the best overall indication of how desirable a law school is.  But individual circumstances vary, and, for example (to choose a random example), a student who can’t stand smallish towns and wants to live in the San Diego area after graduation is almost certainly better off going to USD than to, say, Indiana University.

and Ainsley!

Here’s Clinton speaking in Tunisia. Note that the questioner operates under the assumption that to be pro-Israel is to be against the “common Arab citizen,” and Clinton not only fails to challenge that assumption, but implies that rhetoric that pleases the “Zionist lobby” is somehow anti-Muslim.  She then suggests that Americans (and others) are fools if they take seriously anything said during campaign season [note that "our" in the title therefore refers to Americas' political class as a whole, not just (but not exclusive of) the Obama administration].

QUESTION: My name is Ivan. After the electoral campaign starts in the United States – it started some time ago – we noticed here in Tunisia that most of the candidates from the both sides run towards the Zionist lobbies to get their support in the States. And afterwards, once they are elected, they come to show their support for countries like Tunisia and Egypt for a common Tunisian or a common Arab citizen. How would you reassure and gain his trust again once given the fact that you are supporting his enemy as well at the same time?

SECRETARY CLINTON: Well, first, let me say you will learn as your democracy develops that a lot of things are said in political campaigns that should not bear a lot of attention. There are comments made that certainly don’t reflect the United States, don’t reflect our foreign policy, don’t reflect who we are as a people. I mean, if you go to the United States, you see mosques everywhere, you see Muslim Americans everywhere. That’s the fact. So I would not pay attention to the rhetoric.

Secondly, I would say watch what President Obama says and does. He’s our President. He represents all of the United States, and he will be reelected President, so I think that that will be a very clear signal to the entire world as to what our values are and what our President believes. So I think it’s a fair question because I know that – I sometimes am a little surprised that people around the world pay more attention to what is said in our political campaigns than most Americans, say, are paying attention. So I think you have to shut out some of the rhetoric and just focus on what we’re doing and what we stand for, and particularly what our President represents.

I’m sure Clinton didn’t mean it the way it came out, but it’s embarrassing nevertheless.  As Glenn Reynolds likes to say, the country is in the best of hands.

UPDATE: Several early commenters suggest that Clinton’s comments were directed at GOP rhetoric in this campaign season.  That makes sense [better put, it makes Clinton's comments more comprehensible], but the questioner wasn’t asking about what one commenter suggested was the GOP’s “belligerent” rhetoric. Rather, he was clearly asking about both sides‘ rhetoric–I’ve now highlighted the “both sides”  in the original question so it’s clear what the questioner was saying: every campaign season we see both Republican and Democratic candidates [including, obviously, Pres. Obama] appealing to pro-Israel constituencies,  and then when they get into office we see they aren’t as hostile to Arab individuals as we thought, even though they still support the Arabs’ “enemy”.  “Don’t believe what you hear in campaigns” isn’t even the beginning of an adequate answer to that.

FURTHER UPDATE: Some commenters are also insisting that Clinton’s comments are directed at GOP rhetoric on Iran.  I don’t see any indication in either the question or the answer that Iran is under discussion.  Moreover, Iranians are not Arabs–I’m sure Clinton is aware of this–and the questioner references only Arab countries (Tunisia and Egypt) and the “common Arab on the street.” Indeed, it’s kind of odd that Clinton segues into a discussion of Muslims in the U.S.; the questioner didn’t suggest that the U.S. is hostile to Muslims, but to Arabs because the U.S. supports Israel.  I’m guessing that Clinton had some talking points she wanted to express, and tried to awkwardly shoehorn them into an answer to a question they weren’t responsive to.  So awkwardly, in fact, that when she tried to circle back to answer the question she wound up saying “don’t pay attention to anything American politicians say during campaign season.”

FINAL UPDATE: Even for those inclined to read Clinton’s comments in what they think of as charitably–I’m not inclined to think it’s “charitable” to suggest that rather than simply misspeaking, she,  in her capacity as Secretary of State in a foreign country, was actually implicitly attacking Republicans, one of whom may be the president soon–she still failed to address various nefarious ideas embedded in the question, including the idea that Israel is an enemy of the “common Arab citizen”, that American support for Israel implies a hostility to Arabs, and that U.S. support for Israel, rhetorical or otherwise, reflects the power of “Zionist lobbies” as opposed to a widespread consensus among Americans. Indeed, she seemed to (but I doubt meant to) suggest that Obama administration policies are actually a lot less pro-Israel than that might appear at first glance.

I love the Cato Institute.  I admire the Kochs and greatly appreciate their contributions to libertarian causes.   I have ties to both sides too numerous to bore readers with.  So I’m distressed that they are at odds.  Here’s my small contribution to the debate:

(1) In one sense, the Kochs had no choice but to file their lawsuit, given that the two sides couldn’t come to terms on a modification of the shareholder agreement.  The point of that agreement, poorly drafted as it was, was obviously to ensure that Cato remained true to its libertarian mission by vesting personal control in particular stakeholders.  But let’s say that Bill Niskansen’s widow was  a closet socialist, and the Cato board had declined to buy back Niskansen’s shares thinking she was a Cato-style libertarian.  Think about John Kerry coming into Republican Senator Heinz’s fortune via Theresa, and you can see the potential problem.  Apparently, before the lawsuit, negotiations had broken down over whether and how to modify the shareholder agreement.  Without knowing each side’s position in those negotiations, I’m not in a position to judge who was acting unreasonably.

(2) The Kochs made  a huge error in nominating some directors without strong libertarian credentials (Hinderaker, Olson), and others with direct ties to the Kochs (including Olson, who does legal work for them).  This falls short of proof that the Kochs either want to “take over” Cato, or change its direction in any significant way, but it’s a p.r. disaster that clearly strengthens Crane’s hand in the court of public opinion.

(3) Cato claims that David Koch and a couple of directors expressed their dissatisfaction that Cato doesn’t act in a more partisan matter.  That’s not terribly surprising from David, given his funding of Americans for Prosperity.  But it’s brother Charles who strikes me as the more doctrinaire libertarian (he’s certainly the one who has been more involved in “movement” libertarianism over the years), and, as the one who co-founded Cato, likely the one much more involved in pursuing this dispute.  I very much doubt Charles wants Cato to be substantially different than it is now, though it’s well-known that he and Crane are at odds on a somewhat personal level, as well as to some extent on management. (‘m sure that Charles would like Cato to institute objective measures of its success and influence, consistent with his market-based management philosophy. That may or may not be a sound idea, but it’s not indicative of a change in ideology or non-partisanship.)  The problem, though, is that the way the shareholder agreement is currently structured, it’s entirely possible that David could wind up being in sole control of Cato upon Charles’s death.  This makes Cato’s concerns about the effect of a successful lawsuit on its ultimate direction quite reasonable.

(4) Given all this, and the fact that both sides have not-crazy reasons for what they are doing, I hope a compromise can be found that gives the Kochs a say in Cato commensurate with their contribution to the organization over the years (which, to my mind, clearly suggests a minority stake), while still preserving Cato as Cato.  Better yet, if the well hasn’t been poisoned, I would love to see the outcome of reconciliation between the two sides.  Some informal mediation undertaken by high-profile libertarians with ties to both sides may help, given what clearly is an atmosphere of mutual recrimination and suspicion.  Also, I like Ilya’s idea, below.