Author Archive
Today’s Washington Post has an extensive report by Spencer Hsu on the Department of Justice’s failure to disclose flaws in forensic work that may have led to the conviction of innocent people. It begins:
Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.
Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.
In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.
As a result, hundreds of defendants remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.
The Washington Examiner reports:
Vice President Joe Biden described former Saturday Night Live comedian, Sen. Al Franken, D-Minn., as a “leading legal scholar,” presumably in the Senate, today.
“He has been one of the leading legal scholars,” Biden said of Franken today, according to the pool report. He also said that Franken “is deadly serious” as a senator. He made the comments while recalling concerns that then-candidate Franken could not be taken seriously as a Senate candidate given his SNL work.
On Tuesday, Charles and David Koch filed a second lawsuit against the Cato Institute objecting to a decision by the Institute’s Board of Directors to expand the size of the Board and reappoint four board members who had been removed when the Kochs installed new board members earlier this year. Here’s a WaPo story on the suit. The relevant documents are available on Cato’s website here. The attachments to Charles Koch’s affadavit are of particular interest.
I may have more to say about this later. In the meantime, here are a few other recent items of interest:
- FreedomWorks sides with Cato against Koch;
- A new Cato-aligned blog, “KochvCato”;
- A post on KochvCato by Jerry Taylor that reveals the Board of Shareholders (as opposed to the Board of Directors) has only met twice before this year;
- Dueling op-eds on CNN.com by Bob Levy and Kevin Gentry;
- A Breitbart.com series on Ed Crane, “The Crane Chronicles” – Part I, Part II (more coming).
I also found this “open letter” from Cato’s Michael Cannon to be a quite powerful statement of what’s at stake.
Given that Cato’s current leadership has previously agreed to being the search for Ed Crane’s successor, and to give the Koch brothers a veto over any potential replacement, I’m still hoping for a settlement that can save Cato as an independent voice for liberty.
A new study purports to show that trust in “science” as an institution has declined precipitously in recent decades. This study has received substantial attention, including these stories in Inside Higher Ed and the Los Angeles Times. The IHE story, which is fairly representative of the coverage, begins:
Just over 34 percent of conservatives had confidence in science as an institution in 2010, representing a long-term decline from 48 percent in 1974, according to a paper being published today in American Sociological Review.
That represents a dramatic shift for conservatives, who in 1974 were more likely than liberals or moderates (all categories based on self-identification) to express confidence in science. While the confidence levels of other groups in science have been relatively stable, the conservative drop now means that group is the least likely to have confidence in science.
This is a fair characterization of how the study’s author, Gordon Gauchat, characterizes the study. The problem is this is not what the study actually shows. To measure “trust in science” Gauchat relies on data from the General Social Survey (GSS) from 1972 to 2010, in which respondents were asked to rate the degree of “confidence” they have in various social institutions. Yet the GSS specific survey question does upon which Gauchat relies does not actually measure trust in “science.” Rather, the question asks respondents to rate their confidence in “the scientific community.” But “science” and “the scientific community” are not the same thing. The Gauchat study certainly finds something interesting, but it’s not quite what he claims.
Why does this matter? Because one can have tremendous faith in science, as an institution and a process for discovering truth, while simultaneously lacking confidence in “the scientific community” as represented by current scientific leaders, science agencies, university researchers, those who purport to speak for science, etc. This split is one possible explanation for Gauchat’s finding that the decline in confidence in “the scientific community” has been greater among more educated conservatives — those who may be more aware of actions by leading scientists and scientific institutions that have squandered some of science’s credibility as many scientists have embraced political advocacy and sought to claim that science supports specific policy agendas. It’s also possible that some conservatives have become alienated from the scientific community insofar as they have perceived science to support “liberal” causes (e.g. environmental activism, government regulation) as opposed to “conservative” causes (e.g. military technology, industrial progress, etc.), as well as by the outward hostility toward religion voiced by many prominent scientists. See also these comments by Glenn Reynolds and Nick Gillespie.
In my view, both conservatives and liberals are guilty of politicizing science and pretending as if science supports their policy agendas, and this approach to science encourages partisans to be unduly suspicious of scientific findings that undermine a particular worldview. So conservatives are unduly skeptical of scientific evidence for climate change (lest global warming become a justification for bigger government) and liberals are unduly skeptical of scientific findings on GMOs or nuclear power. The more scientists play into this approach — and many do — the more skeptical partisans become, and much of this skepticism of scientists is justified. And insofar as specific scientific institutions have appeared to become more aligned with “liberal” causes, it should be no wonder that many conservatives have less confidence in such institutions, but that does not mean that conservatives have lost faith in “science” itself.
POST-SCRIPT: There are obviously some groups of conservatives, particularly those who deny evolution and claim “intelligent design” is a scientific theory, who lack confidence in anything we would recognize as science, but this is not the phenomenon Gauchat claims to be observing.
Does the federal government, and the National Park Service in particular, have a duty to warn visitors to the Buck Island Reef National Monument that barracudas can be dangerous to swimmers? No, concluded the U.S. Court of Appeals for the Third Circuit in S.R.P. v. United States. The opinion begins:
S.R.P., a minor, appeals from an order of the District Court dismissing his claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The action arose out of a 2004 incident in which S.R.P. was bitten by a barracuda while playing near the shore of Buck Island Reef National Monument (“Buck Island Monument” or “the Monument”). S.R.P., through his mother, filed suit against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging that the Government negligently failed to warn of the danger posed by barracudas to shallow water bathers. The District Court dismissed the case on the basis that the discretionary function exception to the FTCA deprived it of jurisdiction, and thus immunized the Government from suit. For the reasons set forth below, we will affirm.
The Washington Post reported today on findings from a new Washington Post/ABC News poll. According to the Post‘s story, when asked whether they expect “the Supreme Court justices will rule on this case mainly (on the basis of the law) or mainly (on the basis of their partisan political views),” 50 percent chose “partisan political views” while 40 percent chose “on the basis of the law.” An additional one percent volunteered “both.” On this basis, the story was given the headline “Poll: More Americans expect Supreme Court’s health-care decision to be political.”
Though trumpeted by the Post‘s headline writers, the poll result does not tell us very much (even if we set aside any general skepticism of poll results. Neither the story nor the poll considers whether the respondents considered this answer to be a criticism of the Court, nor is there any consideration of whether this is how half of Americans view the Court generally. That is, it’s possible that a sizable percentage of the public thinks Supreme Court justices are always influenced by the partisan political views in high-profile cases, and it’s also possible that many who endorse a general statement about the Court may have different views about different justices (or about whether particular results are more or less likely to have been the result of political preferences).
Based on these poll results, it’s quite possible that many Americans think that at least some of the justices reach the correct result in particular cases in spite of — or even because of — their reliance upon their political preferences. After all, in this same poll a sizable majority of the respondents — 67 percent — said they want the Supreme Court to either strike down the mandate or strike down the health care reform law in its entirety. The poll also found that only 39 percent of Americans support the health care reform law, “ the lowest percentage since the Post-ABC poll began asking the question,” and that only one-half of self-identified Democrats said they wanted the entire law upheld.
Combined with other recent poll results, it’s hard to see how the finding headlined by the Post is all that significant. It’s even harder to understand why some progressive partisans think the President should campaign against the Court if it strikes down the mandate as he seeks reelection. Polls are consistently finding that most Americans believe the Supreme Court should and will strike down the mandate. If anything — and I stress if anything – this would suggest there’s more political risk to the Court from upholding the mandate than from striking it down. In the end, however, the justices should not base their votes on public opinion polls, but on what they believe the Constitution requires.
Here are a few talks I have scheduled in the next two weeks:
- Tomorrow, Wednesday, April 11, I’ll be speaking on “Let 50 Flowers Bloom: Federalism and the Environment” at the Rutgers- Newark School of Law. The event is sponsored by the Federalist Society student chapter and Environmental Law Society and is at 12:35 in the Baker Trial Courtroom.
- Friday, April 13 I’ll be speaking on my article “Eyes on a Climate Prize: Rewarding Energy Innovation to Achieve Climate Stabilization,” at the Environmental Law and Policy Annual Review event on Capitol Hill sponsored by the Environmental Law Institute and Vanderbilt University Law School. The agenda is here.
- Wednesday, April 18, I’ll be speaking on a panel on “Free Market Approaches to Climate Change” at Stanford Law School. The event is sponsored by the Federalist Society student chapter.
In addition to these events, on Monday, April 16, I’ll have the honor and pleasure of introducing SEC Commissioner Troy Paredes when he comes to deliver remarks at the Case Western Reserve University School of Law. Details here.
Conor Friedersdorf has a hard time taking seriously many commentators who complain a decision striking down the individual mandate would be an unprecedented exercise of “judicial activism.”
I don’t doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? President Obama’s recent remarks notwithstanding, it isn’t as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of The Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country’s Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned (after strategic hunts by ideologically-driven activists for the perfect case).
Thus the unavoidably tricky position in which Affordable Care Act defenders find themselves: liberal justices are going to keep “discovering rights” and expanding certain liberties in the future, rejecting originalism, the judgment of legislatures and at times even longstanding precedent. They’ll keep advancing the idea that ours is a living constitution that adapts with the times. And those commitments undermine complaints they make about conservative justices discovering rights, expanding economic liberties, overruling legislators, and overturning precedents.
“We’re okay with those things, but you’ve always claimed to be against them” is enough to demonstrate hypocrisy; but it’s a little much for Obamacare defenders to start claiming that the conservative justices are party to “a conservative Coup d’Etat,” as my colleague James Fallow’s correspondent put it. If the unnamed reader wasn’t identified as being from Holland I’d half-suspect it was Newt Gingrich back with more hyperbolic rhetoric intended to undermine the judiciary.
[And, incidentally, Friedersdorf believes "the individual mandate is superior as policy to whatever alternative we'll likely get if it's struck down."]
As VC readers know, I don’t believe the Court needs to overturn any existing federalism precedent to hold the individual mandate unconstitutional, just as the Court did not need to do any such thing to reach its decisions in New York, Printz, or Lopez. I would certainly be happy if the Court curtailed or overturned some commerce clause precedents, such as Raich, but I don’t think it’s necessary. But it’s particularly amusing to see those who have no problem courts overturning precedent, voiding legislative enactments or dramatically altering (if not inventing ) constitutional doctrine complain that the court might do so again here. If it was acceptable for the Commerce Clause to be “tortured beyond recognition” — to be made more flexible than “Stretch Armstrong” — in order to achieve socially desirable results, it’s hard to see how it is suddenly unacceptable for the Court to (re)discover modest limits on the scope of federal power. But of course I would feel this way, as I’ve yet to learn that ‘judicial activism” is just a handy phrase to describe court opinions you don’t like.
The WSJ reports on an easter egg contained in Chrysler’s bankruptcy restructuring.
Chrysler is immune from new punitive-damage claims from any alleged manufacturing defects in vehicles sold before the auto maker’s 2009 government-brokered restructuring.
Chrysler’s legal exemption, approved by a bankruptcy judge, is the product of rules embedded in the federal bankruptcy law. These rules allow sick companies at times to abandon product liability or other risks, overruling state laws that give consumers the right to seek damages.
Specifically, the company’s immunity—which no other car maker has—stems from a clause Chrysler crafted in its 2009 bankruptcy sale to Italy’s Fiat SpA. The exemption applies to more than 28 million cars and trucks.
The legal protection afforded Chrysler, now profitable for the first time in six years, allows the Auburn Hills, Mich., company to “essentially get a free pass on some of their most egregious past mistakes,” said Douglas Laycock, a University of Virginia law professor and punitive-damages expert.
The story includes links to the relevant documents. I’d be curious whether any readers believe there’s any way to challenge these provisions in court.
UPDATE: The VC’s own Todd Zywicki comments:
That WSJ article was weird–it is black-letter bankruptcy law that you can discharge products liability and other tort claims in bankruptcy. The only limitation really is due process, which is if potential claimaints have notice that their claims will be discharged. And what is typical is to basically create a trust out of some of the assets in the case and set those aside for the claimants. And so if you actually own a Chrysler car or buy one used after the date of the bankruptcy then due process is satisfied.
The real anomaly here is actually GM. There for purely political reasons the government allowed claims against GM to pass through bankruptcy. I suspect it is because of the trial lawyers.
Punitive damages are especially disfavored in bankruptcy. They are subordinated to actual damages. So where creditors do not receive their compensatory damages in full–because the debtor is insolvent–it makes no sense to pay punitives before other creditors are paid in full for compensatory damages.
The oddity in these cases is the rigged bidding process. Typically this matters because discharging the claims increases the value of the reorganized company (or the amount that a buyer will pay in a 363 sale). So the real benefit would not go to Chrysler, but rather to Chrysler’s estate, which would thus have more money that it could pay out to creditors as a whole.
Professor David Dow of the University of Houston argues that Supreme Court justices should be impeached if the individual mandate is struck down because “Supreme Court justices who undermine the principles of the Constitution ought to be impeached.” According to Professor Dow, the case for impeachment would not be based solely on the Court’s health care decision, but also on decisions upholding the federal partial-birth abortion law, limiting the use of race in school assignment, and Citizens United. These decisions, Professor Dow claims, are all part of a “sustained effort on the part of the Roberts Court to return the country to the Gilded Age” and that “if the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.” He concludes:
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
The Washington Post‘s Ruth Marcus supports the President’s health care reform law and believes the individual mandate is constitutional. She further believes that a decision striking down the mandate would be seen as overtly political and would be bad for both the country and the Court. Nontheless, she was quite dismayed by the President’s recent comments about how the Supreme Court should handle this case. She writes:
Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality. The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”
But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” That’s what courts have done since Marbury v. Madison. The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
In a recent column, Jeffrey Toobin of The New Yorker criticized Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit for a footnote in his Seven-Sky v. Holder opinion noting that “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” Eugene posted about Toobin’s essay here.
The New Yorker has just published a letter by Professor Michael Dorf, a noted constitutional law professor at Cornell taking Toobin to task. Professor Dorf wrote:
Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a long-standing debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea. I share Toobin’s view that the health-care law is valid, but I see no need to accuse a federal appeals-court judge of misunderstanding lessons that he learned in his first week of law school.
At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week’s oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law. According to the White House transcript, he responded:
With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions. . . .
And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. . . .
I’m confident that this will be upheld because it should be upheld. And, again, that’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they’re not particularly sympathetic to this particular piece of legislation or my presidency.
Gerald Magliocca believes these comments were “foolish” and akin to throwing rocks at tigers.
Is lecturing the Court while the case is under submission the best way to persuade, say, Justice Kennedy? The same Justice Kennedy who wrote Citizens United and was called out by the President at the State of the Union Address? Sometimes “No comment” is the best answer.
President Obama was not always opposed to the Supreme Court “overturning a law that was passed by a strong majority of a democratically elected Congress.” In 2008, while running for President, then-Senator Obama praised the Supreme Court’s Boumediene decision, which overturned bipartisan national security legislation. According to the June 13, 2008 Los Angeles Times he called the decision “an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus” and praised the Court’s rejection of President Bush’s ”attempt to create a legal black hole at Guantanamo.”
UPDATE: Lyle Denniston also comments here.
Among this morning’s cert grants was Arkansas Game & Fish Commission v. United States, which asks whether temporary yet repeated flooding can constitute a compensable taking under the Fifth Amendment. I blogged about this case last week here.
Paul Caron reports that Warren Buffett has issued a “mea culpa” for arguing for a tax reform — the so-called “Buffett Rule” — that would not meaningfully increase his taxes. To make amends, he is launching the “tax it forward” movement to encourage wealthy individuals like himself to voluntarily pay more money to the U.S. Treasury.
Ben Wittes had this interesting post on the Lawfare blog about research by Haridimos V. Thravalos suggesting the Hamdan plurality got its history wrong concerning whether conspiracy could be tried as a war crime. See also this response from Kevin Jon Heller and Wittes’ rejoinder.
The WSJ notes that the EPA has had to backtrack and reevaluate allegations that hydraulic fracturing has been responsible for environmental contamination.
On Friday, the agency told a federal judge it withdrew an administrative order that alleged Range Resources Corp. had polluted water wells in a rural Texas county west of Fort Worth. Under an agreement filed in U.S. court in Dallas, the EPA will also drop the lawsuit it filed in January 2011 against Range, and Range will end its appeal of the administrative order.
In addition to dropping the case in Texas, the EPA has agreed to substantial retesting of water in Wyoming after its methods were questioned. And in Pennsylvania, it has angered state officials by conducting its own analysis of well water—only to confirm the state’s finding that water once tainted by gas was safe.
Taken together, some experts say, these misfires could hurt the agency’s credibility at a time when federal and state regulators seek ways to ensure that natural-gas drilling is done safely.
There’s no question fracking can pose some environmental risks. Improper techniques appears to have contributed to minor earthquakes in northeast Ohio. But some other claims of widespread harm from fracking, particularly water pollution, appear to have been overstated.
The Journal-Sentinel reports that a federal district court judge has struck down parts of the controversial Wisconsin law that limits the collective bargaining rights of public sector unions.
Seven major public employee unions had challenged the fact that Act 10 dramatically narrowed what could be bargained by general public employee unions, and required those unions to recertify every year by an absolute majority of membership while denying the same unions voluntary payroll deductions for dues.
The court sided with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members’ equal protection and First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.
“So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights,” wrote U.S. District Judge William M. Conley.
The opinion is here.
The Hill reports that Senate Majority Leader Harry Reid has promised Senate Minority Leader Mitch McConnell that there will be no more recess appointments made by the President during Congress’ next adjournment.
Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores. Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.
This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle. The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.
Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law. A practicing lawyer would have been less likely to make this mistake. Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.
In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms. Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents. As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side. This can be difficult to do, particularly when we have strong feelings about a subject. Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional. And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures. Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won’t receive an equally warm welcome in court.
UPDATE: Peter Suderman suggests another possible explanation:
What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. “The results,” he writes in the May issue of Reason, “were clear and consistent.” Moderates and conservatives were the most able to think like their liberal political opponents. “Liberals,” he reports, “were the least accurate, especially those who describe themselves as ‘very liberal.’”
I’ve certainly witnessed the phenomenon Haidt describes, but generally assumed it was limited to certain contexts in which there are numerical imbalances between those on the left and the right that affects the degree of interaction people have with those of differing views. I will be curious to read more about this research and the limitations of its findings.
Among the cases up for consideration at the Supreme Court’s conference on Friday is Arkansas Game & Fish Commission v. United States, which seeks review of an interesting takings case out of the U.S. Court of Appeals for the Federal Circuit. In short, the case concerns whether the temporary flooding of property can constitute a taking for which compensation is required under the Fifth Amendment. A divided panel of the Federal Circuit said no, holding that flooding can only effect a taking if it constitutes “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” As the petitioners and various amici notes, and Judge Newman argued in dissent, this is a difficult holding to square with prior Court decisions that temporary takings can be compensable.
Environmentalist groups are not usually very sympathetic to takings claims. Most such groups adamantly oppose compensation for regulatory takings, often out of fear that a compensation requirement would make environmental regulation too costly. Environmentalists have also been late to consider the potential environmental consequences of eminent domain. This case, however, presents a clear example of how enabling the federal government to evade the Fifth Amendment’s compensation requirement can facilitate environmental harm, and it does so without raising the sorts of regulatory takings claims that typically give environmentalists such fits.
The substantive argument in this case is that the flooding of land is the sort of physical occupation that can constitute a taking, even if it is only temporary. The land at issue in this case is a wildlife management area. The repeated flooding of this land by the U.S. Army Corps of Engineers has caused substantial damage and destroyed valuable wildlife habitat. Were the flooding recognized as a taking — albeit a temporary taking — the Army Corps might be less quick to flood such lands in pursuit of other policy goals. Undeveloped land, such as wildlife habitat, is already more vulnerable to governmental expropriation than is more developed land because it’s cheaper. But if the government does not have to pay for the temporary occupation of such land at all, it’s cheaper still. The Court does not often agree to hear takings cases from the Federal Circuit, but given all the patent cases its heard in the past few years, perhaps it’s time for a slight change of pace.
In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate.
Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.
It’s also worth noting that many of those concerned with the Court’s institutional credibility in this case are strangely mute when the Court is poised to invalidate statutes or other government policies with which they disagree. If invalidating significant legislation were such a threat to the Court’s legitimacy, the Court takes a much greater risk when it strikes down national security legislation embraced by the President and adopted by a bipartisan congressional majority (as it did in Boumediene), than when it strikes down an unpopular and unprecedented statute adopted on a party-line vote. Whether or not it was correctly decided, Boumediene stands as the most aggressive exercise of judicial review of a national security measure enacted by Congress in the nation’s history — and it is a far better poster-child for judicial “activism” (if we must use that word), than anything the Court is likely to do here.
The U.S. Court of Appeals for the Fifth Circuit sternly rebuked the U.S. Environmental Protection Agency for overstepping its statutory authority in rejecting three air pollution control regulations adopted by the state of Texas for their alleged non-conformity with applicable Clean Air Act requirements. In Luminant Generation Company, LLC v. EPA, the Fifth Circuit the EPA had “no legal basis” for its decision and remanded the decision back to the agency.
At issue in the case were three Texas regulations governing permit requirements that were a part of Texas’ State Implementation Plan (SIP) under the federal Clean Air Act. According to the statute, the EPA is to decide whether or not relevant state regulations comply with SIP requirements within 18 months of their submission. In this case, however, the EPA waited years before claiming the three regulatory provisions were insufficient. More significantly, the EPA “did not identify any provision of the CAA or its implementing regulations that Texas’s program violated.”
Before the Fifth Circuit, the EPA confessed error and conceded that it had been arbitrary and capricious with regard to two of the contested regulations, but it still sought to defend its decision with respect to the third. No dice. The Fifth Circuit found the EPA had filed to identify any basis for rejecting the regulation under federal law. The Fifth Circuit’s decision concludes:
This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit—submitted four and a half years earlier—based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act’s plain terms, is subject to only the most minimal regulation.
Because the EPA waited until more than three years after the statutory deadline to act on Texas’s submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas’s regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas’s regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA’s authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”).
The opinion was written by Judge Elrod and joined by Judge Barksdale. Judge Garza concurredin the judgment only without opinion.
Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others.
Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other.
Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the desirability of it s purpose. Yet as Paul Clement noted in yesterday’s oral argument (and we’ve noted repeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance. Lithwick argues opposition to the mandate is grounded in a “dark vision” of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.
Throughout American history when we, as a people, have decided that it is important to help those in need we have relied upon the power to tax and spend for the “general welfare.” Rather than impose upon individual Americans an obligation to act directly on behalf of others (or even themselves) we have raised monies that can be devoted to charitable and risk-management purposes and created financial incentives for charitable behavior. The federal government could have done that here, either by further expanding Medicare and Medicaid, subsidizing insurance for those in need, or raising taxes on everyone and offsetting the increase with deductions for insurance. In short, there are many constitutional ways for the government to demonstrate ”compassion” without a mandate. Yet Lithwick and others continue to insist that if their ends are pure, the means adopted must be constitutional.
If I wanted to be snarky, I’d also point out that it’s easy to be compassionate with other people’s money, and progressives should be careful before accusing those who oppose the mandate or other redistributionist policies as hard-hearted neanderthals. After all, those on the right tend to donate a greater proportion of their own incomes to charitable purposes than those on the left.
