Judge Brett Kavanaugh’s Strange Political Prediction—And Other Recent ACA-Litigation Events

Well, as you all probably know by now, there have been two major developments in the courts within the last two weeks on the litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (the ACA, a.k.a., “Obamacare). On November 8, a three-judge panel of the federal appeals court for Washington, D.C. issued its ruling in a case challenging the constitutionality of the so-called individual mandate requiring everyone who can afford healthcare insurance to purchase it, upon penalty of payment of a regulatory fee. That, of course, is the issue that has gotten almost all of the news media attention, thanks to loud Tea Party/Republican-pol/rightwing-talk-show-personalities cries that the mandate unconstitutionally violates individual liberty and therefore is beyond Congress’s authority under the Constitution’s Commerce Clause.

The Commerce Clause gives Congress the power to regulate interstate commerce and, under Supreme Court precedent, pretty much anything that affects interstate commerce. It is the “enumerated power” under which the ACA was enacted. As opposed to, say, the taxing “enumerated” power.

In several earlier AB posts, including one about the oral argument in late September in the appeal that was decided by last week’s ruling, I said that the right-wing’s conflation of the limits of Congress’s authority under the Commerce Clause and the separate issue of the Constitution’s various limitations on government power to infringe upon individual liberty, including in the Fifth Amendment’s Due Process Clause limiting the federal government’s powers to infringe upon individuals’ rights, is a sophism, as a matter of law and as a matter of logic. I also said that the Due Process argument is fatuous; the federal government clearly has the authority under the taxing power to compel the purchase of medical insurance or retirement savings, and does so for Medicare and Social Security, and a mandate under the Commerce power infringes no more on individual liberty than a mandate under the taxing power.

I made these points originally in an AB post in late June, a few days before Sixth Circuit Court of Appeals Judge Jeffrey Sutton, a highly-regarded conservative Reagan appointee prominent Federalist Society member who early in his career served for a year as a law clerk to Justice Scalia, eloquently deconstructed that conflation in his 2-1 majority opinion upholding the constitutionality of individual mandate. I reiterated the points in an AB post about the Sutton opinion (which I sillily titled “Judge Sutton Channels … Me??”). And I summarized them in a post in early October in which I discussed the oral argument in the appeal that was decided on November 8.

The Sixth Circuit opinion was the first appellate ruling on an ACA case. The dissenter in that opinion is not an appellate judge but instead a trial-level judge sitting on that appellate panel “by designation ” of that court’s chief judge via a statute that allows this, and whose dissenting opinion was breathtakingly lightweight.

In August, an Eleventh Circuit panel consisting of a Clinton appointee to the Court of Appeals who had been appointed as a trial-level judge by Reagan, another Clinton appointee, and a George H. W. Bush appointee, issued a 2-1 opinion ruling the individual-mandate provision unconstitutional but upholding the remainder of the ACA, saying that the remainder was “severable” from the individual-mandate provision—that is, that the remainder of the Act could stand on its own and that therefore the loss of the mandate provision did not dissolve the remainder of the statute. The opinion was written by the Reagan appointee, Joel Dubina and joined by Clinton appointee Frank Hull. Neither judge is considered a star legal analyst, and the opinion didn’t disappoint. It was a rote adoption of the the-individual-mandate-unconstitutionally-infringes-on-liberty-because-it-penalizes-inaction-and-therefore-Congress-exceded-its-Commerce-Clause-authority. The opinion doesn’t explain how a supposed unconstitutional infringement of liberty amounts to a per se exceeding of Congress’s Commerce power, the opinion doesn’t explain. Alchemy? The dissent by Judge Stanley Marcus is scathing. (More about this case below.)

The panel in the Washington, D.C. case, the one decided on November 8, like the panel in the Sixth Circuit case, was comprised of two conservative Republican appointees and a Democratic appointee. Both Republican appointees, Lawrence Silberman and Brett Kavanaugh, the latter a former law clerk for Judge Kennedy, are high-profile stalwart conservatives and both are intellectual leaders of the “movement” right, albeit from slightly different conservative-legal-movement eras. Silberman is a Reagan appointee, Kavanaugh a George W. Bush appointee. In any event, they are not just rightwing but also considered intelligent, if not necessarily by me.

In my post last month about the oral argument in that case, I wrote:

Sutton’s analysis exposes the constitutional challenges to the individual mandate for what they are: a series of ideological clichés masquerading as legal argument. As I wrote in AB shortly after the Sutton opinion was released, his analysis is so fine, so precise, that ultimately the Supreme Court’s opinion will echo it. So I was not among those who were surprised that the administration is pushing for a Supreme Court ruling on the constitutionality or the statute before the 2012 election. But all the judges thus far who have voted to invalidate the individual-mandate provision as unconstitutional are, in my opinion, intellectual lightweights, and so I’d wondered whether the Sutton analysis itself could be persuasively deconstructed by a judge or justice who is not.

The answer appears to be no. Last week, a panel of yet federal appellate court, this one the one for Washington, D.C., heard arguments in yet another case challenging the constitutionality of the mandate as beyond Congress’s Commerce-regulation authority because it infringes upon the liberty of individuals to remain self-insured, it requires the purchase of a “product” from a private party, and, well, um, the scope of the statute is really sweeping. I mean, what’s next, asked one of the two stalwart rightwing-intellectual-heavyweight members of the panel? Congress mandating the purchase of GM cars by the wealthy in order to prevent the collapse of that company during the next economic downturn, upon pain of payment of a penalty for failure to do so? (I hope so. Then, when David Koch has a heart attack in his Maserati and the ambulance attendants verify through the Secretary of State’s offices in his various home states that there is no GM car registered in his name, the attendants dump his gasping-for-breath body in the road, where he’s run over by a Cadillac SUV.)

I followed those paragraphs with this one:

A sigh of relief was in order—although I had to wait until I stopped smiling like a Cheshire cat. That judge, Brett Kavanaugh (a former law clerk to Justice Kennedy, circa 1993), reportedly commented earlier to the plaintiffs’ lawyer that maybe the courts shouldn’t interfere with what could be the beginning of the mass privatization of the social safety net. More likely, I think, it will prompt, finally, a single-payer healthcare-insurance system—Medicare for all—in order to cut out the spiraling costs of a private, multi-carrier, for-profit system whose premiums reflect, in part the investment losses of those private companies. But don’t tell Judge Kavanaugh until after that appeal is over.

Um, oops. Actually, it was Silberman, not Kavanaugh, who suggested that if the individual mandate in the ACA is constitutional, then a mandate requiring the purchase of a GM car might be, too. It was, however, Kavanaugh who predicted, mouth watering, that if the ACA’s mandate is upheld, it might usher in a mass privatization of the social safety net.

When the panel decided the case, it was Silberman who wrote the opinion—for himself and the Democratic appointee, liberal Clinton appointee Harry Edwards, upholding the individual mandate and echoing the basics of Judge Sutton’s opinion: that the Commerce Clause gives Congress the authority to regulate that which affects an interstate market, as the healthcare market clearly is; that the decision to not purchase healthcare insurance is not inactivity but instead clearly market activity because (unlike the proverbial decisions whether to purchase broccoli, or a GM vehicle) virtually everyone will need healthcare at some point, and will receive it whether or not the person is insured or can afford to pay the medical bills out-of-pocket; that the infringement-of-individual-liberty objection is not a Commerce Clause issue but instead a Due Process issue; and that the individual-mandate provision does not unconstitutionally infringe upon individual liberty.

Silberman’s opinion adopts Sutton’s reasoning in all respects. Most interesting, I think—partly, I guess, because by now I feel like I have a proprietary interest in it—is his conclusion that:

Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.

Kavanaugh dissented. But not on “liberty” grounds. And not even on Commerce Clause grounds. Instead, he said a court ruling now is premature, for two reasons., one (he said) compelled by statute, the other (he said) in deference to “the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.”

“Unnecessarily” being the interesting part of this.

The statutory reason is his interpretation of a federal court-jurisdiction statute called the Anti-Injunction Act and of the legal nature of the mandate provision. The Anti-Injunction Act removes the “jurisdiction,” i.e., legal authority, of the courts to even consider the challenge to the individual-mandate provision and its penalty for failure to purchase insurance until after the effective date of that provision in 2014 and the penalty is assessed against someone who then sues for reimbursement, contesting the provision’s constitutionality. The issue depends on whether the penalty is a tax, since the Anti-Injunction Act applies only to taxes. In August, a panel of the Fourth Circuit Court of Appeals ruled, 2-1, that the mandate is a tax and that the Act therefore removed the courts’ jurisdiction to consider the constitutionality of the mandate provision until 2015, when the first penalties would be assessed by the I.R.S. Kavanaugh bought the argument; Silberman and Edwards didn’t.

The “unnecessarily” reason has subparts, but the main ones are that Congress may repeal the ACA, or parts of it, before the individual-mandate provision becomes effective, and, more to the point (or at least more to my point), that Congress may instead simply change the wording of the mandate provision slightly so that the penalty is clearly a tax. Which, he says, clearly would be constitutional.

He doesn’t say that it would be clearly within Congress’s taxing power. He says, flatly, that it would be clearly constitutional. He says, in other words, that the infringement on liberty does not itself violate the Constitution—whether the mandate is an exercise of Congress’s power to regulate interstate commerce or instead an exercise of Congress’s power to tax.

That Kavanaugh has an ideological ulterior motive which advertised at oral argument and reiterates with more elaboration in his dissenting opinion— his expectation that if the ACA’s mandate is upheld, it could herald an era of mass privatization of the social safety net, happily marrying tea party types and rightwing interests in having government create a market serving private business interests—does not matter. Nor does it matter that Kavanaugh is delusional—unless, of course, it really is likely that there is, say, a private-food-assistance lobby similar in number to the insurance-industry lobby that, like the insurance-industry lobby did in fighting single-payer healthcare insurance proposals (and even the so-called public option in a version of Obamacare) , will emerge like locusts to have Congress enact a law mandating that everyone who can afford to do so must purchase food stamps each year, redeemable when and if necessary. Or that the AARP will agitate for privatization of Social Security, maybe in order to prevent the government from funding massive otherwise-unfunded wars and massive tax cuts for the wealthy largely by tapping the ostensible Social Security trust fund.

No, what matters is that Kavanaugh said what he said, irrespective of his motive. Kavanaugh got it right. The individual-mandate provision does not violate the Constitution’s limitations on government infringement of individual liberty. And Sutton and Silberman, neither of whom appears to share Kavanaugh’s peculiar delusion and ulterior motive, but also neither of whom voted for Obama or any member of Congress who voted for his “care,” have enunciated so finely why this is so and why, also, the mandate provision is within Congress’s Commerce Clause authority, that a 5-4 Supreme Court ruling to the contrary would be a transparent act of ideology. It’s not, of course, that the majority doesn’t do this, regularly; they do. It’s that this time they would be eating not only Obama and Care, but also Kavanaugh, Sutton and Silberman.

The fat lady hasn’t sung yet on the constitutionality of the individual mandate, but I think it’s over nonetheless. When the Court decides that issue—and despite the out-of-right-field potential inherent in certain sort-of-breathtaking parts of the Court’s order last Monday agreeing to hear the Eleventh Circuit case—I think the Court will decide that issue, eventually, if not in that case.

For the specifics of that order, and a comprehensive discussion of the five parts to it and the possible implications of one of them, see Simon Lazarus and Dahlia Lithwick’s article in Slate, “The Medicaid Ambush: The Supreme Court's unexpected and astounding reasons for wanting to hear a challenge to Obamacare,” at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/the_unexpected_and_astounding_arguments_the_supreme_court_will_hear_on_obamacare_.html.

If the Court rules the ACA unconstitutional because the majority thinks the ACA’s expansion-of-Medicaid provision violates the states’, um, constitutional right to the current federal statutory entitlement (Medicaid in its current form) in order to protect the popularity of the states’ legislators who would vote to forego Medicaid in order to avoid the requirements of Obamacare (see the Slate article), then of course the Court will never have to decide the constitutionality of the individual mandate. I don’t think it will buy the states’ hubristic claim; I think the Court simply wants to hear all challenges from all governments that are suing. This is a court with at least a few members who apparently think that any time a state or local government asks it to hear a case, it should hear the case. But it also is a court whose majority, in deciding cases, regularly privileges the states’ interests over the interests of the federal government and of individuals. Their ideology largely rejects the Fourteenth Amendment and the original Constitution’s Supremacy Clause. So, who knows?

As for what caused Silberman’s change of heart about whether the individual mandate unconstitutionally infringes upon the liberty of individuals to remain uninsured, I have two theories. One is that Kavanaugh read my AB post attributing to him Silberman’s oral argument comment equating the mandate with a theoretical mandate to purchase a GM car, and after explaining to Silberman the difference between the two and insisting that Silberman publicly clarify the distinction or make clear that he, not Kavanaugh, drew the analogy, lest a gasping-for-air David Koch be dumped by an ambulance attendant onto the street and run over by a Cadillac Escalade and that Kavanaugh be blamed, he persuaded Silberman to change his mind about the whole analogy. The other is that Silberman himself gave more thought to whether it would be such a bad thing after all for the government to mandate a GM car in every driveway. After all, that new Chevy Cruze is awfully cute and gets pretty good gas mileage.

The Plot Sickens – The Heart of the ACA Litigation Moves to the Supreme Court. Maybe.

Last week’s big political news concerning the PPACA (a.k.a. “Obamacare”) litigation was the administration’s decision to forego the option of asking the full membership of the Atlanta-based Eleventh Circuit Court of Appeals, the appellate for several southeastern states, to hear and reverse the mid-August opinion by two members of a three-judge panel of that court striking down the individual-mandate provision of the ACA as beyond the constitutionally permissible reach of the Commerce Clause, the “enumerated power” in the Constitution under which Congress enacted the statute.

This surprised some political pundits, but because anyone thought a majority of the members of that most conservative of regional federal appellate courts would disagree with the ruling—except possibly the part holding that the mandate provision was “severable” from the remainder of the Act and that therefore the Act remained intact except for the mandate provision. Instead, they thought that the Obama administration wanted (or, more accurate, should want) to delay a Supreme Court ruling on the constitutionality of the statute, especially the mandate provision, until after the election next fall. And if the full appellate court agreed to dissolve the panel’s opinion and hear the case—a long shot, in my opinion—this would do the trick.

At least, that is, if the Supreme Court denied or postponed consideration of the petition for Supreme Court review of a majority opinion of a three-judge panel of the Cincinnati-based Sixth Circuit Court of Appeals, the appeals court for Michigan, Ohio, Kentucky and Tennesee, in late June, written by conservative Bush appointee Jeffrey Sutton, upholding the constitutionality of the mandate provision. Sutton’s opinion meticulously and eloquently deconstructed the plaintiffs’ arguments—which are the same as those by the individual human plaintiffs in all the other cases challenging the constitutionality of the individual mandate. He famously explained: First, contrary to assertions, the real basis for the plaintiffs’ claim is not that Congress lacks the authority under the Commerce Clause to mandate that everyone who is financial able purchase healthcare insurance in order to help defray the inevitable costs of their own emergency medical care when need arises and care is sought, but rather that this mandate unconstitutionally infringes upon individual liberty to remain self-insured. And, second, the structure of the statutory mandate—that the individual obtain the insurance from a private carrier—no more infringes upon that individual liberty than would the imposition of a tax similar to the Medicare and Social Security tax laws, paid to the government for that purpose. If the claim is a constitutional right, a constitutional liberty interest, in remaining self-insured—and that is the claim—then the infringement on individual liberty comes not from the mandated purchase of the insurance from a private party but instead from the removal of the option to remain self-insured.

And any infringement on individual liberty doesn’t morph into an unconstitutional infringement on liberty simply because the enumerated power under which Congress enacted the statute was the power to regulate interstate commerce (the Commerce Clause) rather than the power to tax in order to provide for the general welfare (the Tax Clause). And constitutional authority conferred through the Commerce Clause doesn’t become un-conferred by the Commerce Clause just because the statute limits individual liberty. Conflating the two separate grounds, neither of which can stand on its own, doesn’t transform a constitutional statute into an unconstitutional one. No alchemy here.

Sutton’s analysis exposes the constitutional challenges to the individual mandate for what they are: a series of ideological clichés masquerading as legal argument. As I wrote in AB shortly after the Sutton opinion was released, his analysis is so fine, so precise, that ultimately the Supreme Court’s opinion will echo it. So I was not among those who were surprised that the administration is pushing for a Supreme Court ruling on the constitutionality or the statute before the 2012 election. But all the judges thus far who have voted to invalidate the individual-mandate provision as unconstitutional are, in my opinion, intellectual lightweights, and so I’d wondered whether the Sutton analysis itself could be persuasively deconstructed by a judge or justice who is not.

The answer appears to be no. Last week, a panel of yet federal appellate court, this one the one for Washington, D.C., heard arguments in yet another case challenging the constitutionality of the mandate as beyond Congress’s Commerce-regulation authority because it infringes upon the liberty of individuals to remain self-insured, it requires the purchase of a “product” from a private party, and, well, um, the scope of the statute is really sweeping. I mean, what’s next, asked one of the two stalwart rightwing-intellectual-heavyweight members of the panel? Congress mandating the purchase of GM cars by the wealthy in order to prevent the collapse of that company during the next economic downturn, upon pain of payment of a penalty for failure to do so? (I hope so. Then, when David Koch has a heart attack in his Maserati and the ambulance attendance verify through the Secretary of State’s offices in his various home states that there is no GM car registered in his name, the attendants dump his gasping-for-breath body in the road, where he’s run over by a Cadillac SUV.)

A sigh of relief was in order—although I had to wait until I stopped smiling like a Cheshire cat. That judge, Brett Kavanaugh (a former law clerk to Justice Kennedy, circa 1993), reportedly commented earlier to the plaintiffs’ lawyer that maybe the courts shouldn’t interfere with what could be the beginning of the mass privatization of the social safety net. More likely, I think, it will prompt, finally, a single-payer healthcare-insurance system—Medicare for all—in order to cut out the spiraling costs of a private, multi-carrier, for-profit system whose premiums reflect, in part the investment losses of those private companies. But don’t tell Judge Kavanaugh until after that appeal is over.

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Much as the administration and its many litigation opponents—which include 26 states, which are challenging another part of the statute—want a quick Supreme Court adjudication of the constitutionality of the statute, there is some possibility that the Supreme Court will hold that it lacks “subject-matter jurisdiction”—i.e., legal authority—to consider the challenges at least to the mandate provision until sometime in 2015, when the mandate provision becomes effective and the IRS collects the penalty. This is pretty esoteric procedural stuff, and it was the subject of an earlier AB post of mine last spring in which I said I thought that outcome in the Supreme Court was unlikely. But in early September a 2-1 majority of the Richmond, VA-based Fourth Circuit Court of Appeals, the appellate court for the Carolinas, West Virginia and a couple of mid-Atlantic states, along with Virginia, last month ruled exactly that. The issue concerns a federal “jurisdictional” statute called the Anti-Injunction Act (the AIA), and the Supreme Court’s interpretation of that statute in two opinions issued on the same day, concerning the current statute’s predecessor, in 1922.

Sutton and his two colleagues rejected the argument. And the dissenter in the Fourth Circuit case, Andre Davis, dismantled his colleagues’ analysis as absurd. I agree with Davis. But as law prof. Brad Joondeph, who writes a blog devoted entirely to the ACA litigation, and who is featured prominently in AB posts of mine from last June, wrote recently, the language of the AIA, and the Supreme Court’s earlier opinions interpreting it, may not matter here.

What might? If a majority of justices, for various reasons, want to punt on the issue of the constitutionality of the ACA until after—comfortably after—next year’s elections. I don’t think they will. But I’m probably wrong.

Texas, the jobs engine? Or Texas, the jobs-laundering engine?

An op-ed piece last weekend in the LA Times, called “Texas, the jobs engine?”, by Rick Wartzman, executive director of the Drucker Institute at Claremont Graduate University, begins:

For the last few weeks, I've been unable to get a startling statistic out of my head: Since the recession officially ended, Texas has created more than 4 of every 10 new jobs in America.

That's right, Texas: the reddest of red states, home to gun lovers and school textbooks that openly question whether the Founding Fathers intended for the separation of church and state. I am no ideologue. Still, whenever I get political, I tend to tilt reflexively to the left, making the jobs figure a bit disconcerting at first.

But there's no escaping it. The number is real. Which means that if you care about putting people back to work at a time when nearly 14 million in this country are unemployed, maybe Texas has something to teach us.

Wartzman goes on to say that according to the Dallas Fed, Texas, which he says accounts for about 8% of the nation’s economy, generated 43% of the net new jobs in the U.S. from June 2009 through May 2011. He then notes that aspects of Texas’s boom cannot be optionally replicated in other states. The booming energy industry and the high export demand for commodities such as beef and cotton.

He then cites some longstanding government policies—both conservative and liberal ones. Conservative: Low tax rates, the downside of which, he notes, is a smaller safety net, and “right-to-work” laws, resulting in Texas’s tying Mississippi as the states with the biggest percentage of workers paid at or below the minimum wage. Liberal: Strict lending guidelines enacted in the wake of the S&L crisis of the 1980s that require Texas financial institutions “to keep larger capital reserves and take on fewer problem mortgages than were seen elsewhere in the country,” and which spared the state from the real estate boom and bust that hit most of the rest of the country. And beginning 25 years ago, the state began significantly increasing its education funding and therefore the quality of its workforce.

Then the pay-off paragraph, so to speak:

At the same time — and this, of course, is the tough part for those on the left to swallow — it is clear that the state's limits on taxes, regulations and lawsuits are contributing to the job machine. "The most important thing I think that's happened to us is tort reform," Fisher, the Dallas Fed president, has said. He added that when John Deere and other companies have decided to hire in Texas, they've been largely driven by steps the state has taken to cap non-economic damages in medical malpractice suits and to make it harder to bring product liability and class-action cases.

Okay. Are these folks claiming that the companies that are hiring in Texas decided to hire because of Texas’s low tax rates and its “tort reform” law? Or are they saying that these companies needed to hire more workers, and chose to expand in Texas rather than in, say, California or Michigan or Ohio, because of Texas’s low taxes and tort reform?

Setting aside for a moment the fact that Texas’s tort laws have no effect on lawsuits for injuries from their products in other states—injured plaintiffs can sue in the state where they purchased and used the product and were injured by it, and it’s that state’s tort laws that apply—and that physicians apparently aren’t flooding the Texas landscape by moving there from other states, what these people actually are saying is that Texas , as the lowest-common-denominator state for pro-business laws, is attracting businesses from other states and is spurring hiring there that otherwise would occur in another state.

Fine. But if the issue regarding job losses and job growth is an aggregate one for the country as a whole, rather than which states lost the most jobs to lower-common-denominator states, then why praise Texas as a national jobs creator? It’s not, at least not as a result of its government policies. The claim to the contrary is like saying that South Dakota and North Carolina “created” all those credit-card-company jobs in recent decades, as if those jobs wouldn’t have been created, albeit disbursed more throughout the country, if those two states hadn’t enacted such credit-card-company-friendly laws.

So when Rick Perry rolls out his presidential primary campaign and starts lauding all those Texas job gains, remember to ask what states those jobs otherwise would be in were it not for Texas’s chamber-of-commerce legislature’s largesse of recent years. I’m sure y’all will.

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UPDATE- July 9: Merrill Goozner has a terrific in-depth deconstruction of the so-called Texas Miracle at TheFiscalTimes, at http://www.thefiscaltimes.com/Articles/2011/07/08/Perrys-Texas-Miracle-Less-Than-Meets-the-Eye.aspx?p=1. It was posted yesterday.

I Beg to Differ (in Part), Mr. Will

In 1994, Bill Clinton proposed increasing homeownership through a “partnership” between government and the private sector, principally orchestrated by Fannie Mae, a “government-sponsored enterprise” (GSE). It became a perfect specimen of what such “partnerships” (e.g., General Motors) usually involve: Profits are private, losses are socialized.
—“Burning Down the House,” George F. Will, Washington Post, today

Will’s column discusses a new book by Getchen Morgenson and housing-finance expert Joshua Rosner that Will says “will introduce you to James A. Johnson, an emblem of the administrative state that liberals admire.” Johnson, for those of you who (like me) don’t instantly recognize the name, headed Fannie Mae during (I guess; Will doesn’t specify the dates) the 1990s and early 2000s. He says the book details how Johnson and a few others, acting under the guise of compassion, used the government’s backing of Fannie and Freddie loans and the public policy of encouraging homeownership, to hugely enrich themselves.

Will writes:

Morgenson and Rosner report that in 1998, when Fannie Mae’s lending hit $1 trillion, its top officials began manipulating the company’s results to generate bonuses for themselves. That year Johnson’s $1.9 million bonus brought his compensation to $21 million. In nine years, Johnson received $100 million.

Fannie Mae’s political machine dispensed campaign contributions, gave jobs to friends and relatives of legislators, hired armies of lobbyists (even paying lobbyists not to lobby against it), paid academics who wrote papers validating the homeownership mania, and spread “charitable” contributions to housing advocates across the congressional map.

But he also suggests, if I understand correctly, that it was Johnson and the other Fannie and Freddie folks,rather than the Wall Street crowd, who instituted the concept of securitized mortgages in their recent, destructive form,* and credit default swaps—and (inferentially) then caused European banks to spur, say, the Irish housing bubble, which, last I heard, was not funded in any part by Fannie and Freddie. And he wrote the quote that opens this post, in which he claims that the government’s bailout—loans, most of which have been repaid—to GM and Chrysler have resulted in merely private profits. Unlike, y’know, the very substantial tax breaks given to oil companies.

The estimates about the number of jobs saved by those bailouts ranges from about 500,000 to (ultimately; i.e., indirectly) 1.5 million. Will is saying, in other words, that the federal government has no legitimate business involving itself so directly in the preservation of, or for that matter, the creation of jobs, because, after all, job preservation and job creation are private, not public, financial gains. The proposition is preposterous and relies upon the sleight of hand that only company and shareholder profits count as “profits”—a conceit that is likely to be seen for what it is, in places like Michigan, Indiana and Ohio. Assuming, of course, that Will is read in such places, or that some other wingnut picks up the argument and runs (literally, may) be with it there.

(Please, please, Paul Krugman. Respond to Will’s bizarre claim. You’re the only one who could do this and who has a wide enough readership for it to matter. We both know that no response to this type of canard will be forthcoming from the White House. Ever. Okay, well, at least until 2017.)

Two or three weeks ago, Newsweek ran a lengthy article by Bill Clinton listing 14 proposals for job creation. (Oh, for the days when the Democrat in the White House had some actual ideas, some energy, and the willingness—the eagerness, in fact!—to discuss his policy proposals, in detail and concertedly, with the public.) One of them concerned one of the Obama administrations (very) few policy ideas: Substantial tax credits and outright loans to green-tech startups, which resulted in an increase in America’s share of worldwide production of batteries for battery-powered cars from 2% to 20% before our dear leader quietly—why raise this issue publicly during negotiations when it’s just so much easier to simply give the Republicans what they want—caved, er, negotiated away this law during last December’s budget white-flag waving, er, compromise. Clinton, of course, suggests that this program should be brought back, immediately, and expanded to other types of industries.

Won’t happen, of course. Well, maybe in 2017.

As for Johnson and his ilk, hopefully there’s still time, statute-of-limitations-wise, to prosecute these folks. And hopefully, the Morgenson and Rosner book will cause enough pressure for that to happen. And I agree with Will completely that one of the most despicable aspects of what happened with Fannie and Freddie was the fraudulent claim of compassion. Wonder, though, whether Will would agree with me that the Repubs’ genuine compassion for, say, oil company execs and shareholders is just as unseemly, in its own way. Nah.

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*That sentence was amended on July 4 to add “in their recent, destructive form”, in light of comments to my identical post on Angry Bear indicating that mortgage-backed securities were conceived apparently all the way back in 1968 or so.

Judge Sutton Channels … Me??

Sixth, the anti-commandeering principle of the Tenth Amendment adds nothing new to this case. True, the Tenth Amendment reserves those powers not delegated to the National Government “to the States” and “to the people.” True also, a critical guarantee of individual liberty is structural and judicially enforceable—preserving a horizontal separation of powers among the branches of the National Government, INS v. Chadha, 462 U.S. 919, 957–58 (1983), and a vertical separation of powers between the National Government and the States, New York, 505 U.S. at 181. Odd though it may seem in light of American history, States’ rights sometimes are individual rights. See Bond v. United States, 564 U.S. __, No. 09-1227, slip op. at 9 (June 16, 2011). Doubt it? Go to any federal prison in the country to see how a broad conception of the commerce power has affected individual liberty through the passage of federal gun-possession and drug possession laws and sentencing mandates.

But to the extent plaintiffs mean to argue that the Tenth Amendment contains its own anti-commandeering principle applicable to individuals and to all of Congress’s enumerated powers, that is hard to square with the taxing power, which regularly commandeers individuals—in equally coercive ways—to spend money on things they may not need and to support policies they do not like. And to the extent plaintiffs mean to argue that such a principle captures (or reinstates) limitations on the meaning of “proper[ly]” “regulat[ing]” interstate “commerce,” that takes us back to the points already made about Congress’s delegated power in this area.

* * *

That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the healthcare field, what of other fields of commerce and other products?

These are good questions, but there are some answers. In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.

The very force of the intuition also helps to undo it, as one is left to wonder why the Commerce Clause does the work of establishing this limitation. Few doubt that Congress could pass an equally coercive law under its taxing power by imposing a healthcare tax on everyone and freeing them from the tax if they purchased health insurance. If Congress may engage in the same type of compelling/conscripting/commandeering of individuals to buy products under the taxing power, is it not strange that only the broadest of congressional powers carves out a limit on this same type of regulation?

Why construe the Constitution, moreover, to place this limitation—that citizens cannot be forced to buy insurance, vegetables, cars and so on—solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. See Mass. Gen. Laws 111M § 2; N.J. Stat. Ann. § 26:15-2. The same goes for a related and familiar mandate of the States—that most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.
—Sixth Circuit Court of Appeals Judge Jeffrey Sutton, in Thomas More Law Center v. Obama, June 29

Not to pat myself on the back, or anything—OK, yeah, I’m patting myself on the back, or something—but my last two or three posts here turned out to be spot-on. Which sort of surprises me, since I just analyze this stuff as a hobby. It’s gratifying.

But even more gratifying—and, I think, even more important than the rest of that excerpt—is the deconstruction of the claim by the far-right liberty-means-states-rights crowd, led these days by Ginni and Clarence Thomas, about the meaning of the term “liberty,” a word those folks have co-opted as their logo (have they copyrighted it yet?). They treat “liberty” largely not as an end—actual freedom—but instead as a means, as a process. According to them, so that, what matters is not the (literal) loss of, or the restriction of, liberty but rather whether it is the federal government or instead a state or local government that is limiting the freedom. With a few carefully selected exceptions, such as gun-ownership rights, all economic rights (especially property rights), and the free exercise of religion, states are, in their view, entitled to limit individuals’ freedom (or freedoms) at will—all in the name of “liberty.”

Sutton was a leading light in the conservative legal movement in the ‘90s. He served as a law clerk to Scalia for a year in the early ‘90s, and was an active member of the rightwing Federalist Society. Bush appointed him to the appellate bench in 2003. But as a judge, he’s played more the role of a skilled legal analyst and actual judge rather than a robot ideologue like, say, Samuel Alito. It was clear from the reports I read about the oral argument in the ACA case on June 1 that he was the swing vote on that panel.

I dearly hope that his opinion will spark, finally, a serious questioning by at least one or two of the federalist/state’s-rights ideologues on the Supreme Court of the logic of their states-have-the-right-to-trample-individual-rights-and-freedoms-in-the-name-of-liberty mantra.

As for the ultimate effect of his opinion on the outcome of the ACA litigation in the Supreme Court, I think that the fineness—the precision and logic—of the opinion will make it harder, as a practical matter, for a majority of justices to disagree with or ignore it.

Postscript regarding Paul Clement

In his May 8 article about Wednesday’s oral argument in the 11th Circuit in the ACA case in which Paul Clement is representing 26 states in challenging the constitutionality of the statute, New York Times reporter Kevin Sack wrote that those states are paying Clement $250,000 to handle the appeal in that court and eventually in the Supreme Court.

That’s a stunning amount, even though the amount each state will pay is relatively small. These are two appeals in a single case that involves, entirely, arguments of law. There is no trial transcript, nor trial-court orders on motions, nor volumes of business records—the things that usually raise appellate legal fees to astronomical heights. And the legal arguments are the standard ones being discussed ad nauseam in legal circles. Clement’s hourly fee on this will turn out to be something close to $1,000, I’d bet.

Maybe lines like, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual,” as he told the panel on Wednesday, makes this guy worth his price. But if so, it’s only because the judges will assume that since he’s Paul Clement rather than, say, another lawyer, that line makes sense.

Ah! It’s not about regulating markets, after all! It’s about regulating the individual!

ATLANTA — In perhaps the weightiest of the dozens of challenges to the Obama health care law, a panel of appellate judges grappled Wednesday with the essential quandary of the case: if the federal government can require Americans to buy medical insurance, what constitutional limit would prevent it from mandating all manner of purchases and activities?
—Kevin Sack, New York Times, Jun. 8

In my last post, “Markets and the ACA: Why the Supreme Court Will Uphold the ACA,” I wrote:

[Santa Clara law prof. and ACA-litigation blogger Brad Joondeph is] right (see my post below), but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.

Turns out I was onto something. From reports I’ve read about the oral argument on Wednesday, it looks to me like that appellate panel will decide the case not on the basis of the limits of the Commerce Clause but instead on a more general civil liberties ground. They may cloak it as a Commerce Clause issue—and certainly that is what Paul Clement, the attorney representing the 26 states wants the court to do—but, really, given the questioning and comments from the swing judge on that appellate panel, and therefore the basis on which that panel will decide the case, this would be an improper conflation of Commerce Clause issues and what is known as “substantive due process” issues. And I think, ultimately, it is the substantive due process question on which the Supreme Court will decide the case. This is so even though conservative legal types detest the very concept of substantive due process.

Substantive due process is a doctrine of constitutional law that holds that there are limits, inherent within the Constitution, to the extent to which the government can interfere with basic personal choices, irrespective of how much procedural due process that individual is accorded. It’s a concept completely independent of procedural due process—the right to due process of law before the courts can strip you of life, liberty or property.

Procedural due process is all about the limits of what courts can do. Substantive due process, by contrast, is almost always about the limits of what a legislature can do. The doctrine holds that there are some personal choices that are inviolate under the Constitution. It is the much-ridiculed-by-rightwingers legal principal on which Roe v. Wade was based. Roe v. Wade, for its part, was based on a 1965 Supreme Court case called Giswold v. Connecticut, which created the substantive-due-process right of individuals to make deeply personal decisions for themselves and struck down as an unconstitutional violation of that privacy right a state statute that prohibited the use of contraceptives. And it is the principal on which in an eloquent 2003 opinion, Lawrence v. Texas, by Justice Kennedy, the Court struck down Texas’s anti-sodomy criminal statute.

Rehnquist, Scalia and Thomas dissented in Lawrence on the ground that, in their view, there is no such substantive-due-process right—no privacy right concerning intimate personal decisions—in the Constitution. Scalia and Thomas might change their minds, though, but only about the intimate decision not to buy health insurance, especially because that right is just too similar to the intimate right not to eat broccoli.

The 11th Circuit panel members are Joel Dubina, a conservative Reagan appointee to the district (trial-court level) court and a G.H.W. Bush appointee to the appellate court, whose daughter is a freshman Alabama congresswoman who campaigned on a promise to try to repeal the ACA; Frank (female, despite her name) Hull, a moderate Clinton appointee; and Stanley Marcus, a moderate-to-conservative G.H.W. Bush appointee to the district court and Clinton appointee to the appellate court.

According to one report I read, Marcus early in the hearing said he viewed the central issue in the case—the constitutionality of the individual-mandate provision—as less a Commerce Clause issue than a civil liberties issue: Does the mandate violate the civil liberties of individuals by requiring them to obtain healthcare insurance? That’s a different question, and a broader one, I think, then whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to mandate the purchase of healthcare insurance by those who can afford to buy it. Congress may have that authority under the Commerce Clause, but the legislation still might be unconstitutional if it violates another provision of the Constitution, here presumably the substantive due process right to be compelled to buy something. Presumably, because no one, least of all Clement, used the term “substantive due process right”. But he sure the words “compel,” “liberty” and “individual.” Early and quite often:

“The Commerce Clause only gives Congress the power to regulate, not to compel.” …

“It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” …

“In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce.” …

“The whole reason we do this is to protect individual liberty.” …

When Hull said she believed the decision not to buy insurance involved some “economic activity” that impacts the healthcare market (and that therefore, under the Supreme Court’s interpretation of Commerce Clause powers, Congress has the authority under the Commerce Clause, coupled with the Necessary and Proper Clause, to regulate), Clement reportedly responded that, despite this, Congress has no constitutional authority to force people to act to buy coverage.

Clement attempts to thread a needle.

In 2005, in Gonzales v. Raich, the Court held that under the Commerce Clause, aided by the Necessary and Proper Clause, Congress has the power to prohibit an individual from growing marihuana, not for sale, much less for sale in interstate commerce but instead for his personal use, because this effects the interstate market for marijuana. Only O’Connor and Thomas dissented. The challengers to the constitutionality of the ACA’s individual-mandate provision have focused on the “compel” part; sure, the Congress can prohibit activity something under the Commerce Clause, but it can’t compel activity under the Commerce Clause. But once you acknowledge that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs, you’ve pretty much conceded—logically, at least—that the Commerce Clause, assisted by the Necessary and Proper Clause, allows Congress to regulate this, irrespective of whether it does this by compelling the purchase of insurance or instead in some other way.

This is true whether the acknowledger is the lawyer for the challengers to the constitutionality of the law or instead the judges hearing the case.

All three of the judges on that panel acknowledged the obvious: that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs. And Clement didn’t deny it. So much for, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” It boils down to that only if the federal government isn’t compelling people into commerce also to better regulate the healthcare-coverage market. Most laws, federal as well as state and local ones—including the federal one at issue in Raich—regulate the individual. Whether they better regulate the individual or not.

Clement understands this, of course, but also recognizes the need for a straw to grasp at other than the Commerce Clause one. Thus the civil liberties straw, which the judges themselves offered the statute’s challengers even before Clement (who argued after the federal government’s lawyer, acting solicitor general Neal Katyal, did) began his argument:

Marcus: “If they could compel this, what purchase could they not compel?” …

Dubina: “I can't find any case like this. If we uphold this, are there any limits [on the power of the federal government]? …

Marcus: "I can't find any case [in which the courts upheld the constitutionality of] telling a private person they are compelled to purchase a product in the open market.... Is there anything that suggests Congress can do this?"

Well, no, not precisely. But there are Supreme Court cases that upheld what, for civil liberties purposes, amounts to the same thing. They’re the cases that upheld the constitutionality of the Social Security Act and the Medicare Act by allowing the government to compel contributions to these separate funds, which are not part of the general tax revenue fund (OK, in theory, anyway), for the sole purpose of insuring a retirement income and health insurance for those over age 65. True, the specific “enumerated” Constitutional authority Congress used to enact those laws was the taxing power, not the commerce-regulation power. But that matters only if the commerce-regulation power isn’t broad enough to reach this. If it is—and under Supreme Court precedent, it is, if the failure to have health insurance significantly impacts the healthcare market, which it does—then this distinction is without a difference. You know. A meaningful (or as lawyers say, a material) difference.

In questioning Katyal, the judges were asking for a so-called “limiting principle,” a logical line beyond which federal regulatory authority cannot go. But if the issue is individual liberty, is it really logical to have that line depend on whether the compelled payment is for a product in the open market rather than for a similar product issued by the government? Isn’t the civil liberties issue really what the goal and effect are? That’s certainly the issue in most civil-liberties challenge to the constitutionality of a statute. Why isn’t it, here?

Blowing away the smokescreen erected by the focus on the individual-mandate provision’s use of private insurance—and isn’t it just a smokescreen, really?—why does this infringe on liberty more than the Social Security and Medicare taxes do?

The bottom line, in my opinion, is that the Commerce Clause gives Congress the power to regulate, including the power to compel, without infringing on civil liberties, if what Congress is compelling is what it could compel through its taxing power, without infringing on civil liberties. Congress couldn’t (to use the conservatives’ preferred example) compel Americans, via the tax code, to eat broccoli. Or to buy it. That pretty clearly would violate substantive due process rights, a.k.a. individual liberty rights, even if under the taxing power Congress otherwise would have that authority. But Congress could, for example, extend Medicare to all Americans and amend the Medicare tax law to pay for it, without violating the Constitution’s individual-liberty guarantees.

That’s the limiting principle. At least it should be.

The OTHER major issue in today’s ACA appellate argument: Medicaid changes

In the ACA case being argued today in the 11th Circuit Court of Appeals, the plaintiffs are 26 states, one business organization, and at least two individuals. This is the case in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional on the basis that, he ruled, the mandate provision is unconstitutional because it mandates “activity” and penalizes for “inactivity.”

In my posts last week, I discussed ad nauseam the issue of legal “standing” to challenge the constitutionality of the mandate provision, and said that in the two cases argued in the 4th Circuit last month, and the one argued in the 6th Circuit on June 1, there were big questions about whether the plaintiffs in those cases had standing regarding the mandate issue. In one of the two 4th Circuit, a state, Virginia, was the plaintiff, but in that case, Virginia challenged only the mandate provision. I said that since Virginia is not subject to the mandate to buy health insurance for itself, it’s likely that the 4th Circuit will dismiss that lawsuit, holding that Virginia lacks standing to make the claim. To have “standing,” you have to have a “particularized” (i.e., a concrete, reasonably direct) injury from the act (here, the legislation) at issue.

In the case being argued today, State of Florida v. U.S. Dept. of HHS, the plaintiffs are 26 states, a business group, and at least two individuals. Unlike Virginia in the 4th Circuit case, these 26 states are challenging the ACA’s constitutionality on an issue entirely unrelated to the mandate provision: the provisions in the ACA that significantly alter Medicaid. The states are claiming that those changes amount to an unconstitutional “commandeering” of state policy, via the Medicaid Act as amended by the ACA.

The argument strikes me as absurd. Santa Clara law prof. Brad Joohdeph, who has a blog dedicated entirely to the ACA litigation, has an article-length post today that details and then deconstructs the state’s arguments. His conclusion: that some of the arguments aren’t complete nonsense but that they would require such dramatic and far-reaching alterations to constitutional law that they’re unlikely to succeed in any court, including the Supreme one.

My conclusion: the arguments are nonsense.

‘Markets’ and the ACA: Why the Supreme Court Will Uphold the ACA

In my post last week about the activity/inactivity canard on which the challengers to the constitutionality of the ACA claim, I wrote:

In his [blog] post, [high-profile rightwing law professor Randy] Barnett pointed out something that was not in the other reports I’d read about [last month’s oral arguments in the 4th Circuit Court of Appeals]: that in a lengthy exchange with [acting Solicitor General Neal] Katyal, [Judge Diana Gribbon] Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.

Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.

Motz, though, missed the point. Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.

Katyal apparently was too dumbfounded to explain this.

The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It’s one of the “enumerated,” or specified, powers that the Constitution gives Congress, and which the Necessary and Proper Clause augments.

Last Thursday, Santa Clara U. law professor Brad Joondeph, who has a blog called “aca litigation blog,” wrote trenchantly as the opening paragraph of a lengthy post titled “The regulated activity”:

Much ink has been spilled over whether Congress--using its commerce power alone, or its commerce power in conjunction with the Necessary and Proper Clause--has the authority to regulate "inactivity." But there is a logically prior question--a question that is often quite tricky in enumerated powers cases--that must be resolved before reaching the inactivity issue. Namely, one has to define exactly what conduct Congress is regulating in the challenged provision.

[A] critical question that every judge must confront (or at least every judge reaching the merits) is whether the minimum coverage provision (a) regulates conduct in the health insurance market (as the challengers contend), or (b) regulates conduct in the health care services market (as the United States maintains).

In a direct and immediate sense, of course, the individual mandate regulates behavior in the insurance market. But one can easily argue (as with §4306 above) that what it really regulates is the payment for services in the health care service market. Sure, the provision, when examined in isolation, only directly concerns the purchase of health insurance. But the broader scheme, taken as a whole, shows that what Congress was actually regulating--of which the individual mandate is only a part--is the financing of health care services. Congress logically cared whether people carry health coverage not for its own sake, but due to its implications for the financing of services in the health care market, the ultimate object of its regulation.

So which is it? Which market does the minimum coverage provision actually regulate?

The larger point, he says, is that

the relevant “regulated activity”—or, phrased differently, the relevant regulated market—is quite open to debate [and that the] fact that the challenged provision only regulates a particular activity directly (… the decision whether to acquire health insurance in the case of the ACA) does not answer the question. The regulated activity or market, for purposes of evaluating whether the challenged provision is within Congress's enumerated powers, may well be different than the conduct that the provision directly governs. Answering the critical question is not as simple as examining the empirical realities of the challenged provision by itself.

He’s spot-on. But I think it would be profoundly disingenuous for any judge to say that the relevant market is simply the health insurance market. The purpose and the effect of the ACA, including the mandate provision, clearly is to regulate the method by which healthcare is funded in this country.

Joondeph ends his post by saying that the distinction between regulation of the market for health insurance and regulation of the market for healthcare is “obviously of enormous importance.” He writes:

For if the relevant market is only that for health insurance, the minimum coverage requirement looks truly unprecedented (and constitutionally problematic). But if the relevant market is that for health care services, then what Congress is regulating is a market in which virtually every American activelyparticipates--and the minimum coverage provision is merely regulating the commercial terms on which thatactive participation occurs. And this framing, of course, makes it seem well within Congress's authority to regulate interstate commerce.

He’s right, but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.

Ultimately, the Supreme Court is unlikely, in my opinion, to say that the relevant market is health insurance rather than healthcare. That would pretty much require the majority to do what they did in Bush v. Gore: pronounce the ruling good for that case only. Which is why I think the ACA will survive the constitutional challenge. But if it doesn’t, it’s likely to be a 5-4 slippery-slope-to-government-compelled-consumption-of-broccoli ruling.

----

The most important of the ACA-case appellate arguments is tomorrow afternoon in Atlanta, at the 11th Circuit Court of Appeals. This is the appeal in the case in which 26 states and one private organization are the plaintiffs, and in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional because, he said, the mandate is too essential to the entire statute to strike that provision down without also striking down the entire ACA. Paul Clement, who, it was announced today, will be representing Arizona in defending the constitutionality of the most draconian of Arizona’s recently enacted immigration-law statutes, and who is representing six Republican House members in defending the constitutionality of the Defense of Marriage Act, is the states’ lead attorney. (Looks like a pattern here, for Clement.)

New wrinkles in the ACA litigation – Part II

Okay, well, now y’all know from reading Part I that under the Constitution’s Art. III requirement that plaintiffs in lawsuits have some “particularized” (and ya know what that means, from reading Part I) injury or be in imminent danger of suffering one, and that the imminent danger can, theoretically, be hardship due to the anticipated violation of the plaintiffs’ rights. So you’ll be able to sail right through the federal-court-jurisdiction questions in the Civil Procedure section of the multi-state part of the bar exam.

You’ll also be able to understand what happened last Friday in the ACA case scheduled for oral argument on Wednesday in the Sixth Circuit federal appellate court.

The case is Thomas More Law Center, et al. v. Obama. Thomas More Law Center is a rightwing organization whose purpose is to challenge the constitutionality of laws or government policies or government actions against a particular individual that the far right finds offensive. Almost always, the underlying cause is a culture-wars issue, although sometimes the immediate issue being litigated is a more general procedural or constitutional-rights issue.

For example, a few weeks ago, a friend asked me whether I would be willing to advise a Thomas More lawyer on a procedural issue concerning access to federal court for a couple who are my friend’s friends and who are entwined in a legal morass stemming from their protests at an abortion clinic, for which they were prosecuted. My friend knows I know loads about the procedural issue, known as the Rooker-Feldmandoctrine, an absurd Supreme Court-created bar to access to federal court in order to challenge the constitutionality of state-court actions. I was happy to oblige, partly because this couple’s due process rights, were, in my opinion, violated, and partly because that doctrine itself violates the Fourteenth Amendment. On March 7, in an opinion called Skinner v. Switzer, the Supreme Court finally killed the doctrine, or tried to; because Skinner does not expressly say, “We overrule Dist. of Columbia Ct. of App. v. Feldman,” the 1983 opinion that created the doctrine on the basis of the Court’s interpretation of a statute that was amended in 1986 to remove the part of that statute that the Court was interpreting, some of the lower federal courts are ignoring Skinner. Just as I’d predicted on Mar. 7 when I read the opinion.

But I digress.

The et al. are four individuals who are members of the Thomas More organization. (It’s apparently an organization that has a membership, like the NAACP, the ACLU and the NRA, rather than just a law firm.) The organization’s standing to sue is derivative of its members’ standing—the ones that do have standing, that is, and only the members who actually will be forced by the ACA to buy health insurance or pay the penalty even arguably have standing. Turns out that the only one of the individual plaintiffs who, at least from the plaintiffs’ earlier filings, claimed that injury and provided specifics about it—that she did not have health insurance and that the $700 per month she said she would have to pay under the ACA would cause her significant financial hardship—actually bought health insurance through her employer last October, after the lower-court decision, for less than $400. The plaintiffs revealed this in their response to the court’s briefing request, which they filed last Wednesday.

Two of the other four individuals are not even claiming a lack of health insurance and therefore any injury from the mandate. The other one—his name is Steven Hyder—has claimed that the mandate “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands,” but he provided no specifics.

Voila! On Friday, the government filed a motion asking the court to dismiss the appeal because, the government said, no plaintiff has standing to litigate this because no plaintiff has shown that he or she would suffer an injury from the mandate. Hyder's claim, the government says, is a mere conclusory statement; without facts supporting the conclusion, it’s not enough to establish standing. And the others clearly haven’t established standing. And, because the trial-level judge, who is based in the Eastern District of Michigan, ruled that the ACA is constitutional, the government wants the appellate court not to “vacate” (hold null and void) that judge’s ruling, an action that normally the appellate court would do in such a circumstance.

The government’s request that the appellate court dismiss the appeal yet leave the trial judge’s ruling intact strikes me as pointless. Yes, the plaintiff who voluntarily bought health insurance in October did have standing when the lawsuit was filed and when the trial judge issued his ruling last summer. But trial-court rulings have no effect except in the case in which the ruling was issued. They don’t even set the law in that court’s own judicial district. That ruling, if it remains in effect although the appeal is dismissed, probably wouldn’t even effect the rights of these plaintiffs—most significantly, of course, the Thomas More Law Center—because they were denied the right to an appeal.

At the oral argument on Wednesday, or before that in a filed response to the government’s motion, the Thomas More lawyers will get specific about the basis for Hyder’s claim of financial hardship and about whether the other two individuals now have health insurance. If they all have health insurance, then, the mandate won’t cause them financial hardship or, irrespectively of finances, force them to do something they don’t want to do. They don’t have standing.

But, assuredly, some plaintiff in some other ACA case does. Or will.

New wrinkles in the ACA litigation – Part I

On May 23, the three-judge federal Fourth Circuit appellate panel that two weeks ago heard oral argument in the two cases in Virginia challenging the constitutionality of the ACA issued an order asking the parties to brief the question of whether a federal statute known as the Tax Anti-Injunction removes the federal courts’ “jurisdiction”—i.e., legal authority—to hear a case filed “for the purpose of restraining the assessment or collection of any tax.” The statute, subtitled “Prohibition of suits to restrain assessment or collection,” is part of the IRS Code. The relevant part of the statute reads:

Except as provided in sections 6015 (e), 6212 (a) and (c), 6213 (a), 6225 (b), 6246 (b), 6330 (e)(1), 6331 (i), 6672 (c), 6694 (c), and 7426 (a) and (b)(1),7429 (b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

The panel asked for briefing on three questions. The first one has two parts. It asks, generically, whether the statute, when applicable, divests the courts of jurisdiction to hear this type of case, and, if so, whether it does that in these cases. The two parts, each of which references a particular earlier Supreme Court holding—one in a 1962 opinion called J.L. Enochs v. Williams Packing & Navigation Co., that created an exception to the statute when the statute otherwise would apply, the other a 1974 opinion called, Bob Jones University v. Simon, saying that in that particular case, the exception created in Williams Packing doesn’t apply—appears to me to be just a clumsy way of asking whether, if the penalty assessment is a “tax,” the ACA cases come within the exception created by Williams Packing. Clearly, the statute indicates that when it is applicable, it divests the courts of jurisdiction to hear the case.

The second question asks whether “a challenged exaction”—here, the fee that must be paid through the IRS for failure to purchase health insurance—can qualify as a “tax” under the Anti-Injunction Act whether or not it qualifies as a tax for purposes of Congress’s taxing power under Article I of the Constitution, the part of the Constitution that lists most of Congress’s powers.

The third question asks whether, if the Anti-Injunction Act does apply to these lawsuits—that is, if the exaction is considered a tax for purposes of the Act—the plaintiffs (the State of Virginia, in one of the lawsuits; Liberty University and a few named individuals, in the other lawsuit) will have “the ability to challenge the exaction … in a refund suit or otherwise.” Williams Packing held that the statute would violate the Fifth Amendment’s due process clause unless an exception to the statute’s applicability is created if there otherwise will never be an avenue in which the plaintiff can challenge the constitutionality of the tax and obtain redress if the tax is unconstitutional; that’s the exception that Williams Packing creates. But the ability to sue to request a refund of the tax once the tax has been paid usually will suffice, according to Williams Packing, for due process purposes.

The two ACA cases were decided at the trial-court level by different judges. The judge in the case filed by Virginia ruled that the “mandate” part of the ACA is unconstitutional. The judge in the Liberty U. case ruled the entire ACA constitutional.

The Anti-Tax Injunction Act was never an issue in the Virginia case, because Virginia itself will not be subject to the penalty for failure to obtain health insurance. In fact, for that reason, the three-judge panel will dismiss that lawsuit, saying that Virginia has no legal “standing”—no right—to challenge the statute’s constitutionality because the state will have no concrete injury from the statute. That much was clear from the oral argument. The Constitution’s Article III, which creates the federal judicial branch, gives the federal courts the power to hear only certain identified types of “cases” or “controversies.” The Supreme Court has always interpreted the case or-controversy” language to mean that only parties that have sustained or are about to sustain a “particularized”—i.e., a concrete—injury, have “standing” to sue. You can’t sue if your injury is only hypothetical. You have to have an “injury in fact.”

But at least some of the individuals in the Liberty U. case, if not the U. itself, apparently do have standing to challenge the mandate’s penalty fee. And the Anti-Injunction Act became an issue in that case because the Justice Dept. had called the penalty fee a “tax.” Rather than relying just on the power that the Constitution gives Congress to regulate commerce, and its authority under the Constitution to enact laws “necessary and proper” to execute its commerce-regulating power, the Justice Dept. claimed that Congress also had the authority under its taxing power to enact the ACA, including the mandate provision. The Justice Dept. then invoked the Tax Anti-Injunction Act and claimed that the court lacked jurisdiction to hear the part of the case that challenges the constitutionality of the mandate and the penalty “tax.” But the trial-level judge rejected the characterization of the penalty fee as a tax, saying it’s more accurately characterized as a regulatory penalty. Holding that he had the authority to consider the constitutionality of the ACA, he ruled the law constitutional.

The Justice Dept. didn’t raise the Tax Anti-Injunction issue on appeal. But the judges now have, and what’s clear from the May 23 order is that, at least at this point, they plan to characterize the mandate penalty as a tax for purposes of that statute. That’s a curious view, since the purpose of the taxing power is to raise revenue and the purpose of the Anti-Injunction Act is to allow the revenue to be raised, unencumbered by court injunctions. The purpose of the ACA’s mandate is to require almost everyone to have health insurance, and the point of the penalty is to require everyone to comply with that mandate. Which is why the panel apparently has concluded, accurately, in my opinion, that the penalty is not a tax under Article I of the Constitution. And which is why, if that the Tax Injunction Act nonetheless applies to the penalty, the Supreme Court will reverse them. And, on this issue, it should. The penalty does raise revenue, but only incidentally, just as other government fines, including fines as criminal sentences, do. But fines aren’t taxes.

There’s also, at least in my opinion, a big question whether the Anti-Injunction Act applies even when what’s at issue is clearly a tax, if, as here, what the plaintiffs are asking for is just a declaration (called a declaratory judgment) that the statute is unconstitutional, rather than asking the court to enjoin collection of the tax. In Williams Packing and Bob Jones University, the plaintiffs were asking the court to enjoin the collection of the tax. In the ACA cases, they’re asking the court to declare the statute, or at least the mandate provision, to which the penalty fee is only an enforcement tool, unconstitutional. A purpose of the lawsuits is to restrain the assessment or collection of the fee, but they’re not asking the court to do that directly.

Meanwhile, in an ACA case scheduled for oral argument on June 1 in the Sixth Circuit appellate court, the court that hears federal appeals from Michigan, Ohio, Kentucky and Tennessee, the three-judge panel asked the parties on May 12, the day after the argument in the Virginia case, to briefly brief three questions, two of which concern whether the controversy is “ripe” for resolution—that is, whether, given that the ACA mandate doesn’t begin until 2014, the plaintiffs have alleged an injury in fact, and, if not, whether they’ve alleged “an ‘imminent injury’ creating a case or actual controversy under Article Ill and the Declaratory Judgment Act” this long before the effective date of the mandate provision. The panel also requested briefing on whether the IRS’s enforcement mechanisms impact whether there is a current or imminent injury because, the plaintiffs claim, they must plan long ahead for this extra expense.

The panel also asked a question about the substance of the case: whether these plaintiffs are claiming that the statute is unconstitutional on its face—i.e., that it is unconstitutional vis-à-vis everyone—or whether instead they’re just claiming that the statute is unconstitutional as it would be applied to them and others like them but not to everyone.

The parties filed their brief briefs on Wednesday. And from there, the plot thickens.

Part II to follow.

More on the activity/inactivity canard in the ACA litigation

Last week, one of the law blogs I read regularly mentioned a post from May 11 on a law blog read regularly by a lot of law geeks (but not by me) about the oral argument in those cases a day earlier. The blog is The Volokh Conspiracy. Its bloggers are prominent rightwing or libertarian-right law profs, most of whom once were law clerks to a conservative Supreme Court justice. This particular post was by Georgetown law prof. Randy Barnett, who is a veritable font of rightwing legal theory and suggestions for rightwing laws and legal arguments.

He also is, from what I can tell, the farthest right of that blog’s bloggers. Earlier this year, one of the big, big names on that blog, Orin Kerr, wrote that he was pretty darned certain that under the Supreme Court’s Commerce Clause and Necessary and Proper Clause rulings, the ACA was constitutional. One of the other bloggers there—probably Barnett, but I don’t recall—disputed that.

Anyway, in his May 11 post, Barnett recounted an exchange between acting Solicitor General Neal Katyal, who was arguing the appeal on behalf of the government, and panel judge Diana Gribbon Motz, a Clinton appointee. To refresh your memory from two weeks ago, all three of the panel members are Dem appointees, the other two of them appointed by Obama. Also to refresh your memory, the main challenge to the constitutionality of the ACA is that the Constitution’s Commerce Clause does not give Congress the authority to regulate inactivity. To which the government has responded that the decision to not buy health insurance and to instead rely upon the largess of the government, hospitals and ultimately those who do pay health insurance premiums to get emergency medical treatment, is activity. And that in any event, under the Supreme Court’s longtime Commerce Clause jurisprudence, that Clause coupled with the Necessary and Proper Clause gives Congress the power to regulate markets and that therefore there is no activity/inactivity distinction for Commerce Clause purposes.

The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

In his post, Barnett pointed out something that was not in the other reports I’d read about the oral arguments: that in a lengthy exchange with Katyal, Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.

Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.

Motz, though, missed the point.

Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.

Katyal apparently was too dumbfounded to explain this. According to a report I read, he was assigned to handle those oral arguments only a two or three days before the date of the arguments, and that might be one reason; the top person at the Solicitor General’s office normally personally only does that in the Supreme Court (and then, rarely).

A day or two after those oral arguments, Obama’s nomination of a man named Donald Verrilli to replace Elena Kagan as Solicitor General was voted out of committee. It’s scheduled for a full vote in the Senate on June 6. Here’s some of what the New York Times said about Verrilli’s background last January when Obama nominated him:

Before joining the administration (in 2009), Mr. Verrilli spent two decades as a prominent litigator with the law firm of Jenner & Block, where he was chairman of its Supreme Court practice group, while also teaching First Amendment law as an adjunct professor at Georgetown law school.

He participated in more than 100 Supreme Court cases and argued 12 of them. He has also argued about 35 times before federal appeals courts and state supreme courts.

Verrilli won’t be arguing the Sixth Circuit ACA-case appeal there on June 1. But presumably, he’ll be arguing the upcoming ACA appeals in the other federal appellate courts-including the two in the Eleventh Circuit, one of which is the most high-profile one nationally because the lower-court judge, Roger Vinson, pronounced the entire ACA unconstitutional, the other in which the lower-court judge ruled the entire statute constitutional. And he’ll eventually defend the statute’s constitutionality in the Supreme Court. Enough said. I’m pretty sure of it.

By which I mean that the case will be argued for the government as sharply and expertly as the cases will be argued for the other side by former Bush Solicitor General Paul Clement, who, now in private practice, was retained to represent the statute-challengers in the Roger Vinson case in the Eleventh Circuit. Unless, of course, Verrilli’s nomination is filibustered.

The Difference Between Defending DOMA and Defending Neo-Nazis and the ACA

A post on the Blog of LegalTimes on Wednesday titled “King & Spalding Offers New Details on Marriage Mess,” which summarizes a report that day in one of its sister ALM (American Law Media) publications, the Atlanta-based Daily Report, by staffer Meredith Hobbs, begins:

The head of King & Spalding's Washington office is accepting blame for what he calls the "misunderstanding" that led the firm last month to accept, and then drop, the U.S. House of Representatives as a client in same-sex marriage litigation.

King & Spalding is a mega-law-firm based in Atlanta that in late 2008 won the derby to hire Paul Clement, Bush’s solicitor general since 2005 who had left the Justice Dept. in June 2008, to head its Supreme Court and appellate division. The deal involved a reported $5 million signing bonus, well worth the price because petitions (known as “cert.” petitions) asking the Supreme Court to agree to hear the case, when filed on behalf of clients by former Justice Dept. solicitors general—the Office of Solicitor General is the division of the Justice Dept. that argues cases before the Supreme Court on behalf of the United States—are guaranteed to actually be read by the justices, and the Court is more likely to grant the petition to hear the case even than petitions filed by former law clerks to Supreme Court justices. Which is saying quite a bit, because former law clerks to Supreme Court justices now hold a near-monopoly on getting private clients’ cert. petitions granted.

Clement, in keeping with modern tradition for former solicitors general, is a two-fer. He clerked for Scalia for a year after clerking the year before—his first year out of law school—for a lower federal appellate judge, a de facto prerequisite to a Supreme Court clerkship. So he’s really, really valuable to clients who want their cert. petitions read by justices, and granted. And to law firms that want to be known as a “presence” at the Court.

The referenced marriage mess is that last month, after the Obama administration announced that it (i.e., the Solicitor General’s office) would not be defending the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, against lawsuits challenging the statute’s constitutionality, a group of Republican House members hired Clement to represent them in defending the statute’s constitutionality, notwithstanding that they’re not parties to these lawsuits. But Clement signed the retainer contract without first getting authorization from the firm’s five-member committee that vets potential new clients and cases. And the contract itself contained an unusual and weird clause, now infamously known in legal-pundit circles as the “gag” provision, barring employees of the firm—attorneys, staff members and, I guess, the mailroom folks and couriers—from speaking ill of the statute.

When mass mutiny, by firm employees and corporate firm clients, including longtime client Coca-Cola (virtually all of the firm’s clients are corporations), threatened, upon the public announcement of the firm’s representation, escalating in intensity after the gag provision was disclosed, the firm announced that it would attempt to withdraw from the representation. The firm said the prospective representation hadn’t been submitted through the firm’s normal channels and hadn’t been vetted, and that, had it been, the firm would have declined the case. Clement, in turn, saying he had been led to believe that the firm supported the representation, resigned from the firm, saying that he could not ethically withdraw his representation. He joined a small firm comprised mostly of former Bush administration War on Terrorism veterans.

He then issued a public statement, seconded by several legal pundits, including some, such as Slate’s Dahlia Lithwick, whom I admire and whose writings I usually agree with, argued that it sets a dangerous precedent for a law firm to succumb to public pressure to decline to represent (or, as here, to withdraw from representation of) an unpopular client or an unpopular cause.

I’ve admired Clement himself, actually. As solicitor general, he was not an automatic supporter of rightwing legal positions when the Supreme Court, as is its custom, would ask the Solicitor General’s office for its view on whether the Court should agree to hear a particular case, usually concerning interpretation of a federal statute, in a case in which the federal government is not a party. The solicitor general is not the one who makes the final decision on this; the attorney general and sometimes the president himself is, if the issue is important ideologically or for, say, law enforcement purposes. But in cases in which it seems likely that the decision was left up to Clement, he didn’t always favor the conservative position.

In one important access-to-court case, for example, Winkelman v. Parma City School District, Clement filed a brief in support of a cert. petition filed by the parents of an autistic child who tried, without retaining counsel, to sue their local school district on their son’s behalf asking for injunctive relief to force the district to comply with a particular provision of the Individuals with Disabilities Education Act that the parents said the district was ignoring. The issue was whether the parents could “represent” their son in the lawsuit or whether instead they must hire a lawyer to that, rendering the right to sue dependent on the family’s ability to pay substantial legal fees. The Court, probably persuaded partly by Clement’s brief, agreed to hear the case, and, then probably influenced by Clement’s friend of court brief after the Court agreed to hear the case, ruled for the parents and their son. The opinion has implications for similar access to court by, say, elderly adults “represented” as “next friend” by one of their adult children, and asking for injunctive relief under various laws.

And in another case involving access to court by the non-wealthy, Clement, during his King & Spalding years, argued—unsuccessfully—in favor of possible higher contingent compensation from losing governments under certain circumstances, under a federal statute that requires a losing government in a constitutional civil rights case to pay fair-value attorneys’ fees to the lawyer who represented the plaintiff. Currently, he is among the lawyers representing a group of California state prisoners before the Supreme Court in a case in which the prisoners won on their claim for injunctive relief in the lower federal courts, claiming that California’s decades-long, extreme overcrowding in their prisons caused a lack of adequate health care so severe that it resulted in numerous deaths, in violation of the Eleventh Amendment’s prohibition of cruel and unusual punishment.

And Clement’s not just a “name.” Judging from journalists’ reports on his recent high-profile oral arguments at the Court, he strikes me as brilliant analytically, and he’s wonderfully quick-witted.

So I was disappointed when a few weeks before the DOMA controversy broke, it was announced that he would be representing the challengers to the Affordable Care Act’s constitutionality on appeal in the case in which a federal trial-court judge in Florida pronounced the entire statute unconstitutional earlier this year. It’s not that the Supreme Court justices will actually cast their vote based on any argument that has not already been made and thoroughly dissected. But if anyone can make a Supreme Court majority vote to strike down this law as unconstitutional seem like anything but Bush v. Gore redux, it is Clement.

But my disappointment about his representation of the ACA challengers is just a personal one. After all, in the ACA case, he’s playing a standard role as counsel, representing clients who claim that Congress exceeded its constitutional authority and that the result violates their individual rights.

In fact, the classic examples used to skewer King & Spalding’s action in the marriage mess all are of cases in which the lawyer is attempting to help an unpopular individual or group vindicate a constitutional right—the right of an accused mass murderer to a fair trial; the First Amendment right of neo-Nazis to march through Skokie, Illinois, then home to a substantial number of Holocaust survivors; recently, the claimed First Amendment right of the members of that absurd Kansas-based church to protest gay rights by parading at the funerals of soldiers killed in action in Iraq or Afghanistan, holding signs saying that the death was god’s retribution. (E.g., “Thank God for dead soldiers.”)

But every time I read a new contribution to the body of literature on the marriage mess, I wonder momentarily whether Clement’s decision to represent the group of House members, and the law firm’s decision to remove itself from that representation, really are the equivalent of, say, the ACLU lawyers who represented the neo-Nazis in the Skokie-march case and the people who thought the ACLU should not have represented them.

The neo-Nazis’ own cause, the message they wanted to spread, was abhorrent, but the cause the lawyers were championing was free speech. Clement, in his public statement, said his own opinion about the propriety of the DOMA as statutory policy is irrelevant (and sort of hinted that he personally doesn’t favor that legislation). And he’s right, of course; all that’s at issue is whether the statute is constitutional.

But I think he’s wrong that there’s no distinction between a lawyer’s representation of a party whose rights are at issue and a non-government lawyer’s representation of a group of members of Congress in order to defend the constitutionality of a law whose intended effect is to constrain the rights of others. What’s different is, first, that legal representation of members of Congress who are claiming that a statute is constitutional is more like a legislative or lobbying act than legal representation of a client. That’s true even when the purpose of the statute at issue isn’t to limit others’ rights. And, second, when, as here, the sole purpose of the statute is to limit others’ rights, it’s really not equivalent to representation of a party who’s own rights are at issue and whose case might, if that party is successful in the litigation, expand the rights of others.

I don’t suggest that there is something wrong with Clement’s decision to accept the case. What I do suggest is that the decision was more freighted with substance than the quick analogies suggest, and that King & Spalding was not wrong to view it that way.

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Cross-posted at Angry Bear.

Florida State University and Koch Brothers … significant or not

A post by Dan Crawford at Angry Bear today titled "Florida State University and Koch Brothers … significant or not" reads:

Via Alternet and the St. Petersberg Times:

A foundation bankrolled by Libertarian businessman Charles G. Koch has pledged $1.5 million for positions in Florida State University's economics department. In return, his representatives get to screen and sign off on any hires for a new program promoting "political economy and free enterprise."

The agreement is here.

Since readers include university professors, what is the deal? What is usual or setting a new bar for funding in a public institution?

I’m not a university professor, but here’s the comment I posted:

The John M. Olin Foundation did something like this for decades with sponsorships of “Law and Economics” chairs at law schools, but, to my knowledge, these were all at private universities and, also to my knowledge, the foundation had no formal say in who was hired for these positions. The foundation apparently disbanded in 2005. The Wikipedia article about the foundation is here.

It’s one thing for a private university such as Stanford to house an ideological think tank such as the Hoover Institute, which is not part of one of the university’s academic departments. It’s something else entirely, and something really pernicious, I think, for a university—especially a state university—to delegate to a party unaffiliated with the university the authority to approve hires for one of the university’s academic departments in exchange for funding the professorships.

This is a VERY big deal, in my opinion. But then, a hallmark of this era in America is the abandonment of even the pretense of ethical standards of conduct by this country’s traditional pillars of those standards. At least this abandonment is public knowledge from the outset.