Balkinization  

Monday, March 02, 2015

"Plain meaning," absurdity, and the (almost forgotten) Gregory/Bond federalism canon, in King v. Burwell

Marty Lederman

There are over 400,000 words in the Affordable Care Act.  The challengers in King v. Burwell rely upon a single one of those words—a simple preposition (“by”) buried in a provision (26 U.S.C. § 36B) setting forth the formula for monthly tax credits for individuals—as the basis for an interpretation of the Act that would unravel Congress’s efforts to guarantee affordable health care for all Americans.

According to the challengers, Congress’s use of the word “by” in the phrase “an Exchange established the State” (rather than, for example, referring to an Exchange established “within” or “for” the State) has a world-changing impact:  On their reading, when a State chooses to allow the federal government to set up a health-insurance Exchange for its residents—an option the Act plainly allows, and one that almost three dozen states have adopted—that choice would have catastrophic consequences, namely, the denial of tax credits for all of the State’s residents who wish to purchase insurance on that Exchange . . . which would in turn lead to the virtual destruction of the insurance market in that State, thereby making the State’s residents much worse off than if Congress had not enacted the ACA at all.  See, e.g., NFIB v. Sebelius, 132 S. Ct. at 2674 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (“[The Act’s] system of incentives collapses if the federal subsidies are invalidated.… With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”).

For good reason, the challengers make barely any effort to demonstrate that any members of Congress, let alone majorities of both houses and the President, actually intended to put the States to such a terrible choice, with such ruinous consequences if a State chooses one of the options Congress has offered.  (Indeed, such an argument is belied by the fact that no legislators mentioned, or were aware, that they had done so--and that no one else realized it either, until an attorney stumbled upon the idea nine months after the law's enactment.)  Even so, the challengers say, Congress’s actual intent “is legally irrelevant” (page 14 of their reply brief).  It is enough, they contend, that this sort of bullet-to-the-head of the States would facilitate one of Congress’s subsidiary goals—namely, to induce the States to create Exchanges—even if the cost of not fully realizing that objective would be not only to render unachievable the principal objective of the Act (guaranteeing affordable health care for all Americans), but also to destroy the existing health-insurance markets, such that health care would be much less affordable than it was before Congress enacted the law.

A great deal has already been written—in the briefs, online and elsewhere—about the substantive merits of the challengers’ account of the Act, and, in particular, about the proper interpretation of the subsidy-calculation phrase in section 36B on which the challengers rely: “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act.” 

To oversimplify a bit, there are three basic positions regarding the interpretation of that phrase
-- The government argues, and I agree, that the phrase, read in the context of the Act's text as a whole, plainly does not disqualify individuals who purchase a plan through a federal Exchange from being eligible for the tax credits that make such a purchase possible, because when a State declines to create an Exchange under section 1311 of the Act, and HHS steps in to set up “such Exchange” under section 1321, that federal Exchange qualifies as an “Exchange established by the State under section 1311” for purposes of the Act.
-- Others, such as the majority of the Fourth Circuit panel in King, conclude that the phrase in section 36B is ambiguous on that question—in which case the proper outcome for the Court (under Chevron) would be to defer to the IRS’s reasonable interpretation that such credits are available in States where the federal government has established the Exchange.
-- The challengers stake out the third position—that the “plain meaning” of the contested phrase in section 36B precludes such tax credits in States where the federal government operates the Exchange.
For the purposes of this post, I will assume the challengers are correct, i.e., that the “plain meaning” of the words of section 36B isolation, would preclude tax credits in States where HHS has established the Exchange.  As noted above, I think the opposite is true—that the government’s reading is compelled.  But the purpose of this post is to examine what the Court should do if it were to agree with the challengers on the “plain” meaning of that particular statutory language.

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What are the facts of King v. Burwell?

JB

Steve Brill, who recently wrote an exhaustive--and often critical--history of the genesis of Obamacare, and who interviewed virtually everyone involved with it, reports that the petitioners' claim that “Congress could not have chosen clearer language to express its intent to limit subsidies to state exchanges,” is a complete fiction. If the petitioners are making a claim about what Congress intended or what its purposes were, Brill explains, there is nothing to their case.

It is possible to argue, as the architects of the lawsuit originally did, that Congress may have wanted to make subsidies available on all exchanges, whether operated by the federal government or by the states, but that Congress didn't succeed in doing so because of a "glitch" in the wording of the statute.  But that approach--call it the glitch theory--would have greatly weakened their case. Instead  they decided to make a far stronger-- and far more daring--argument.  First, they argue that the language denying subsidies on federal exchanges is both clear and unambigious (so that Chevron deference to the IRS's interpretation does not apply). Second, they argue that the language is clear because it reflected a deliberate choice by the people who drafted the legislation, if not by each and every member of Congress who voted for the legislation.

Brill's point is that there is no evidence to substantiate that claim.
I know what the legislators intended because in researching my book, I interviewed pretty much everyone involved in the conception and writing of the law. Moreover, I did that long before King v. Burwell had become the Obamacare opponents’ favorite new weapon, which means that those opponents had no reason to spin the fairytale that Congress did not intend for those subsidies to go to the millions of Americans signing up on the federally run exchange. At the time, no one had a dog in a fight over congressional intent, because there was no fight.

I also reviewed reams of internal emails and memos generated by congressional staffers working for both Democrats and Republicans. In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them.

In short, I had a catbird seat for doing exactly that kind of fact-based reporting that anyone judging a case like this — reporters, as well as judges — should do. But I didn’t appreciate it because neither I nor the people I was interviewing had any expectation that this case would become something the Supreme Court would take seriously.

Indeed, when I mentioned the case to several of those sources during the spring and summer of last year, all of them – Democrats and Republicans – did some version of an eye roll. This is why there is only scant mention of the case in my book, the draft of which was completed before the court took the case.

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply.
Brill repeatedly refers to legislative intent in his discussion.  King v. Burwell is being fought primarily on textualist grounds, rather than on grounds of legislative intent. Even so, the petitioners have not thought it enough merely to argue that the text is clear and admits of no other reasonable construction. That is because the government has an equally viable textualist argument-- that the meaning of the terms in the statute must be understood in the context of the statute as a whole. If we take the entire text into account, there is more than one reasonable construction. (And, as Marty points out above, the federalism and avoidance canons would also support the Government's construction.).

To meet that textual argument, the petitioners must do more than point to one small portion of the text. They must argue that the language of the statute reflects a clear purpose to deny subsidies for health insurance if states did not create their own exchanges. That argument, however, brings the question of Congress's purpose back to the forefront of the litigation. The question of Congress's purpose is, as Brill says, a question that can be addressed through gathering evidence about the real world.  And there is no evidence that Congress actually wanted to threaten states that it would withhold tax subsidies  unless states created their own exchanges. Petitioner's account of Congress's purpose, Brill concludes, is simply made up.

King – Obamacare subsidies as textualism’s big test

Abbe Gluck

In November, I participated in a SCOTUSblog symposium on King, the Obamacare case that the Court will hear this week. The case, as I argued then and still deeply believe, is textualism's biggest test yet. Will the textualists show us -as they have been arguing for the past 30 years--that textualism is indeed a sophisticated and objective method of statutory interpretation that is a safeguard against judicial activism?  Textualism has had enormous success in the federal courts over the past decade, but those judges who have moved in textualism's direction will surely question those moves if textualism doesn't deliver what it promised.  Given that we are going to hear a lot of textualism talk this week and in the coming months, and to help folks get up to speed on these issues, I have reprinted (with permission ) my SCOTUSblog contribution below:

Obamacare’s opponents have depicted the challenges in King v. Burwell, Halbig v. Burwell, and the other subsidies cases as the choice between clear statutory text and vague notions of statutory purpose.   This is a smart strategy, because it creates the illusion of an easy choice for the Court’s textualists, and even for most of the other Justices. Textualists have spent three decades convincing judges of all political stripes to come along for the ride, and have had enormous success in establishing “text-first” interpretation as the general norm. In so doing, textualists have repeatedly emphasized that textual interpretation is to be sophisticated, “holistic” and “contextual,” not “wooden” or “literal,” to use Justice Scalia’s words. A lot of us (myself included) have gone to bat for this version of textualism, arguing that it is democracy enhancing and in furtherance of rule-of-law values, such as predictability.
 
The King challengers put all that on the line, and threaten all that textualists have accomplished. This is because King is not actually a text-versus-purpose case. Rather, King is about the proper way to engage in textual interpretation; specifically, about the interpretation of five words in a long and complex modern statute. And no one has to – or should – go outside the four corners of the Affordable Care (ACA) to decide it. So let’s cast aside the red herring of untethered purpose, and ask the question that gives King significance beyond the politics of health reform (and is a reason for the Court to avoid those politics): Will the Court follow, what Justice Scalia just five months ago (in Utility Air Regulatory Group v. EPA) called “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”?
 
The five words at issue sit in a provision that requires the ACA’s insurance subsidies to be calculated based on premiums for individuals enrolled through an “Exchange established by the State under 1311” (ACA § 1401); the question is whether the IRS properly interpreted the ACA to allow those subsidies also to be available on federally operated exchanges (which now are the majority of exchanges). Section 1311 establishes the state-run exchanges and so, read in a vacuum, Section 1401 appears at first glance to deny the subsidies on federal exchanges. In context, however, the words are at a minimum highly ambiguous, and arguably actually clearly provide for subsidies on the federal exchanges.
 
Justice Scalia, an ardent proponent of judges not engaging in “legislation” under the guise of interpretation, has argued that the Court’s role is to adopt the interpretation that “does least violence to the text” (Green v. Bock Laundry). The IRS’s interpretation accomplishes that goal: Section 1401 can still be read literally because the section that authorizes the federal exchanges, Section 1321, provides that if a state does not establish an exchange under Section 1311, the Department of Health and Human Services (HHS) “shall . . . establish and operate such Exchange within the State.” In other words, HHS must “establish” a Section 1311 exchange, which is a state exchange. Moreover, the Act defines “Exchange,” with a capital E, three times in the statute as a “state” exchange. And HHS, in Section 1321, is told to establish “such [capital E] Exchange.” The Court need not add or delete a single word of the ACA to reach this conclusion. (In fact, the Court shouldn’t be engaging in that enterprise in the first place. This is a Chevron case: an agency interpretation is at issue, and so all that is required is that the agency’s own construction be reasonable.)
 
On the other hand, as amply detailed in the briefing, the ACA’s text – not its purpose or its legislative history, or anything else that textualists don’t generally consider – is slashed to pieces under the challengers’ reading. Two examples from a list of many offered in the briefing:
 
  •  Section 36B(f)(3) requires “[e]ach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c)” to report the premiums doled out. Section 1321 is the federal exchange provision, and so this section is rendered meaningless if the federal exchanges have no subsidies.
  •  
  • Likewise Section 1312(f) provides that only “qualified individuals” can purchase on an Exchange but defines a qualified individual as one who “resides in the State that established the Exchange.” Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.
Justice Scalia’s own statutory interpretation treatise argues (at pages 63 and 168) that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” and that statutory provisions should not be interpreted to render them ineffective or superfluous.
 
Textualists also advocate structural, contextual interpretation. As Justice Scalia’s treatise puts it (at 168): “[N]o interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” The subtitles of the ACA immediately surrounding the provision in question are a set of interlinking pieces: they add new requirements on insurers to make insurance accessible; impose the infamous individual mandate on the public to populate the insurance pools; and create the federal and state exchanges and authorize the subsidies (which the exchanges deliver) to make insurance purchase accessible and affordable enough for the individuals now required to purchase it. In their 2012 joint dissent in NFIB v. Sebelius, Justices Scalia, Kennedy, Thomas, and Alito read these parts as making no logical sense without one another and also read the statute to include subsidies on federal exchanges:
 
“Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.”
 
and then:
 
“That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.
 
The 2012 Supreme Court brief of the state governments likewise read the statute as providing subsidies through the federal exchanges: “If a State is not willing to create and operate an exchange, the federal government will step in and do so itself. ACA § 1321(c). Subtitle E then establishes tax credits and other subsidies for the lower-income individuals and small businesses that purchase plans on the exchanges. ACA §§ 1401–21.” It is no coincidence that the section of the ACA in which all this appears is entitled “State Flexibility Relating to Exchanges”; the provision establishing the federal exchange (Section 1321) also has the title “State Flexibility.” By using this terminology, the text by its own terns gives states the choice – without penalty – between operating an exchange or letting the feds do it for them.
 
The 2012 plaintiffs – represented by the same lawyer in King – even argued that the entire Affordable Care Act should have been struck down without the subsidies, because it could not function without them.
 
Textualists apply several canons of construction premised on the assumption that Congress does not write statutes to fail. One is constitutional avoidance. Another is severability. (Both were used to save the ACA in NFIB.) Related is the major questions rule, which presumes that Congress is not subtle when it makes a major statutory move. The King challengers are asking the Court to adopt a reading that assumes that Congress purposefully designed the federal exchanges without the very same subsidies that in 2012 even the ACA’s opponents viewed as essential to the statute’s functioning. In other words, they are now arguing that Congress intentionally configured the federal exchanges to be doomed to fail. If that isn’t a major question that requires an explicit statutory statement, what is? The purpose of all of these rules – avoidance, severability, major questions – is to keep judges from “legislating”; that is, from interpreting a statute in ways that would make it unrecognizable to enacting Congress, as the proposed reading surely would.
 
In an effort to lend plausibly to their interpretation, the challengers have spent the past year constructing a narrative that the Exchange provisions operate exactly like Medicaid does: that Congress needed a “stick” – taking away the subsidies – to convince the states to operate the exchanges themselves. I have illustrated elsewhere that this reading of legislative history is inaccurate, but more importantly for this post, note that the challengers have to look outside the text of the statute to even try to construct this narrative. The text is fatal to this argument. Another common textual rule of interpretation, exclusio unius, draws strong inferences from Congress’s utilization of statutory structure in one part of a statute or related statutes and its omission from another. Medicaid is explicit that states lose their funding (and there is no federal fallback) if they do not cooperate. The ACA has not one word on that point in the exchange context and instead does what Medicaid doesn’t: the ACA provides fallback federal exchanges. This is exclusio unius 101: Medicaid shows that Congress knows how to be explicit if it wishes to use a federalism “stick.” The lack of an analogous provision for the exchanges leads to precisely the opposite of the challengers’ reading under textual analysis.
 
Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.

Saturday, February 28, 2015

Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law

Andrew Koppelman



Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections.  These efforts have been fiercely resisted.  The resistance is largely unnecessary.  Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person rather than the artifact of social engineering that it really is.  Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad.  If those purposes are carefully disaggregated, the result is different from what advocates on either side have demanded. 

This issue exposes a major flaw in progressive thought, one that entrenches the very inequalities the left seeks to combat.  The individual-injury-based conception of antidiscrimination law has not only produced excessively harsh treatment of religious conservatives.  It has entrenched racial and gender subordination, by imagining discrimination to be the conduct of a few bad actors rather than a structural wrong that demands structural remedies. 

I elaborate in a forthcoming piece in the Southern California Law Review, available in draft on SSRN, here.

Windsor: Encouraging Constitutional Change, Not (Just) Clearing the Channels of Political Change

Neil Siegel

In recent posts describing a new article, Heather Gerken offers an account of the U.S. Supreme Court’s decision in United States v. Windsor that draws from John Hart Ely’s theory of judicial review. Gerken contrasts her “internalist” account of Windsor with “psychoanalytic” ones offered by scholars such as Rick Pildes, Michael Klarman, Mary Dudziak, and myself. Gerken describes her work as reflecting a distinctive focus on what Justice Kennedy’s majority opinion in Windsor “actually says,” as opposed to divining what it may portend doctrinally.

There is a more accurate way to characterize our disagreement. Gerken offers a process account of the majority opinion in Windsor, according to which the Court “dislodge[ed] an outdated consensus at the national level” about the status of gay people, thereby “ensur[ing] that the interlocking gears of our democracy—rights and structure—were free to move without committing to them moving in a particular direction.” In contrast, I view the Windsor Court as accomplishing something more substantive than just clearing the channels of political change. I view the Windsor Court as encouraging—but not yet requiring—citizens and courts to secure marriage equality.

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Friday, February 27, 2015

Where have the federalists gone? Obamacare, King, and Federalism at the Court

Abbe Gluck

The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law.  I have previously detailed why the case is textualism's big test. Today, in Politico, I explain why the case is also fundamentally about state rights.  The question is whether the Court's federalism doctrines--which, let's not forget, the Court applied against the Government in the last Obamacare case--whether these federalism doctrines, like the Court's  textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one.  After all, isn't that the point of having a rule of law in the first place?

 Here is an excerpt and a link.

The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.

The challengers maintain that the case is simply about reading plain language. (I have detailed elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.

The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.

A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

Read more: http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#ixzz3SxSbOrL4

Wednesday, February 25, 2015

Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA

Marty Lederman

One week ago, Judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas (Brownsville), issued an opinion and order in which he preliminarily enjoined nationwide operation of the Department of Homeland Security’s new “Deferred Action for Parents of Americans" (DAPA) program--the regulatory initiative that was the subject of a wide-ranging Balkinization symposium last November.  

On Monday, the federal government made a motion to Judge Hanen to stay the preliminary injunction pending the U.S.'s appeal.  In the alternative, the government asks that the injunction be amended to cover only aliens residing in Texas, since the State of Texas is the only plaintiff that Judge Hanen found to have standing--or, at the very least, that the judge should tailor his injunction so that it does not apply in states that are not party to the suit, including a dozen states that have filed a brief explaining that DAPA will substantially benefit them and their residents.*

In the meantime, Professor Michael McConnell has published a defense of Judge Hanen's judgment in a recent the Wall Street Journal.  Professor McConnell's condemnation of the DAPA program, however--like Judge Hanen's--rests on a fundamental misunderstanding of the relevant law.

Before discussing the merits, it's important to stress that Michael McConnell is right about three significant things:

First, he is absolutely correct that "we should all be able to agree that the executive branch must follow the law until it has been amended by Congress."  Indeed, everyone does agree on that--including the President, Jeh Johnson, Secretary of DHS, and the Office of Legal Counsel.  Notwithstanding the efforts of many of the President's opponents to characterize the case as raising a constitutional question concerning executive authority to disregard the law, it does not.  It might be a nice talking point for partisan wrangling, but in fact the case does not implicate any questions of a so-called "imperial" President.  As I explained here back in November, the federal government is not claiming that it can disregard statutory limitations, nor even that it can act without congressional authorization.  This is and always has been simply a matter of statutory interpretation:

If, as the government argues, Congress has conferred upon the Secretary the discretion to defer removal of these aliens – and to authorize employers to hire those aliens, see 8 U.S.C. § 1324a(h)(3) -- then the Secretary obviously does not cause the President to violate his "take Care" duty if he decides to exercise that statutorily conferred discretion.

And if, on the other hand, Congress has clearly precluded the Secretary from exercising such discretion, then that's an ordinary statutory/APA violation, just as is alleged every day in countless other cases challenging agency actions. 

Secondalthough Judge Hanen nominally issued his injunction on procedural grounds (namely, that DHS did not subject the new program to a notice-and-comment rulemaking procedure), his opinion makes it crystal clear that, if and when he reaches the merits, Judge Hanen will find that DAPA exceeds DHS's statutory authority.  Accordingly, Professor McConnell’s column is focused—as is this post—on the merits questions.  (The notice-and-comment issues warrant separate treatment elsewhere, as does the government's argument that Texas lacks Article III standing to challenge the DAPA program.)

Third, Professor McConnell is correct to emphasize a very important and largely overlooked point about Judge Hanen’s decision:  The judge does not rest his injunction on DHS's expected failure to remove (or "deport") DAPA-eligible aliens from the U.S.

Heckler v. Chaney establishes a strong presumption that Congress has afforded the agency the discretion to choose to enforce the removal laws against particular categories of aliens rather than others—a presumption that is especially strong here, because immigration law expressly directs the Secretary to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5).  As the Supreme Court recently recognized in Arizona v. United States, “a principal feature of the removal system is the broad discretion exercised by immigration officials,” which includes the decision “whether it makes sense to pursue removal at all.”

Judge Hanen acknowledges all of this.  Accordingly, in his balancing of interests for the purposes of determining whether a preliminary injunction is warranted, he stresses (pp. 118-19) that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question.  As Michael McConnell puts it, “the district court narrowly crafted its order not to touch on prosecutorial discretion.  The administration remains free to decide which illegal aliens to deport and which to permit to remain in this country.”

Why, then, does Judge Hanen conclude that DHS lacks the authority to issue the DAPA Guidance?  Because, he reasons (p.85), the program “is actually affirmative action rather than inaction.”  

What does the judge mean by this purportedly crucial action/inaction distinction? 

As noted above, the permissible DHS “inaction,” in Judge Hanen's view, is that agency may in the exercise of its prosecutorial discretion decline to remove the aliens in question from the United States, and to shift limited federal resources to the removal of other categories of aliens.  The judge writes, however, that such a permissible exercise of “prosecutorial” discretion “does not also entail bestowing benefits” (p. 87).  And because DHS purportedly has “bestowed benefits” here, Judge Hanen reasons, it has acted beyond its statutory nonenforcement authority.  Michael McConnell emphasizes the same point—that the case is centrally about DHS’s alleged conferred of benefits.

Judge Hanen and Professor McConnell are certainly correct about one thing:  DHS's conferral of deferred-action status on an alien will afford that alien at least one very significant benefit--it will free up an employer to hire that alien, something the employer could not otherwise do under federal law.  Moreover, the Judge and Professor are also correct that the Heckler v. Chaney doctrine about a presumption of unreviewable nonenforcement discretion does not address this work authorization aspect of the DAPA policy.

So where do Judge Hanen and Professor McConnell go wrong?  Simply in this:  There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.
Read more »

Monday, February 23, 2015

Still Standing in King v. Burwell

Gerard N. Magliocca

The Justices returned to work today without issuing an order for supplemental briefing on the questions raised in the media about the standing of the plaintiffs.  Why?  I can think of two reasons.

1.  Standing in the Supreme Court is purely a prudential doctrine.  In this case, the Court wants to hear the merits and just doesn't want to know about any jurisdictional problems, especially when the parties are not raising the standing issue.

2.  If the oral argument does not well from the perspective of either side, then the court could order the briefing afterwards.  That would given them an excuse to remand the case for further fact-finding or dismiss the certiorari petition as improvidently granted.  Perhaps they all want to see where the others stands before opening the escape hatch.

Why I'm in Favor of a Right-to-Vote Amendment but Against Amending the Constitution

Heather K. Gerken


The DNC Executive Committee has just endorsed the idea that we should amend the Constitution to add a right to vote.  Today I posted on the question over on Rick Hasen’s Election Law Blog.  As I explain there, I’m entirely in favor of a constitutional right to vote but against amending the Constitution to add it.  I also have a new paper offering a more fully develop argument as to why the amendment game is not worth the candle. 

Contrived Threats versus Uncontrived Warnings

Guest Blogger

Einer Elhauge

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling.  The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements, but sometimes do not.  My new article, Contrived Threats v. Uncontrived Warnings, provides a general solution to this puzzle.  Such threats are unlawfully coercive only when they are contrived, meaning the threatened action would not have occurred if no threat could be made.  I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs.  When such threats are uncontrived warnings, meaning the threatened action would have occurred even if no threat could be made, they are not coercive and can only benefit the agreeing parties.  However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the different grounds that they harm third parties.  I show that this distinction explains contract law on duress and modifications, the doctrine of unconstitutional conditions, and the broad scope of the prohibition on blackmail.

This contrived-threat test also has relevance to two prominent Supreme Court cases on Obamacare.  First, it explains why the Medicaid defunding threat in Obamacare was properly held unconstitutional in NFIB.  That provision threatened to take away pre-existing Medicaid from any State that did not accept the Medicaid Expansion.  That threat was contrived because it was clear that, without a condition linking pre-existing Medicaid to the Medicaid Expansion, Congress would never have eliminated pre-existing Medicaid.  As my article details, several passages in Chief Justice Robert’s opinion (for himself and Justices Breyer and Kagan) emphasized that crucial feature of the threat, and his distinction of other Congressional threats that were constitutional stressed features showing that those threats were uncontrived warnings.

Second, this same principle explains why, in the pending case of King v Burwell, the canon of avoidance requires interpreting Obamacare not to withhold tax credits from States that do not create insurance exchanges.  Although I think that interpretation is also inconsistent with statutory text, purpose and structure, another fatal problem with that interpretation is that it posits that Congress threatened to withhold tax credits in order to coerce States to waive their constitutional right not to administer federal programs.  If one thought Congress were making such a threat, it would clearly be a contrived threat, because (if such a condition could not be imposed) the enacting Congress surely would have preferred giving tax credits to denying them given that, as NFIB itself stressed, its overriding goal was universal coverage.  Such a threat would be particularly coercive because, given other provisions in Obamacare, withdrawing tax credits would collapse State individual insurance markets below pre-Obamacare levels.  Because such an interpretation would make the provision unconstitutional under NFIB, or at a minimum raise serious constitutional doubts, the canon of avoidance requires avoiding it.

Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. You can reach him by e-mail at elhauge at law.harvard.edu

Sunday, February 22, 2015

Edward Corwin and the "Totality" of America's World War II

Mary L. Dudziak

What makes a war “total”? And how is war’s totality experienced? Edward S. Corwin, in the opening of his influential 1947 book Total War and the Constitution, turns to Deuteronomy:
Of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them…as the Lord thy God hath commanded thee.
The biblical reference enables Corwin to say that total war “is at least as old as recorded history.” He also finds in Deuteronomy a motive for total war. The Bible justified ruthlessness, “For…the Lord thy God hath chosen thee to be a special people unto himself, above all people that are upon the face of the earth.”

Total war, in this sense, went beyond domination, to elimination. Wars have been thought of as “total” when lacking genocidal objectives, however, at least for some participants. Ubiquity of violence is often a central aspect of war’s totality. The Oxford English Dictionary defines it as unrestricted war, especially “war in which civilians are perceived as combatants and therefore as legitimate targets.”

Totality takes a turn when applied to the United States. For Corwin, the totality that was relevant to American law was “functional totality,” which he defined as “the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Total war was when “every human element” of a society was involved in the conflict. He draws examples from nations under siege. During the War of 1793 in France, the Committee of Public Safety ordered that “young men will go into battle; married men will forge arms and transport food; the women will make tents, garments, and help in the hospitals.” Even children and the elderly had orders.

In the examples Corwin draws upon, including the 1935 invasion of Ethiopia, a core experience of war’s totality was collective vulnerability to violence. Corwin doesn’t explain how totality could apply to a society distant from the fighting, like the United States in World War II (with the exception of Hawai’i). Instead, he assumes its application, as he turns to the consequences of total war for government power and individual rights.

Another logic is needed to explain an American totality in World War II: a focus on the totality of power, as compared with total vulnerability to violence. Corwin’s application of total war to the American experience suggests that totality is experienced by a collective, society as a whole, with every element in society touched in some way by war. The body that feels war’s totality is the collective, and each human body within that collective might feel only some aspect of war. Many World War II Americans felt the war’s violence directly; others felt it through their connections with loved ones deployed. For others, the impact was felt through income taxes and shortages at the grocery store. The extension of war’s impact beyond its core violence is what makes American war “total,” although this experience of war's totality cannot compare with the lived experience of World War II in Europe, Asia and North Africa.

In his analysis of individual rights in this generative work, Corwin suggests that “the requirements of total war” are incompatible with fundamental American constitutional principles. But perhaps there is something more important in Corwin that we might look for elsewhere in the history of American thought. Perhaps Corwin provides a window on the way American war could be seen as present, personal, and “total,” even though the shooting, killing and dying were thousands of miles away.

I am thinking this through for an upcoming plenary at a Duke conference on violence, and for a lecture as part of a Rutgers symposium on totality, so comments and suggestions are most welcome. Please leave them here, where comments are moderated.

Saturday, February 21, 2015

Civil Rights History, Foreign Affairs, and Contemporary Public Diplomacy

Mary L. Dudziak

It seems like a good time to reflect on the policy implications of scholarship on the relationship between civil rights and U.S. foreign relations. President Obama has recently emphasized that protecting human rights matters to the fight against terrorism. And the Council on Foreign Relations in DC will soon hold an event on the International Implications of the Civil Rights Movement. The event is not open, and discussion may go in a different direction, but below are a few points I hope to have a chance to get across.

The history of the intersection of civil rights and Cold War era U.S. foreign relations is copiously documented here and here. It took a while for American diplomats and political leaders to grasp the extent of the problem and how to address it. Here’s how they got it wrong, and then right – at least for U.S. public diplomacy:

In the late 1940s, as the U.S. hoped to encourage a newly independent India to ally with the United States, but encountered persistent criticism of U.S. racial segregation and discrimination, American diplomats in India initially made things worse. They dismissed the problem and analogized American racism to the Indian caste system, suggesting that all nations have racial problems. If not exacerbating the U.S. image problem, this at least delayed addressing a critical issue during an important moment in US/Indian diplomacy.

Because the United States argued that American democracy was a model for the world (in the context of a Cold War battle for hearts and minds with the Soviets), the U.S. encountered global criticism for not living up to its own ideals. The more the U.S. emphasized the values of democracy – at the same time that there was global news coverage of American civil rights abuses – the more the U.S. was criticized as hypocritical, and the benefits American democracy were questioned. It took a very long time for American leaders to understand that they couldn’t talk about rights for other nations without protecting rights at home.

Important steps forward – Brown v. Board of Education, sending in the troops in Little Rock, and the Civil Rights Act of 1964 – along with careful management of the global story in U.S. public diplomacy, helped turn this around. By 1964, American diplomats could report that peoples in other nations had come to believe that the American government was on the side of civil rights, rather than being part of the problem. The unfortunate part of the story is that formal legal change, effectively marketed, could accomplish this. Continuing inequality, if below the radar of global news coverage, did not hold the world’s attention.

One obvious takeaway from this history is that a call for global human rights cannot be effective, and could be counter-productive, without meaningful progress toward human rights at home. There has been global coverage of the protests in Ferguson, Missouri, reminiscent of the international interest in American civil rights in the 1950s and 60s. And there has been a devastating hearts and minds problem stemming from abuses at Abu Ghraib, revelations of U.S. torture, and the continuing scar of Guantanamo. If President Obama believes that promoting human rights is important to the fight against terrorism, this history shows that there is only one effective way to begin: by starting at home.

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Thursday, February 19, 2015

Windsor v. United States: Clearing the Channels of Political Change

Heather K. Gerken

Two days ago, I began describing a forthcoming paper of mine offering a new take on Windsor v. United States.  I noted that any satisfying account of Windsor must explain its many mysteries, including its unusual rhetoric and unconventional blending of rights-based and structural analysis.  Yesterday I argued that one can only understand Windsor if one grasps the core truth underlying the opinion: federalism and the First Amendment have served as interlocking gears, moving the cause of same-sex marriage forward. 

A handful of academics have tried to explain the link between rights and structure in Windsor by casting the case as an effort to use federalism to accommodate the fact of social change.  Like others, I think Windsor can be read as an effort – albeit a tentative one-- to think concretely about the relationship between social change and constitutional change.  But I have a quite different take on the fashion in which Windsor is doing so.  Windsor, in my view, was “clearing the channels of political change.”

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