Balkinization  

Monday, September 18, 2017

They're back!

David Super


     Defying the almost universal prediction of political observers, Senate Republicans are again making a concerted effort to repeal the Affordable Care Act (ACA).  The lead sponsors of this new effort are Sen. Lindsay Graham (R-SC), a favorite of many liberals for his willingness to criticize President Trump, and Sen. Bill Cassidy (R-LA), who had previously co-authored a plan to allow states to choose whether to continue the ACA or accept a block grant.  Far from being the moderate, compromise approach some imagined that Republicans would pursue after their embarrassing setback this summer, the Graham-Cassidy legislation combines many of the most problematic provisions of previous Republican proposals with a block grant that is underfunded at the start, loses purchasing power over time, and then abruptly stops in 2027. 

     It appears that Senate Republicans are only one or two votes short of the fifty they would need to produce a tie, which Vice President Pence would break in their favor.  Senate Majority Leader McConnell reportedly has said he will bring the legislation up as soon as fifty votes are in view.  How did we get here?

     Part of the answer is procedural.  Republicans’ efforts to repeal the ACA have depended all along on the special protections that the “reconciliation” process affords to legislation conforming tax and entitlement laws to the budget resolution Congress approved for a particular fiscal year.  The Congressional Budget Act allows both a budget resolution and a budget reconciliation bill to pass the Senate with a simple majority, capping debate and disallowing a filibuster.  Last winter, Republicans passed a budget resolution for federal fiscal year 2017 – which already had started – to give themselves the ability to use reconciliation procedures for ACA repeal.  FFY 2017, however, ends on September 30.  The Senate parliamentarian has confirmed that no budget reconciliation bill is possible under a budget resolution for a fiscal year that has already ended.  Thus, if ACA repeal does not clear the Senate by the end of this month, Republicans will lose their procedural magic wand. 

     In theory, they could pass a new budget resolution for FFY 2018 with the same “instruction” to repeal the ACA through reconciliation legislation.  In practice, they do not want to do so because they plan to use the FFY 2018 budget resolution to authorize budget-busting tax cut legislation.  Longstanding Senate precedent disallows more than one reconciliation bill on spending or more than one reconciliation bill on revenues for the same fiscal year.  As much as Republicans want to kill the ACA, their donors would never tolerate slamming the door on tax cuts.  So it is now or never.

     Senate Majority Leader McConnell, who has made a career out of being underestimated, also carefully laid the groundwork for this moment even amidst the ruins of his defeat last summer.  He never allowed an up-or-down vote on ACA repeal itself.  Instead, he brought the unpalatable House Republican bill to the floor and allowed a series of votes on whether various proposals should replace it as the pending legislation.  When those proposals failed, the result was only that no viable alternative to the House bill had been found, not that repeal legislation was defeated.  Thus, he can call up the same legislation and allow Senators Graham and Cassidy to offer their substitute.  If it prevails, the Senate can rapidly move to final passage because the chamber has already consumed much of the permissible time for debate on a reconciliation bill.

     Also helping Republicans is budget process law’s narrow requirements for cost estimates.  Throughout the spring and summer, whenever the Congressional Budget Office (CBO) released a cost estimate, the bill in question lost public support because the estimates invariably showed millions of people losing health care coverage and millions more facing brutal premium hikes.  This time, by delaying the finalization of their proposal, Republicans have prevented CBO from issuing a similarly comprehensive estimate of Graham-Cassidy.  Instead, Republicans have requested a simple one-page letter affirming that their proposal stays within the constraints established in the budget resolution.  This will suffice to allow the Republican Chairman of the Senate Budget Committee to declare that the requirements for reconciliation legislation are met while denying opponents numbers about coverage losses and premium hikes.  The proposal’s similarity to past proposals assures devastating results, but without official estimates, Republicans will get much less bad press until after the vote is held.

     Much of the reason the ACA’s fate is again in the balance, however, is political.  After the summer’s political incompetence, the Republican leadership is doing far better now.  To undermine the opposition of Senator John McCain (R-AZ), they lined up the rousing endorsement of Republican Arizona Governor Doug Ducey who, like many governors, relishes the power that directing a large block grant would bring him.  Senator McCain is not historically a maverick on human services programs, and he voted for a devastating ACA repeal bill this summer before switching his vote on Senator McConnell’s final proposal.

     Another crucial “no” vote in July came from Senator Lisa Murkowski (R-AK), who also had previously not focused much on human services programs.  Senator Murkowski’s top legislative priorities have always been ruinous anti-environmental policies that would aid various business interests in her state.  These measures would have little chance of approval on their merits.  Instead of threatening her as they clumsily did in July, this time the Trump Administration made a timely announcement that it is advancing drilling in the Arctic National Wildlife Refuge.

     Sen. Dean Heller (R-NV), who cast a symbolic vote against some early repeal bills but supported the leadership on the key vote, has received harsh criticism from both sides for being weak and indecisive.  Leaders allowed him to be the third-listed sponsor of the new proposal, allowing him to claim that he is now leading rather than following. 

     By contrast, many Democrats have been playing into the Republicans’ hands.  Instead of emphasizing opposition to Republican proposals, which unites a broad swath of the electorate, sixteen Democrats last week made a great show of introducing a politically implausible and highly divisive single-payer plan.  The health insurance industry is far from loveable, but it did provide solid opposition to ACA repeal efforts in the end, helping to give cover to wavering Republicans.  Proposing to legislate them out of business while ACA repeal efforts are still alive is a pretty good way to dampen their enthusiasm for the fight.  The plan’s implicit criticism of the ACA is also particularly ill-timed when an energetic public mobilization is needed to defeat Graham-Cassidy.

     So what will happen?  It is hard to know.  If the Graham-Cassidy plan does pass the Senate, the House will almost certainly take it up and pass it as-is, sending the bill directly to the President for his signature.  True, some House Republicans’ states will be severely disadvantaged by the block grant’s funding formula, but the House leadership has proven highly effective at twisting arms to get the votes in needs.  With the supposedly more moderate Senate giving Members cover, and perhaps with promises of subsequent legislation to reallocate block grant funds, it seems unlikely that House Republicans will dare to take responsibility for killing the ACA repeal effort.  (Sending the bill to a House-Senate conference committee would not work because, by the time the committee finished its work, a full CBO estimate would be out and, more importantly, the Senate’s reconciliation carriage will have turned back into a pumpkin.) 

     On the other hand, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), the chair and ranking member of the Health, Education, Labor and Pensions Committee, have been working on a modest legislative package to improve the stability of the ACA’s insurance markets, including an end to President Trump’s oft-repeated threats to withhold statutorily mandated reimbursements to insurance companies for providing the ACA’s cost-sharing subsidies to people under 250% of the federal poverty line.  If they finish negotiations and announce a proposal before Graham-Cassidy reaches the Senate floor, that could weaken the momentum for ACA repeal.  Presumably Senator Alexander is coming under intense pressure to refrain from any announcement for just that reason.  What remains to be seen is whether he or other senators will have the courage to defy their leadership and the Party’s donor base.

The Pluralist Model of Speech Regulation: Free Speech in the Algorithmic Society

JB




I have posted a draft of my latest article, Free Speech in the Algorithmic Society, on SSRN. It introduces the idea of a pluralist model of speech regulation that contrasts with the traditional dyadic model -- in which nation states regulate the speech of private citizens.

Here is the abstract:

Free Speech in the Algorithmic Society:
Big Data, Private Governance, and New School Speech Regulation

We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are information fiduciaries toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in algorithmic nuisance: they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate the speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society.

The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action.

As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.

The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the “law” in this case being the publicly stated norms and policies of the company.  Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.


Sunday, September 17, 2017

Foreign-Born Framers

John Mikhail

On this Constitution Day, it is worth recalling that seven of the thirty-nine delegates to the Philadelphia convention whose names are affixed to the Constitution were foreign-born, i.e., born outside of the territories that became the United States.  These original dreamers who “got the job done” were:

Alexander Hamilton (NY) – born in the West Indies
Thomas Fitzsimmons (PA) – born in Ireland
Robert Morris (PA) – born in England
James Wilson (PA) – born in Scotland
William Paterson (NJ) – born in Ireland
James McHenry (MD) – born in Ireland
Pierce Butler (SC) – born in Ireland

Thanks to the amazing success of Lin-Manuel Miranda’s “Hamilton,” Hamilton’s story as a hardworking immigrant who made exceptional contributions to the founding is well-known.  But Hamilton was hardly alone in this respect.  The same could be said of others on this list.
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Thursday, September 14, 2017

How to understand what is happening in American politics today: My lecture at Indiana on "The Recent Unpleasantness"

JB

On Wednesday I gave the Addison C. Harris Lecture at the University of Indiana Mauer School of Law in Bloomington on "The Recent Unpleasantness: How to Understand the Cycles of Constitutional Time."

This lecture discusses many of the themes and ideas about American constitutional development and American politics I've been developing in recent years. It explains why American politics has seemed so dysfunctional, how to understand the 2016 election and the Trump presidency, and the likely future for the United States.




Wednesday, September 13, 2017

Will Congress fund the Census?

Sandy Levinson

The latest post that my wife Cynthia and I have put up on www.faultlinesintheconstitution.com concerns one of the few affirmative duties placed on Congress:  to make sure that an adequate census is conducted every ten years in order to assure the fair representation of the states, at least taken as a whole, in the House of Representation (with consequences, of course, for the  Electoral College).   Needless to say, in the 21st century, the census itself has become a matter of partisan dispute, and the Republican Congress seems averse to funding the 2020 Census, which must start its organization now.  And, just as needless to say, our administratively-challenged President seems uninterested in appointing a new Director to the Census, even though the modern census is crucial not only for purposes of representation but also for administering the modern welfare state that Steve Bannon wishes to deconstruct.  The devil is in the details, and the Census is a really important detail, in every respect.

I'm allowing comments, but a condition for commenting should be taking the five minutes to link to our blog and reading it.

Saturday, September 09, 2017

Is Trump Finally Pivoting? Understanding the Deal with the Democrats

JB

President Trump struck a deal with Congressional Democrats to suspend the debt ceiling and pay for Harvey relief. Speaker Ryan, Senate Leader McConnell, and almost all of Trump's advisors wanted an 18 month debt ceiling suspension, which would expire after the 2018 elections. Instead, Trump ignored them and struck a deal with Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi.

Does this mean that Trump is finally going to pivot to the center and become a bipartisan deal maker? Is he is finally going to reveal himself as a pragmatic centrist or even a New York City liberal? Is he is going to start appointing centrist judges? Is he is going to stop dismantling as many Obama-era regulations as he can find?

No, no, no, and no.

Trump is a demagogue and an opportunist without any settled ideology other than a desire for self-promotion, wealth, and power. He sees that he has been losing about a percentage point in popularity each month, and is now down to about 37 or 38 percent approval ratings. He also sees that responding to natural disasters like Hurricane Harvey is widely popular. It makes him look as if he cares about people. It also gets him favorable press, which he craves, no matter what he says about fake news and the mainstream media being the enemy of the people. He also knows, or rather he suspects, that the Republicans will have difficulty passing a 18 month debt suspension on their own, because of problems with the Freedom Caucus and various showboating Senators.

The Democrats offer him a deal that may boost his approval ratings, gets him positive press, makes him unpredictable (which he likes), and pushes off difficult issues for three months. He also knows that more disaster relief requests will soon be popping up, and putting himself on the side of disaster relief is a winner.

So he takes the deal and stops the decline in his approval ratings. Maybe at the margins some of the attacks on him get less loud and strident. Maybe some Democrats are confused. Maybe some media commentators are awestruck and willing to give him a second look. Above all, striking this deal distracts attention from a very unpopular Republican policy agenda-- reducing entitlements and lowering taxes on the wealthy.

At the same time, Trump continues doing what he already has been doing-- dismantling regulations, appointing Federalist Society/Heritage Foundation-vetted judges, and throwing the occasional slab of red meat to his populist base, who continue to adore him.

What's not to like?

It's true that at some point Trump will have to decide whether to sign a legislative solution to DACA, which could alienate his base. But he also knows that it is very uncertain whether Congress can craft a compromise, pass it, and put it on his desk for his signature. If Congress can't pass a DACA fix that helps the Dreamers, fine. He blames Congress and his base is still mollified. If Congress can come up with a deal, he refuses to sign it unless it is combined with symbolic funding for his border wall, and then he sells the compromise to his base as a great deal: The Dreamer's are really "good immigrants," so we should let them stay, and the new border wall will keep the "bad immigrants" out.

Again, what's not to like?

The key thing to remember is that Trump doesn't really care about ideological purity. He does care about his personal popularity. He does care about his base, but they trust him, and are likely to interpret any deal he makes favorably as long as he tells them a story about how he is looking out for them. He can continue to make a few deals with Democrats while still doing pretty much what he has been doing for the first seven months of his presidency-- slash regulations, stock the courts with very conservative judges, and tweet outrageous things.

If Republicans don't like it, they have the tools to stop him-- even to remove him and replace him with Mike Pence. But they haven't used any of these tools, because they want his signature on a very big tax cut for their wealthy donor class, and frankly, they really like the deregulation and the judicial appointments.  On the other hand, if Congressional Republicans can't pass a big tax cut for their donors, Trump will seem far less useful to them than, say, Mike Pence, who would appoint exactly the same judges, and slash exactly the same regulations.

Then things could get quite complicated, with no certain endgame.


Thursday, September 07, 2017

The Debt Ceiling Charade

JB

Many Americans who don't understand the appropriations process misunderstand how the debt ceiling works. They assume that Congress passes a law that authorizes the Treasury to borrow up to a certain amount, and that when this amount is passed, Congress passes another law that authorizes the Treasury to borrow up to a certain larger amount, and so on. They assume, in other words that the debt ceiling is what gives the Treasury the power to borrow, and that without the debt ceiling, the Treasury couldn't borrow anything at all.

That's not how it works, and understanding the process shows why the debt ceiling is a charade. For most of the past four years, the debt ceiling statute has been suspended-- not legally in force. At certain moments, it reappears like a ghoul, only to be cast away once again by Congress, which suspends it for yet another amount of time.

When the debt ceiling is suspended, which is most of the time, the Treasury Department can borrow as much as it likes, as long as it does so to pay debts already appropriated by law (that is, legislation passed by Congress and signed by the President). When Congress passes a new suspension, it acknowledges of all of the debt issued during the period of the suspension, adds the amount to the ceiling, and the process repeats itself.

The whole idea of a debt ceiling that somehow constrains federal spending is a farce. It is a farce for two reasons.

First, the debt ceiling doesn't limit appropriations-- the amount of money that Congress agrees to spend by law. It only limits the ability to issue treasury bonds and notes. If the Treasury can borrow or obtain money to pay the nation's debts in other ways, the debt ceiling doesn't apply.

Second, the debt ceiling isn't actually a ceiling, because it has been suspended for most of the past four years. When it snaps back into operation, the Treasury uses "extraordinary measures" to pay the country's debts.

During the months when the debt ceiling is not suspended, its only purpose is to allow hostage taking by ambitious politicians who want to risk crashing the nation's economy in order to score political points. At all other times, the debt ceiling is of no legal effect because it is suspended by law, and the suspension acknowledges the legitimacy of all debt borrowed during the time of the last suspension.

Rinse and repeat.

This is no way to run a country's fiscal policy. It is a charade, a farce, and a disgrace.

So when politicians talk about "raising" the debt ceiling, they are not telling you the whole truth. Congress has found it much more convenient to suspend the debt ceiling-- that is make it legally ineffective--than to actually raise the ceiling to a specific amount.

When people talk about how important the debt ceiling is to the constitutional power to appropriate money, they are lying through their teeth.

All of which leads to the question: if Congress keeps suspending the debt ceiling, why shouldn't it just suspend the debt ceiling indefinitely, which, in effect, is to repeal it.

Want to know more?  Here are the details.
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Wednesday, September 06, 2017

Repeal the Debt Ceiling. Now.

JB

Congress is once again facing the possibility of stumbling into an economic catastrophe if it fails to raise the debt ceiling by the end of this month.

The debt ceiling authorizes the Treasury Department to borrow money (primarily by selling government bonds) up to a specified amount, in order to pay for obligations the government has already incurred through its passage of laws and appropriations bills. Once the ceiling is reached, the country cannot sell bonds to pay off monies owed by the government.  Since March of 2017, the Treasury has been using "extraordinary measures"--various accounting gimmicks--to pay the nation's bills. But it will run out of tricks by the beginning of October.

Congress raises the debt ceiling either by raising the absolute amount or by suspending the operation of the debt ceiling for a specified time. We are currently operating under a temporary debt limit suspension of a previous debt limit created in 2011.

Raising the debt ceiling does not appropriate new money. Rather, it allows the government to pay money that Congress has already appropriated, (and it allows the Treasury to pay creditors interest for any new debt issued).

Failing to raise the debt ceiling will not stop Congress from spending more money. Rather, it will cause the government to default on its debts. This will precipitate an economic crisis felt not only in this country but around the world.

In past years, the debt ceiling has been breached accidentally overnight or for a few hours. Most people didn't notice it. In this case, the breach would be quite public. The markets will quickly react. If the default continues for more than a day or so, the stock market will take a nose dive. The world economy will be thrown into panic. Enormous amounts of wealth will be destroyed as markets tumble. Eventually Congress will have to give in and raise the debt ceiling. When it does, it will be more expensive to borrow, because the United States will have to pay higher interests rates for the same amount of borrowing. Congress will also have undermined America's economic leadership, and the role of U.S. Treasury bonds as a cornerstone of the world economy.

Thus, failing to raise the debt ceiling is sheer idiocy, an unforced error of epic proportions. One would think that no politician in his or her right mind would threaten to refuse to raise the debt ceiling.

But that would underestimate the stupidity and venality of contemporary politicians. In the summer of 2011, Republicans held the debt ceiling hostage, precipitating the Debt Ceiling crisis of 2011. They tried again in the fall of 2013, but President Obama refused to budge, and eventually Republicans caved.

Today politicians of both parties still think that they can use the debt ceiling as leverage to achieve any number of  policies.  The madness continues. (I note that today Nancy Pelosi and Chuck Schumer have floated a proposal to fund Hurricane Harvey aid and raise the debt ceiling for only three months in order to keep the pressure on Republicans.)

There is a simple way to stop this reckless hostage taking. Simply repeal the debt ceiling, and allow the Treasury Department to borrow what it needs to pay the nation's bills. If you want to limit the government spending, do it through the appropriations process, where these decisions should be made.

Let me repeat: Don't raise the debt ceiling. Get rid of it altogether.

The vast majority of nations in the world do not have a debt ceiling and they get along just fine without it. Neither Canada, nor Great Britain, nor Germany, nor France have it. In fact, at last count only six other countries in the world have something like it, and even those countries tend to define it in ways that prevent it from being used as a political football. In fact, our own debt ceiling statute, which dates back only to 1917, was regularly raised without much incident for many years. But in recent years, our politics has gone haywire. In particular, because of the intransigence and brinkmanship of the Tea Party and the Freedom Caucus, Congress has been plunged into needless political crises over the debt ceiling.

Keeping the debt ceiling in the hopes that it will stop the growth of government is a fool's errand. We have had a debt ceiling for a century now and it has not had the desired effect. Using the debt ceiling is simply not a sensible approach to fiscal policy. Rather, it creates a temptation for politicians to engage in hostage taking and an opportunity for economic disaster if they miscalculate.

If we repealed the debt ceiling, on the other hand, nothing would happen. It would simply mean that we wouldn't have a bunch of crazy politicians threatening to crash the world economy every few years in order to score political points. Conversely, because we have a debt ceiling, we face hostage taking on a regular basis.

Because of our current level of political polarization, the debt ceiling probably won't be abolished until one party controls the White House and both branches of government. That is the case presently. Unfortunately, a collection of fools and radicals in the Republican Party are the very culprits who have been trying to use the debt ceiling to hold the economy hostage for the past six years.

It would be an act of political courage for Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and President Donald Trump to push for repeal, especially since McConnell in particular was a leading hostage taker in the 2011 debt ceiling crisis. (He famously called the debt ceiling "a hostage that's worth ransoming.") And President Trump--who spent most of his adult life trying to get out of paying his debts--is not the first person we should look to for either wise economic policy or political courage.

But now that Republicans control the government, Ryan and McConnell understand that the debt ceiling is too dangerous to be toyed with.  We must hope that they will work with Democrats to raise or suspend the debt ceiling for as long as possible, and without unnerving the markets.  But in the long run, the correct policy is to repeal the debt ceiling once and for all.


Wednesday, August 30, 2017

Presidential identity and neutral principles

Sandy Levinson

Mark Graber and have just put a new co-authored paper up on SSRN.  It will come out next year, suitably revised to take account of feedback,  in a symposium on presidential power to be published by the Chapman Law Review.  In it we argue that academic (and other) writing on executive power adopts the "neutral principles" approach so (in)famously posited by Herbert Wechsler some sixty years ago, when he used his analysis to explain why  Brown v. Board of Education was basically indefensible.  Wechsler's analysis was obtuse inasmuch as he resolutely refused to recognize that Jim Crow represented a subversion of the constitutional order, a "fraud on the Constitution,:  Footnote Four of Carolene Products can be read as arguing that the new "normal," after the New Deal, of maximum deference and "minimum rationality," should be suspended in special circumstances. We agree, and one of these circumstances is a basically dangerous president.   Most analysis of executive power, however, refers to an abstract, reified "president," and the assumption is that all presidents, from Washington to Trump, are equal.  If we'd allow Washington or Lincoln to do X, than Trump can do it, too.  Conversely, if we would limit Trump's power, we have to reconsider any similar actions by any of his predecessors.

We argue that this is basically foolish, that all presidents are not alike, not only in the challenges they face (e.g., civil wars or depressions), but, more importantly for present purposes, in the degree to which they can plausibly be described as "Publian" presidents in terms of their psychological disposition to be committed to achieving the public good (rather than some narrow partisan advantage or, even worse, some entirely self-serving benefit) coupled with their cognitive ability to think long and hard before making thoughtful decisions.  Donald Trump is the ultimate anti-publican president, even if one rejects the view that he is a sociopath.  We quote many conservatives who express their dismay about the President.  James Clapper, the former Director of National Intelligence, has notably described his presidency as a "nightmare" and admitted that he is truly fearful that Trump has access to the nuclear codes and that we have a system, according to Clapper, that places few hindrances to carrying out disastrous presidential orders with regard to the use of military force.

Reining in Donald Trump should count as a "compelling interest" that should lead judges to veer away from their usual posture of extreme deference to the executive and instead to ask tough questions regarding anything Trump might want to do.  E.g., what process did any executive order go through?  Does it represent some kind of genuine deliberation by a variety of relevant decision makers, or is the product of presidential whim or, of course, outright bigotry, as with the travel ban?  Courts need not say overtly that Trump is untrustworthy (which he clearly is); instead, they can simply engage in more searching scrutiny of what President Trump might order than they would of previous presidents.

We note that there are all sorts of areas of law and ordinary life where extraordinary circumstances lead to changes in doctrine and behavior.  As Marshall emphasizes in McCulloch, a Constitution that is designed to endure must "be adapted to the various crises of human affairs."  To do anything else is rank stupidity, turning the Constitution into a vaunted "suicide pact."  Well, the crisis is the Trup presidency, and executive powers doctrine, at least during this administration, must be adapted to recognize that reality.

As is usually the case, I will allow comments, but I would, if I could, limit comments to those who have in fact read the paper.  If you haven't, you should at least say so.

Tuesday, August 29, 2017

Scenes from a Disjunctive Presidency

JB

A week after Donald Trump was elected in November 2016, I predicted—using Stephen Skowronek’s model of cycles of regime politics—that Trump would turn out to be a disjunctive president. He would preside over the end of the Reagan regime, just as Jimmy Carter had ushered in the end of the New Deal/Civil Rights Regime and Herbert Hoover had presided over the end of the long period of Republican dominance following the Civil War. That was not because Trump was anything like Hoover or Carter—both honest, intelligent, sober, and serious-minded men. It was rather because the Reagan regime is in a slow-motion collapse, a point I made in a speech at B.U. Law School in the fall of 2013 (and published the following year). The Republican Party, I argued, was in the midst of either a civil war or a nervous breakdown.

As a political regime grinds to its conclusion, the dominant party turns to heterodox outsiders who promise to restore past greatness, but instead find themselves overmatched by circumstance. They unravel the regime and create an opening for a new regime led by another political party.

Like Hoover and Carter, Trump is overmatched by forces beyond his ability to control. He has not ended the processes of decay; if anything, he has accelerated them.

The Trump Administration is now in its eighth month. My analysis remains largely unchanged, and recent events have only confirmed its basic outlines.
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Monday, August 28, 2017

Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president

Sandy Levinson

This morning I posted a lament, at the Democracy Journal, that our Constitution does not include a procedure for firing a dangerous president via a vote of no confidence by Congress.  (Although I don't discuss it there, I'm also open to the project of a national recall election, but that is obviously more problematic than a congressional solution.)  Given that I have been a critic of the Constitution now for over a decade, I am often ask what my number one criticism is (given that I have so many).  Inevitably the answer shifts, depending on the great issues of the moment.  But right now, at least, I have little hesitation saying that the main defect is that we are confined to talking about impeachment and invocation of the 25th Amendment, each of which presents specific difficulties, and that we have no way of putting pressure on our ostensible representatives to vote no-confidence in a scoundrel.  Perhaps the biggest advantage of such a procedure would be that lawyers would be only minimally involved, unlike impeachment, where we are guaranteed to have shouting arguments about lots of basically irrelevant issues, including original intent and the original meaning, public or otherwise, of "high crimes and misdemeanors."

If one wants to read a demonstration of what can go wrong when academic pettifoggers get involved in discussing how to get rid of our dangerous President, just read Jonathan Turley's piece in the Washington Post.  He apparently believes that the possibility of firing a president via no-confidence procedures would be fundamentally dangerous to our political system.  No doubt there are costs, but he seems to presuppose that Donald Trump is not a clear and present danger to our constitutional order.  He also makes the preposterous assertion that the framers, when drafting the Constitution, were aware of what would become the modern parliamentary process.  They were barely cognizant of what was going on in Great Britain at the time, but Parliament then was nothing like the Parliament that would develop in the 19th and 20th century.  Perhaps there are winning arguments against my proposal, but reliance on the wisdom of the Framers is not one of them.  Their major emphasis in the Federalist, after all, was learning "the lessons of experience," not engaging in religious adherence to what all of them realized was a flawed document.

I'm not really interested in another debate about whether Trump is an awful man and an awful president.  If you like him, OK.  The only thing I'm interested in reading about is whether we would really be worse off if we could fire, by a 2/3 vote of Congress, a president who did lose such public support as to make the firing politically viable.

Monday, August 21, 2017

The Lost Cause, Trumped

Joseph Fishkin

I can think of only one positive thing to say about the coming out party for white nationalists that all of us are now witnessing, and it is this: in their own uniquely nasty way, these people do seem to be inadvertently helping many Americans gain a clearer-eyed understanding of what the Civil War was about.

Growing up in Texas—even in liberal Austin, in the 1980s and 90s—I had more than a few conversations with people who argued one or another of the constellation of revisionist positions that hold that the Civil War itself, and the confederate iconography that lingers today, are about something other than a struggle to defend slavery and white supremacy. These arguments were wrong, but they were not necessarily disingenuous. Most people came by them honestly. Sometimes they learned them in school.  Sometimes they picked them up from the many conservative politicians in this part of the country for whom such propositions have been articles of faith. In 2010, when the Texas board of education, which wields notoriously outsized influence over the entire nation’s textbook market, adopted new social studies standards, one board member explained that slavery was a “side issue to the Civil War” (which was actually, of course he said, about “states’ rights”).  The standards the board adopted that year did not mention the Ku Klux Klan or Jim Crow. It is not terribly surprising that many students got through school without gaining any particular understanding of why exactly we have confederate monuments across the South, and in particular, why so many of them were built in the early twentieth century at Jim Crow’s birth and the Klan’s zenith.

And so, quite frankly I never expected that the confederate statues that line the main mall in the center of the university where I teach (UT Austin) would come down. But a few years ago, the ground underneath them began to shift.  It was, in significant part, members of the white nationalist fringe who inadvertently caused the shift. After the church massacre in Charleston in 2015, the president of UT Austin ordered the removal of the statute of Jefferson Davis that occupied an important perch in front of the iconic UT Tower. Many at the time, including a commission he had set up to study the question, had urged him to go further and also order the removal of the other four confederate statutes that framed the mall.  He didn’t.  But this week, in the wake of the white nationalist horror show in Charlottesville, he did.  This morning the statutes were gone.  (I write about these statutes, and an extremely problematic inscription on a fountain that now also seems to be gone, at the end of this essay.)

With every horrific yet implausible chant of “blood and soil” (implausible because it is such an obvious European import, like these marchers’ ancestors—do these people really want to return American soil to the people whose ancestors lived on it?), the white nationalist fringe does one useful thing, which is to make it just a little harder to deny the racist core of what the Confederacy was, and is, about.  And so, today I walked through our mall and its now-empty plinths with a mixture of surprise, relief, and joy. 

After the jump: photos!

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Tuesday, August 15, 2017

John Bingham on Racial Equality

Gerard N. Magliocca

Let's focus for a moment on an actual hero of the Civil War era--John Bingham.  Here's what the drafter of Section One of the Fourteenth Amendment said at a campaign rally in 1867:

“They undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy! . . . I thought that in the middle of the nineteenth century it had come to be pretty well known that this world of ours was not made for Caesar, but for man; that it belonged, at last only to the common Father of us all, and to all his creatures who worked well upon it. . . . 
It is a ‘white man’s government,’ is it? Why, the very first blood shed for the assertion of your independence and the establishment of your nationality, upon the field of Lexington, was the blood of a black citizen of Massachusetts. And when they came to the work, after the victory had been achieved, and the independence of the nation acknowledged, of organizing a constitutional government of the United States, in a majority of the States of the Union the black men voted with white men, and the man who denies it is simply ignorant of the history of his own country. . . . 
Your armies bore witness that 175,000 of the black population, made free by the proclamation of liberty, were in the army of the republic. When you consider that the majority of the black population were the slaves of rebels, and within their territory, unable to signify to the United States Government their unwillingness to serve it, the fact that as large a population of the black population as of the free whites rushed to the defense of your flag, speaks well for their patriotism. . . . 
But these Democrats are whining through the streets, ‘You propose to enfranchise the nigger, and disenfranchise the white man.’ That is the point where the difficulty is.  I think the black patriot is as much entitled to vote as Jeff Davis, who is waiting across the border, or any of his followers. The issue is upon us. One third of the whole population of the South are black freemen. They are friends of the Union; and if they are to be permitted to exercise the rights of freemen. Those States must have a republican government, but how can a State be republican in its government where the minority rule over the majority of the natural born citizens of the State?  . . . In South-Carolina the black population exceed in number the white population; and what sort of a republican government will that be, if the white minority, who are traitors, should rule over the majority, who are loyal men? . . . 
You have the power, because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic.  Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children? If you would not, you should not deal thus with them.” 

If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?

Marty Lederman

Mark Tushnet suggests that there's a very straightforward way of looking at Christie v. NCAA--namely, as what he calls a federal "preemption" case that can be resolved by ignoring New Jersey law and simply recognizing that the sports gambling in question is prohibited by federal law.  Mark's perspective on the case--what he himself describes as an "unbearably simple-minded" view--might well be right.  It's not clear, however, what should follow in the case if he is right.

The suits in question were brought by the NCAA and the major national professional sports leagues--MLB, the NFL, NBA and NHL--against New Jersey.  Note that the federal government is not a party.  The plaintiffs allege that it was unlawful for New Jersey not to have categorically prohibited sports gambling under state law--or, to be more specific, they allege that New Jersey has affirmatively and unlawfully "authorized" sports betting by "channeling" such wagering into established casinos and racetracks.  The "channeling" in question is effected, claim the plaintiffs, by the simple fact that those are the only locations in the State in which New Jersey law does not prohibit such gambling.  In other words, they complain that New Jersey, far from simply declining to prohibit gambling in the interest of its residents' liberty to wager, has in effect done the bidding of the casinos and race tracks by providing them an effective monopoly.  The state has thereby "authorized" sports betting in such locales, claim the plaintiffs, which allegedly violates a federal law (28 U.S.C. 3702(1)) that makes it "unlawful for . . . a governmental entity to . . . authorize" such wagering "by law."

The plaintiffs succeeded on this argument, thereby securing an injunction against New Jersey, prohibiting the State from "giving effect to" its own 2014 law.  As the plaintiffs' lawyer, Paul Clement, describes it, this injunction "thus requires the State to resurrect and maintain prohibitions on private conduct the State itself chose to repeal."

New Jersey's constitutional defense is that to the extent federal law does prohibit what the state has done, Congress is effectively "commandeering" the New Jersey legislature to criminalize certain conduct, in violation of the Court's so-called "Tenth Amendment" doctrine announced in New York v. United States and Printz v. United States.

Mark's understandable reaction to this suit about what New Jersey has or has not done is:  so what?  The plaintiffs don't really have grounds for complaining about whether or not New Jersey has prohibited the gambling in question, he suggests, because federal law independently prohibits that very same conduct.

Mark might be right about the impact of federal law.  Indeed, in its amicus brief at the cert. stage, the federal government took Mark's view:  The SG urged the Court not to grant cert. because "even if this Court granted review and agreed with petitioners that Section 3702(1) violates the Tenth Amendment, the sports-gambling schemes purportedly authorized by the 2014 Act would still be prohibited by Section 3702(2)."  Paul Clement, representing the NCAA and the sports leagues, argued likewise in his brief in opposition (see pages 33-34).  Unlike Section 3702(1), which regulates governmental entities, Section 3702(2) of the federal law makes it unlawful for a private party, such as the casinos and racetracks in question, to operate a sports betting scheme "pursuant to the law or compact of a governmental entity."

It is unclear--or disputed, anyway--whether the SG and Clement are correct about the scope of the federal prohibition.  In a supplemental filing at the cert. stage, Ted Olson, representing New Jersey, argued that section 3702(2) does not have prohibitory force of its own because the casinos and racetracks in question do not operate gambling schemes "pursuant to" New Jersey law.

I haven't studied the question, and so I don't (yet) have a strong view about whose interpretation of section 3702(2) is more compelling.

Let's assume for the sake of argument, however, that the SG, Paul and Mark are correct about section 3702(2) of the federal law--namely, that it directly prohibits the gambling in question, even though (as far as I know) the federal authorities have never taken any steps to directly enforce that federal law.  Why would that mean, as Mark's post appears to suggest, that the injunction concerning New Jersey law is unobjectionable because "New Jersey's repeal of its prior ban on sports betting is basically irrelevant"?

After all, if the federal government could itself, today, shut down those gambling operations because they violate federal law, what's Congress's possible justification for requiring New Jersey to do so, too?  It's certainly relevant, as a very practical matter, whether one's conduct is prohibited by two sovereigns rather than one--which is presumably why both the plaintiffs and the casinos/racetracks believe that so much is at stake in whether the injunction stands.  This is the way Ted Olson puts the point in his supplemental brief:
If the government is correct and Section 3702(2) prohibits New Jersey's casinos and racetracks from engaging in sports wagering regardless of whether New Jersey continues to prohibit that activity, then invalidation of Section 3702(1) finally would task the federal government with administering and enforcing its own proscription against sports wagering. The end of the federal government's conscription of the States' legislative apparatuses to impose that prohibition, and the restoration of an appropriate line of accountability for it to federal officials, would have immense “practical significance” to Petitioners, the people of the State of New Jersey, and to our system of federalism.
Why is that mistaken?*

(And conversely, I might add, if the SG/Clement/Tushnet reading of federal law is wrong, and Congress has not directly prohibited the sports gambling in question, why is it kosher or defensible for Congress to insist that New Jersey do so, whatever one's views of New York and Printz might be?  What would be Congress's justification, in that case, for not bringing federal resources to bear to prohibit the gambling, but instead shifting all of the burdens to the State to do its bidding?)

_________________
* Only one possible argument comes immediately to mind:  If federal law prohibits the conduct in question, and the intended and foreseeable impact of the selective state prohibition is to funnel gambling proceeds into the pockets of the casinos and racetracks, I suppose it's arguable that the State is, in effect, "aiding and abetting" the federal law violations by those casinos and racetracks, in a way that, perhaps ironically or counterintuitively, it wouldn't be if New Jersey did not ban sports gambling at all . . . and that Congress could logically, and perhaps constitutionally, choose to prohibit such aiding and abetting.  I'd need to think about this argument further if and when Clement and the SG invoke it.

Anticommandeering, Preemption, and the Common Law: The PASPA Case

Mark Tushnet

I'm afraid that I have an unbearably simple-minded view of Christie v. NCAA, New Jersey's challenge to the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). Here's a description of the statute. And here's the short version of the issue: New Jersey banned sports betting businesses.  Congress enacted a statute saying that sports betting was federally banned except in a handful of states where it was lawful in 1992. New Jersey repealed its ban in 2012. New Jersey says that the Third Circuit held that PASPA prohibited it from repealing its ban on sports betting, and that that holding makes PASPA unconstitutional because PASPA commandeers the state legislative process.

It seems to me, though, that there's a simpler (or, as I said, simple-minded) view of the situation. Congress has enacted a ban on sports betting (subject to the grandparenting clause). Engaging in sports betting, even where authorized by state law, is unlawful. New Jersey's repeal of its prior ban on sports betting is basically irrelevant. The repeal remits people to their background rights of property, contract, and tort. People in New Jersey are relying on their ordinary property rights when they run sports-betting businesses. Congress has simply preempted state property law on this issue. And preemption works that way all the time. It can't be that the anticommandeering doctrine makes all federal laws preempting state property (or contract or tort) rights unconstitutional.

[At last, a Balkinization post that isn't about Trump!]

Blackout

Alice Ristroph

On August 21, a total solar eclipse will arrive mid-morning on the coast of Oregon. The moon’s shadow will be about 70 miles wide, and it will race across the country faster than the speed of sound, exiting the eastern seaboard shortly before 3 p.m. local time. It has been dubbed the Great American Eclipse, and along most of its path, there live almost no black people.

Presumably, this is not explained by the implicit bias of the solar system. It is a matter of population density, and more specifically geographic variations in population density by race, for which the sun and the moon cannot be held responsible. Still, an eclipse chaser is always tempted to believe that the skies are relaying a message. At a moment of deep disagreement about the nation’s best path forward, here comes a giant round shadow, drawing a line either to cut the country in two or to unite it as one. Ancient peoples watched total eclipses with awe and often dread, seeing in the darkness omens of doom. The Great American Eclipse may or may not tell us anything about our future, but its peculiar path could remind us of something about our past—what it was we meant to be doing, and what we actually did along the way. And if it seems we need no reminding, consider this: We tend to backlight our history, and so run the risk of trying to recover a glory that never existed. When the light in August changes, watch carefully.


Monday, August 14, 2017

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

This is the title of my new draft paper, which is available here.  Here is the Abstract:

This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.

ACS Junior Scholars Public Law Workshop - call for papers

Joseph Fishkin

Last year, the American Constitution Society hosted its first-ever Junior Scholars Public Law Workshop.  It went so well that we are doing it again this year, at the 2018 AALS Annual Meeting in San Diego.  The deadline to submit a paper is October 18, 2017.  It's open to anyone who has been a full time law teacher for 10 years or less.

For more details click on the "Read more" (or follow this link):

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Sunday, August 13, 2017

Robert E. Lee Was a Horrible Racist

Gerard N. Magliocca

The myth of Robert E. Lee as the "Noble Confederate General" is not unlike the myth of Erwin Rommel as the "Noble Nazi General." After a war is over, there has to be some reconciliation between former enemies, and one way to do that is by picking someone on the losing side as a heroic warrior unsullied by what the war was actually about.

There is no doubt, though, that Lee was a despicable person. Set aside the fact (if you want) that he owned slaves and led the military effort (sometimes brilliantly) to save that evil system. Maybe he recanted after the war ended and became a better man.

Er . . . no.  Here is a relevant portion of his 1866 testimony to the Joint Committee on Reconstruction, which wrote the Fourteenth Amendment:

Question:  What is your opinion about its being an advantage to Virginia to keep them there at all. Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States? 
Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me.
. . . 
Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? 
Answer. I think it is. 
Question. And do you not think it is peculiarly adapted to the quality of labor which would flow into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? 
Answer: I do.
To paraphrase our current President, Lee was an evil loser.

Defining Racism Downwards

Mark Graber

Southern racial moderates during the 1930s vehemently opposed northern and judicial intervention into the trial of the Scottsboro Boys.  The South, the sane voices of the former Confederacy insisted, should determine the legal processes for determining the guilt and appropriate sentence for persons of color accused of crimes against white persons.  These processes did not necessarily include legal representation and certainly did not include African-Americans as either grand or petit jurors, but they were legal processes. Southern community leaders were celebrated as racial moderates because they insisted that persons of color be legally executed only after being tried and sentenced to death by some “legal” process.  They repeatedly denounced the Klan and such extra-legal processes for dealing with alleged crime as lynching.

President Trump, the Klan, the alt-right, and the Republican Party won a stunning rhetorical victory yesterday when the American media and a great many Americans defined racism downwards to 1930 standards.  Republicans who tolerate or support police brutality in African-American communities, horribly inadequate representation for criminal defendants of color (including lawyers who fall asleep at trial), substantial underrepresentation of African-Americans on grand and petit juries, and criminal laws and criminal law enforcement that has resulted in the imprisonment of a stunning high percentage of African-American men became racial moderates because they denounced the Klan and overt expressions of white supremacy.  President Trump’s effort to establish the contemporary American center as the place between those who celebrate white supremacy and those who protest white supremacy, an effort reminiscent of those northern Democrats who in the 1850s condemned abolitionists and secessionists with equal scorn, failed.  Media reports suggest contemporary racial moderates are those Republicans who vigorously condemn white supremacy, with equal vigor condemn any race conscious policy that attempts to improve the status of persons of color in the United States and neglect, tolerate or support racist policies that do not overtly announce their white supremacist foundations.  A racial moderate may gut the Voting Rights Act as long as they do not announce they are doing so to promote the supremacy of the white race.

The events in Charlottesville provide another demonstration of how Trump derangement syndrome on the left is providing the foundations for permanent Republican rule from the far right.  By celebrating any member of the far right who denounces President Trump and the alt-right, Trump derangement syndrome further serves to normalize the far right in the name of not normalizing the alt-right.  White supremacists may have lost a few Confederate monuments yesterday, but they continue to enjoy great success in their efforts to move Americans back to a modified version of 1930 racial politics when the Klan represented the right, everyone who insisted on greater racial equal was a racial agitator on the left, and the comfortable middle consisted of a racial status quo in which whites enjoyed a grossly disproportionate share of the benefits of American life while persons of color experienced as grossly a disproportionate share of the burdens.

Monday, August 07, 2017

Are we really a Union?

Sandy Levinson

As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews).  Our latest addresses the extent to which the United States was a "nation" in 1787.  The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade).  As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such. 

Sunday, July 30, 2017

Is the Republican Effort to Destroy the ACA Dead?

David Super

     No.  That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”.  This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

     Procedurally, the particular amendment the Senate was considering late Thursday night is dead.  When a majority leader wants to hold onto the possibility of a revote, he or (someday) she switches to the winning side so as to be able to move for reconsideration of the vote.  Senator McConnell did not do that, so absent a motion from one of the 51 senators that opposed the “skinny repeal”, that vote is final.  But the vote was not on the underlying bill, which is still the House-passed American Health Care Act (AHCA).  As a result, the Majority Leader can bring that bill back up at any time.  He could even bring up an amendment substantially identical to the one that was defeated if he thought he had the votes.  All he did after the vote was return the bill to the Senate calendar, where it is available for action at any time. 

     In addition, much of the impact of the Republican health care bills – although not of the “skinny repeal” that lost 51-49 – was the savage cutting of Medicaid.  The House Budget Committee has reported out a budget resolution for Fiscal Year 2018 that would require congressional committees to make deep cuts in anti-poverty programs to pay for tax cuts.  If the AHCA fails, the budget committees can easily add its proposed Medicaid cuts to the budget resolution and try to pass them again as part of a tax cut bill.  That legislation, unlike AHCA, is likely to have powerful corporate support. 

     The procedural point at which the direct assault on the ACA will die is when the House and Senate agree on a budget resolution for Fiscal Year 2018 without the Senate having first passed a version of the anti-ACA reconciliation bill (AHCA or a substitute).  At that point, the anti-ACA reconciliation instruction will have been superseded and the bill will no longer enjoy reconciliation protection against filibusters.  A concurrent budget resolution for 2018 is a pre-requisite for the Republicans’ obtaining reconciliation protection for their tax cut bill.  On the other hand, as long as they have no agreement about what they want to pass on taxes, they have little reason to finalize the budget resolution and close off their options on health care.

     Politically, the vote late Thursday night was extraordinarily contingent, with stunning blunders by both the Administration and the Republican House leadership.  For ACA supporters, it was far, far better than a loss, but those declaring the battle won are viewing what happened with remarkably rose-colored glasses.  First, 49 senators have now clearly signaled that they will vote for pretty much anything.  Yes, a few peeled off on the votes on preliminary amendments that everyone knew would fail anyway (and on which Sen. McConnell made no effort to enforce party discipline).  But when the chips were down, 49 voted for “a pig in a poke”.  We no longer have plausible hopes that Sens. Portman (OH) and Capito (WV) would refrain from savaging the ACA because of the consequences for the opioid epidemic or the vast numbers of people newly ensured people in their states.  The supposed influence of anti-repeal Republican governors in Ohio and Nevada failed to sway Sens. Portman and Heller (NV).  (To be fair, Sen. Heller did vote against both plans that would explicitly cut Medicaid so his vote might be in play on a broader repeal bill.)  And the supposed libertarian principles of Sen. Paul (KY) quickly crumbled.  Even the storied influence of the health care industry failed to keep Republicans from voting for a bill that would have been financially disastrous for it.

     Second, of the three Republicans who did vote “no” – all of whom must remain opposed for the legislation to stall unless Sen. Heller replaces one of them – only Sen. Collins (ME) seems solid in her opposition.  Earlier in the week, Sen. McCain (AZ) voted for a “repeal and replace” bill that violated all the principles he espoused:  it was drafted in secret with no hearings or committee mark-ups, it was entirely partisan, and it would have increased dramatically the ranks of the uninsured.  He had earlier been one of three senators demanding that the House commit to not passing the “skinny repeal” bill and sending it directly to the President.  When Speaker Paul Ryan released a coy statement that made no such assurances – and House Majority Leader McCarthy told his Members they might need to postpone their recess to cast a quick vote on health care – Sen. McCain had little trouble smelling a rat.  That hardly means he will oppose a bill that devastates the ACA but comes without procedural shenanigans. 

     As for Sen. Murkowski (AK), she would have humiliated herself had she voted for the bill two days after media reports of Interior Secretary Zinke’s crude threats to her.  But she has not historically been much of a moderate or dissenter.  She is far more engaged with muscling through environmentally deleterious development projects.  Although the ACA’s loss would be devastating to the expensive health care infrastructure, one can imagine her responding to less thuggish overtures.

     Finally, Speaker Ryan’s refusal to promise not to pass the “skinny repeal” bill as-is, even when that promise appeared crucial to the bill’s chances in the Senate, strongly suggests that this is just what he plans to do with any bill that passes the Senate.  Thus, if any bill does get through the Senate, the ACA is probably doomed. 

     Majority Leader McConnell’s declaration that he is moving on after last week’s defeat does not spell the political death of the ACA repeal effort.  Remember, Speaker Ryan said the same thing after the AHCA fell apart repeatedly in the House.  The repeal effort will only die politically when an important Republican sponsors legislation that seeks to repair the ACA.  Even a feeble proposal will compare very favorably with proposals to liquidate the ACA to pay for tax cuts.  As such, the appearance of such a proposal with Republican sponsorship will make bills like AHCA impossible to defend.

     Practically, the ACA’s operation will continue to suffer as long as Congress and the Administration raise doubts about its survival and management.  Some insurers have attributed much of their announced rate increases to uncertainty coming from Washington.  Insurers are unlikely to invest the up-front costs to enter unserved or underserved markets if they believe they may have only a year or two to recoup those costs.  And the prospect of delays and difficulties receiving payments can discourage any business.

     A good example is the President’s oft-repeated threat to cut off reimbursement to insurers for the ACA’s mandatory cost-sharing subsidies for low-income people.  If he follows through on that threat, insurers will promptly sue for their money in the Court of Federal Claims.  And they will surely win because 42 U.S.C. § 18071(c)(1) states:

An issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions.

Pursuant to 28 U.S.C. § 2517, these judgments would be paid out of the permanent uncapped appropriation for judgments against the United States, 31 U.S.C. § 1304.  (Thus, even if the House of Representatives were ultimately to prevail in its lawsuit alleging that no appropriation supports these payments, the financial outcome would be unchanged.)  But having to go through the delay and expense of litigation is naturally unattractive to insurers, some of whom are raising their premiums or limiting their market participation as a result. 

     The practical threat to the ACA will end when Congress, and particularly the Administration, comes to feel invested in the law’s success.  That may well not occur unless and until some bipartisan legislation passes to address some of the ACA’s actual shortcomings, allowing the Administration to claim that it is implementing a new law of its design rather than that of its predecessor. 

Saturday, July 29, 2017

Obamacare As Superstatute

Abbe Gluck

               I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory--their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn's paradigm example of the Civil Rights Act (which beautifully fits the theory) fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)

               But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.

              The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in  Administration.  It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that  we just saw; but also four years' worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges  to discrete aspects of the law (e.g., Hobby Lobby).

            But what is most interesting to me about the ACA’s recent story for purposes of superstatute theory is the normative transformation that the statute seems to have wrought. That will be Obama’s biggest legacy on health care, regardless of what happens to the ACA itself; whether it gets amended, partially amended, repealed, or just tweaked and given a different name. That stuff is politics. I’m talking about our fundamental and “gut” understanding of what a health care system should be and what the government's role in it should look like.

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Wednesday, July 26, 2017

The Hypocrisy of the "Skinny" Repeal: The Republicans Themselves Said It Would be Disastrous

Abbe Gluck

With two strikes thus far on more substantial Obamacare repeal efforts, the Senate seems headed for the so-called "skinny" repeal option, which it appears would repeal the individual insurance-purchase mandate, along with the employer mandate and the medical device tax, and leave everything else in place.

This repeal is hypocrisy of the highest order.  For starters, the repeal was supposed to fix what Trump likes to call the "Obamacare disaster."  What exactly is that disaster? If it's Medicaid, this bill isn't going to touch it. (And it's not Medicaid: It has been documented that the Medicaid expansion (whether you like that program or not)is working quite well. For additional proof, just look at all the GOP resistance to cutting it and the number of red states that have expanded their programs). The "disaster" is the insurance markets--premiums that are too high, not enough competition on the exchanges.  That "disaster" as I have detailed elsewhere, was a tragedy mostly of the Republican party's own making.   Legislation and litigation by the Republican controlled Congress sowed uncertainty into the insurance markets and shut off critical insurance stabilization funds that the ACA as drafted provided.

To be sure, the ACA isn't flawless. The amounts set to subsidize individual purchase of insurance were set too low originally (which is one reason premiums feel too high for many). But the Congress never fixed that either, and it sure isn't doing so now.

Instead, the skinny repeal would exacerbate the very problem the Republicans claim they are repealing the ACA to address. Health experts, republican governors, insurers, hospitals--you name it--agree that repealing the mandate will cause premiums to rise even further and insurance markets to descend into even more fatal instability.  Why?  You can't make insurance more generous without giving something back.  The ACA gives something to the American people at the insurance industry's expense: it changes the way the industry does business by requiring insurers to take all comers at essentially equal rates regardless of health risk. In return, it gave the insurers more customers and an expanded, healthier, risk pool.  Taking away the mandate without repealing the generosity puts the insurance industry in the position of having to find some way to fund this generosity or risk collapse. 

Of course, everyone  (read: voters) likes the generosity--no one wants to be turned away from health care because they have cancer or some other condition.  The Republicans are unwilling to take the direct heat for taking those benefits away from the American people, so they are going to further sabotage the insurance markets and hope the American people are sufficiently ignorant that they will blame it on Obama instead.

But don't take my word for it. If there are any doubts about what effect the skinny repeal will have, consider this statement from the Republican amicus brief filed in the Supreme Court in the 2012 (unsuccessful) challenge to the individual mandate. The brief argued the ACA could not survive without the mandate--that millions of Americans would lose insurance and access to care and that insurance premiums would rise dramatically. Twenty-seven of those Senators are still in the Senate. In their own words:

"The individual mandate is at the heart of the PPACA, and the remainder of the statute necessarily depends on its inclusion because without the mandate, the statute’s reforms cannot work as intended. Indeed, the proponents of the PPACA knew at the time Congress considered the legislation that without the mandate both the number of uninsured and the price of premiums would skyrocket. In short, without the mandate, Congress’ attempted solution to the twin problems of health care coverage and costs  disappears." Br. of U.S. Senators at 10.

(That's what the Congressional Budget Office said today, too. It projected the skinny repeal would cause premiums to rise approximately 20%  and 16 million people to lose insurance by 2026.)

To make matters worse, to satisfy Senate requirements concerning the amount of money the repealer must save, some have suspected the skinny repeal will also need to include a provision gutting the ACA's public health and prevention fund, and possibly also the community health centers fund, raiding that money to pay for the havoc the bill will wreak on the insurance markets.   Cutting public health and prevention money, throwing millions off the insurance rolls, and raising premiums--at the very same time Republican senators themselves have clamored for more funds to address the national opioid crisis?  At the very same time they claim to be rescuing America from a health policy disaster?

It's worse than hypocrisy. It's irresponsible.

Tuesday, July 25, 2017

How Does This Work? The Senate and Health Care Reconciliation

David Super

     Now that the Senate, defying many pundits’ expectations, has voted to begin debate on a reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it may be useful to review the procedural rules and tactics likely to shape this debate. 

     First, and most obviously, a bill considered under reconciliation rules is immune from filibuster.  Instead, the Congressional Budget Act limits debate to twenty hours, equally divided between supporters and opponents.  Thus, Republicans do not need sixty votes to invoke cloture; they only need fifty votes plus Vice President Pence to break ties. 

     Second, the scope of permissible amendments is quite limited.  Considerable attention has focused on the Byrd Rule, which prohibit provisions with no fiscal effect or whose fiscal impact is merely incidental to their non-budgetary policy purposes.  The Byrd Rule also could cause problems for amendments that have a clear fiscal impact but that change the savings projected from the underlying bill and possibly those that have the effect of taking money from one committee’s jurisdiction and placing it in that of another.  These rules were written on the assumption that bills being debated would be reported out of the various relevant authorizing committees; how they fit with the extraordinary path Majority Leader McConnell has chosen is less clear. 

     Also significant are the Senate’s germaneness rules for reconciliation legislation.  A full treatment of germaneness in the reconciliation context would glaze over eyes faster than a CLE course on parking law, but suffice it to say that the ability to add entirely new material to the bill is limited.  Motions to strike, on the other hand, are liberally permitted.  That means that no senators can excuse their vote for a bill containing a troubling provision by claiming that they had no way to get that provision removed.

     Perhaps most important is the timing of amendments.  Although senators are free to offer amendments at any time, few truly significant amendments appear until the very last moment.  That is true in an ordinary year, and that is emphatically true this year with the Majority Leader placing a premium on stealth.  Once the time for debate has expired, the Senate holds one roll-call vote after another until all amendments have been addressed or withdrawn.

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