The Docket

The Prospect's legal affairs blog

Should Obama Have Abandoned Health Care Reform?

Princeton University Press
I've just finished George Edwards's Overreach . In essence, the book applies the lessons of On Deaf Ears and The Strategic Presidency to the Obama administration. If you've read the two earlier books you needn't make it a high priority, but if you haven't it's as good an introduction to the work of the most important contemporary scholar of presidential politics as anything. The Obama administration reconfirms a lot of what we already know—presidents have essentially no demonstrable ability to shift public opinion in their favor and only a very limited and contingent ability to shift marginal votes in Congress (which is become more attenuated because of increased polarization in Congress—especially for a Democratic president getting opposition support for a major initiative is nearly impossible, which in turn increases the leverage of marginal Democrats in Congress). As the title suggests, the main thrust of the book is that the Obama administration made the same mistakes most...

Filibuster Reform Lies in the Voters

(Flickr / Cle0patra)
In 1906, journalist David Graham Phillips scored a best-seller with his book The Treason of the Senate . “The Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be,” Phillips wrote. There’s a good case that the “millionaire’s club” of 1906 was Audie Murphy compared to today’s Senate. The case against the Senate—and in particular against the misuse of the filibuster to paralyze the federal government—is brilliantly laid out in the Complaint filed last month by Common Cause in the federal District Court for the District of Columbia (It’s good: download it and read it now ). The complaint is a great service to public education. But the remedy Common Cause is seeking—judicial invalidation of part of Senate Rule XXII—is not only beyond the authority of the courts, but would, if granted, create a precedent worse than the disease it attacks. The Constitution gives each House the power to set its own rules, with no...

A Gun to the Debt-Ceiling Fight

(Flickr/zieak)
If Barack Obama turns out to be a one-term president, historians may mark the summer of 2011 as the moment his failure became inevitable. At that point, the new right-wing Republican House majority declared the national debt hostage and demanded Obama’s surrender to them on all points of domestic policy. When the debt-ceiling statute required authorization of a new federal borrowing limit, they refused to vote on the measure without massive cuts in federal spending and no increase in federal revenue. The crisis was averted by the appointment of an idiotic congressional “supercommittee” that was supposed to identify future cuts, matched with a set of “automatic” cuts that were to take effect if the “supercommittee” failed to come up with a compromise aimed at reducing federal debt. Not surprisingly, the “supercommittee”—perhaps better known as the “Clark Kent committee”—was unable to produce a compromise. The debt showdown, which paralyzed Washington for much of spring and early summer...

1st Circuit Rules DOMA Unconstitutional

Nancy Gill & Marcelle Letourneau, by GLAD
One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama—even before his recent announcement declaring support for marriage equality—had refused to defend the constitutionality of DOMA in court . In an even more important sign of progress today, the worst provisions of the Defense of Marriage Act were ruled unconstitutional by a unanimous three-judge panel of the 1st Circuit Court of Appeal. And particularly since this case is nearly certain to end up in the Supreme Court, the fact that this panel included two Republican appointees is also important. Judge Michael...

The Continuing Importance of the Voting Rights Act

In her excellent piece about the Republican Party's systematic vote suppression efforts, Dahlia Lithwick details the various strategies: Whether it’s onerous (and expensive ) voter ID rules that will render as many as 10 percent of Americans ineligible to vote, proof of citizenship measures, restricting registration drives, cancellation of Sunday voting , or claims that voting should be a privilege as opposed to a right , efforts to discount and discredit the vote have grown bolder in recent years, despite vanishingly rare claims of actual vote fraud. The central issue here is the claim that "voting should be a privilege as opposed to a right." What's worse is that this isn't just a modern Republican creation but a flaw deeply embedded within American constitutionalism. Ratified in 1870 with support for Reconstruction already waning, the Fifteenth Amendment stated that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any...

The War on Contraception Enters the Courts

WikiMedia Commons
Forty-three Roman Catholic plaintiffs—including the archdiocese of New York and the University of Notre Dame—have filed lawsuits alleging that the Obama administration's contraceptive coverage requirements violate the First Amendment and the Religious Freedom Restoration Act. In case there were any doubts about the political nature of the lawsuits or the unpopularity of this war on contraception, as Salon 's Irin Carmon points out , the Notre Dame lawsuit alleges repeatedly that it would be required to cover "abortifacients” or “abortion inducing” substances although the regulation explicitly excludes them (and the claim that emergency contraception induces abortion is erroneous.) That the lawsuit is cultural warfare, however, does not in itself mean that it is without merit. Should the courts take these claims seriously? Will they? On the first question, I have argued at length elsewhere that both the constitutional and statutory arguments should be rejected. To allow institutions...

Be Very Afraid

WikiMedia Commons
Jamelle's hot-off-the-presses cover story on how Romney will govern as a hardcore right-winger irrespective of what he "really" thinks is a must-read. And what's even worse is that this lesson applies beyond budget policy. To address one particularly important point, consider the Supreme Court. As of 2013, Ruth Bader Ginsburg will be an 80-year-old cancer survivor. Stephen Breyer will be 74. Anthony Kennedy will be 76. Replacing even one of these judges with an Alito-style reactionary would have a huge impact on the development of American law that only start with the explicit or implicit overruling of Roe v. Wade , and a Romney who served two terms would probably be able replace all three. Even one term of Romney would probably result in a Supreme Court in which Antonin Scalia—at least until he's replaced with a much younger and even more conservative justice—would have to turn to his right to see the median vote. Trying to downplay the possibility of Romney fixing an ultra-right-...

A State-Federal Standoff over the Death Penalty

(AP Photo/Charles Dharapak, File)
A principled governor invoking “state’s rights” to defy federal policy. Aggressive local officials overriding state decisions. A federal court angrily affirming its own power. An anguished dissent attacking a power-hungry Congress. United States v. Pleau has all the elements of a great federalism battle (including, by the way, largely symbolic stakes). But don’t expect to see Rhode Island Governor Lincoln Chafee’s “state’s rights” stand hailed by Republican conservatives: Chafee is blocking the federal government in order to show his disapproval of the federal death penalty. The result, decided May 7 by the First Circuit Court of Appeals, is now in the Supreme Court’s in-basket. Pleau deals with important issues of policy, morality, and history. But because this is the United States, the language of the dispute is that of federalism—a pastime that Professors Edward L. Rubin and Malcolm Feeley once dubbed “a national neurosis.” The case began on September 20, 2010, when Jason Wayne...

The Unecessary Radicalism of Citizens United

WikiMedia COmmons
One of the many striking things about the Supreme Court's infamous Citizens United decision is how poorly the facts of the case fit the extremely sweeping holding. The potential First Amendment issues involved with campaign finance regulation exist on a spectrum. Political editorials, even when published in corporate-owned media and attempting to influence the campaign, are obviously "pure speech" that can be restricted only in extraordinary circumstances. Direct donations to candidates, on the other hand, are further removed from pure speech and also raise serious problems of democratic equality, so the leeway that can be given to government to restrict them might be greater. Political advertising falls somewhere in the middle. Citizens United involved the suppression of a political campaign documentary about Hillary Clinton—something that doesn't neatly fit into the categories, but is closer to "pure speech" than being a campaign expenditure. While many progressives disagree, I...

Striking Down the PPACA: Still Not A Desirable Outcome

WikiMedia commons
Jon Rauch has an imaginary dialogued with the late Ted Kennedy in which he argues that a Supreme Court decision striking down the Affordable Care Act (a k a the PPACA) might actually be good for liberals. "If the Supreme Court guts another important law and conservatives cheer even louder," Rauch argues, "their credibility as advocates of [judicial] restraint will be shot.” And, in addition, striking down the PPACA would put us on the path to national health insurance. Perhaps, then, striking down the PPACA is something that progressives should secretly wish for? Racuh's argument is a little bit different than contrarian arguments based on the legitimacy of the Supreme Court , but I don't find them any more convincing. First, Rauch's argument is a variant of the argument that judicial decisions produce a unique amount of backlash, which means an inevitable reference to Roe v. Wade : You bet. Remember Roe v. Wade, the 1973 case that made abortion a constitutional right? At the time, it...

Face It: SB 1070 Is about Race

“Before you get into what the case is about,” Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government’s argument in United States v. Arizona, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement. S.B. 1070, passed in a state that borders Mexico, will bring about many more stops and detentions of brown-skinned people, citizens or not. But the government chose not to argue that issue in its brief, and Verilli agreed that the profiling issue was off the table. The government’s argument, taken as a whole, is this: The Constitution gives the federal government exclusive authority over immigration and naturalization...

Dworkin on Why the PPACA is Constitutional

WikiMEdia Commons
Ronald Dworkin has an article defending the constitutionality of the Patient Protection and Affordable Care Act in the New York Review of Books that offers an excellent primer on the relevant issues. There are two sections I'd recommend in particular. First, in Section II Dworkin does the most lucid job I've seen so far in explaining why the "activity/inactivity" distinction made by the challengers is so weak: The rhetorical force of their examples, about making people buy electric cars or broccoli, depends on a very popular but confused assumption: that it would be tyrannical for any government to force its citizens to buy what they do not want. In fact both national and state governments steadily coerce people to do just that through taxation: they make them buy police and fire protection and pay for foreign wars whether they want these or not. There is no reason in political principle why government should not make people pay directly for its services through insurance rather than...

Arizona Asks the Court Not to Trust the Feds

(Krista Kennell/Sipa Press)
This term’s last oral argument ends next week with yet another blockbuster case— Arizona v. United States , the challenge to Arizona’s harshly anti-immigrant S.B. 1070 . This case poses vitally important questions about individual rights, racial profiling, and the future of individual equality in the United States. But don’t expect to hear them argued openly next week. Instead, arguments will be couched almost entirely in the language of “federal preemption,” a subject so abstruse and technical that it induces coma in even the hardiest law-review editors. But lurking underneath the talk of “conflict preemption” and cigarette-labeling statutes are issues of human equality and the emerging constitutional question of our time: When, if ever, are Congress and the executive branch owed deference by the states and by their special protector, the Roberts Court? The issue is whether four sections of S.B. 1070 usurp the federal government’s role in regulating immigration matters—a power the...

Bush-Appointed Judge Does the Full Lochner

I've argued that the legal arguments against the Affordable Care Act are just libertarianism in a thin disguise—the arguments fundamentally make very little sense unless they're part of a broader argument about the unconstitutionality of the welfare state. Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise. In a recent concurrence , Brown lamented the fact that the courts no longer arbitrarily substitute their judgment about economic regulations for that of legislatures: The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender...

Of Course a Decision Striking Down the ACA Would Be "Judicial Activism"

WikiMedia commons.
Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No. 4, he concedes explicitly (while arguing, plausibly enough, that No. 4 isn't a useful criterion in a country with firmly established judicial review). On No. 1, he all but concedes, arguing that "if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common." Given this, we can go ahead and...

Pages