The Reagan Regime Lives On

Gerard N. Magliocca

While the result of the election is unclear, one thing is clear: We are still in the Reagan Regime. The Reagan Revolution has nine lives. Some conservatives thought that Bush 41 was the killer. Others blamed the compassionate conservatism of Bush 43. I thought initially that the 2008 election was the end. Or the run-up to 2016. Or maybe this year. No dice. The GOP will (absent some incredible results in Georgia) control the Senate in the next Congress and probably in the one other that. And there's the newly beefed-up Roberts Court. 

To be fair to Jack, his terrific new book does not say that 2020 would be the transition point. We might, though, need to rethink when that transition will come. President Trump's increased strength in Florida and Texas suggests the possibility that the Reagan coalition can be reconstituted organically. Perhaps the pandemic is the only thing that prevented the President's reelection.

Put another way, Larry Hogan was not far off the mark in voting for Ronald Reagan, if you take that as a prediction of the actual winner.

The Margin of Litigation, the Margin of Error, and the Margin of Organizing

Joseph Fishkin

A few thoughts on President Biden's likely margin — too small to please Democrats, for sure, but I think, large enough to fall outside the "margin of litigation," which is very good news for the country — here in a blog post at TPM Cafe.  

What Fulton v. Philadelphia Is--and Isn't--About

Marty Lederman

Later this morning, the Supreme Court will hear argument in the most significant Religion Clause case of the Term, Fulton v. City of Philadelphia, No. 19-123.  The principal question in the case is whether the City of Philadelphia may insist that a city contractor involved in helping the City with its foster care program must comply with a term of the contract that forbids discriminating against prospective foster-care parents on the basis of their sexual orientation, where the contractor has a religious objection to dealing with same-sex couples.  

Many public descriptions of the case, and of the questions it presents, have been misleading or confused.  In this post, I’ll try to clarify what the case is, and is not, about.

Background

Most of the confusion about Fulton stems from misunderstandings of who performs which functions in the Philadelphia foster care system, and exactly what those functions are.  It's therefore important to describe the facts in some detail in order to understand what’s at issue, and what's at stake.

When a child in Pennsylvania is subjected to neglect, abuse or exploitation in his or her home that can’t otherwise be remedied, the government of the county in which the child lives—or, in Philadelphia, the City government—has a statutory duty to take custody of the child.  Because it would be impractical, however, for the Philadelphia Department of Human Services (DHS) itself to care for the many thousands of such children in the city--and because placement with a family is generally far better for a child than institutional care--that city agency ordinarily finds alternative custodial placement for the child, including, in many cases, in one form or another of foster care.  In many cases, the City DHS places children with extended family members (“kinship” care), but where that’s not possible the City DHS places the children—approximately 2000 at any one time—with non-relatives who have been certified as eligible foster parents.  J.A. 685.

The Fulton case is not about the decisions to place particular children with foster families:  as explained below, that remains a function controlled by the City DHS.  It is, instead, about the antecedent process of certifying families as eligible, under state law, to be foster parents.  Under Pennsylvania law, this family-certification function is assigned in the first instance to a different government actor: the Pennsylvania Department of Human Services.  And, importantly, the Pennsylvania DHS has delegated that responsibility to private organizations who contract with the relevant county agency dealing with foster care or, in Philadelphia, with the City DHS.  See Pa. Code 55-3700.61 (“The Department delegates its authority under Article IX of the Public Welfare Code (62 P.S. §§ 901-922) to inspect and approve foster families to an approved foster family care agency.”).  This delegation of the Commonwealth agency’s family-approval function is not simply a matter of Pennsylvania abdicating its responsibility to perform its own duty by turning it over to private parties to do what they wish.  To the contrary, those private parties perform the family-certification function on behalf of the Commonwealth DHS itself, according to standards the Pennsylvania DHS has promulgated—which is why, if a contracting agency denies family approval in a particular case, the prospective foster parents can appeal that decision to the Pennsylvania DHS’s Office of Hearings and Appeals.  

In other words, the City of Philadelphia contracts with private organizations—called “Foster Care Agencies” (FCAs)—to perform a function delegated to that private party by a state agency, on behalf of the state, regarding the certification of the eligibility of other private parties to care for children who’ve been in the custody of the City.  

In recent years in Philadelphia, there are two or three dozen such FCAs at any one time.  Prospective foster parents choose which FCA they’d like to work with, after which the FCA assesses the prospective parents (including through “home visits”) to determine whether they satisfy the regulatory criteria to be legally eligible to provide foster care for children, and ultimately makes a “decision to approve, disapprove or provisionally approve the foster family.”  55 Pa. Code § 3700.69(c).  

In making this assessment of foster-parent eligibility, an FCA must adhere to the criteria prescribed by state law.  For example, the prospective parents must be physically able to care for children and free from communicable disease; the residence must have at least one flush toilet, one wash basin and one bath or shower with hot and cold running water, a heating system, and a telephone; the parents cannot have committed certain crimes or child abuse; etc.  The FCA must also assess, more broadly, whether a prospective foster parent has the “ability to provide care, nurturing and supervision to children,” if he or she has “[a] demonstrated stable mental and emotional adjustment,” and if he or she has “[s]upportive community ties with family, friends and neighbors.”

For many decades preceding 2018, Catholic Social Services (CSS) was one of the agencies with which the City contracted to be an FHA to perform this state-delegated family-certification function.  Pursuant to such contracts, CSS received many millions of dollars annually from the City.  In 2018, the City refused to renew this particular FCA contract with CSS because it learned that CSS refused to comply with one condition of that contract—namely, that it not discriminate against same-sex couples who wish to be certified as eligible to be foster parents.  (It’s worth stressing, however, that Philadelphia has not entirely broken all ties with CSS in the context of foster-care services.  To the contrary:  CSS continues to receive many millions of dollars a year from the City to perform services as a “Community Umbrella Organization” (CUA), in which capacity it helps support foster children (such as in arranging for a child’s social services and doctor’s visits).  CSS also  operates two “congregate-care” facilities, which provide group housing for children in the City’s care (distinct from the foster-care system).) 

CSS sued the City, seeking only prospective relief:  It wishes to be able to once again enter into FHA contracts with the City, but to do so without complying with the antidiscrimination condition of such contracts.  CSS argues that the City violates CSS’s Free Exercise and Free Speech rights by insisting upon that condition.  Here is the antidiscrimination condition in question, which is included as Section 15.1 of every City contract with FHAs:

Provider shall not discriminate or permit discrimination against any individual on the basis of actual or perceived race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information; domestic or sexual violence victim status; or Human Immunodeficiency Virus (“HIV”) infection status.

With that factual backdrop in place, we can now examine whether the Fulton case actually raises some of the questions that commentators (and CSS itself) have commonly assumed or alleged.

I.  The Denial of an FCA Contract Does Not Exclude CSS From its Historical Ministry of Caring for Foster Children

CSS has tried to frame the case by insisting that when the City denies CSS a contract as an FHA, that denial not only prevents CSS from receiving funds to perform the delegated state functions in question, but also prevents CSS from engaging in charitable functions it had performed outside the context of a government contract for decades before the State and the City monopolized those functions—functions that CSS allegedly would continue to perform if Philadelphia allowed it to do so.  According to CSS, Philadelphia has effectively “exclude[d] CSS from its historical ministry of caring for foster children.”  (CSS repeats this theme—that the City has “prevent[ed] CSS from pursuing its religious ministry”—throughout its briefs.  See also, for example, the amicus brief of the Christian Legal Society and other organizations, which hyperbolically and inaccurately asserts that “Philadelphia has entirely barred CSS from its religiously motivated work of helping children in need.”)  In other words, according to CSS this isn’t simply a case of a government regulating the terms of a contract itself, but one in which the City is leveraging its contracting power—and its legal monopoly over foster care services—to preclude CSS from exercising its religion outside the operation of the contract.  

This is simply mistaken.  Even without an FHA contract with Philadelphia, CSS is free to engage in virtually all of the charitable functions it has traditionally performed.  CSS can continue—as anyone can—to “serve[] all children in need”; to “care for foster children” as it’s done “for over 50 years”; and to “provide support” for foster families, such as “delivering wrapped presents” on Christmas eve.  (All quotations here are from CSS’s briefs.)  Indeed, CSS is not even precluded from offering assistance to children in the foster care system, and the families that care for them.  For one thing, CSS continues to receive $17 million dollars or so from the City of Philadelphia to serve as a CUA providing case-management services to foster children, and it continues to run two congregate-care facilities, which provide group housing for children who have been removed from their homes because of abuse or neglect.  CSS also remains free to use its own resources to provide further services to children in foster care, to recruit foster families, and to operate its private adoption program, in which it assists birth families who choose to place their infants for adoption.  

Over at the Volokh Conspiracy, Professor Barclay asserts, contrary to what I’ve written above, that the Fulton case is about “whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children,” something CSS has been doing “for over 200 years in Philadelphia.”  That characterization, however, appears to be based entirely on the statement by a CSS official, in response to a leading question by CSS’s lawyer, that CSS would “be breaking the law” if it “provide[d] foster-care services without a government contract.”  The CSS official didn’t elaborate on which “services” would allegedly break which “laws” and, in any event, his bald legal assertion about what Pennsylvania law prohibits simply isn’t correct.

The principal thing CSS cannot do without an FHA contract is to perform the delegated governmental function of deciding whether persons may be certified as eligible under state law to become foster parents to care for children in the City’s custody—to decide, in other words (and subject to review by the Commonwealth DHS), whether other private parties may obtain legal custody over yet a third group of private parties, namely, foster children.  And that is a function the Pennsylvania DHS would perform in the absence of a City contract with FCAs.  Just as importantly, it’s a function that a private agency such as CSS could never perform, using its own resources, outside its role as contractor of the City and delegate of the Pennsylvania DHS.  (Not surprisingly, CSS doesn’t argue that its religious ministry has historically included wielding governmental authority to determine whether other private parties may legally care for children.) 

One other point on this topic:   I’ve seen it argued that the real harm to CSS is that, without an FCA contract, it cannot make placement decisions--i.e., decisions about the homes into which particular children will be place.   (The court of appeals contributed to this misimpression by writing that an FCA “selects an appropriate foster parent for the child.")  Even with an FCA contract, however, an agency doesn’t have the legal authority to make a placement decision for a particular child.  That authority belongs to the City itself.  In the ordinary case, the City DHS works with a Community Umbrella Organization (such as CSS itself, which continues to have a CUA contract) to determine what level of care a child needs, and then sends out a “referral” of a particular child to all FCAs that work with families that can provide the necessary level of care (or, on occasion, only to a particular FCA, such as when that FCA has already placed the child’s sibling).  The FCAs then make proposals, or recommendations, to the DHS about potential family matches for the child; and then the City DHS decides where to place the child based upon the child's best interests (the state-law legal standard), by issuing a “provider location code” for that family to the relevant FCA that certified that family.  (To be sure, an agency without an FCA contract won’t receive a referral from the City in such a case.  But nothing in the law prevents such an agency from recommending a family to the City; and, in any event, CSS doesn’t argue that its free exercise of religion is abridged because it will, as a practical matter, have fewer opportunities to recommend child/family matches.) 

II.  The Nondiscrimination Requirement of the City’s Contract Would Not Require CSS to Endorse Same-Sex Marriages

CSS believes that same-sex marriage is immoral.  But what is its objection to performing an FCA’s role under a City contract, i.e., assessing whether same-sex couples meet the state-law criteria to be foster parents?  CSS claims that if it certifies such a couple, that will “signify” its “approval of a family” and that its approval will be tantamount to “an endorsement of the relationships of those living in the home.” 

That proposition, however, is predicated on a mistake about state law and the function that an FHA performs (not on a religious question).  As the very helpful, very short amicus brief of the Commonwealth of Pennsylvania explains, an FCA is required (and, indeed, permitted) only to assess whether the potential foster family meets the prescribed regulatory requirements, which do not include any assessment—let alone any endorsement—of the morality of a prospective foster parent’s marital status or relationship.

To be sure, the DHS regulations instruct an FCA to consider, among other factors, “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships, especially as they might affect a foster child.”  55 Pa. Code § 3700.64(b)(1).  As Pennsylvania explains, however, the regulations ask an FCA to consider a prospective foster parent’s “existing family relationships” only to the extent they bear on the determination of whether that person can “provide care, nurturing and supervision to children,” has “demonstrated stable mental and emotional adjustment,” and has “supportive community ties with family, friends, and neighbors.”  55 Pa. Code § 3700.64(a)-(b).  A person’s marital status—and especially the sex of the person to whom he or she is married—is simply irrelevant to this assessment, according to Pennsylvania.  (Indeed, over thirty percent of approved foster parents in recent years haven’t been married at all.)  “Pennsylvania cares about existing relationships only as they bear on the quality of care a prospective foster parent can provide.”

Think about it this way:  The FCA’s job is simply to do what the Commonwealth DHS itself would have done had that agency not delegated to the FCA its duty to perform that same function—namely, to assess whether the family satisfies the criteria for be able to assume custody of a foster child.  Because it would be impermissible for the Pennsylvania DHS to take into account the marital status, or nature of the marriage, of prospective foster parents, so, too, is an FCA precluded from considering such matters.  Indeed, if an FCA did refuse to approve a family based upon moral or religious opposition to same-sex marriage, the DHS Office of Hearings and Appeals would undoubtedly reverse that determination on appeal in a heartbeat, see 55 Pa. Code § 3700.72(d), on the ground that it was ultra vires—entirely outside the FCA’s remit.  

It follows that Pennsylvania law certainly doesn’t compel an FCA such as CSS to express views that it considers objectionable:  it does have to--and should not--declare anything one way or the other about the propriety of a same-sex marriage.  (I assume that CSS, in order to be safe and prevent any misimpression about the issue, could even expressly inform the Commonwealth DHS and the City of Philadelphia that its approval of a foster parent’s eligibility to care for children does not reflect CSS’s moral views, which remain unequivocally opposed to same-sex marriage.  The City agrees; in its brief it writes:  “DHS would not find CSS in violation of its contractual duties if it accompanied its certifications with an express statement that they do not constitute endorsements of the parents’ relationship.”) 

That, in turn, is another reason why CSS could not demonstrate that the nondiscrimination condition of a Philadelphia FCA contract burdens its religious exercise.  Although courts may not second-guess whether someone’s “religious beliefs are mistaken” concerning what types of assistance to others’ allegedly sinful conduct violate the actor’s religious obligations, Hobby Lobby, 573 U.S. at 725, the judiciary need not defer to a litigant’s mistaken view about how a law operates—a purely legal, not a religious, question.  And that’s what we have here.

Similarly, CSS’s compelled speech claim depends upon its assumption that if it were to certify that a same-sex couple qualifies as foster parents, that would require CSS “to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships,” i.e., to “speak Philadelphia’s preferred message on marriage” (quotes from CSS’s brief).  Because that’s not true, CSS’s Free Speech claim should fail (and that’s wholly apart from the fact that CSS would only be required to make such certifications if it chooses to contract with the City, and accept tens of millions of dollars, to do so, as a government agent—something it could obviously choose not to do).  (CSS argues that when an FCA makes such a certification it is not doing so as an agent of the City of Philadelphia.  That may be true—perhaps it is “only” a Philadelphia contractor.  But certainly an FHA is acting as an agent of the government entity that delegated it the responsibility to perform that government function—namely, the Pennsylvania Department of Human Services.)

* * * *

In its brief, CSS repeatedly insists that “Philadelphia attempted to coerce a church to speak an unfunded message it opposes in exchange for participating in a ministry it has performed for two centuries.”  As we’ve seen, though, both prongs of this alleged “Hobson’s Choice” are nonexistent.  The nondiscrimination condition of an FCA contact would not require CSS to speak a message it opposes.  And the City's refusal to contract with CSS because it won’t comply with that requirement wouldn’t prevent CSS from “participating in a ministry it has performed for two centuries.”

III.  Fulton Isn’t a Fit Case for the Court to Decide Whether to Overrule Employment Division v. Smith 

The second Question Presented in Fulton is “[w]hether Employment Division v. Smith should be revisited.”  Dozens of briefs on each side of the case have been filed on this question.  But it’ll be shocking if the Court answers it, because it’s very hard to see how the outcome in the case can possibly depend on whether the Court overrules its 1990 decision in Smith.

To remind you what Smith was about:  In a majority opinion written by Justice Scalia, the Court held, in effect, that if a law doesn’t discriminate against religion—if it is “neutral” and “generally applicable”—the Free Exercise Clause does not require the government to grant exemptions to persons when the law conflicts with their religious beliefs or obligations.  That holding effectively repudiated a more robust free exercise jurisprudence the Court had articulated in a series of cases between 1963 and 1990—particularly in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), the two leading cases in which the Court recognized that religious exemptions were constitutionally required.  (In the decades preceding Smith, the Court had not applied the Sherbert/Yoder “heightened scrutiny” test very restrictively:  It was, in Chip Lupu’s words, “strict in theory, but ever-so-gentle in fact.”  One major reason the Court ruled as it did in Smith was to end the charade it had created.)

Some Justices in recent years have questioned whether Smith was rightly decided.  Whatever the right answer to that question might be, though, Fulton is just about the worst vehicle imaginable for resolving it, because the dispute in the case doesn’t turn on that question.

On the one hand, even if the Court were to overrule Smith and revive the pre-Smith Free Exercise doctrine, CSS would almost certainly lose under that doctrine, assuming that the City’s nondiscrimination condition for FCA contractors is neutral and generally applicable, because the law at issue here is merely a condition on how a government contractor is required to perform the terms of the contract in a context where the contractor is performing governmental functions delegated to it by a government agency (and appealable to that same agency)—namely, determining whether other private actors satisfy state-law requirements to be custodians for foster children who’ve been in the City’s custody.  In this setting, the contractor is, in effect, an agent of the government, just as a government employee is, and the condition applies only to the contractor’s performance of the contract itself, with the use of state funds; it does not limit the contractor’s independent, outside activities, which (as I explain above) remain unimpaired.  

Therefore even if we were back under the Sherbert/Yoder regime, any burden on CSS’s religious exercise would not be constitutionally cognizable, just as there’s no constitutionally problematic burden when a government’s internal functions have a destructive impact on someone’s ability to practice religion (see Bowen v. Roy (1986); Lyng v. Northwest Indian Cemetery Protective Ass’n (1988)), and just as a government employee or contractor does not suffer any constitutionally meaningful free-speech injury when the government regulates her speech solely in her employment or contractor capacity.  (For much more on this argument, see the excellent treatments in Part I-A of Philadelphia’s brief and in Part I of the private intervenor respondents’ brief.) 

On the other hand, the U.S. Solicitor General’s brief focuses almost entirely on trying to demonstrate that Philadelphia’s nondiscrimination condition for FCA contractors is not neutral and generally applicable (at least not in practice), and that the City has treated CSS less favorably than other private contractors, allegedly because of the religious nature of its objection to the condition.  Similarly, in its reply brief CSS overwhelmingly focuses on a similar argument that the nondiscrimination condition isn’t neutral and generally applicable.  If the SG and CSS were right about that, then even under Smith, Philadelphia would be hard-pressed to defend the judgment below in its favor, notwithstanding the government contracting context in which the case arises.

Either way, deciding whether Smith was correctly decided, and whether the Court should overrule it despite stare decisis, will almost surely not affect the outcome.  Therefore I’d be very surprised if the Court reaches the question of Smith’s fate in Fulton.

IV.  The Key Question:  Whether Philadelphia’s Nondiscrimination Condition is Neutral and Generally Applicable

This brings us, finally, to what I expect the Court’s decision in Fulton will turn upon—namely, whether five or more Justices conclude that the requirement in Philadelphia’s current contract that HCA contractors not discriminate on the basis of the listed characteristics, including sexual orientation, is or is not neutral and generally applicable with respect to contractors who wish to disregard that condition on religious grounds.  If that condition is not neutral and generally applicable with respect to religion—if Philadelphia is, in essence, discriminating against CSS because its objections to the condition are based on its religious views—then Philadelphia would be hard-pressed to justify that anti-religious discrimination, even under Smith and subsequent cases (in particular, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)), in which case it would be required to grant CSS an exemption, even in the contracting context.

The Solicitor General and CSS argue that the standard contract’s antidiscrimination condition isn’t “generally applicable” because the City allegedly has “granted de facto exemptions” for non-religiously motivated instances of discrimination on the basis of race and other protected characteristics; and that the City’s decision to impose the nondiscrimination provision is itself a product of religious animus against CSS.

The City, by contrast, argues that it hasn’t allowed any exemptions to its nondiscrimination condition—that the prohibition is categorical; that it did not promulgate that condition in order to target CSS’s religious motivations; and that, in any event, the contract condition going forward is certainly not biased against religious objectors:  it applies equally to all FCA contractors, whether or not their discrimination would be religiously motivated.

The arguments on this question are extremely fact-intensive and this post is long enough already.  Perhaps I’ll have more to say about the neutrality and general applicability arguments after hearing what the Justices and advocates have to say about it during the oral argument.  For now, I’ll simply make three quick points:

• Based upon my reading of the record, Philadelphia has not allowed other FCAs to violate the nondiscrimination condition, and certainly hasn’t allowed any FCA to categorically refuse working with any applicants for foster parenthood on the basis of one of the proscribed characteristics, as CSS would do with same-sex couples. 

• In any event, and as the SG explains in his brief, there isn’t a constitutional problem unless “the secular conduct exempted [is] comparable to the religious conduct with respect to, or otherwise materially undermine[s], the asserted governmental interest.”  The SG offers an example of a jurisdiction that includes an exception to murder laws for homicide motivated by self-defense but not religious belief—such a distinction obviously wouldn’t trigger strict scrutiny.  Strict scrutiny would apply, however, writes the SG, “where a law, by its terms or through its manner of enforcement, ‘fail[s] to prohibit nonreligious conduct that endangers [the asserted] interests in a similar or greater degree than [religious conduct]” (quoting Lukumi).  I don't see how any purported past exemptions here would endanger Philadelphia’s interest in a similar or greater degree than would allowing CSS and other religiously motivated FCAs to categorically refuse to work with parts of the City population on the basis of sexual orientation or some other proscribed characteristic.  Accordingly, even taking the SG’s alleged “de facto” exemptions at face value, they wouldn’t trigger heightened scrutiny here on the SG’s own account of the test for “general applicability.”

• The Philadelphia City Council and a City administrative official each made comments that were constitutionally inappropriate for government officials to make.  The Council (which didn’t have any role in promulgating the contractual condition) passed a resolution that condemned “discrimination that occurs under the guise of religious freedom,” thereby suggesting, deliberately or not, that CSS’s religious objection was insincere.  And according to a CSS official, the City administrator said in a conversation with CSS that she wishes Catholics such as herself and the CSS officials would follow the teachings of Pope Francis rather than those of the local Archbishop and Archdiocese—a comment that might have been well-meaning but that involves a religious dispute about which government officials should not opine.

Even though those comments were inappropriate, I don’t believe the record supports the argument that Philadelphia imposed its nondiscrimination condition because of any religious animus against CSS.  And, in any event, I think it’s clear that the current, categorical prohibition on discrimination in the City’s new standard contract reflects a serious, unequivocal commitment by the City, going forward, that no FCA should discriminate against families on the basis of any of the listed criteria, regardless of whether the FCA in question is motivated by religious views or anything else.  That is to say:  It’s virtually inconceivable that Philadelphia might in the future allow an FCA to discriminate on the basis of sexual orientation (or race, sex, etc.) based upon nonreligious objections to same-sex marriage—and therefore it’s religious FCAs won't be singled out for disfavored treatment.  Because this case is only about whether the Constitution gives CSS a right to disregard that condition in future contracts, I don’t see how CSS can demonstrate that the condition would not exist but for religious discrimination.

Whether or not a majority of the Court agrees with me on these questions, the important point for purposes of this post is that I think this—the question of anti-religious discrimination—is where the action is, and will be, in the Fulton case.

Regime Change: My Essay on The Cycles of Constitutional Time in WaPo

JB

 In today's Washington Post, I have an essay about why we are on the verge of a fundamental shift in American politics. The argument is based on my new book, The Cycles of Constitutional Time.  Here is the opening:

Things look increasingly bad for American democracy. But beneath today’s political despair and confusion are powerful undercurrents of change. Historically, U.S. politics has been characterized by the rise and fall of dominant coalitions, by long cycles of polarization and depolarization and by episodes of political decay followed by periods of reform and renewal. These cycles of constitutional time offer us lessons for understanding our current condition — and a bit of hope.

American politics seems especially fraught today because we are nearing the end of the Republican Party’s long political dominance, and the old order is fighting change with every last ounce of its strength. Even so, demographic shifts and changes in public opinion seem to herald a new regime with a new dominant coalition and a new dominant party, most likely the Democrats.

That is not the only problem. The United States has been suffering from a long period of mounting political polarization, and for the past several decades our constitutional system has decayed into an oligarchical and corrupt politics with growing inequalities of wealth. But we have also faced this dangerous combination before — in the first Gilded Age at the end of the 19th century. That period ultimately gave way to the reforms of the Progressive Era. We are now in our second Gilded Age, and increasing disgust with inequality, corruption and oligarchy in our time has already begun to produce mobilizations for political reform, akin to the first decades of the 20th century.

If the Challengers Prevail on the Merits in California v. Texas, What Remedy? And What Happens to the Rest of the ACA?

Jason Mazzone

Let's say that in California v. Texas the Supreme Court holds that zeroing out of the potential tax penalty for failure to maintain the Affordable Care Act's specified health insurance coverage rendered unconstitutional the part of the Act providing that individuals “shall” maintain insurance coverage. What next? Over at Justia today Vik Amar, Evan Caminker and I provide our own take on available remedies and our own analysis of severability and how it should apply in California v. Texas. Our approach makes several key points that we think should inform the Court's remedial analysis but that have not been made in any of the briefs in the case.  

SCOTUS and the State Courts in Election Cases

Jason Mazzone

Following up on my earlier joint post today on the election cases (and now writing by myself), I want to flag the compelling essay Akhil Amar, Vik Amar and Neil Katyal published yesterday in The New York Times under the title "The Supreme Court Should Not Muck Around in State Election Laws." The essay carefully draws some important lines between federal courts and federal law on one hand and state courts and state law on the other and concludes: "One Bush v. Gore is enough." Over at National Review, Ed Whalen has a critical response. I reached out to Akhil for a comment. He said (with permission to print): 

Vik and I have been thinking about this specific issue for more than twenty years and Ed has not. Vik and I are scholars on this topic and Ed is not. Vik and I remain confident in our analysis. Readers must judge for themselves, of course, but as we see it, this is an easy case, once the issues are fully analyzed, as Vik shows in his brilliant Justia column (which also cites and hyperlinks to earlier academic writings by each of us, including my 2009 Dunwoody Lecture at the University of Florida on Bush v. Gore).

More on these issues in the coming days.

Supreme Court Decisions Last Night in the Pennsylvania and North Carolina Election Cases (with Vik Amar)

Jason Mazzone

I am writing this post with my colleague Vik Amar.

Last night the Supreme Court issued rulings in two election cases. We write in response to the statement issued by Justice Alito in the Pennsylvania case and the dissent by Justice Gorsuch in the North Carolina case. 

In the Pennsylvania case, the Court rejected a request by Pennsylvania Republicans to expedite (and consider before the election) their challenge to a ruling by the Pennsylvania Supreme Court requiring election officials to count mail-in ballots received within three days after Election Day. In a statement, Justice Alito (joined by Justices Thomas and Gorsuch) wrote that while “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution” and it would be “highly desirable” for the Court to review that decision before the election, “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.” Nonetheless, Alito observed, the issue of timing “does not mean that the state court decision must escape our review” because the petition for certiorari remains pending, the state has agreed to segregate ballots received after 8 pm on Election Day, and, if needed, the Court can impose “a targeted remedy” after the election has occurred. 

We see at least two problems with Alito’s suggestion. 

Cloture Reform in the Senate and the Evolution of Norms

Gerard N. Magliocca

An assumption underlying many of the proposals for action in the next Congress is that the Senate will either abolish or significantly modify the filibuster. While I think that changing the filibuster is a good idea, I doubt that this will actually happen. Even if Democrats win control of the Senate, that does not mean that there will be a majority in favor of cloture reform. 

There is also a dynamic aspect to the prospects for cloture reform. Mitch McConnell is a smart guy. He will understand that the surest way to convince a majority to end the filibuster would be to use that tactic frequently. Thus, he will probably refrain from doing so except on legislation that is especially dicey for Democrats and force those issues to be the ones where Democrats must reform cloture. As a result, more legislation may get enacted because sixty votes will not always be required, but this will not include things like repealing the ratification deadline for the ERA, making the District of Columbia a state, or other stuff on the fantasy list. On those measures, getting rid of the filibuster and passing a bill will be terribly hard.

The irony is that we may therefore see a restoration of a norm of filibuster restraint. Not because of some gentlemanly agreement about fair play, but because the balance of political forces will create a new reality. A norms of restraint can be an unwritten rule of the game shared by the players for philosophical reasons. Or such a norm can be a rational response to some greater threat that looms if restraint is not exercised.

The same thought, of course, can apply to restraint in the exercise of judicial review. A judge could have a jurisprudential commitment to that idea. Or she can adopt that approach out of concern about the political ramifications of not exercising restraint. There are many examples where the Justices (or at least enough of them) decided to back down rather than risk the wrath of Congress even though those Justices lacked a deferential disposition. They were simply ceding ground for institutional self-preservation. 

Finally, these two tactical considerations (from Senate Republicans and from the Supreme Court) will be mutually reinforcing in the direction of restraint. Partisan anger directed at the Court puts the filibuster at greater risk. And partisan anger directed at Senate Republicans makes Supreme Court reform more likely. Both Senate Republicans and the Court will seek to avoid those outcomes by doing less in the even that President Trump is defeated.

Panel: The Jurisprudence of Justice Ginsburg

Mark Graber

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30.  Register here.  The event is open to the public; please join us for what should be a great conversation.  A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg.  Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

    Richard Albert (University of Texas)

    Deborah Dinner (Emory University)

    Scott Dodson (UC-Hastings)

    Atiba Ellis (Marquette University)

    Daniel Epps (Washington University--St. Louis)

    Abbe Gluck (Yale University)

    B. Jessie Hill (Case-Western Reserve University)

(Thanks to Howard Wasserman for the heads up)

How Likely is an Election Meltdown? The Importance of Down-Ballot Races

Stephen Griffin

Now that President Trump has gone there in terms of saying he hopes that counting ballots will stop on Election Day, I wanted to post a short note to raise the possibility that commentary on possible election meltdowns has been ignoring the significance, legal and otherwise, of down-ballot races.  There are many election meltdown scenarios, of course.  One that I've heard from students as I've been teaching an election law course this semester revolves around the possibility of the count being stopped somehow after Election Day.  Trump says that it should be done by the courts, although I'm not sure how that would happen.

But consider the legal impact, not only on voters who would not have their ballots counted (for what reason?) but on the literally thousands of candidates who are also on the ballot with Biden-Harris and Trump-Pence.  Of course, the entire House of Representatives is up for reelection, along with one-third of the Senate.  In addition, according to Ballotpedia, 86 of the 99 state legislative houses are also on the ballot, along with many state judge races and important ballot propositions.  Wouldn't it be important to those candidates to have a full and complete count of the vote?  Would they not have causes of action in federal court if there is any arbitraray stopping of the count contrary to law?  And if that is important, would it not be difficult to somehow stop the count for one federal race while keeping the count going for down-ballot races?  And if all of this seems ridiculous, have we not debunked one meltdown scenario?

I'm interested to hear otherwise (see email to the left), but it seems to me that the "stopping the count" scenario which Trump has just raised is one of the least likely.  The count is going to continue according to law in each state until it is done.  More is going to be needed to trigger the more dire meltdown scenarios (reviewed today by Tom Edsall in the NYT).

Does Harm Result When Religious Placement Agencies Close Their Doors? New Empirical Evidence from the Case of Boston Catholic Charities

Nelson Tebbe

By Netta Barak-Corren and Nelson Tebbe

On November 4, the Supreme Court of the United States will hear oral arguments in Fulton v. City of Philadelphia, an important case concerning child welfare in Philadelphia. A social welfare agency objects on religious grounds to Philadelphia’s rule requiring it to place foster children with LGBTQ parents. The agency says that if the Court rules for the city, it will close its doors and children will be harmed. We have uncovered new evidence undermining the agency’s empirical claim.   

Like other cities, Philadelphia contracts with private agencies to help it place foster children with families. One of these agencies, Catholic Social Services (CSS), is arguing that it has a constitutional right to refuse to place kids with same-sex couples, despite the city’s antidiscrimination rules. In Fulton, the Supreme Court will decide whether antidiscrimination rules like this one violate a religious organization’s right to free exercise.

All of the justices will rightly care deeply about how ruling one way or another will affect children. Knowing this, lawyers for CSS are arguing that ruling against the religious agency will cause harm. According to the Becket Fund, which represents CSS, the agency will never serve same-sex couples. If it loses in court, therefore, it will simply shut its doors. That will impact children, the lawyers argue, because it will mean fewer families available at a time when the number of foster kids is greater than the supply of homes. The Wall Street Journal editorial board has argued similarly that “[b]eyond the law, Philadelphia’s coercion hurts the city’s most vulnerable children and the families who want to care for them.”

On the other hand, Philadelphia and its lawyers are claiming exactly the opposite: that allowing the agency to exclude same-sex couples will negatively affect outcomes. Not only are same-sex couples better suited for LGBTQ children, they argue, but they also serve as foster parents at high rates and they are willing to take at-risk children. All children are better off if placement agencies refrain from systematic discrimination, on this view.

Not only does this issue of whether applying antidiscrimination causes harm matter for the Supreme Court case, but it also matters in a number of similar cases pending in lower courts. It also affects state legislatures. About eleven states have passed laws that exempt religious child placement agencies from antidiscrimination laws, and about five more are considering such laws. There too, officials will want to know how their decisions will affect children.

In all these debates, a few precedents loom large. In a handful of cities, religious agencies have actually closed rather than comply with equality laws. Often, these closings are thought to be obvious catastrophes: everyone loses when social service organizations are forced from the marketplace, it is assumed. For instance, CSS told the Supreme Court in one of its briefs that “In Boston, San Francisco, Buffalo, the District of Columbia and the State of Illinois, Catholic charities have already been forced out of foster care and adoption. Many agencies have been forced to close before litigation can run its course, and therefore protection for [CSS] here is of outsized public importance.” Lawyers affiliated with Becket have cited the same examples, cautioning courts not to rule against religious agencies. But Massachusetts and 22 other states have filed a brief arguing that the closings in Boston and elsewhere did not impact children negatively.

Who is right? We have set out to study what happened in other cities where religious agencies shut down. We have compiled a dataset of all the cities where agencies have closed their placement business rather than comply with antidiscrimination rules. Next, we are in the process of analyzing a national dataset of child outcomes to find evidence on whether the closings negatively impacted kids. Finally, we are interviewing child welfare professionals who have experience on the ground in each of these cities. 

While our research is ongoing, our preliminary findings unsettle any easy assumption that the closure of religious agencies harms vulnerable children. The evidence we have uncovered from Boston does not support the argument that closures of religious agencies generates negative effects. Although our results are not yet conclusive, they shift the burden of proof to those arguing that kids will be adversely affected if religious agencies close—and they suggest that it may not be easy to meet that burden.

Some (Old) Thoughts on the (Re)Emerging Article II Argument About Presidential Elections

Mark Tushnet

 Justice Kavanaugh, perhaps remembering his role in Bush v. Gore, re-ups Chief Justice Rehnquist's argument there (calling it "persuasive[]") that Article II places limits on the power of state courts to interpret state statutes specifying the rules for selecting presidential electors. The argument focuses on the text: Article II says that electors shall be chosen "in such manner as the Legislature ... shall direct."

Suppose a litigant says that the statutes so specifying are unclear in some way. For example, suppose the statute books contain more than the rules about choosing electors, but rules as well about the power of the Secretary of State to implement those rules (giving the Secretary of State some discretion in interpreting the rules). Or suppose the rules about choosing electors are -- or are said to be -- unclear. Or suppose a litigant contends that the statutory rules would violate the state constitution if interpreted in one rather than another way.

In each of these cases the state supreme court could say that the words of the statute govern no matter what. For example, the court might say that the statute defining the scope of the Secretary of State's authority doesn't apply to the rules for choosing electors. If so, no problem.

But what if the state supreme court says, "You know, you're right. The Secretary of States does have interpretive discretion here, and exercised it in a manner permissible under state law." Or, maybe easier to grasp, "We assume that our legislature doesn't enact statutes that are inconsistent with the state constitution, and for that reason we interpret the statute in a way that is linguistically permissible but somewhat strained." Do these actions by the state supreme court interpreting the legislature's enactments "violate" Article II be substituting rules devised by the courts for rules "direct[ed]" by the legislature?

It's hard to see why they would, in general. There are two wrinkles. First, we can imagine an "interpretation" of the statutory language that's so creative as to amount to a substitution of a court-devised rule of a legislature-prescribed one: The state supreme court might have stretched the statute's words beyond reasonable bounds. (That's what Republicans contended the Florida Supreme Court had done in Bush v. Gore. Notably, though, a majority of the Court didn't accept that construal of the state court's action.)

Second, on review in the U.S. Supreme Court, that court is almost certainly authorized to interpret the state statutes on its own, giving the state supreme court's interpretation of the statute the weight that the interpretation is due but not being bound by the state court's interpretation. s Chief Justice Rehnquist said, that's so because the U.S.Supreme Court has to be able to control state courts that deliberately evade the federal Constitution.

This second wrinkle is different from the first one. There the U.S. Supreme Court says that the state court's interpretation is (roughly speaking) completely unreasonable. Here the U.S. Supreme Court says that, though the state court's interpretation is reasonable, it's not the best one available (taking all the relevant state law materials into account). Which is to say, it's not the one that we think is best, notwithstanding what you thought.

The first wrinkle is pretty straight-forward. The second is pretty hazardous, because -- especially in light of time pressures -- the justices of the U.S. Supreme Court aren't likely to be able to get up to speed on all the relevant state law materials. So, it's probably best for the justices to be quite strongly deferential to the state supreme court -- which means that the second wrinkle probably should be pretty much the same as the first.

(I don't think you can escape this analysis by simply citing the Arizona districting commission case and saying that Article II's reference to "the legislature" refers to every action authorized by state law -- whether by the state supreme court of the Secretary of State -- that interprets the relevant statutes, because the whole problem lies in figuring out whether the interpretive action is authorized by state law.)

A Proposed Joint Resolution on Judicial Power

Mark Tushnet

Here's a thought in the event that there is a Biden appointed commission on court reform. What about a Joint Resolution on Judicial Power: "No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional."

Some accompanying commentary: As a Joint Resolution it has the force of law. I have little doubt that the current Supreme Court would hold it unconstitutional (even, perhaps, manifestly so -- which would raise a question sort of about self-reference) as an infringement on the judicial power not permitted by the powers to create lower federal courts and to regulate the jurisdiction of the Supreme Court, and, as applied to state courts, as not a proper means of ensuring the supremacy of federal law.

Why do it, then? Mostly as a signal to the courts about the view the political branches gave of their (that is, the courts and the political branches) respective powers. Political scientist Tom Clark and others have shown that such signals sometimes at least appear to affect the way the Supreme Court exercises its power of judicial review. (Incidentally, the formulation "manifestly unconstitutional" does the job well, but of course other formulations might do so.)

 One note: The proposed Resolution would be confined to the power to hold federal statutes unconstitutional. As Justice Holmes famously and correctly noted, the power to hold state statutes (and local ordinances) unconstitutional rests on a different footing. (And, just to make the obvious point, the proposed Resolution, had it always been in effect, wouldn't have any bearing on decisions dealing with state regulations of abortion or state-mandated racial segregation. [There would be an interpretive question about Bolling v. Sharpe, but the concern that underlies that question has been around since the decision itself.])

Another note: Think about the following scenario: A state enacts a statute that the Supreme Court holds unconstitutional without saying it is manifestly unconstitutional. Invoking one of its enumerated powers (for present purposes, which one is irrelevant), Congress enacts a statute expressly authorizing states to enact and enforce exactly the same statute as the one the Court held unconstitutional. Under the Resolution that federal statute would be constitutionally permissible -- and so would be state laws enacted pursuant to the authorization it gave them -- unless the courts concluded that such an exercise of the enumerated power was manifestly unconstitutional. I personally think that that is the right result in principle (even in connection with a slew of state enactments that I think the courts would and should find unconstitutional), but I suspect that others will vigorously disagree.

"Yes, Prime Minister" on the Biden Supreme Court Commission

Gerard N. Magliocca

Claire: (PM's Advisor): One more thing, Prime Minister. I do think that after the interview you need to announce some pretty impressive action to make it look as if you're serious.

. . .

Sir Humphrey Appleby: What about a Royal Commission?

The Prime Minister: That's more like it. It won't report for three years. And if we put the right people on it they won't agree about anything important. Right, a Royal Commission.

Narrative Hardball

Joseph Fishkin

Eric Segall responds on originalism and judicial review

Guest Blogger

 Eric Segall

Thanks, Jack for engaging with these two questions. I'm going to limit my response to the first one. My argument is that the original meaning and understanding of the judicial power in Article III was encapsulated in Alexander Hamilton's Federalist No. 78  in which he said judges would only overturn laws when they were at an "irreconcilable variance" with the Constitution. This deferential standard was well-accepted at the time as the work of many historians shows. You responded that, assuming for sake of argument  this historical account is correct, your thin conception of originalism is not bound by the original expectations of the Founders, and that as other branches of government, especially the President, have grown in size and power through constitutional construction,  so must the judicial role to maintain adequate checks and balances. 

Your argument is internally coherent and relies on your New Originalist method of constitutional interpretation/construction. I have written in many places that once we are allowed to disregard known original expectations, then we have merged originalism and  living constitutionalism for all important purposes. I do not deny that living constitutionalists can advocate for aggressive judicial review. I do think originalists cannot in light of the consensus about strong judicial deference at the Founding. So, I think  this conversation turns on whether your thin version of originalism is truly originalism. Of course, you are entitled to label your theory as you please, and I think, as I wrote in my book, that your descriptive account of constitutional law is both rich  and accurate, but to most scholars, judges, and citizens, not originalist in any meaningful sense of that term, especially when it comes to judicial review. So, I agree that a thin view of originalism can justify aggressive judicial review, but that thin view  allows for major constitutional changes since the Founding, which sounds a lot like living constitutionalism.

Eric J. Segall is Ashe Family Chair Professor of Law at Georgia State University College of Law. You can reach him by e-mail at esegall@gsu.edu.

AMA: Eric Segall asks about originalism and judicial review

JB

ES: Jack, to the best of my knowledge, and maybe I'm wrong, you have never addressed the many historical sources collected by Sylvia Snowiss, Jack Rakove and others showing that the framers quite clearly had a conception of judicial review that was modest, humble, and centered around clear constitutional error (and the 14th did not change that according to the best historians of that time other than possibly for protecting the newly freed slaves). I review all that, including Treanor's views on the subject, in Chapter 1 of Originalism as Faith. Don't you have to deal with those historical sources to argue for a robust conception of judicial review?

JB: Your question raises two different issues.

First, you want to know whether fidelity to the Constitution's original public meaning precludes a conception of judicial review far more robust than Founding-era understandings and expectations. Another way of putting this question is to ask how the interpretation/construction distinction applies to "the judicial power" described in Article III, which "extend[s] to all cases, in law and equity, arising under this Constitution." You are asking whether judges today should be bound by the original expected application of the scope of "the judicial power" and by the legal practices associated with "the judicial power" roughly contemporaneous with the Founding.

Second, You make the historical claim that the practice and understanding of judicial review did not change very much from the Founding to the adoption of the Fourteenth Amendment, and that the Fourteenth Amendment had little effect on the practice of judicial review. Is this historical claim correct?

The answer to the first question is no. The answer to the second question is also no.

The Census, Reapportionment, and Section Two of the Fourteenth Amendment

Gerard N. Magliocca

On Friday, the Supreme Court granted certiorari to review the Administration's effort to exclude from the population tally for the upcoming reapportionment people who are in the United States illegally. There is little chance that the Administration will win this case. I do hope, though, that at least one of the Justices will flag the serious constitutional flaw in the reapportionment statutes that I analyzed in this article two years ago. Time is running out for Congress to address the conflict between current reapportionment law and Section Two of the Fourteenth Amendment. If no action is taken, then there is a real risk that the next reapportionment could be delayed beyond 2022.

Section Two of the Fourteenth Amendment is at the heart of Trump v. New York. First, Section Two sets forth only one exception to counting everyone for representation--"Indians not taxed."  Second, Section Two contemplates separating the total population only from the population of presumptive voters whose right to vote is being "denied" or "in any way abridged." People who are in the United States illegally are neither "Indians not taxed" nor presumptive voters (as Section Two limits that class to citizens). Thus, the President's instruction to the Commerce Secretary that certain non-citizens be excluded or separated from the population count is unconstitutional.

Since Section Two must be addressed in any sensible assessment of the Administration's policy on the merits, the broader issue of how the reapportionment statutes violate Section Two is on the table. The Court need not address that point now, but a separate opinion making the point might spur congressional action next year.

On the constitutionality of the "mandate" in California v. Texas

Jason Mazzone

I appreciate Marty Lederman's comment on the new Justia essay (by Vik Amar, Evan Caminker, and me) that I linked to on whether the ACA insurance mandate is valid without the tax penalty. Marty suggests we go astray by asking the wrong question. But the whole point of the first part of our essay is to demonstrate why, after the 2017 amendment (that zeroed out the potential tax consequence for failing to maintain insurance), the Court should not read the ACA statutory provision as a congressional command. We therefore agree with Marty's bottom-line assessment on that particular issue--though our own analysis raises several points none of the briefs in California v. Texas have focused on. Our essay that Marty links to makes two additional claims worth flagging. One is that even if the 2017 amendment has resulted in a statutory command (without tax penalty) to purchase insurance, it is constitutional. (On that issue, Marty in his comment misreads NFIB v. Sebelius, for the reasons we explained in greater length here.) And even if it is unconstitutional, we say, the proper remedy may be to enjoin the 2017 amendment rather than enjoin the mandate itself (an issue we will  return to at Justia shortly). On both points, we also make some arguments that do not appear in the briefs in the California v. Texas case.           

Orders, legal and illegal

Eugene R. Fidell

Hypotheticals worth pondering include whether General Milley could have been prosecuted had he refused to walk with President Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?

Labels: disobedience, orders, unlawful orders

Asking the Wrong Question in the ACA Case

Marty Lederman

Jason's post this morning is entitled "Is the Individual Mandate Without Tax Consequences Unconstitutional?"

The answer to that question is:  Yes.  If one treated Chief Justice Roberts' opinion in NFIB v. Sebelius as controlling precedent--as a majority of the Court would do, even if technically it was dicta--then of course an "individual mandate" to maintain Obamacare-compliant health insurance would be unconstitutional.  

But that's not the question raised in California v. Texas.  The determinative question is, instead, whether the 2017 Congress, and President Trump, enacted a legal mandate that individuals must maintain Obamacare-compliant health insurance.

And the answer to that question is:  Of course they didn't.  Indeed, as I've argued repeatedly on this blog (see here, for instance), and as Mike Dorf and I explain in an amicus brief we filed in the case, the Court has rarely, if ever, confronted an easier question of statutory interpretation.  

To be sure, three federal judges and the Solicitor General of the United States have already insisted that, contrary to Donald Trump's and Mitch McConnell's repeated boasts that they eliminated the "individual mandate" and rendered the ACA less coercive than it was before 2017, in fact Trump and the GOP Congress directly flouted the NFIB majority's constitutional judgment by imposing a mandate to maintain insurance.

And I'm afraid it's entirely possible that at least some of the Justices of the Supreme Court--perhaps even a majority--might conclude likewise.  

If they do, that'll say something about the current state of the Court--and, perhaps, about current trends in "textualism."  But it won't make the argument any less preposterous.  As Mike and I write in our brief, to read the 2017 amendment in that way would be to accuse Trump and the Republican Congress of "brazenly enacting a law that a majority of Justices of th[e] Court, and a majority of those who voted for the amendment, believed to be beyond the power of the federal Government to enact," thereby "turn[ing] the constitutional avoidance canon on its head."  Our brief concludes:

It is exceedingly unusual, to say the least, for the federal political branches to enact laws in flagrant disregard of this Court’s constitutional holdings or judgments.  On the rare occasions where they’ve done so, it has typically been to express profound constitutional disagreement with the Court—such as when the 37th Congress and President Lincoln enacted a law declaring that “there shall be neither slavery nor involuntary servitude in any of the Territories of the United States,” Act of June 19, 1862, ch. 111, 12 Stat. 432, as a direct rebuke to this Court’s pronouncement in Dred Scott v. Sandford, 60 (19 How.) U.S. 393, 432-52 (1857), that Congress lacked authority to do just that.

This is not one of those rare cases.

New comments policy on the blog

JB

 In 2009 I adopted a policy of turning off comments on the blog by default, but allowing individual members of the blog to permit comments.

Starting this week, in those posts where comments have been turned on, only other members of the blog may post comments.

UPDATE: Several people have written me to ask whether the change in comments policy is due to trolls and personal abuse. It is partly that, but only partly. The abuse and bad behavior in the comments section has been going on for a long time.

An equally great, if not greater problem, is spam. On Blogger, if you open a comments section--and even if you use Blogger's anti-spam features--you will still be inundated with hundreds of spam posts each day, seeking out any weak spots in your defenses.

In 2009 I effectively eliminated comments from the blog. The vast majority of posts since then do not have comments. But I allowed individual members of the blog to allow comments as they chose, although I have discouraged it.

Since 2009, only two blog members have regularly allowed comments. All other posts do not have comments. Nevertheless, we have been flooded with spam each time the comments gate has been opened.

Blogger reports that there are 176,000 comments on the blog in its seventeen years of existence. My guess is that 80% of them are spam posts, especially earlier in the blog's history, when Blogger's anti-spam and moderation tools were not so well developed.

Because I am the administrator of the blog, it falls to me to do the moderation. The effect of the current system is that those members of the blog who allow for comments are assigning me the task of cleaning up after these messes. I am disinclined to do this because I already have a full time job. That is why I essentially ended comments on the blog in 2009, and why I have decided to close the door on most comments for the small remaining number of posts. From now on only members of the blog will be able to comment, and I trust that they will rarely post advertisements for reverse mortgages or comments in languages that none of them understand.

There are several solutions to the spam problem. I could leave Blogger and move to a different platform with better anti-spam and moderation functions. I could try to locate and employ third-party anti-spam plug-ins to add to Blogger. I could hire a programmer and create my own spam tools. I could hire a person to moderate comments at my expense.

I have chosen to do none of these things. The blog works fine without comments, as it has for most of its seventeen years of existence.

Is the Individual Mandate Without Tax Consequences Unconstitutional?

Jason Mazzone

Vik Amar, Evan Caminker and I offer our analysis of the question before the Supreme Court in California v. Texas as part of our Justia series on the case. 

The Electoral College Is Not Broken

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Franita Tolson

Alexander Keyssar’s Why Do We Still Have the Electoral College and Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College—invite us to engage in a thought experiment in which we assume the Electoral College works exactly as intended.  After all, one can only conclude that our failure to squarely address the core institutional defects of the Electoral College and our subsequent turn to politics (or normal legislation) to paper over these defects undermines arguments the Electoral College is broken.  More pointedly, to the extent that the Electoral College was actually intended to be a reflection of pure politics post-Twelfth Amendment—and there is substantial evidence of this—the claim that the system is broken is even less compelling.  Instead, the Electoral College reflects either the best or the worst of our politics; when we are antidemocratic or antimajoritarian or dysfunctional, so too is the Electoral College.

William Brennan and Election Year Nominations

Gerard N. Magliocca

Let's enter the wayback machine and return to 1956. In September, Justice Sherman Minton retired from the Court. Minton was a Democrat named to the Court by President Truman. His health was poor, though he lived until 1965. Apparently Justice Minton retired when he did because he had reached fifteen years of overall judicial service and was therefore entitled to a full pension. Justice Minton was no fan of President Eisenhower and supported Adlai Stevenson in the upcoming presidential election. Still, he did not see any issue in retiring shortly before the election and giving Eisenhower a vacancy. Such a scenario is hard to imagine today, to say the least.

What did Eisenhower do with the vacancy? He nominated William Brennan. Why? Mainly because Brennan was a Catholic Democrat, and Eisenhower thought this would help him with that constituency. But he gave Brennan a recess appointment. After Eisenhower was reelected, the recess appointment was renewed in January 1957. Then Justice Brennan was confirmed by the Senate in March. This leads to a fascinating question. What if Adlai Stevenson had won in 1956? There must have been commentary about that point then, but I don't know what was said. Perhaps Stevenson would have also nominated Brennan because he was a Democrat, but perhaps not. 

What's interesting is that nobody seemed bothered by the recess appointment of a Justice less than two months before the election. Indeed, you could argue that this was the correct solution because a recess appointment left open the possibility that a change in the White House could lead to a new nominee. On the other hand, such an appointment would create an impossible conflict-of-interest for that Justice in a case involving a disputed presidential election. So giving Judge Barrett a recess appointment may not have worked or been tolerated. Or maybe such an appointment would have worked if people thought (as they may well have in September 1956) that the President was going to be reelected.

Part Three: Why State-by-State Ranked Choice Voting Should Be a Higher Priority Than National Plurality Winners

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

            Part Two explained why a constitutional amendment to elect presidents based on a national popular majority vote would be ideal and why that ideal is unattainable for the foreseeable future. Here’s what to do instead.

Which second-best solution?

            So, as between the two, which is the more important?

Amar, Caminker & Mazzone on the ACA case (part 2 -- standing issues)

Jason Mazzone

 Over at Justia, Vik Amar, Evan Caminker and I have posted a new essay on California v. Texas, the case involving the challenge to the Affordable Care Act that the Supreme Court will hear one week after the election. Our new essay, Part Two in the series, concerns issues of standing. Part One, our discussion of stare decisis and what NFIB v. Sebelius did and did not hold (an issue that we think all parties in California are wrong about) is here. 

Part Two: A National Popular Majority Rule for Presidential Elections

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

What would be ideal

             Ideally, there would be a new constitutional amendment to eliminate the Electoral College and, instead, elect the president based on a majority of the popular vote nationwide. The amendment would empower Congress to choose the method of determining the majority winner of the national popular vote.  Congress could choose a traditional runoff system, in which there would be a second popular vote among the top two candidates in the event that none received a majority in the first popular vote. Alternatively, and perhaps preferably, Congress could enact a system of Ranked Choice Voting, in which a majority winner would be calculated from the rankings on the cast ballots.

            This constitutional amendment would achieve two main objectives. First, it would create a uniform national electorate for choosing the president. Voters in California and New York would each cast one ballot to be put in the same single national pile as the one vote cast by each voter in Iowa and Nebraska. No voter in any state would exercise any more clout over the outcome of the election than a voter in any other state.

            Second, this constitutional amendment would make sure that the winner not only received more votes overall than any other candidate but also was the candidate preferred by a majority of voters when compared directly against the second most popular candidate in the race.  The two criteria do not necessarily yield the same result. In a race with three or more candidates, Candidate A can receive more votes than any other candidate, but when all other candidates are eliminated and Candidate A is compared only with Candidate B, then Candidate B can be preferred by a majority of voters to Candidate A.  This constitutional amendment would insist that Congress adopt an electoral procedure for identifying a majority winner, not merely a plurality winner.

How "Fact" Checking Can Decrease Civic Knowledge

Mark Tushnet

Yesterday I was contacted by a reporter with PolitiFact, with a question based on this statement by Joe Biden: “The only court packing is going on right now. It’s going on with the Republicans packing the Court now. It’s not constitutional what they're doing.” The question to me was in connection with a “fact check,” and asked, “Is what's happening right now -- the Republican push to install Amy Coney Barrett as the ninth Supreme Court justice -- in any way unconstitutional?”

I now realize that I should have answered that the question was badly posed as a “fact check” one because treating a claim about the Constitution as implicating a fact – rather than an opinion, or a prediction, or an assessment of whether there are reasonable arguments one way, the other way, or both ways – is just a mistake. But I didn’t, and the result, I think, was a decrease in civic knowledge (if anyone pays attention to PolitiFact).

Here’s my initial response: “As usual with this sort of thing, the answer’s complicated because ‘unconstitutional’ can and does mean many things. (1) If ‘unconstitutional’ means that a court would find what the Republicans are doing to be inconsistent with the Constitution, the answer is no, no court would make such a holding. (2) If ‘unconstitutional’ means that what they are doing is inconsistent with what some people reasonably view as fundamental principles underlying the constitutional order, then yes, what they are doing is unconstitutional. The political uses of the word ‘unconstitutional’ are different from the purely legal uses, but both (or all) kinds of uses are well within the bounds of the way we -- ordinary people, politicians, and lawyers -- talk about the Constitution. I know that this isn’t the way you do things, but I personally wouldn’t award any Pinocchios to the statement.”

I responded to a follow-up question about my second point by identifying as a relevant “fundamental principle” that “the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.”

PolitiFact’s editors awarded a “False” to the Biden statement. The reason, supported by statements they got from Sai Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional” can be applied only to practices that are addressed by some express terms in the Constitution, supplemented with the proposition that everything not so addressed is to be determined by politics, understood to include sheer political power but not to include fundamental principles underlying the constitutional order. That reason and proposition are coherent and defensible (though wrong, in my view), but so are alternatives, and the labels “true” and “false” just aren’t apposite. (The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

Readers of this PolitiFact article know less about the Constitution than they did before they read it.