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Monday, August 04, 2014
Legal History as Foreign Relations History
Mary L. Dudziak
More Conversation About The Civil Rights Revolution
Bruce Ackerman
I had a fun (hour-long) interview on The Civil Rights Revolution. Some Balkinizers may find it an engaging interlude while struggling with a traffic-jam on a vacation road-trip?
Saturday, August 02, 2014
"Any fair-minded person" -- what next with the SSCI report on the CIA?
Marty Lederman
Friday, August 01, 2014
[UPDATED evening of August 1] Petition for certiorari filed in King, the Fourth Circuit ACA "exchange" case; and Government files petition for rehearing en banc in the D.C. Circuit in Halbig
Marty Lederman
The plaintiff in the Fourth Circuit King case has petitioned the U.S. Supreme Court for a writ of certiorari. Meanwhile, the government has petitioned the court of appeals in the D.C. Circuit for rehearing en banc. [UPDATE: Within hours of receiving the petition, the court of appeals ordered the appellants to file a response to the rehearing petition within 15 days (which presumably will mean 17 days, or Monday, August 18), not to exceed 15 pages.]
Halbig, King, and the Procedural Path Ahead
Neil Siegel
Forgive me if this is too obvious, but I fear it may not be to everyone interested in whether tax subsidies will be available in federally facilitated exchanges.
The CBO Score and the Made-Up Narrative of the Obamacare Subsidies Case
Abbe Gluck
Two years ago, I posted on this blog that the CBO scoring of Obamacare was central, in the public eye, and intensely scrutinized by all involved with the statute. CBO never assumed in scoring the bill that subsidies would be unavailable on federal exchanges. Justice Scalia and the joint dissent in NFIB v. Sebelius also relied on the CBO score, saying: “By 2019, 20 million of the 24 million people who will obtain insurance through an exchange are expected to receive an average federal subsidy of $6,460 per person”—numbers that only make sense if the federal exchanges are included. Today, a Talking Points Memo piece offers even more evidence supporting the argument. Here is one snippet: Gaza Names Project
John Mikhail
Jewish Voice for Peace and the Institute for Middle East Understanding have put together this moving video memorial for the victims of Israel's latest military operation in Gaza. The video is narrated by Wallace Shawn; other participants include Angela Davis, Roger Waters, Chuck D, Mira Nair, Naomi Klein, Michael Ratner, Tony Kushner, Jonathan Demme, Urvashi Vaid, Jody Williams, Desmond Tutu, and Gloria Steinem, among many others. According to this BBC report, more than 1,400 Palestinians have been killed and 450,000 have been forced to leave their homes since July 8. The Israeli human rights group, B'Tselem, has gone to court to win the right to publicize the names and ages of some of the children who have been killed. Apparently, the Israeli Broadcasting Authority has banned B'Tselem from running its radio ad because its content is "politically controversial."
Thursday, July 31, 2014
Why the Law Does Not (and Should Not) Allow Religiously Motivated Contractors to Discriminate Against Their LGBT Employees
Marty Lederman
A Modern Censure Resolution
Gerard N. Magliocca
In 1834, the Senate passed a resolution censuring President Jackson for his "unconstitutional" decision to withdraw the Treasury's deposits from the Bank of the United States. The Senate argued that Jackson's unilateral executive action attacking the Bank was unauthorized by Congress. In 2014 we have a resolution from the House of Representatives authorizing a suit against President Obama claiming that his unilateral executive actions regarding the Affordable Care Act are unconstitutional. How are these resolutions related? Thursday, July 24, 2014
Don't Buy the Cooperative-Federalism-Makes-Halbig-Logical Argument
Abbe Gluck
I had hoped to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another inaccurate narrative about ObamaCare to take hold. Over at Volokh, my friend Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and to penalize them if they don't). It is true we see schemes like that all the time--Medicaid is a prime example--but the insurance exchange design is NOT one of them. This federalism argument was made before the D.C. Circuit and even Judge Griffith didn't buy it in his ruling for the challengers. I tried to dispel this myth back in March, when I wrote the following on this blog: Halbig, King, and the Limits of Reasonable Legal Disagreement
Neil Siegel
I participated in the debates over the constitutionality of the Affordable Care Act (ACA). Although I thought the federal government had substantially stronger arguments on its side, I did not dismiss the arguments of those who disagreed with me. There often has been reasonable, irreconcilable disagreement over the meaning of the Constitution, and the Supreme Court had never before allowed Congress to impose a purchase mandate under the Commerce Clause or an exaction labeled a penalty under the Taxing Clause. I thought the “Lopez question” required an answer.
Confirmation that the Supreme Court's suggested fix will almost certainly not mollify the plaintiffs: Recent developments in the nonprofit challenges to the contraceptive coverage accommodation
Marty Lederman
Halbig as Opt-In Federalism
Joey Fishkin
The commentary about Halbig so far has viewed it mainly through two lenses. Through one lens, most obviously, it’s a statutory interpretation case—one that illustrates some shortcomings of a certain hyper-formalistic, acontextual approach to reading statutory text. Through the other lens, Halbig is a political case: a highly charged proxy fight about Obamacare that illustrates how thin and permeable the membrane is between some judges’ substantive political views of a law and their interpretation of it. Wednesday, July 23, 2014
Halbig and hurting the innocent as a political tactic
Andrew Koppelman
Some Roundups on Halbig and King (the ObamaCare Subsidies Cases)
Abbe Gluck
Much commentary has been posted in the past 24 hours on the Obamacare subsidies rulings. Here are just a few: Some Thoughts on Halbig
Gerard N. Magliocca
I posted after the oral argument in the DC Circuit to say that I thought the argument that prevailed there yesterday needed to be taken seriously, so now I feel compelled to talk about what comes next. Tuesday, July 22, 2014
Fourth Circuit Rules in FAVOR of Government in Obamacare Subsidies Case
Abbe Gluck
Making sure our readers keep up with this roller-coaster day in health reform land: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn't even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I've been arguing in previous posts), Judge Davis also argued that this isn't a case of "textualism v. purposivism" or statutory text versus some amorphous concept of congressional intent. Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government.
The Loss in Halbig
Abbe Gluck
As Marty notes, the opinion is out. Initial quick reaction, more to come: The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here); it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges. The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying the exclusio unius presumption (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism rather than the sophisticated statutory analysis that textualists have been claiming they are all about.
Halbig decided [UPDATED -- King too!: quickest circuit split ever?]
Marty Lederman
2-1, Edwards dissenting, as oral argument suggested. I'm sure we'll have more on the opinion shortly here on the blog. Monday, July 21, 2014
The Anti-Partisan Principle
Gerard N. Magliocca
I've posted the draft of my new paper here. Comments and criticism are always welcome.
Sunday, July 20, 2014
Rest in Peace, Dan Markel (1972-2014)
JB
Our deepest condolences to the family, friends and colleagues of Professor Dan Markel of Florida State (and Prawfsblawg), who was shot at his home in Tallahassee on Friday. The latest details are here. Paul Caron has a collection of links and other remembrances are here and here.
Saturday, July 19, 2014
Hobby Lobby: Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise?
Marty Lederman
As part of a terrific symposium on Hobby Lobby over at the Conglomerate, I published a post with that title today, focusing principally on some of the corporate-law questions that the Court unfortunately elides or confuses in Hobby Lobby.
Will the ACA litigation be decided based on a mistake?
Guest Blogger
Compendium of posts on Hobby Lobby and related cases
Marty Lederman
For our readers' convenience, I'm collecting here in one place links to all Balkinization posts about Hobby Lobby, Conestoga Wood, Notre Dame, and Little Sisters, et al., along with links to the briefs and oral argument in Hobby Lobby/Conestoga Wood and to a few other important posts about these cases. We'll try to keep the list relatively current as the litigation proceeds.
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Books by Balkinization Bloggers Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |