Latest Scholarship

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

December 9, 2014

How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series

Cross-posted from Justia.

In Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism. In particular, I argued that even if the plantiffs' reading-that Congress, by using the phrase "established by the State" in certain places in the Act, intended that citizens of states that did not set up exchanges would not be eligible for federal tax credit health insurance subsidies-reflected the best overall interpretation of the statute, such a reading could not be accepted because it fails the requirement that Congress speak in a "clear voice" if it wants to condition the receipt of federal moneys on things that participating states must do. In the space below, I discuss possible counterarguments to my thesis, and also explain why I believe the federalism perspective I discuss adds an important element to the federal government's position in the King case.

Should the Clear-Voice Requirement Apply When There Is Only One Condition?

Perhaps the most forceful counterargument to my thesis is that the "clear voice" requirement on which I rely should not apply when the alleged congressional spending condition in question is the only condition in the picture, as distinguished from the more common instances in which everyone agrees that Congress imposed some conditions on states for the receipt of federal funds, but the question is whether one or more additional conditions were stated clearly enough by Congress. Why should this difference arguably matter? Because when everyone agrees Congress has clearly imposed some conditions, and participating states have already satisfied those conditions, participating states can be said to have already done something for the federal government. If those states are then confronted with additional, arguably unclear requirements they must also satisfy, the terms of the bargain seem to be changed. Since the Supreme Court has observed, first in the seminal case of Pennhurst State School & Hospital v. Halderman, that "[l]egislation enacted pursuant to the spending power is much in the nature of a contract," when states take actions to satisfy some federal conditions, they could be said to have transferred "consideration" to the federal government (in the form of helping the federal government accomplish whatever policies are furthered by the conditions the states have met.) By contrast, if there is one and only one condition (and its clarity is in doubt), no states can be said to have given any consideration to the federal government in any respect.

But if the presence of consideration were necessary, a state faced with a statute that created a clear condition on federal funding alongside an arguable and in any event unclear condition would be unable, prior to the state's having done anything to satisfy the clear condition, to obtain a judicial declaration that the unclear condition is not valid on account of its lack of clarity. At most, a state could get a court to declare whether the unclear condition was in fact an actual condition. Yet I believe that a court in this situation would apply the "plain voice" requirement to free the state from having to satisfy any unclear conditions.

And remember too that the Court has said that conditional spending is "much in the nature" of a contract, not that it is a contract itself. And there is another doctrine, known as "promissory estoppel," that is "much in the nature" of a contract but that does not require consideration, and instead focuses on the reliance placed on a promise. Consider the following hypothetical. Congress promises a state $X of funding to be used for highway construction for each of the next three years. In Year Two, Congress's budget has provided for the expenditure, but now someone urges that there is the non-obvious requirement in the original statute that states that receive the funding raise their legal drinking age to 25. Could a state be allowed to object to this unforeseeable condition even though the state (up to this point) has not given the federal government anything beyond spending the federally disbursed money as directed? I think the answer is yes, because a state could have relied on the federal promise of funding in deciding how to budget its own state funds for roadwork. Or in deciding what roadway safety laws to enact or reject. And if this is true for road funding, the same would have to be true for money earmarked for healthcare. So if Congress promised three years' worth of federal funding to states for Medicaid (without requiring states to spend any matching funds during this period), and passed laws authorizing the federal expenditures, no one could try in Year Two to assert an unclear condition and apply it to the states, even if it were the only condition anyone had ever suggested was in the statute.

Now it is true, of course, that the states that accepted these (highway or healthcare) funds might not have actually relied on the federal promises when they built their own budgets or policies, and that these states would in fact be no worse off if an unclear condition were to be imposed after the statute was adopted than they would have been if the condition had been clearly expressed by Congress at the outset. But the same is true for the conditional spending mechanism struck down by the Court in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius, which I discussed extensively in Part One. When the Court there invalidated the Medicaid expansion provisions of Obamacare and said that states were not clearly on notice of the possibility of the conditions involved in the expansion when Congress first offered the states Medicaid money decades ago, the Court did not say, or even suggest, that had states actually been told way back when of a possible subsequent expansion that any states would have been likely to turn down the funding at the outset (even before the expansion condition was imposed). And, in fact, no one could suggest that states would have been likely to do that.

This tells us a couple of related things. First, the "clear voice" requirement is not about actual reliance, but rather even the mere hypothetical possibility of reliance on federal assertions. The "clear voice" requirement is a kind of a prophylaxis designed to avoid detrimental reliance before it occurs. And, like all prophylactic devices, it applies even to situations in which the evil to be avoided would not come to pass in any event. Second, and related, the "clear voice" requirement seems largely about showing respect for states by giving them all the information clearly up front to facilitate informed decision making, even if in the real world the decisions by states in such high stakes take-it-or-leave-it settings would not be likely to be affected much by additional clarity. In fact, this is precisely how the Court explained the "clear voice" requirement in Pennhurst, where the majority explicitly observed that "the crucial inquiry is not whether a state would knowingly [have acted differently if the condition had been clearly stated] but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice." In the context of Obamacare, if the setting up of a state exchange was in fact a condition for a state to receive federal tax credit subsidies, respect for states required Congress to say this "clearly [enough] that we can fairly say that the State could make an informed choice" about whether to set up an exchange or not.

Does It Matter Whether Federal Money Ever Enters State Coffers?

But what about the fact that the federal subsidies under Obamacare are going not necessarily into state coffers, but rather directly to the healthcare consumers? Does this feature automatically remove the case from the conditional spending doctrinal category? At least in the context of the King plaintiffs' reading of Obamacare, I think not. The key facts are that, under their reading, tax subsidies are available to individuals as citizens of a particular state qua citizens of that particular state, and subsidy eligibility turns on the actions of that person's particular state government to set up an exchange or not. To see the point, imagine that Medicaid moneys were given not to state governments (conditioned upon the states expending matching funds and doing other things), but instead were given to the individual citizen beneficiaries, but only in those states that had expended matching funds and satisfied other conditions. I think the "clear voice" requirement should still apply. It is true that an individual's eligibility for federal tax benefits can sometimes depend on the particularities of state law in the place of one's residence, and that perhaps not all such interrelatedness between federal and state law triggers the a "clear voice" requirement. But when Congress intends (as the King plaintiffs assert Congress did in Obamacare) to give a state the direct choice of doing something the federal government wants it to do, in return for which the federal government will provide billions of dollars' worth of federal subsidies targeted towards the eligible persons in that state, the state must be able to see that choice easily.

Nor is the situation altered by the fact that the federal subsidies may take the form of tax credits rather than moneys actually disbursed. In fact, the federal government may advance money to Obamacare subsidy beneficiaries (in the form of payments to health care insurers) prior to an individual filing her federal tax return, but even if that were not the case, there should be no difference between a credit and a dollar disbursement; both kinds of programs are enacted pursuant to Congress's power to "tax" and to "spend" for the "general welfare," and are thus laws "enacted pursuant to the spending power," to use the Court's phrase. Indeed, go back to Medicaid. If, instead of affirmatively doling out money to states conditioned upon their doing certain things, Congress credited states (that satisfied certain conditions) with respect to fees or payments those states otherwise owed the federal government, the "clear voice" requirement would surely apply as to the conditions that would generate the credits. (It is true that the Court under the Establishment Clause of the First Amendment has distinguished tax credits from expenditures, but its reasoning there was limited to certain peculiarities of Establishment Clause jurisprudence.)

Does The Federalism Argument Add Much to Other Arguments Already in the Case?

Finally, I think it important to reflect on why this federalism "clear voice" requirement could prove especially important in the King case. For starters, this is an argument that was not really addressed by the two judges of the D.C. Circuit who (last summer) ruled in favor of the reading of Obamacare advanced by the King plaintiffs, so we don't know whether judges who are otherwise inclined to agree with the King plaintiffs would be unpersuaded by the "clear voice" line of argument. Indeed, even the Fourth Circuit that rejected the King plaintiffs' reading did not rule on this argument (though a form of this argument was made in the State of Virginia's amicus brief), so if observers believe (as many do) the Supreme Court's grant of review in King means that there are at least four Justices who were unpersuaded by the Fourth Circuit ruling, having an argument that was not addressed in the Fourth Circuit opinion is a good thing for the federal government.

The Fourth Circuit did rely on a related, but importantly different, kind of requirement of statutory unambiguity-the so-called Chevron doctrine (named after the 1984 Chevron, USA, Inc. v. Natural Resources Defense Council case)-under which federal courts defer to an administrative agency's interpretation of an ambiguous statutory term, so long as the administrative interpretation is reasonable. But there are many reasons why one could reject Chevron deference in King and yet apply the "clear voice" requirement of Pennhurst. First, and most technically, Chevron deference applies only if Congress can be said to have delegated to the agency in question (here, the IRS) the authority to interpret the relevant provisions in the statute. Different Justices seem to require different levels of clarity in that initial delegation, and the 2013 Arlington v. FCC case (about which I wrote a Justia column) exposed unlikely rifts between ordinarily like-minded Justices on just how far Chevron should be extended. In particular, Chief Justice Roberts, joined by Justices Kennedy and Alito, declined to read Chevron broadly, largely because of fears that the federal executive had become too powerful and that giving federal agencies broad interpretive authority is particularly dangerous. In the context of Obamacare, there may be disputes about whether the Chevron framework should be applicable.

Second, even if the Chevron doctrine governs, under it federal courts must give effect to the "unambiguously expressed intent of Congress"; deference to the agency comes into play only after it is determined that Congress has not expressed such an unambiguous intent. Now it may seem that "unambiguous intent," and "clear voice" capture the same idea, but I don't think that the two concepts in these two settings are identical. In other words, it is possible to say that Congress's intent was expressed unambiguously such that Chevron deference doesn't apply, and yet still say that Congress hasn't spoken in a sufficiently clear voice to satisfy the Pennhurst standard. In particular, many courts (including the Supreme Court) have used legislative history behind a statute, and also the way a statutory term may have been used in earlier statutes, to determine whether Congress's intent with respect a particular statute was expressed unambiguously for Chevron purposes. But I can't see how those extra-statutory sources could be used to decide whether Congress has spoken in a "clear voice" to put states on adequate notice in the conditional spending realm. On top of that, a provision whose meaning takes too much work for states to discern, even within the four corners of a single convoluted statute, might not be expressed by Congress in a "clear voice," even if in the end Congress's will is discernable to a high degree of confidence.

Relatedly, and more generally, Chevron is about separation of powers-the relationship between Congress, the federal judiciary and the federal executive. That is why the initial inquiry under Chevron is how much Congress delegated to the federal agency and how certain we can be about "the intent of Congress." By contrast, the "clear voice" rule is about federalism-the relationship between the federal government and state governments. That is why, in conditional spending cases, the Court says that "[w]e must view [a federal statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds. . . . " In conditional spending settings, we care less about how firm we are in our conviction of what Congress wanted, and more about what states would have necessarily understood.

Federalism and separation of powers push different buttons for folks. On and off the Court, many observers today seem to be (legitimately or not) concerned about broad assertions of federal executive authority. Recall that Chief Justice Roberts and Justices Kennedy and Alito have recently (in the Arlington case) expressed qualms about the breadth of Chevron precisely because they fear federal executive power. Chief Justice Roberts wrote that administrative agencies today "as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . ." and that the "accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan [, but rather] a central feature of modern American government." These Justices (and it's hard to imagine the federal government prevailing in King without winning over at least one of them) may be more receptive (as all three were in the Medicaid expansion setting in 2012) to arguments that are grounded in the distinctive respect owed states, and the Simon-says-like rules we should employ to make sure states aren't duped or misled into making decisions without being able to be aware of the consequences.

December 5, 2014

Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell

Cross-posted from Justia.

In an essay for Justia a few weeks ago, my fellow columnist and friend Mike Dorf wrote about how the Obamacare statute (Act) might be in danger in the King v. Burwell case pending at the Supreme Court today because of things various Justices felt and said in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius (National Federation). Mike focused particularly on the views expressed by four dissenting Justices in 2012 that the so-called individual mandate exceeded Congress's powers and that the whole Obamacare statute was constitutionally invalid. I agree with Mike that the National Federation case is very relevant to the current dispute, but I see important ways in which Obamacare is less vulnerable, rather than more vulnerable, to the statutory challenge brought today because of what was said and done at the Court two years ago.

Background on the King v. Burwell and National Federation Cases

As Mike ably explained, the King v. Burwell lawsuit currently in front of the Justices asks whether a provision in the Obamacare law that permits federal tax credits to be given to qualified persons who purchase health insurance on an exchange "established by the State" also permits tax credits for individuals who purchase insurance on the so-called federal exchange that was set up (pursuant to the Act's provisions) by the federal government in those states that chose not to set up exchanges themselves. According to the plaintiffs in King, federal tax credits are not available under the Act to citizens of states that did not set up Obamacare exchanges, because Congress wanted tax-credit eligibility to operate as an incentive for states to set up exchanges so that the federal government wouldn't have to undertake the work.

Although the question is one of statutory construction, rather than constitutional authority, it has momentous implications; if federal tax credit subsidies are not available on the federal exchange, then a great many uninsured folks will remain uncovered, and a great many healthy individuals will be left out of the insurance market pools that experts say must be large and robust for Obamacare to work.

The question in King primarily comes down to the statutory meaning of the term "established by the State," in the context of a large and complicated statute that uses this and similar terms in many different places, and that also directs the federal government, in those states that decline to erect exchanges, to set up "such" exchanges itself. I agree with Mike that the best reading of the complicated, interlocking statute-as a whole and in light of sensible canons of statutory construction-indicates that subsidies are available on federal exchanges, and that at the very least the Obama Administration is reasonable in embracing and acting on such an interpretation.

As Mike points out, however, Obamacare has many detractors, both on and off the courts, and some Justices may be looking for ways to avoid giving workable effect to the ambitious statute. Specifically, Mike analyzes the possibility that the four Justices who dissented in the 2012 National Federation case (Justices Scalia, Kennedy, Thomas, and Alito) might, notwithstanding the principle of stare decisis, stick to their 2012 stance-that the individual mandate runs afoul of the Tenth Amendment and the whole statute must be jettisoned-and continue to reject any application of Obamacare.

The scenario Mike posits is certainly plausible; stare decisis principles are pretty malleable and seem to be frequently ignored by many if not all of the Justices (albeit in different cases) in disputes involving the Tenth Amendment and other constitutional questions. Nonetheless, I am more sanguine than Mike about whether the four 2012 dissenters will brush aside stare decisis cautions and use their 2012 views to block Obamacare today, for two reasons.

First, a crucial bloc of the Supreme Court (with Justice Kennedy being a key member) in the famous 1992 Planned Parenthood v. Casey case involving the continuing vitality of Roe v. Wade, observed that when the Court, in the absence of "the most compelling reason," overrules a "watershed" decision "under [political] fire," it runs the risk of "subvert[ing] the Court's own legitimacy beyond any serious question." The National Federation ruling was a "watershed" moment for the Court, Obamacare remains "under [heavy] fire," and a Supreme Court U-turn on Congress's power to enact the law could be understood by many as a concession to the political pressure. Indeed, any 5-4 ruling next summer gutting Obamacare would no doubt be viewed by a wide swath of Americans first and foremost as a Republican-appointed Supreme Court doing the bidding for Republicans who don't have the votes in Congress to repeal the divisive law.

Interestingly, this "don't overrule under fire because to do so will damage institutional legitimacy" argument has more force here than it did even in Casey, because Roe itself was a decision that many analysts believed had the effect of undermining the Court's legitimacy-insofar as Justice Blackmun's majority opinion in Roe wasn't tightly grounded in distinctively constitutional arguments-so that leaving Roe intact was not without legitimacy costs. Whatever one thinks of the National Federation ruling upholding Congress's power to enact Obamacare, that ruling-because it deferred to rather than overrode the elected branches-has not opened the Court to the same kind of charge of sitting as an "unelected super-legislature" that Roe has.

My second reason for thinking the National Federation dissenters may have a somewhat tough time relying on their 2012 stance has to do with technical differences in stare decisis between constitutional interpretation cases and statutory construction decisions. Stare decisis is a rather flexible constraint in constitutional matters, whereas the Court has made clear that the bar for overruling a past decision that was construing a federal statute is particularly high (presumably because Congress can fix erroneous judicial constructions of statutes more easily than it can correct wrong-headed readings of the Constitution). As Mike pointed out, in the National Federation case, the dissenters thought that the mandate was unconstitutional, and "also thought that the entire law had to fall with the mandate." That latter question-known in the business as "severability"-turned on how interlinked all the parts of the Act were, and whether any of the law could stand if the "pillar" (as the dissenters called it) of the mandate were invalidated.

The question of interrelationship between the various parts of Obamacare is ultimately a question of how best to read the statute and Congress's intent. Five Justices in 2012 rejected the dissenters' "pillar" reading, and although these five didn't speak explicitly to the relationship between individual mandate in particular and the rest of the law, the majority certainly read the interrelatedness of the overall statute and Congress's intent differently from how the joint dissenters did. So even if the four 2012 dissenters felt unbound by the National Federation Court's ruling on whether the mandate exceeds federal authority, they would also (in order to block Obamacare because of the mandate today) have to explain why they should not obey the 2012 majority's statutory interpretation on the question of severability. It would not be impossible for the 2012 dissenters to make some arguments here, but such arguments might look result-oriented when they minimize the effect of statutory stare decisis, ordinarily an uncontroversial topic.

How the National Federation Case Bolsters Obamacare Against the Current Challengers

There is another aspect of the National Federation case, an aspect on which seven Justices (including the joint dissenters) agreed, that bolsters rather than weakens Obamacare against its current challengers. I refer here to the Medicaid expansion part of the 2012 decision, in particular the Court's holding that Congress could not "surprise[e]" states by enforcing terms of a Medicaid bargain that were not "unambiguously" declared when the Medicaid deal was offered to states decades ago. Because the statutory provision entitling Congress to make alterations or amendments to Medicaid could "reasonably" be "assume[d]" by states to mean that Congress can make "adjustments" but not "transform[ations], states were protected against substantial retroactive conditions Congress sought to attach.

National Federation is just the latest in a line of case in which the Court has noted that "legislation enacted pursuant to the spending power [when the federal government is offering money to states to promote the general welfare] is much in the nature of a contract," and that the legitimacy of deals offered to states:

rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly. . .

The theory behind this requirement that Congress speak "unambiguously" and with a "clear voice" seems pretty straightforward (even though the Court has not spent a lot of ink elaborating it): Because states are worthy of special respect as important partners in our federal system, we want to minimize the risk that states accept or forgo federal moneys without an accurate sense of the consequences of their actions.

How does this play out in King? Well, even if the challengers are correct that the best reading of the phrase "established by the State," in the context of a complicated 900-page statute, means that Congress did not intend for citizens of states that did not set up exchanges to be able to obtain the tax credits, it's hard to believe that the statute puts states on clear notice of that consequence. The statute never explicitly says (in so many words) that a state that does not set up an exchange gives up tax credits for its residents. And this Congressional message-if it be a message-seems not to have been effectively communicated. After all, various judges in the D.C. and Fourth Circuits don't read the statute the way the King challengers do. The I.R.S. hasn't read the statute the way the challengers do. One of the architects of the challenge (who was presumably familiar with the big aspects of the law shortly after its enactment) is reported to have said he was "surprised" when he discovered the reading that he now embraces. Key members of Congress did not publicly communicate the reading of the statute the challengers assert at the time of enactment. I am aware of no journalist who offered that interpretation of the statute at the time it was passed and presented to the states.

And, most importantly, states do not seem to have said or done things that suggest they actually understood the statute the way the challengers do, at the time decisions were made about whether to set up an exchange in each state. (If there are states that took actions indicating they understood "the deal," such actions should be highlighted.) The absence of state conduct suggesting awareness is particularly powerful, because as to the Medicaid expansion provisions that were litigated in National Federation, governors in states that declined the expansion did feel obligated to defend to their voters the decision to turn down federal money. No such explanations seem to have been offered by governors or legislators in states that decided not to set up exchanges about why turning down federal money was the right thing to do notwithstanding the cost. And one would certainly expect a lot of explanation if states understood they were giving up tax credits for their citizens.

Even the joint dissenters in National Federation, in describing the way exchanges would work, seemed not to see the deal the King plaintiffs say Congress offered. The dissenters observed that, in order to accomplish its statutory goal of near-universal coverage, "Congress provided a backup scheme" for those states that did not set up exchanges: "If a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State." The implication in this passage is that the Federal Government's exchange would operate, as regards the goal of making insurance coverage more available, just as a state-established exchange would.

It is of course possible that the statute is "unambiguous" and "clear" in offering the deal the challengers assert, and that most everyone simply missed that clarity for months leading up to and following from the law's enactment. That judges and Justices, and journalists, and law professors, and members of Congress, and governors and state legislators all failed to see this plain aspect of the statute does not mean that it is not there. To the extent that the Court's doctrine does not require actual, subjective knowledge by states (a true meeting of the minds) as to what is expected of them, but rather only an easy ability to ascertain what the expectations are (a question Supreme Court cases don't fully answer, as far as I am aware), then the fact that many reasonable people didn't notice something doesn't mean there wasn't notice.

But even if the test focuses only on objective clarity -a plain statement of the contract terms so that states can know what they are getting into or turning down-it's hard to see how the challengers' reading of Obamacare can prevail. Can anyone really credibly argue that states were put on more clear notice of the loss of tax-credits by the use of the term "established by the State" alongside the federal power to create "such" exchanges in the context of an interlocking and convoluted statute than they were that Congress might make major changes to future Medicaid eligibility when Congress explicitly reserved for itself the power to "alter, amend or repeal any provision" of the Medicaid program (the term at issue in National Federation)? The challengers' reading of the statute (even assuming it is the best overall reading) is clearly visible only in the way Waldo's whereabouts are plain and clear after your child circles him with a highlighter on the page for you. If the deal Congress offered to states (according to the Obamacare challengers) was clearly presented in the statute, then we will have effectively overruled the "clear voice" requirement altogether, which is something a Court that is supposed to care about federalism should be loath to do.

In Part Two of this series, to be posted next, I take up counterarguments and additional questions raised by this federalism defense of federal exchange tax credits, including: (1) Why this federalism argument might be particularly important; (2) Why this federalism argument doesn't involve the same inquiry as so-called Chevron deference to administrative agency interpretation; and (3) Why federal tax credits to individual state citizens should be treated the same, for these purposes, as federal moneys given over to state coffers.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.

April 11, 2014

The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor

Blog entry cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.

 

February 28, 2014

Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side

Co-authored with Professor Alan E. Brownstein. Cross-posted from Justia's Verdict.

In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act's requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn't yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs' religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)

The "Liberal" and "Conservative" Take on the Two Lawsuits

Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.

We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs' claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs' claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.

Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women's rights concern. For them, protecting religious liberty in a situation that creates even small risks to women's health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.

But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.

The Dismissive Attitude of Opponents to the Religious Claimants in Each Case 

Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs' rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That's the way the system works. Learn to live with it.

But when we ask "What can they possibly be complaining about?" in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager's religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.

The Inconsistency in the Treatment of Risk-Based Arguments

Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer's worry can hardly be characterized as mere speculation.

Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants' refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants' not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.

We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.

Inconsistency in the Treatment of Attenuation and Misattribution Arguments

A separate criticism of plaintiffs' claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of "scandal." Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit's publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.

A similar problem with misperception-indeed, we suggest an arguably more powerful example of it- also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a "we" prayer rather than an "I" prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one's head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.

Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government's requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.

We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don't hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.

There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs' claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.

November 22, 2013

New Book by Professor Albert Lin: Prometheus Reimagined

Professor Albert Lin has written an exciting new book. Here is the recent media announcement:

From Climate Change to GMOs, UC Davis's Albert Lin Calls for Public Input in Laws Governing New Technologies

November 19, 2013

Life-changing and controversial technologies such as synthetic biology, nanotechnology, artificial intelligence, and geoengineering are evolving every day. While scientific advances promise to address serious problems and transform our lives, they also bring health and environmental risks and unanticipated effects; examples include genetically modified foods and climate change.

Can the law keep up with emerging technologies?

In his important new book "Prometheus Reimagined: Technology, Environment, and Law in the Twenty-first Century" (Released November 2013), author Albert Lin, a Professor of Law at the University of California, Davis, asks how governance institutions should adapt when innovation evolves faster than lawmaking and calls for a more democratic approach to technology regulation.

"Societies often promote the widespread adoption of a promising new technology without seriously considering its broader consequences for society, individuals, or the environment," Lin writes. "This approach fails to envision future developments, anticipate adverse effects, or reduce uncertainties. Such an approach is particularly troubling if the harms that may result from using a technology are serious and irreversible."

Lin argues that laws must treat technology, health, and the environment as fundamentally related. He presents new ideas for reorienting lawmaking in a way that acknowledges the transformative power of technology, recognizes the consequences of its use, and incorporates public input and awareness in technology management.

"What this book contributes is a detailed look at potential governance mechanisms in a historical perspective... and some good policy ideas for generating new governance."
-David Winickoff, University of California, Berkeley, College of Natural Resources

"Professor Lin... develops reform recommendations to facilitate informed democratic value choices about how to address... risks before, rather than after, they create serious harm."
-David M. Friesen, Syracuse University College of Law

About the author: Albert Lin is a Professor of Law at UC Davis School of Law, where he specializes in environmental and natural resources law. His research interests include toxic torts and the relationship between technology, the environment, and law. Prior to joining the UC Davis faculty, Professor Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice.

Lin is available to discuss "Prometheus Reimagined: Technology, Environment, and Law in the Twenty-first Century," published by University of Michigan Press.

July 7, 2012

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Cross-posted from Justia's Verdict.

Last Thursday’s landmark Supreme Court Obamacare ruling and its aftermath offer some key lessons for all of us, neophytes and veterans alike, who follow the Supreme Court.  Some teachings are forceful reminders of things we already knew (or should have known); others break new ground.  Here are my candidates for a “Top 10” list:

10. The Media Does a Poor Job of Predicting Supreme Court Results

The majority of mainstream media coverage of the anticipated ruling during the last few months seemed to assume that major parts of the law, especially the so-called individual mandate, would be struck down, and that the key question was whether other parts of the statute would remain intact.  Many of these assumptions derived from the tenor of the oral argument.  But it turns out Chief Justice Roberts said nothing at oral argument that was inconsistent with his ultimate decision to uphold the mandate.  Nor was prediction the media’s only gaffe; in their rush to get the headline out early, both CNN and Fox News misread the opinions and embarrassingly reported that the Court had struck down the mandate.

9.  Intrade Users Do a Poor Job of Predicting Supreme Court Results

In the weeks leading up to the ruling, the online predictions marketplace, Intrade.com, forecast a 70%–80% likelihood of Supreme Court invalidation of the mandate.  That was up from the 50%–60% Intrade range that had prevailed immediately following the oral argument, and way up from the 30% range that we saw before oral argument.  All of these forecasts proved to be too high, suggesting that Intrade—though it might do a good job with elections—may not be such a good mechanism for Supreme Court prognostication.

8. The Supreme Court Suffers More Problematic Leaks Than We’ve Been Willing to Admit 

One reason Intrade investors (and it’s not clear that a gigantic amount of money ever traded hands) may have bet that the mandate would be struck down was the report of rumors beginning in May that Justice Kennedy, in particular, had voted against the government in the conference after oral argument.  Leaks from the Court before a decision is announced are probably not unprecedented, but they are rare, and should be troubling.  So too should be the post-decision leaks of the past five days indicating that Chief Justice Roberts changed his position during the last few months.  Putting the questions of whether he did so, and if so, why, to one side, the Court is not served if its Justices and staff are so frustrated by forthcoming or past results that they feel the need to share those results with outsiders and to circumvent confidential Court processes, especially so soon after the events in question took place.

7. Justice Kennedy Is Not the Only Justice About Whom We Should Care in Big Cases 

Over the last year—indeed, the last six years—Justice Anthony Kennedy has most consistently been in the majority in hotly contested 5-4 rulings.  Chief Justice Roberts, on the other hand, has been in dissent in many significant criminal procedure decisions.  But in the Obamacare case that defined this term—and perhaps this decade—for the Court, Roberts ruled and Kennedy lost.  It is not an exaggeration to say that the Affordable Care Act case was—in terms of the number of people affected, the amount of money involved, and the symbolic, political and institutional stakes on the line—bigger than all the other seventy-some cases the Court decided this year put together.

6. Chief Justice Roberts Is Not Likely to Vote With the Liberals Consistently

It would be unwise to think that Chief Justice Roberts will side with the so-called “liberal” Justices in controversial cases very often; he remains a solidly conservative jurist whose vote in the Obamacare matter may, in some respects, free him up for the rest of his tenure on the Court to follow his conservative instincts, because the Obamacare ruling will have a long-lasting effect of immunizing him from the charge of partisan cronyism.

5. The Commerce Clause Doctrine That Got Made, While Symbolically Significant, May Not Be Terribly Meaningful

The position of the five Justices (Chief Justice Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito) who opined that Congress cannot, under the Commerce Clause, regulate “inactivity”—but instead must limit itself to regulating preexisting economic activity—would seem to make states’ rights folks happy.  But this new Commerce Clause doctrine—in addition to making little sense—will not likely change the world very much.  As these five Justices pointed out, Obamacare’s regulation of inactivity was unusual if not unique, so there aren’t going to be a lot of other already existing federal statutes that are subject to attack on the ground that they regulate inactivity.  And going forward, Congress can always formally tie its regulation to an economic activity if it is careful.

For example, with respect to Obamacare itself, Congress could have said, not that everyone is mandated to procure insurance or else pay money into the Treasury, but rather than anyone lacking insurance who enters onto a roadway or into any place of business shall pay money into the Treasury.  Voila!  Regulation of activity.  The very ease of creating such alternative regulatory forms is why so many of us found it unthinkable that the activity/inactivity line  should doom Obamacare;  when the question is how, rather than whether, Congress can accomplish something, the doctrinal lines should be clearly and sensibly drawn by the Court in advance, lest federalism rulings devolve into judicial “gotcha” games.

So the real issue in this case was not what effect a requirement that Congress stick to regulating activity only would have in the future; the real issue was whether such a requirement would kill Obamacare itself, a law that was passed when no reasonable mind could have anticipated the Court would impose such a “Simon Says” requirement.  But since Obamacare survived (because five Justices found Congress’ taxation power sufficient, irrespective of Commerce Clause power), the activity/inactivity line isn’t worth losing much sleep over.

4.  The Spending Clause Doctrine That Got Made Could Be Big

By contrast, the new Spending Clause doctrine that got made in the Obamacare case—preventing Congress from discontinuing all Medicaid monies to states that refused to agree to new, expanded coverage—might be a bigger deal.  There are at least two possible ways to read the Court’s new Spending Clause gambit.  First, the Court might be saying that if Congress is ever going to reserve for itself the right to fundamentally alter a federal-state cooperative fiscal deal, it has to be much more explicit at the front end to warn states that they should not expect and rely upon continued funding under terms identical or similar to the initial deal.  If so, that ruling (like the Commerce Clause ruling) is but a legislative drafting guide for Congress for the future (albeit one that might impair Congress’ power to revise existing programs that have been around a while.)

The second possibility is that no matter how explicit Congress’ warnings are, Congress might not be able to rewrite conditional spending deals with states when states in fact have relied on past allocations to their significant detriment.  If Congress is required to maintain deals that it no longer likes, even when it has been crystal clear up front about the possibility that it might radically change funding formulas, simply because states are addicted to the federal funding, that would indeed suggest meaningful new, substantive, limits on Congress.  Such a doctrinal path may be defensible if federalism and protecting states from federal “coercion” are to remain meaningful goals, but it is certainly a new path that was not signaled very clearly in past Court rulings.  There are, to be sure, slippery slopes down such a path, but that (as I have argued about Congress’ power to regulate inactivity) need not be an insurmountable problem.

3. Hypocrisy in the Doctrine of Federalism Remains a Big Problem 

When we put the Commerce Clause and Spending Clause parts of the outcome together, we see that even within a single case, there is a lot of intellectual inconsistency in the federalism doctrine.  A majority of the Court rejects Congress’ power to regulate inactivity because that power presents slippery slopes.  But the same majority (plus two) accepts new limits on Congress’ ability to withdraw funds to states, even though those new limits will require difficult line-drawing.

In the Commerce Clause setting, a majority rejects that idea that the healthcare and healthcare insurance markets have unusual or unique qualities, legitimizing a mandate in those fields but not elsewhere.  And in placing limits on Congress’ ability to withdraw Medicaid funding, that same majority highlights how unusual, perhaps unique, the healthcare and Medicaid programs are.

In the Commerce Clause arena, a formalistic line between activity and inactivity is seized upon.  In the Spending Clause arena, formalism concerning whether a state technically has a choice over acceptance of funding that comes with new strings is rejected, in favor of a more functional analysis of whether states are in fact coerced because of their past reliance.  And so forth.

I personally think that formalistic approaches to federalism that are not undergirded by workable functional theories are unhelpful, but my main point here is that this area of law continues to lack a clear analytic framework that can be used to explain and predict results.

2. Congress Dodged a Bullet, and Should Be More Careful in the Future

Let’s face it:  the Court came within an eyelash of striking down the heart of the biggest federal regulatory law in decades. One reason for this is that five Justices, perhaps because the momentum of the litigation overwhelmed its analytics, embraced faulty reasoning—that was not really grounded in text, history, structure or precedent—in construing the Commerce Clause, and that some Justices seem unwilling to give clear notice in advance to Congress of the technical rules they are willing to impose on the legislative branch in federalism rulings.  But another reason is that Congress does not—and does not even seem to try to—take federalism limits on its powers seriously when it passes legislation.  Why no extensive hearings during Obamacare on the constitutional basis for the mandate?  Why no testimony (which I think would have been available) from leading conservative scholars before enactment suggesting that the mandate would be permissible? Why no explanation from Congress in the record showing there were ways in which it could have formally regulated activity to reach the same result? And why, if the mandate’s fiscal effects on individuals were clear for all to see (as they were), did Congress play games by avoiding the use of the word “tax” for a revenue-raising measure housed in the Internal Revenue Code and implemented by the Internal Revenue Service?  The federalism cases of the past 20 years make one thing clear: a large number of Justices are quite willing to enforce the Tenth Amendment, and Congress should not be so cavalier if it wants to avoid getting burned.

1. Chief Justice Roberts Was the Big Winner in This Ruling 

In giving Congress the benefit of the doubt and upholding the key aspects of Obamacare under the Taxation power clauses, while at the same time cutting back on established understandings of Commerce Clause power and Spending Clause power, Chief Justice Roberts claimed the current Supreme Court as his own, and began to build for himself a legacy of greatness.  Roberts was able to: 1) make some conservative law, consistent with his instincts about federalism; 2) do so in the context of a result that makes it hard for President Obama and others who differ from Roberts’s basic constitutional outlook to complain; 3) do so in a manner that enhanced the credibility of the Court as an independent, non-partisan arbiter.

He was also able to get 7 votes (including two Democrat appointees) to join in to invalidate under the Spending Clause the Medicaid expansion conditions of the Affordable Care Act, the only part of the Act that was trimmed back.  If the Court is going to strike down even a part of the most thoroughly vetted Congressional legislation of the modern era at a time of hyperpartisanship, how refreshingly healthy and remarkable to have a cross-ideological coalition of Justices doing it.

Importantly, Roberts was the only Justice who agreed with every single important thing the Court decided in the case.

None of these accomplishments is diminished by the fact that Roberts might have changed his mind since his initial post-argument stance.  There is nothing wrong with changing one’s mind as a Justice; it says nothing bad about his motivations, but rather only that he came to see the case differently the more he thought about the issues and arguments.  If anything, there should be more mind-changing after oral argument and the initial vote; remember, the draft opinions don’t circulate until later, and it is upon reading the opinions (and additional scholarly commentary that might not have been analyzed before argument) that Justices should decide which ones they really agree with.  Sometimes you think you have a bottom-line position, only to learn that “it won’t write.”

When we widen the focus to make historical comparisons, we see that Chief Justice Roberts shares, or at least appreciates, the instincts of some of his most revered predecessors.  Take John Marshall, whose two most enduring opinions are McCulloch v. Maryland and Marbury v. Madison.  Roberts’s opinion was similar to McCulloch (in which the Court decided Congress had the power to charter the Bank of the U.S.) in making clear that Congress’ powers are finite but broad, and that Congress must be given the benefit of the doubt so long as its objectives are legitimate and sincere, and the means it uses are likely to advance those objectives. Roberts’s ruling was similar to Marbury (the case known for cementing the Court’s competence to declare federal statutes invalid when they run afoul of the Constitution), in that the Marbury ruling allowed Marshall to move constitutional law toward his own ideological sympathies while reaching an immediate result that avoided a direct political confrontation with a President (Thomas Jefferson) who opposed Marshall’s constitutional vision.

Not all chief justices have been successful at pivotal moments in avoiding altercations with oppositional presidents.  Chief Justice Roger Taney (who authored the infamous Dred Scott ruling) picked, rather than passed up, fights with Abraham Lincoln.  And Chief Justice Charles Evans Hughes could not stop his Court from demolishing huge chunks of President Franklin Roosevelt’s early agenda.  Like these two men, Roberts was already Chief Justice when a watershed election swept a reform-minded president into the White House.  But unlike these two earlier chiefs, Roberts—following the lead of John Marshall—found a way to stand his intellectual ground without provoking a battle royal with the Chief Executive.

June 29, 2012

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists?

Co-authored with Professor Alan Brownstein.  Cross-posted from Justia.com.

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.

June 7, 2012

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

Cross-posted from Justia's Verdict.

Any week now, the Supreme Court will hand down its ruling in the Affordable Care Act (ACA, also known as Obamacare) challenge.  The Court will likely address, among other things, the key question whether Congress has the constitutional authority to enact the so-called “mandate” provision, requiring individuals to procure minimum healthcare coverage or instead pay money into the federal treasury.  It’s not surprising that analysts and commentators are gearing up for the momentous decision.

What is surprising, however, is the content of some of the commentary.  In my column today, I offer reaction to an Op-Ed piece Stanford law professor and former federal appellate judge Michael McConnell published in the Wall Street Journal (WSJ) on May 24.  I welcome Professor McConnell’s voice in the Obamacare debate—I have long admired his overall body of work and was openly and actively supportive of his nomination for the federal appellate bench at a time when he was criticized by many on the Left.  And I agree with some of what he says in his WSJ Op-Ed.  But I am also quite troubled by many other points he makes or implies.

What Professor McConnell Argues

It bears noting at the outset that Professor McConnell does not say he thinks the challengers to Obamacare are constitutionally correct—that the mandate exceeds Congress’ constitutional powers.  (My brother, Yale law professor Akhil Amar, noted in Slate a few months ago that most conservative constitutional scholars have not expressed agreement with the challengers’ position—an observation that accords with my own sense.)  Instead, Professor McConnell finds the “health-care case [to be] hard,” and says that the challengers’ argument “may [reflect] a correct reading of the Constitution, or not, but it must be taken seriously.”

I’m not sure I find the case as hard as Professor McConnell does, but I certainly don’t disagree with him that the challenge must be taken seriously.  Indeed, I and many others who have written scholarship and other commentary on the case have done so because we do take the matters raised therein seriously.  All of that is why I am troubled by what Professor McConnell goes on to say.

Professor McConnell writes to chastise “liberal law professors . . . [who] claim[] that it would be ‘hypocritical’ and ‘partisan’ of  [conservative Justices] to invalidate legislation passed by Congress when they generally oppose ‘judicial activism.’  It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.”

Professor McConnell asserts that “[i]f liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.”

Professor McConnell also says that “[i]t seems unlikely this one-sided definition of ‘activism’ will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.”

The First Flaw in McConnell’s Argument: A Straw Man Concerning the Supposed Absence of Textual, Historical, Structural, and Doctrinal Arguments in Favor of the Mandate

It’s hard to know precisely whom Professor McConnell has in mind when he excoriates “liberal law professors;” many of us among the group of analysts who think Obamacare is constitutional have not spent our time simply hurling names at those with whom we disagree.  But even as to those professors who have been most stridently critical of the conservative Justices, Professor McConnell’s analysis misses the mark.

First off, his criticism is based on a straw man (forgive the gendered term, but “straw person” is too awkward).  “Liberal law professors,” or at least the ones I see and hear, don’t ground their allegations of hypocrisy and partisanship with respect to the possibility of high Court invalidation of Obamacare on a claim that conservative justices have generally embraced a deferential form of judicial review, and that striking down Obamacare would be inconsistent with such professed deference.  (Conservative Justices have not been, and have not said they should be, necessarily deferential to elected branches in exercising judicial review.)

Instead, folks who say that a ruling by the conservative Justices striking down Obamacare would be hypocritical and perhaps partisan say so precisely because  arguments (to use McConnell’s words) “based on text, history, structure and precedent”—the very tools  conservatives traditionally contend should be used in constitutional interpretation—cut in favor of, not against, the constitutionality of Obamacare.

Professor McConnell asserts that “liberal supporters of the health-care law” should “offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans” (emphasis added).  But supporters of the mandate have indeed offered those arguments, and it is precisely because those arguments seem to have been ignored by many conservative Justices at oral argument that some defenders of Obamacare have cried hypocrisy and partisanship.

I am genuinely puzzled as to why Professor McConnell feels that there have been no textual, historical, structural and precedential defenses of Obamacare.  I, my brother Akhil, and many other scholars have written numerous law review articles laying out just such arguments.

Take the constitutional text.  The question here is whether any words in Article I give Congress the power to impose healthcare-coverage procurement mandates.  As many of us have pointed out, certainly no one doubts the Congressional power to mandate the military draft, militia service, jury service, census participation, etc.  And nothing in the constitutional text under which these activities are permissibly mandated explains why affirmative conduct can be required in those realms, but not under the Commerce Clause, which gives Congress the power to “regulate” commerce “among the several States.”

By comparison, Article I permits Congress to “raise and support” Armies, but there is nothing in the text of this clause that indicates why mandatory military service is permissible. “Raise and support” could textually be read to mean “create incentives to voluntarily generate.”  But the Supreme Court had little trouble holding in 1925 that this clause, combined with the Necessary and Proper Clause, permitted Congress to mandate military service—in other words, to regulate inactivity and require affirmative activity—because the Court reasonably concluded that Congress should not be dependent on the inclinations of potentially reluctant individuals to accomplish Article I’s enumerated objectives.

More generally, the word “regulate” (used in the Commerce Clause) does not foreclose the compulsion of activity, including the compulsion of commercial activity. “Regulate,” as defined in language dictionaries, means, among other things, to “direct.”  Moreover, when we turn to the Constitution itself as a possible dictionary, we see that it uses the word “regulate” at least sometimes in ways that include a power to mandate activity.

The militia in which Congress can compel membership, for example, is referred to as one that is “well[-]regulated,” in the Second Amendment.

Congress’ power in Article I to “regulate the [v]alue” of money would seem to permit Congress, under certain circumstances, to require individuals to exchange their currency for something else that Congress reasonably believes would provide stability to the monetary system of the country.

Congress’ power to adopt rules for the “[r]egulation” of the land and naval forces undeniably allows Congress to mandate activity on the part of otherwise disinclined men and women in the armed forces, when such mandates are reasonably helpful to the national defense.

Congress’ power to undertake “[r]egulation[ ]” of the Supreme Court’s appellate jurisdiction is what gives Congress the power to create such jurisdiction in the first place—”regulate” as used there includes the power to create and control.  And there is much more.  In short, to say no arguments about text have been made by Obamacare supporters is simply to ignore the scholarly discourse.

The same is true for historical, structural and precedential arguments.  As to history, the record makes clear that the Commerce Clause was designed to allow Congress to deal with interstate economic externalities.  No one could really doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems.  After all, insurance and healthcare providers are usually national, or at least regional, operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based insurance coverage.  Nor is it disputed that Congress’ enactment of the individual mandate provision was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects.  Professor McConnell says that these observations about the health care market are not “grounded in any principle based in constitutional text, history or theory,” but that assertion itself ignores the very history behind, and the theory underlying, the Constitution—history and theory that Professor McConnell rightly recognizes as central.

History also debunks the notion that mandates to purchase are, as a general rule, constitutionally novel or out-of-bounds.  For example, the Militia Act of 1792 required able-bodied men to become Federal militia members, and to arrive ready to serve.  Men were required to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.  Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.  Even if novelty were a basis, in and of itself, on which to object to an exercise of Congressional power—and it is not—mandates to procure are not novel, but rather go back to the founding.

Professor McConnell is also wrong to suggest that no structural arguments defending the mandate have been made.  When one looks at the entire structure of the Constitution and compares the already-recognized bans on mandates—the Third Amendment’s prohibition of the quartering of troops in private homes during peacetime, the Fifth Amendment’s protections against government mandating self-incrimination and the surrender of property without just compensation, the First Amendment’s protection against mandating that individuals be vessels for government speech, and the so-called anti-commandeering federalism principle prohibiting Congress from mandating that state governments exercise their regulatory power on behalf of federal goals—a pattern emerges:  Congress generally cannot merely use individuals or states as the instruments, or tools, of its own objectives.

But when individuals (or states) are, by contrast, acting as free riders, and thus contributing to the problem—rather than being just handy tools to fix a problem created by others—then mandates are much more constitutionally permissible.  This explains why the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are contributing to problems only passively. Military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, “public goods” in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem that Congress is trying to solve when it imposes mandates in these areas.  So long as the mandate is “congruent and proportional” (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable.

This explains why, for example, the quartering of troops is different from the draft.  Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this structural prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization.  Obamacare’s mandate is, in substantial part, a response to the free-rider problem—a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package.  The individuals subject to the mandate would—if they were free from the mandate—become part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

Finally, again contrary to what Professor McConnell suggests, believers in Obamacare’s constitutional validity have made many arguments based on precedent, especially to answer the “slippery slope” problems that seem to worry Professor McConnell and some of the conservative Justices.  Professor McConnell writes, “defenders of the health-care mandate are unable to identify any line between what they say Congress can do and what it cannot.”  Nonsense.

As many of us have pointed out, some of the important limiting principles come from Gonzalez v. Raich, where the Court permitted a federal ban on the possession of all marijuana, no matter how small the amount or how local the use.  That result too, created slippery slope problems, but the Court made clear that even as the federal government might sometimes ban the possession of things, the government’s power in this regard is not unlimited.  As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such punishments are necessary to carry out a comprehensive regulatory scheme—the Controlled Substances Act—that governs a robust and interstate market in drugs.  Without that comprehensive regulatory scheme respecting an interstate market as an anchor, and a clear tie-line connecting the ban on possession to the regulation of the interstate market in illicit drugs, the ban on marijuana possession would have exceeded Congress’ Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is itself a comprehensive regulatory scheme governing interstate commerce and interstate spillover effects, and the individual mandate plays an important role in furthering central pieces of that regulatory framework.

The Bigger Problems With Professor McConnell’s Argument Come From What Some Might Read Him to Be Suggesting

Professor McConnell’s mistaken suggestion that Obamacare’s defenders make no arguments based on text, history, structure and past precedent is troubling to be sure.  But there’s another flavor to his criticism that leaves an even worse taste in my mouth:  He might be read as suggesting that if liberal law professors support reading the Constitution to protect same-sex marriage, partial-birth abortion and abolition of the death penalty, then they are estopped from complaining about “aggressive” (his word) judicial review to support conservative ends.

Professor McConnell never quite says it that way—and I hope that he wouldn’t embrace this position–but many people might glean this to be his implication because, absent such an implication, I’m not sure why he mentions in his Op-Ed liberal constitutional stances concerning same-sex marriage, partial-birth abortion and, capital punishment, and the free-form constitutional interpretive modes they involve.

Perhaps he’s saying simply that liberal law professors are themselves hypocritical and partisan to insist that conservative Justices in the Obamacare case exercise judicial review in a restrained way, when the liberal profs do not themselves believe in restraint in other areas of constitutional law.  Maybe that’s true (or maybe liberal law professors have a theory as to why the individual-liberties aspects of the Constitution require different interpretive modes than do federalism questions—I personally might not find such a distinction altogether persuasive).  But the point that some liberal law professors might be partisans and hypocrites hardly seems like a point worth making.  Liberal law professors don’t decide cases.  They don’t make law.  There’s a reason (many reasons, actually) why we don’t give them any real, immediate, decisionmaking power.

But Justices do have tremendous authority we have delegated to them, and they should exercise it in a way that is free from hypocrisy and partisanship.  And if liberal law professors accurately point out hypocrisy on the part of Justices who purport to care about text, history, structure and precedent, these professors will have performed a useful function, even if the professors themselves are guilty of even more intellectual dishonesty than the Justices whom they lambaste.  So the hypocrisy of law profs really wouldn’t bear on whether their criticism of the Court—the subject of Professor McConnell’s Op-Ed—is appropriate or not.

Even if the hypocrisy, partisanship and lawlessness were being practiced by other members of the Court, that should not, I would hope, cause Justices to abandon their own interpretive principles.  So, for example, if Justice Kennedy thought that Justice Breyer’s dispositive vote to strike down Nebraska’s ban on partial-birth abortion (one of Professor McConnell’s examples) in Stenberg v. Carhart was completely inconsistent with the conception of responsible judicial review that Justice Breyer has espoused in a series of books written for the broader American public (and one could argue that there is some tension there), Justice Kennedy should not, as a general matter, change his own approach to judicial review.

When Professor McConnell says that “there cannot be one set of rules for liberal justices and another set for conservatives,” I pray he does not mean that conservative jurists can and should abandon their aversion to judicial activism (however defined) because they see liberal jurists acting in unrestrained and unprincipled ways.

There might be some specific doctrinal areas where a Justice might think that wrong-headed or hypocritical rulings by earlier Courts or other Justices have created a sub-optimal body of law, such that the Justice might have to decide a particular present or future case in a way that is different from how s/he ordinarily would have preferred (stare decisis, or deference to past precedent, is one example of the effect that earlier methodological or substantive mistakes can have on future outcomes).  But generally speaking, “retaliatory activism”—by which I mean the abandonment of a Justice’s own principles because other Justices are not playing fair—is a dangerous and inadvisable game.  It is also something that contributes to the popular and unhealthy perception that the Court is no different from and no better than the overtly political branches of government in DC.

So to the extent that anyone understands the essay from Professor McConnell—a venerable conservative jurist and scholar who was often thought to be on Republican Supreme Court short-lists a decade ago—as suggesting that conservative Justices are to be forgiven for hypocrisy or partisanship because liberals engage in it (or vice-versa), I would urge a different reading of his words.