The Volokh Conspiracy

Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that “the people” enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr.  Here is an excerpt:

I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.

[snip]

If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” As Michael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

You can read the whole thing here.

A few clarifications of my position.

• In my view, “commandeering” has a much narrower and more specific meaning in the existing doctrine than “commanding.”  It means taking over a power properly exercised by another sovereign.  In New York, the power is that of a State legislature to enact legislation (and the correlative power to decline to exercise this power).  With the mandate it the power of “the people” to consent to enter into contractual relations with a private party (and the correlative power to decline to exercise this power).   Just as state legislatures have their own reserved power to enact statutes, so too do individuals have the reserved power to alter their legal relations with others via contract.  Indeed, as Lon Fuller observed, these powers are very similar.  “Commandeering” is the coercing of states (or by extension individuals) to exercise their distinct powers in ways desired by Congress.
• For this reason, making you live with a soldier in your home, convicting yourself by your own words, or performing personal services for another, best exemplify the noncommandeering concept.  The power to “take” property for public use, an example I also used in my earlier post, is closer to the power to tax.
• Now, Congress has expressly delegated powers to coerce individuals that it lacks against the States, most importantly the power to tax.  But the (dangerous) power to confiscate property in the form of taxes or by eminent domain is not the same as the power to make someone alter their legal relations with another person, which is what contracts do.
• Congress also has many powers at its disposal to create incentives for states and individuals to exercise their reserved powers in ways that Congress desires, and providing such incentives is not “commandeering” (unless, as per Dole, they cross the line into “coercion”).
• Likewise, as the term appears to be used by the Court, States (and by extension private persons) are not “commandeered” when they are forcibly prevented from exercising their powers, or when they are regulated in the manner of their exercise.   Prohibitions on race and sex discrimination by individuals regulate the manner by which certain activities like operating a restaurant or hotel are to be conducted; these measures do not command that persons enter into the restaurant or hotel business.  The very same line has implicitly been drawn by the Court in applying the noncommandeering doctrine to States, while upholding the power of Congress to regulate the manner by which States engage in economic activity.
• This is all a question of delegated power, not the side constraints of rights.  Congress is claiming an implied power to force people to enter into contracts with private companies.  Is its claim of implied power warranted or not?   The fact that, as Justice Kennedy explained in Bond, the enumeration of delegated Congressional power is a means of protecting liberty does not render it the same type of endeavor as the doctrinal protection of certain “fundamental” rights under the Due Process Clause.   Indeed, the Federalists originally contended that the protection of express rights would be unnecessary at the federal level because of the limited and enumerated delegation of powers in the Constitution.

I think the “commandeering” concept best explains why so many people instinctively find the individual insurance mandate peculiarly offensive, just as it explains why some justices found the State mandates in New York and Printz to be objectionable.  Conversely, those who take a fundamentally different view of the relationship of the individual to the government — or of the States to the federal government — simply do not understand what the fuss is all about.  In this regard, if no other, the debate over the mandate is revealing.

You can read a fuller treatment of the approach in my 2010 law review article, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.  But since I published that piece, I have had considerable time to give the matter fuller thought, so I might not explain the position precisely the same way today.

Andres Marroquin, a Guatemalan economics blogger I follow with interest, has a new draft paper (co-authored with Julio Cole), “Economical Writing (Or, Think Hemingway).”  It is summarized at Marroquin’s blog post, The Economics of Writing.

Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant’s idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also “economical writing.” [Table omitted.]

Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates’ word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.

Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for “good writing.” But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. “Economical” writing might indeed be the key for “good” writing. We leave for debate the different implications of our paper.

I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely.  Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell “plain prose” aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera).  Finally, is it true that “words are a scarce resource?”  Don’t the authors mean, rather, that more words are always available and that reader attention is the scarce resource?  (BTW, in posting this, I should ask whether I have been taken in by a parody — someone bidding for an Ignoble Prize?)

Ryan Calo, director for robotics at Stanford Law School’s Center for Internet and Society, has a new, op-ed length essay on the ways in which robots fall in-between regulatory stools as they move from specialized factory or military functions into everyday life.  Who Will Regulate Robots?

Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics ... the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.

The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.

When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability.  The rest of the potential issues — intellectual property, etc. — were not particularly special to robots.  Ryan Calo’s scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions.  And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were.  Comments open for this post.

Glenn Greenwald has a very Glenn Greenwaldesque post on the controversy over alleged use of anti-Semitic language by bloggers at the Center for American Progress, which I discussed last week.

One would never know from reading Greenwald’s piece that the controversy primarily revolved around the use of the term “Israel-firster” to describe supporters of Israel, much less that one can say two things about that term without much fear of contradiction: (1) it originated on the neo-Nazi fringe, and has only been adopted by left-wingers in the last few years; (2) it’s a term that not only substitutes insults for argument, but it implies loyalty to a foreign power, a longstanding theme in anti-Semitic literature.

As I said before, that doesn’t make the phrase somehow “objectively” anti-Semitic if used by individuals who had no anti-Jewish intent. However, as I also noted, most people of good will try to avoid using phrases related to Jews once they recognize that they have the odor of neo-Naziism about them (and indeed the CAP bloggers deleted the posts in question after the controversy broke). Others, however, like Greenwald, continue to think the phrase perfectly appropriate.

Moreover, left-wing writers tend to be especially sensitive about using language that has potentially racist implications, and also tend to be quick to accuse others of using “dog whistle” phrases–phrases that sound neutral, but are meant to stir racial animosity or invoke racial stereotypes.

In Greenwald’s defense, unlike many other left-wing anti-Israel writers who are quick to reject colorable charges of anti-Semitism, he has been a fearless opponent of political correctness, and has defended Republicans and conservatives from questionable charges of racism.

Actually, that’s not true. Actually, the opposite is true. Here, for example, is Glenn Greenwald in 2008, accusing John McCain of delivering “one of the ugliest, nastiest, most invective-filled” attacks “a major candidate has ever delivered, blatantly designed to stoke raw racial resentments.” The offending language? (Italics are Greenwald’s): It’s as if somehow the usual rules don’t apply, and where other candidates have to explain themselves and their records, Senator Obama seems to think he is above all that . . . His campaign had to return $33,000 in illegal foreign funds from Palestinian donors, and this weekend, we found out about another $28,000 in illegal donations. Why has Senator Obama refused to disclose the people who are funding his campaign? Again, the American people deserve answers.

Let’s get this straight. Suggesting that the usual rules don’t apply to Obama, stating that he returned illegal campaign contributions from Palestinian donors, and claiming that Obama refuses to disclose his funders isn’t just overheated (or silly) campaign rhetoric, isn’t even just ugly and nasty, but “is blatantly designed to stoke raw racial resentments.”

So, mentioning illegal Palestinian donations = blatant racism; adopting language appropriated from neo-Nazis within the decade about Israel’s supporters = clearly not anti-Semitic. Suggesting that a Obama has avoided “the usual rules” = blatant racism; suggesting that pro-Israel Americans care more about Israel than about the U.S. = clearly not anti-Semitic. Accusing someone of using anti-Semitism for using the Israel-firster slur makes you part of a “smear campaign”; accusing John McCain of blatant racism for claiming that Obama has not disclosed his campaign donors makes you a courageous left-wing blogger speaking truth to power.

I’m not going to argue that Greenwald’s racism argument is completely absurd–he’s a good lawyer, and he makes at least a marginally colorable argument in the rest of his post. But his argument is MUCH more of a stretch, or, if you will, much less well-founded, than the argument that “Israel-firster” is anti-Semitic language.

Obviously, Greenwald’s sensitivity to offensive language depends on whether he likes/agrees with the target. When his favored candidate, Barack Obama, was being attacked by John McCain, he was extremely quick to accuse McCain of using language designed to appeal to racist sentiment. When pro-Israel activists and politicians, a Greenwald-disfavored group, are being attacked by his anti-Israel compatriots, suddenly they are inherently immune from any hint of using anti-Semitic (a form, of course, of racism) language unless, perhaps, they are wearing swastikas and celebrating Hitler’s birthday. And the fact that Greenwald can and has come up with examples of where some of Israel’s supporters have used charges of anti-Semitism in inappropriate or exaggerated contexts is quite irrelevant to the point, just as it would be irrelevant to Greenwald’s post about McCain if someone pointed out that charges of racism against Obama’s opponents are at times inappropriate or exaggerated.

The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”

[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.

I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.

A North Carolina statute, § 163–274(a)(6), makes it a misdemeanor “to discharge or threaten to discharge from employment ... any legally qualified voter on account of any vote such voter may cast or consider or intend to cast.” North Carolina employment law also generally makes it civilly actionable to fire an employee “in contravention of express policy declarations contained in the North Carolina General Statutes,” which I suspect means that actions that violate this criminal statute would probably also be tortious.

Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says “Newt Gingrich is the best presidential candidate out there,” though without an express statement that “I’m going to vote for him,” or “I’m glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot.” And say that the employer then fires the employee based on that statement.

Should that be viewed as discharging the employee “on account of any vote such voter may ... consider or intend to cast,” and therefore actionable? Or would it likely be viewed as discharge based on the employee’s pro-candidate speech rather than the employee’s perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee’s speech or partisan political activity.) I ask this because I’m finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I’m trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.

I’m not sure what to make of this, but the ending is good.

Thanks to How Appealing for the link.

That’s the report–but that’s not what the facts seem to indicate as noted by James Taranto:

The interview aired on “Nightline” some 90 minutes after the debate ended, and the bombshell turned out to be a dud. The supposed big revelation–that “he wanted an open marriage,” as she, not he, put it–turned out in context to be trivial.

As Mrs. Gingrich told the story, the then-speaker informed her over the phone that he wanted a divorce. “I said to him, ‘Newt, we’ve been married a long time.’ And he said, ‘Yes. But you want me all to yourself. Callista doesn’t care what I do.’ ”

“What was he saying to you, do you think?” asked interviewer Brian Ross.

Mrs. Gingrich: “Oh, he was asking to have an open marriage and I refused.”

By her account, he first asked for a divorce. She protested, and he made clear that he was unwilling to give up his then-mistress. It’s unclear from Marianne Gingrich’s account whether Mr. Gingrich actually offered to remain married in exchange for tolerance of his infidelity, or if this was merely her inference.

In either case, there is an enormous difference between offering such an arrangement as a “compromise” to a spouse who does not wish to divorce, which is what Mr. Gingrich appears to have done, and flat-out asking for an open marriage. Neither reflects well on him, but the former is within the normal range of cruel and confused behavior during a breakup, whereas the latter is, at least by American standards, deviant.

Note first that Gingrich never proposed having an “open marriage”–that’s the ex’s characterization.  And it doesn’t seem accurate to me either.  It looks like what Gingrich told her is (1) I’m in love with Callista, (2) I would like a divorce, (3) that he was planning on remaining with Callista regardless of whether she granted him a divorce, and (4) it is ambiguous (to me) what “Callista doesn’t care what I do” it could reasonably interpreted that Callista would tolerate infidelity or it could also reasonably interpreted that he was saying that Callista didn’t care whether he got a divorce or remarried (again recall this is the ex’s characterization of a conversation a long time ago and what was actually said between those two meanings would require a lot of nuanced parsing).  One could use a lot of terms to describe that set of facts (none of them flattering) but “he was asking to have an open marriage” isn’t how I would characterize it nor do I think most people would characterize it that way.  Especially because, as Taranto notes, the use of that term in the United States connotes deviancy such as swinging with multiple sex partners, rather than a long-term extra-marital affair.

To which I’ll add that given the facts as they appear to be and that the inflammatory term was provided by the ex, not by Gingrich, I think he was justified to berate John King for giving credence to the story–and I would say the interpretation that he “asked for an open marriage” is so inaccurate to actually be false (although others might disagree).

It should be obvious that I am not defending Gingrich’s behavior but I’ll say that explicitly just to make sure.  I also think that character issues such as this are not necessarily out of bounds for the media because they matter to some voters.  I’m just saying that this is an exceedingly dubious characterization of the story, which is not nearly so deviant as reported.

Well, that was interesting!

Wednesday’s day of protest marks, I believe, a profoundly important turning-point in the history of the Net and of its place in human society. Several months ago, in one of my many periodic rants about the dreadful, unconstitutional, and repellant features of the intellectual property laws introduced into this session of Congress (SOPA and Protect-IP), I wrote:

The IP bills that Congress now has before it . . . are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I co-authored (with Mark Lemley and Dave Levine) a “Law Professors’ Letter of Opposition,” and I’ve blogged about it a number of times before (as have others), . But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, although I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

What’s most gratifying about the events of the last couple of days — and I assume that you don’t need me to point you to the Wikipedia blackout, the Google petition, etc. etc., and the avalanche of media coverage this generated — is not just that these awful bills now stand a much, much lower chance of passage than they did a week ago (though that’s very gratifying). (Chris Dodd, head of the MPAA and one of the prime backers of the bills, is quoted in today’s NY Times as being ready to sit down with the tech companies and talk about the best ways to fight online piracy — a sure sign that the copyright maximalists have pretty much raised the white flag, at least temporarily, in this battle).

And it’s gratifying, too, on a personal level, to have participated, in even a small way, in bringing these events to pass. I do think that our Law Profs’ Letter, released early in the game, helped draw attention to the issues involved and to galvanize the opposition; there were 60,000 or so downloads from scribd.com, a good deal more than I’m accustomed to, and our op-Eds at the Stanford Law Review and Huffington Post got lots of play as well.

But that’s not the most gratifying thing about these events, either. The most gratifying thing, to me, is that we helped push the Net to an inflection point that is, in a way, its only hope of survival. The Internet is a much more fragile thing than most people believe it to be, and if it is to thrive it will need a kind of civic engagement that we haven’t had — until now. About a year and a half ago I gave a keynote talk at a conference at Michigan State on “The Challenge(s) of Cyberlaw,” and I said the following:

Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I’ve put it somewhere in probably half the things I’ve ever published. Fuller wrote, at the end of a discussion of the future of international law:

“[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this. . . .“

What did he mean? And what does it have to do with what we’re doing? The tree can “realize its own capacity for perfection,” but only when “all concerned genuinely want it to grow properly,” and our task is “to make them want this.” ???

What it means, to me, is this: Our task, as lawyers and law professors and “experts” on these difficult questions, is not really to solve the many problems bedeviling “Internet law.” Rather, our task is to help others to think about those problems, and to galvanize them into doing so, to make want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made.

That happens, I’d suggest, when people start to think of themselves as “citizens” of this new place, this “imagined community.” Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about other events affecting others, those with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way.

And the other thing that citizens do is they defend their place when it is threatened or under attack.

I think, in short, that our task is to somehow help people to think of themselves as “Netizens.” There – I’ve said it.

Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever).

That’s not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means).

It’s a terrible label — “netizen” — but an important concept. If people don’t really believe they have an interest in this thing that we have built, then it is doomed. The converse, alas, isn’t true — but people giving a damn about the health of the Internet is a necessary (though not sufficient) condition for it to be healthy, going forward. And that’s what the events of this past week were about. All of a sudden, millions of people (check out some of the astonishing numbers hereh) took the Net seriously as a place that needed defending, and millions more tried to figure out why those first millions were so upset and what they were upset about. It does not, by itself, solve any problems — we might still get some terrible law down the road, on this issue or any one of a number of others, that will strangle this medium. But it sets the foundation for processes that can solve those problems, and that is a very, very good thing.

John Corvino, a philosophy professor, notes a potential complication for Newt Gingrich’s claim that he has repented, namely, that he continues to commit adultery in the form of remarriage:

Gingrich speaks with a straight face about the sanctity of “one man, one woman” marriage. . .  His defenders from the religious right . . . claim that Jesus offers forgiveness and redemption to repentant sinners. Presumably, in their minds, anyone in a committed same-sex relationship counts as unrepentant. . . . 

Yes, the Bible speaks of forgiveness and redemption. But if marriage really is “until death do us part,” then Gingrich is still committing adultery with Callista. But don’t take my word for it, take Jesus’:

“Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10: 11–12)

This double standard is worth pointing out, frequently, publicly and forcefully. 

Under the traditional natural-law and Catholic view, marriage is the union of one man and one woman for life. Nevertheless, those who commit adultery and get divorced are certainly not disqualified from the presidency. More to the point, under the civil law, we even permit them to marry. 

I assume Gingrich agrees that this latter violation of the natural law — divorce and remarriage — should be allowed under civil law.  (It would be interesting to know if he does not.)  Yet he has certainly not joined a crusade of constitutional amendment-making to prohibit divorce and remarriage, nor so much as uttered a word in support of such an effort. He wants his own preferred marriage practices to be free and legal, but wants to prohibit the marriages of same-sex couples.  I can imagine reasons for that distinction, but Gingrich has never explained them before the audiences that drown him in cheers. And I am at a loss to find a justification for supporting civil remarriage — while opposing civil gay marriage – in the religious and philosophical teachings he claims as his own.

The Telegraph (UK) reports:

An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.

The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.

The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: “God does not exist[.]” Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.

Thanks to Opher Banarie for the pointer.

Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney’s Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but “still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?”

The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7–2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. “Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause,” unless (for instance) “the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and ... the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries” (in which case “that prosecution was not fairly characterized as distinctly ‘foreign’”).

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” — a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say....

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

Tags: Citizens United

In this recent column, conservative writer David Frum points out that Margaret Thatcher represented a heavily Jewish constituency, had numerous Jewish advisers and cabinet members, and won the Jewish vote in her electoral campaigns as leader of the Conservative Party.

These are not new revelations. As I pointed out in this post, which cites Thatcher’s success with British Jews along with other examples, the US pattern of Jewish voters overwhelmingly supporting the political left is unusual relative to other English-speaking democracies. In Britain, Canada, and Australia, Jews either disproportionately vote for right of center parties or at least do so at roughly the same rate as the gentile population. Some of the conservative politicians supported by Jews in these countries are not as far to the right on economic and foreign policy issues as the US Republican Party. But that certainly wasn’t true of Thatcher, or some of the others. These patterns undermine claims that there is some sort of general Jewish affinity for the left. Even in the United States, Russian immigrant Jews (about 12% of the Jewish population), vote overwhelmingly Republican.

As I explained in this series of posts, native-born American Jews’ unusual voting patterns are in large part the result of the link between the Republicans and the Religious Right, which many Jews see as anti-Semitic, and as seeking to establish Christianity as a quasi-official religion. Many Jews also dislike that movement’s extreme social conservatism. Jewish opinion doesn’t differ much from the national average on economic policy, but Jews are much more socially liberal than gentiles. Conservative parties elsewhere in the English-speaking world have fewer Religious Right connections than the Republicans and are less socially conservative than they are.

Absent the Religious Right, American Jews would not suddenly all become loyal Republicans. But they would probably divide their votes between the parties much more evenly than is the case today.

UPDATE: As I noted in my very first post on the subject, I am well aware that Jews disproportionately voted Democratic even before the rise of the Religious Right. But that does not explain why they continue to be overwhelmingly Democratic today, even as many other groups that were part of the New Deal Democratic coalition have become much more evenly divided:

I should note that in my view the Religious Right factor is what explains the overwhelming dominance of liberalism among American Jews today. It does not explain their support for the Democratic Party in earlier periods (e.g. — from the 1930s to the 1950s), when the political situation was very different and Jews themselves were much poorer then they became later. Many other groups were overwhelmingly Democratic at the high point of the New Deal coalition (e.g. — Catholics, “white ethnics,” etc.) but became far less so as they became more affluent and the political landscape changed. Strikingly, the Jews did not change similarly, and I believe that the Religious Right factor is a crucial reason why they didn’t.

Thanks very much to Randy for his post arguing that his “no commandeering of the people” theory could be the argument that addresses my different concerns and create a sound way to strike down the mandate. Like all of Randy’s work, it is engaging, interesting, and important. But of the different arguments Randy offers to invalidate the mandate, I find the “no commandeering of the people” argument the least persuasive. Here’s a run-down of why.

First, the “commandeering of the people” claim reads like a emanations-and-penumbras argument, in which we look to various bits and pieces of the constitution to try to assemble them into a brand-new principle to get to where we want to go. Maybe I’m too sensitive to constitutional claims that rely on implicit principles of the Third Amendment. But that kind of legal reasoning gives my Burkean instincts the heebie-jeebies. In my experience, the point of emanations-and-penumbras arguments is to present something new as if it were something old (but just not quite previously recognized). I get the move, but here it seems pretty clear that the argument is new. As Randy concedes, the existing doctrine is about commandeering the states, not about commandeering the people.

Even if this is to be recognized as a new constitutional principle, it’s not clear how it works. First, it’s not clear to me how saying you have to pay an extra fee if you don’t buy health insurance “commandeers” anything. True, it’s an incentive to do something. But it’s a relatively modest one, and strikes me as far short of the coercive take-over implied by the concept of commandeering. And If we say that this sort of modest incentive amounts to commandeering, then isn’t most of what the government does commandeering? For example, does the home mortgage deduction commandeer you to buy a house? And more obviously, doesn’t the draft commandeer you to join the military?

Randy introduces several limitations on the theory that lead him to conclude that the mandate is the first case of the relevant kind of commandeering, and therefore is the only legislation that needs to be invalidated. But his limitations strike me as rather arbitrary. First, Randy limits his proposal to “economic” commandeering. That presumably would deal with the draft cases. But if the Constitution is to be read to prohibit commandeering, isn’t economic commandeering the least offensive kind? A draft forcibly making someone go off to fight a war (and risk death in combat) seems exponentially more offensive than making someone pay a few hundred bucks through a lower tax refund if their income is above a certain amount. And isn’t the limitation to “economic” commandeering an odd fit with the tax power? Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.

Finally, there’s my Weschlerian neutral principles reaction. One of Randy’s selling points for the no-commandeering argument is that it could be adopted in a way that only strikes down the mandate. He writes: “In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.” Although potentially appealing to the Burkean instinct, from a Wechslerian perspective that’s a bug rather than feature. A novel argument that manages to only strike down the one law we don’t like is not based on an appeal to lasting principle. Instead it appeals to expedience; it gets us where we want to go. From a Weschlerian neutral principles perspective, I’d be much more drawn to a principle that has all sorts of results that we don’t like. The more we don’t like the results, the more we have an indication that we are adopting the principle because of its constitutional truth and not because we don’t like the Affordable Care Act.

Anyway, my apologies again for the long post. Randy’s ideas are rich and interesting as always, and even at this length i know I’m only scratching the surface.

The New York Daily News reports:

A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.

The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class....

The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.

It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.

UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.

Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed. . . .” Of course, he admits that his cross-cutting considerations are “competing” and therefore difficult to satisfy. Indeed, he characterizing satisfying them all as a “pipe dream.”

But I think there is an existing constitutional doctrine already limiting the commerce power of Congress that does satisfy most of Orin’s competing considerations: the doctrine established by the Court in New York v. United States (1992) in an opinion by Justice O’Connor that bars Congress from commandeering state legislatures by mandating that they enact laws.  New York has been widely accepted and applied without raising the sort insuperable line-drawing problems that concern Orin, and the underlying noncommandeering principle has been extended to bar commandeering of state executive branch officials (in Printz v. United States (1997) in an opinion by Justice Scalia) and the state judiciary (in Alden v. Maine (1999) in an opinion by Justice Kennedy). This line of cases is now 20 years old and considered well settled. Congress has been able to legislate quite extensively without running afoul of the prohibition on state mandates (though the Medicaid requirements of the Affordable Care Act are now testing the boundaries of this structural constraint). So the noncommandeering principle as applied to states seems to satisfy Orin’s Burkean concerns.

Notice that, in each of these cases, the Congress was purporting to exercise its power to regulate interstate commerce under the Commerce Clause, and the Court did not question that this was indeed the legitimate end or purpose of the challenged legislation. What was at issue was the means that Congress used to effectuate this end. In Printz, the government justified its choice of means under the Necessary and Proper Clause. Writing for the Court, Justice Scalia did not question the measure’s necessity, but concluded that the means employed was “improper.” In this respect, Justice Scalia’s decision in Printz is quite different than his concurring opinion in Raich that solely concerned the necessity of the prohibition of home-grown marijuana in states that authorized its possession and use. In Raich, no one questioned the propriety of the means that Congress had used to effectuate its commerce power. Furthermore, in none of these noncommandeering cases was this restriction on the propriety of the means chosen to effectuate the commerce power based on the protection of “liberty” in Due Process Clause of the Fifth Amendment. Instead, it was based on the “structural” principle of limited state sovereignty that the Court concluded was presupposed by the Tenth and Eleventh Amendments. While states may be regulated in how they conduct their affairs by, for example, barring them from engaging in racial or sex discrimination, and they may be barred from certain activities altogether, they may not be “mandated” to enact legislation, or enforce federal law.

Of course the obvious objection to applying the noncommandeering doctrine in the ACA challenge is not Burkean, but legal:  it is individuals and not the states who are being commandeered by the Affordable Care Act, so the existing noncommandeering doctrine does not apply. Yet the principal textual basis for the decisions in New York and Printz was the Tenth Amendment that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Tenth Amendment, therefore, protects popular as well as state sovereignty. Indeed, it protects them equally. (The Virginia legislature initially refused to ratify the Tenth Amendment precisely for this reason.)  Requiring citizens to “consent” to contracts is very much the same as requiring states to enact legislation. As the famed contracts scholar Lon Fuller wrote, the “power of the individual to effect changes in his legal relations with others [by entering contracts] is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word ‘law’ in one case and not in the other. . . .”

The principle that the people may not be commandeered is reflected in several other constitutional provisions. The Third Amendment bars the commandeering of the people’s houses to quarter the military during peacetime. (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”) The Fifth Amendment bars the commandeering of private property. (“nor shall private property be taken for public use, without just compensation.”) The Fifth Amendment also stipulates that no person “shall be compelled in any criminal case to be a witness against himself.” And the Thirteenth Amendment bars the commandeering of a person’s labor by private parties or by the government itself (“Neither slavery nor involuntary servitude . . . shall exist within the United States”).

Of course like every legal principle, there are exceptions to the noncommandeering principle. Soldiers may be quartered in private homes in wartime if authorized by law. Private property may be taken “for public use” provided “just compensation” is made.  Involuntary servitude may be imposed “as a punishment for crime whereof the party shall have been duly convicted.” In addition, the people may be “commandeered” by the federal government to serve in the military, to file federal tax returns, to serve on juries in federal court, and to serve on a posse comitatus.  The first of these exceptions, however, was expressly grounded on what the Supreme Court characterized as “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation. . . .” Likewise, the other duties can be considered duties of citizens owed to the government itself.  Moreover, none of these duties of citizenship have ever been associated with the commerce power.

While the existence of exceptions does make line drawing more difficult, this is pervasive in all of law. And the historical exceptions to the principle against commandeering the people are all specifically or narrowly defined and deeply rooted in the nation’s traditions, which is exactly the “conservative” criteria by which the Supreme Court defines exceptions to legislative powers on behalf of individual liberty under the Due Process Clause. So the relevant question is whether a duty of citizenship to buy private insurance is deeply rooted in the nation’s tradition? Or more broadly, is there “a supreme and noble duty” of American citizenship to do anything that Congress in its discretion deems it necessary to its regulation of interstate commerce?  Analyzing a claimed “duty” of citizenship the way the Supreme Court now analyzes claims of liberty would yield a ready answer.

Of course, although the noncommandeering principle is based on both the text of the Constitution (as just described), its application in this case would be “novel.” But this is due entirely to the novelty of the individual insurance mandate. Simply because the mandate is literally unprecedented, so too would be any doctrine directly addressing it, however fundamental the principle being effectuated. Printz too considered a “novel” claim of power to control state executives, requiring the identification of a new rule of law. Yet, as Justice Scalia wrote, “if . . .earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”

Barring the government from commandeering the people by imposing economic mandates upon them would not affect any other law ever enacted by Congress because such mandates are unknown in our history. Such a ruling would not bar Congress from using its tax powers when it has the political will to do so (subject, of course, to whatever doctrines now limit that power).  Such a ruling would not bar states from exercising such a power if it was authorized by a state’s constitution (subject, of course, to other constitutional limitations on state powers). Such a ruling would only require the conclusion that, just as the Constitution did not delegate to Congress the power to commandeer state legislatures as a means of exercising its commerce power, neither did it delegate the power to commander the people as a whole to enter into contractual relations with private companies.  In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.

Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:

Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years). So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon

I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.

Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.

On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.

That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.

Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.

The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5–4 political lines, and that is written in ways that echo partisan concerns. A 5–4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.

Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9–0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.

The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5–4 Breyer opinion that dismisses federalism, or is it a 8–1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?

Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.

I’m pleased to report that my colleagues in the Mayer Brown LLP Supreme Court and Appellate Practice Group — with which I’m a part-part-part-part-time Academic Affiliate — were named one of the Appellate Groups of the Year by Law360.com. It’s a very well-deserved and hard-earned honor. [UPDATE: I’m afraid I originally erred by saying we were named the one such group — a Mayer colleague just noted to me that we shared the honor (which is indeed titled “Appellate Group of the Year”) with Jones Day, O’Melveny, Greenberg Traurig, Gibson Dunn, and Proskauer Rose. My apologies for the mistake.]

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.

Forget Newt’s problems; the real GOP scandal is Grover’s.

I, for one, think Orin’s post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation’s Tim Sandefur, however, is not amused and offers a substantive response here.

On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument:

By imposing the Medicaid mandates in the Affordable Care Act (“ACA”), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution’s finely calibrated system of federalism. The states truly would be little more than agencies for Congress to “commandeer” at will.

The Founders created and the People ratified a Constitution protecting the States’ role as limited “sovereigns.” As this Court has ruled repeatedly, the states’ sovereign “independence” entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.

In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.

Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob’s summary of brief is available on his blog.

Pardon the parochial posting, but I wanted to congratulate two recent graduates of GW Law (where I teach) for accepting offers to clerk for Justices at the United States Supreme Court starting this coming summer. Mark Taticchi ’10 will be clerking for Justice Kennedy, and Ryan Watson ’07 will be clerking for Justice Alito. In the last six years, since the beginning of the Roberts Court, GW Law grads have obtained clerkships from each of the five Republican-appointed Justices.

You’re no doubt familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law.

Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw, the Court will note. And the challenge therefore was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. The majority opinion will conclude:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

Two Justices will dissent, one of which is Justice Alito.

How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.

I’ll be speaking at Temple Law School about Rehabilitating Lochner tomorrow at noon, with commentary from Professor Robert Reinstein. The announcement is here. The event is free and open to the public, and according to the announcement, there will be “Free Jimmy Johns.”

I’ve blogged before about the New York Times’ coverage of Israel, so I thought I’d point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.

Unfortunately, it’s trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters’ and editors’ views of “proper” Israeli policy have for decades leaned far to the “left” of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.

Meanwhile the piece misses some opportunities to point out various occasions where the Times’s has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times’s Israel correspondent from August 1998–2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.

But he somehow neglects to note a much more salient point than the Times’s flirtation with Goldberg: that the head of the Times’s Middle East Bureau during Sontag’s time (and assumedly therefore Sontag’s direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we’ve since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag’s writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times’s overall Middle East coverage, and never even acknowledge Hedges’ existence.

I’m not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely.

I sometimes blog on the process of moderating blog comments. I realize it’s a bit “inside baseball,” as most readers don’t comment or run blogs that allow them. But I see Internet comment threads as a new and relatively important kind of online discussion, and I’m very interested in the conditions in which comment threads tend to be useful or just noise. In my view, having a really good comment thread is a terrific asset to a blog: It allows the post to be the beginning of a conversation, with the rest of the conversation carried on it the thread. The interesting and new question is, what are the conditions of helpful comment threads? What kind of comment policies and software leads to the best, most interesting comment threads, and which don’t?

In my experience, there are two basic conditions of strong comment threads. Here’s the first condition: Comments need to be relatively open and accessible to those using a pseudonym. If you make it too hard to comment, or you require real names, most will stay away. They won’t want to engage, for a range of personal and professional reasons.

And here’s the second condition: There needs to be some way to moderate threads to delete inappropriate comments or ban commenters who are out of line. For every one Internet commenter who is consistently thoughtful and interesting, there are X Internet commenters who are either inclined to be or can be coaxed into becoming abrasive and obnoxious. Consider the well-known “Greater Internet fuckwad theory” from the site Penny Arcade:

There’s a lot to that, with an important caveat: When the site is a popular blog with hundreds of commenters, some of the commenters will be “normal people” and some won’t. In any collection of that many people who can post at any time, there will be some stylistic quirks: There are the commenters who always bring up their pet topic, no matter the subject of the post; the commenters who see themselves as needing to wage constant battle with perceived ideological foes; the commenters who see criticism of their views as inherently objectionabe, etc. When any one can comment, everyone gets invited, and the quirky types join in with the rest.

This diversity of audience, combined with the Greater Internet Fuckwad Theory, means that unmoderated threads have a tendency to devolve into virtual food fights. That’s especially true if the topic is controversial and relies heavily on ideological priors, like current debates here at the VC on gay marriage or the individual mandate. Threads that devolve into food fights are entertaining for the subset of commenters who get a kick out of written sparring. But they come at a major cost: They tend to discourage readers and contributors interested in more thoughtful contributions. When the thread turns to muck, the readership drops dramatically: Few people want to wade through the accusations and hostility to find the few morsels of insight. So to maintain the quality of comments, there needs to be some sort of monitoring of threads.

These two conditions combine to produce what you might call the Effort Rule of commenting: Having consistently strong comment threads requires a significant effort moderating threads. Vibrant dialogue requires a relatively open door on the front end, and keeping it from devolving into a digital food fight requires significant attention to editing on the back end. But back-end moderation is always unpleasant, for two reasons. The first is that it’s work. It requires careful judgment as to where the line us, based on the editor’s necessarily limited exposure to the full range of comments. In a blog with thousands of comments a day, no blogger can be fully informed as to the full history (sometimes going back several years) as to exactly which commenter said what to whom. Judgments have to be made, but they necessarily have to be made based on exposure to a subset of the evidence.

Second, the combination of no front-end filter and back-end moderation invariably leads to accusations of bias and claims of censorship. Commenters are most hostile when the subject is deeply controversial, which means that posts on those subjects will trigger the most need for comment moderation. But these are precisely the contexts in which people with strong views tend to interpret the facts to be whatever reaffirms their priors. A great example is the forthcoming paper by Dan Kahan et. al., “‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction”, which I blogged about here: When shown a video of a protest, people evaluated whether the protest was violent based on whether they supported the cause being protested.

The same basic reasoning applies to interpreting editorial decisions on a blog. The more passionate a commenter feels about the subject, the more likely they are to interpret editing or (in extreme cases) a ban on commenters as incredibly obvious evidence of bias against them based on their viewpoints. The “Joys of Anonimus” thread from a few days ago, now at 450+ comments and counting, has a lot of examples. Anonimus’s violations of the comment policy are flagrant, and he candidly admits he ignores the comment policy and says whatever he wants, but several commenters who agree with Anonimus on the issues are deeply persuaded that the real reason he has been banned is that I disagree with the merits and I’m trying to “silence” him.

Where do these points take us? First, to the conclusion that really good Internet comment threads are rare. Good comment threads require someone with the patience to do the editing work and deal with the inevitable bias accusations, efforts to circumvent bans, etc. On a group blog, each commenter need not do that kind of work; some bloggers can free ride on the efforts of others. But there needs to be at least some amount of work put into an unpleasant task to maintain or even raise the quality of threads. That’s relatively hard to find, and that means that good comment threads will be rare.

Second, I suspect the future of Internet comment threads is a bifurcation into two sorts of threads on high-traffic sites: open and unmoderated threads, where anyone can say anything and few people read the threads; and sites with more moderation on the front end, such as requiring registration through a Facebook account. Neither of those are ideal, for the reasons stated above, but they are more stable forms of comment threads because they don’t require the same amount of work from the editor.

UPDATE: My apologies that comments were off initially; I had forgotten that the software seems to do this automatically when a post has been in draft form for more than a day or two. Comments are now open. As always, civil and relevant comments only.

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason.

Today’s U.S. Google query page has the name blacked out, and a line under the search bar that says, “Tell Congress: Please don’t censor the web!.” I suspect that it makes this among the most widely seen political ads/editorials/statements in American history, at least setting aside statements carried in standard mainstream media programming on historic occasions. Does anyone have a good sense of the number of Americans who use Google on an average day?

The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6–2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.

Conor Friedersdorf has a pretty good take-down of Rick Santorum’s reasons for opposing same-sex marriage.  Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it).  Santorum’s argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition.  Santorum writes:

A husband is a man who commits to a woman, to her and any children she may give him. He commits to his wife without any reservations, to share with her all his worldly goods and to exclude all others from this intimate communion of life. From this vow of marriage comes a wonderful and unique good: any children their union creates will have a mom and a dad united in love, in one family.

Friedersdorf responds by pointing out the wide gap between these assertions about marriage and the actual practice and legal requirements of marriage:

That’s a vision of sacramental marriage, but it ain’t civil marriage in these United States. In civil marriage, prenuptial agreements are permitted, so the man hardly shares all his worldly goods, and plenty of people marry with reservations, and without violating the law when they do so. People write their own vows too. Sometimes they say them in Vulcan! Sometimes they don’t include sexual fidelity, and if they cheat or sleep around with or sans permission they are hardly compelled to divorce. The state keeps on viewing them as being married. Alternatively, it’ll permit them to divorce and marry other people, even if they have kids. So much for “one united family.”

“That’s the special work of marriage in law — to connect things that otherwise fray and fragment: love, life, money, moms, and dads,” Santorum says. Interestingly, gay people are sometimes moms and dads, and the ones who want to marry typically seek material and emotional security — just like straight people, they’re trying to prevent love and money from fraying.

From TheNews.pl:

A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.

Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was “hard to believe in something written by someone who was hammered on wine and who’d been smoking herbs.”

The Warsaw Business Journal adds:

[T]he judge in the case, Agnieszka Jarosz, ruled that the artist’s statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right “to assess [the content of the Bible] in the context of scientific discovery but had no right to insult” the religious text.

For more on this case, see this post from when the case was filed.

Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.

All electronic devices must be turned off prior to takeoff. If you fly anywhere, you’ve almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane’s equipment. But the rule applies across the board, even to iPads in “airplane mode” and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:

I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.

“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”

But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”