I like to keep up with various types of popular entertainment. So while I don’t have little children any longer (and don’t have grandchildren yet), I try to watch the well regarded animated films. Frozen is a very popular movie these days and so I caught it the other day on cable. It was ok – no Lion King, but not bad. What struck me about it was the injection of current politics. Frozen appears to be intended for a mainly female audience, with the focus on two sisters, one of whom finds love in the end. Like many traditional fairy tales, the…
In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).
Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.
If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law. The law is not what the rule of recognition requires, as in the positivist theory. Nor is the law what would lead to the best results in general, as some versions of the normative theory hold. Instead, the law is determined through an idealized conception of the law.
In my last post, I wrote about the consequences if Obamacare loses in the Supreme Court in King v. Burwell. My basic point is that a Supreme Court decision holding that federal exchanges cannot receive subsidies will create an enormous fight between President Obama and the Republican Congress. Bill Levin, who recently wrote a post on the cert grant at this site, now has a post at Powerline addressing the same issue. I strongly recommend his post.
Bill is more optimistic than I am about the effects of such a Supreme Court decision. One of his main arguments is that the public understands that the Democrats are responsible for Obamacare and that any problems it has will be seen as the fault of the Democrats. Perhaps, but this would have to be true even though the 5 Republican Justices decide that the subsidies are illegal over the votes of the 4 Democratic Justices.
Ultimately, the biggest advantage that the Democrats have is that the media is on their side. They will portray the dispute as having been caused by the 5 Republican Justices and will argue that the Republicans can easily fix the problem by simply returning to the status quo. It may be that the Republicans can prevail, but they will have to do over the heads of the media.
Let’s say that the Supreme Court holds, in the King v. Burwell case involving federal exchanges, that such exchanges are not legally permitted to receive subsidies. This holding would create an enormous problem for Obamacare, since individuals in a large number of states would not be receiving subsidies. Clearly, a legislative change would be required. What then?
It has generally been assumed that this legislative change would be beneficial to opponents of Obamacare, as compared to the current situation. Under the current situation, once Republicans control both houses in January, they can pass modifications of Obamacare, but it is assumed that Obama will simply veto them. The default situation – the regmine without a new law – is the continuation of Obamacare, which Obama likes. But if the Supreme Court holds the subsidies for federal exchanges illegal, the default situation changes: no subsidies for federal exchanges. And therefore one might argue that the Republicans are better off in this situation.
Perhaps. But things are more complicated. The default situation, if the Supreme Court holds the subsidies illegal, is similar to (although distinction from) the default under spending bills. If Obama vetoes a spending bill, the government often closes down. While one might believe that this would pressure him into approving Republican measures, it often doesn’t. The press – who often behave, as Glenn Reynolds puts it, as Democratic operatives with bylines – will usually report the shutdown in a biased way and the Republicans will be forced to compromise. If this happens with federal exchange subsidies – a likely possibility, even though Obama is losing support in the press – then the Republicans may be in a more difficult position than many people appear to assume.
Part of the issue turns on what will happen to people who lose the subsidies. If they lose their health insurance, then the Republicans are likely to be blamed by the press. If the Republican Congress does not give Obama what he wants, then states may choose to adopt exchanges in order not to lose the subsidies. One issue favoring the Republicans is that the employer mandate will not apply to states with federal exchanges. In addition, the people who lose the subsidies are likely not to be covered by the individual mandate.
My friend and former colleague from the Office of Legal Counsel, Bill Levin, has been following the Halbig case closely. Here are his thoughts on the Supreme Court’s cert grant. For his previous thoughts on the case, see here.
First, election night and now the highly significant decision by the Supreme Court to grant cert in the Obamacare tax subsidy case, King v. Burwell.
After such a week, it is justifiable to speculate as to why the court accepted King.
The initial item of interest is timing. The case was considered by the Court in normal course at its October 31 Conference, but relisted to November 7 when cert was granted. It is utterly plausible, though unprovable, to assume the Court did not want a high profile determination released just days before the mid-term elections.
The conventional wisdom was that the Court would deny cert since there is presently no split in the circuits, following the D.C. Circuit grant of en banc review vacating the Halbig decision. In days to come it will surely be repeated ad nauseam on the left that the Court is indulging in politics by taking King out of normal order.
Professor Rappaport on this site correctly bucked the conventional wisdom in predicting cert acceptance. His reasoning, that four of the five conservative justices would refuse to let stand the D.C. Circuit end run to vacate Halbig, is appealing from a visceral perspective. The D.C. Circuit vacated the decision in Halbig, but not the panel’s well-reasoned opinion. From every practical perspective, a fully litigated split in the circuit currently exists with respect to the correct statutory construction of the ACA.
Regardless, King independently justifies expedient resolution on standard grounds.
Election Day was, no doubt, a great night for Republicans and for those resisting the progressive agenda. But I think much of the rhetoric about this and past contests is overheated. My view about these matters is primarily structural or cyclical.
It was the sixth year of a two term President and therefore the President’s party was likely to lose a significant number of seats. The President is unpopular and so that makes it even more likely.
Of course, this is not meant to downplay the results. Rather, the point is that the Republicans should have won and probably would have still won (with a smaller victory) even if the President was more popular than he is.
I had a similar reaction to Obama’s reelection in 2012. It is difficult to defeat a sitting President and the economy, while weak, was good enough to allow him to be reelected. He was not challenged in the primaries and there were no other enormous problems that would lead him to be defeated. Still, Romney might have won had he run a more competent campaign – had he, for example, been better in the second debate – but probably that debate did not decide the election.
This op ed piece in the New York Times by David Schanzer and Jay Sullivan argues that midterm elections should be eliminated. I could not disagree more.
The piece offers a variety of reasons for eliminating the midterm elections and replacing them with elections every four years, with House members serving four year terms and Senators 8 years terms. These reasons include a smaller number of people voting during midterms, consisting of whiter, richer, and more educated voters, and the midterms weakening the President. Under the reform, politicians would have more independence from voters, and there would be less gridlock.
Here are my reasons for supporting midterms and opposing this reform.
1. Several years ago, I wrote an article arguing that the Constitution’s original meaning placed significant limits on ordinary political actions that change the pattern of institutions in the country. Even if a single party controlled the Congress and the Presidency, it could not transform the country. That changed with the modern Court’s departures from the original meaning.
Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve. Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree. There is no good original meaning argument for the DCC.
There is, however, a somewhat stronger argument for an exclusive Commerce Power. Unlike the DCC, one could conceivably conclude that the Commerce Clause provides exclusive authority to the federal government to regulate interstate commerce. That would differ from the DCC because the exclusive authority would take away from the states all authority to regulate interstate commerce, not just the power to discriminate against interstate commerce.
While Chief Justice Marshall toyed with this argument, and there us something textually to be said for it, I still don’t think it works for three reasons. First, the Commerce Clause does not say that it is exclusive and one would not normally infer from the language that the power was exclusive. Second, as Mike Ramsey notes, the Constitution seems to provide for exclusive power by doing so expressly, as when it states that Congress shall have the power “to exercise exclusive legislation in all cases whatsoever” over the District of Columbia. Third, the Constitution seems to recognize that the states can pass laws involving interstate and foreign commerce, as it provides that “no state shall, without the Consent of the Congress, lay any Imposes or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws” (although there is a complicated counterargument involving this provision).
Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference. The conference brings together many of the leading originalist scholars, both advocates and critics of originalism. This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego. Here is the line up of paper presenters and commentators: Ian Bartrum(UNLV), Two Dogmas of Originalism Commentator:Larry Solum (Georgetown) William Baude(Chicago), Is Originalism the Law? Commentator:Matt Adler (Duke) Richard Ekins(Oxford), Constitutional Interpretation as Statutory Interpretation Commentator:Fred Schauer (Virginia) James Ely(Vanderbilt), The Contract Clause: Origins and Early Development Commentator:Michael McConnell (Stanford) David Moore(BYU), The Broader Founding and International Law Commentator:David Golove (NYU) Christina…
One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution. Common law rights had different features than constitutional rights. In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution? The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.
There are at least three possible positions one might have about this issue:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
While I have not fully made up my mind, these days I lean towards the intermediate position. Let me try to explain why. There is a lot to say about this, but I will try focus on some of the essentials.