Bench Memos

NRO’s home for judicial news and analysis.

For Ginsburg, a Human Being Isn’t a RFRA “Person” Either


I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)

Scott Lemieux: Murphy’s Scalia Bio a “Major Disappointment”


Still catching up on things from two weeks ago, I’d like to highlight this post from Scott Lemieux on Bruce Allen Murphy’s biography of Justice Scalia (which I have reviewed, very unfavorably, in this National Review piece and in a series of blog posts accessible here).

Lemieux, for what it’s worth, is situated well on the left side of the ideological spectrum. His assessment of Murphy’s book is very much the assessment that I would think any intelligent and well-informed liberal would have.

Responding to a reader, Lemieux first addresses my critique of Murphy’s stunningly incompetent account of Scalia’s dissent in Hamdi v. Rumsfeld. Lemieux fully embraces my critique: Murphy’s “dumbfounding passage” is “every bit as bad as he [Whelan] says” and is “the kind of mistake that forfeits a reader’s trust”:

We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying.

More generally, Lemieux calls Murphy’s biography a “major disappointment.” As he gently puts it:

[A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [he] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts … and even when his doctrinal analysis is unobjectionable it’s pedestrian. 


Katie Couric’s Softballs


The series of softballs that Katie Couric pitches to Justice Ginsburg on Hobby Lobby is something to behold. From the video here:

Couric: All three women justices were in the minority in the Hobby Lobby decision. Do you believe that the five male justices truly understood the ramifications of their decision?

Ginsburg: I would have to say no. But justices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.

Couric: But you do in fact feel these five justices had a bit of a blind spot?

Ginsburg: In Hobby Lobby? Yes. Yes, I did.

Couric: And why was that?

Ginsburg: The same kind of blind spot the majority had in the Ledbetter case.

Couric: Because they couldn’t understand what it is like to be a woman?

Oddly, in explaining her position in the Hobby Lobby case, Ginsburg asserted that Hobby Lobby’s owners “have no constitutional right to foist [their religious] belief” on their employees, and she also complained that the Free Exercise Clause had never been so interpreted. She seemed not to have clearly in mind that the Hobby Lobby ruling rested on the Religious Freedom Restoration Act, not on the Free Exercise Clause. But, needless to say, Couric was clueless on that point.

Addendum: Ginsburg, Sotomayor, and Kagan take the positions they do because they’re liberals, not because they’re women. As I’ve pointed out before, other (and better) female judges have ruled in favor of religious-liberty challenges to the HHS mandate. It’s those who believe that all women do or should adopt the liberal feminist-prescribed position who suffer from a massive blind spot.

Ginsburg’s Lace Collars


Reinforcing sexist stereotypes, Justice Ginsburg has revealed to Katie Couric that she has a collection of lace collars to accompany her judicial robe and that she “has a special collar she wears for when she’s dissenting, and another for when she is in the majority.” So for those in the audience at the Supreme Court on announcement days, there is another tea leaf to read as they await announcements.

No word whether Ginsburg changes collars after one ruling has been announced and before the next.

This Day in Liberal Judicial Activism—July 31


1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”


This Day in Liberal Judicial Activism—July 30


2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

A Swing and A Miss, Chris Christie Edition


Last week, Brigid Harrison published an op-ed taking issue with the video ad released by my organization, the Judicial Crisis Network, tagging New Jersey governor Chris Christie’s horrific record on judicial appointments.

One of several data points that we identified in the video was Christie’s decision to re-appoint Chief Justice Stuart Rabner, a liberal judicial activist originally appointed by Jon Corzine. According to Harrison, we’re being unfair: Christie simply didn’t have any choice in the matter, because you just can’t comprehend how hard it is for Christie to deal with his state senate.  

Of course the state senate has made Christie’s life more difficult. But that’s less than half the story. The rest is that Christie devoted little attention, and even less political capital, to serious judicial reform. Let’s review.

First, Christie could have nominated better candidates. He could have picked nominees with sterling credentials, obvious intelligence, and a record of adherence to the rule of law and a conservative judicial philosophy. Instead, Christie picked a series of cronies and hacks for the supreme court who had little purpose other than burnishing Christie’s image as a politically correct pragmatist.

The first nominee that Christie succeeded in appointing, Anne Patterson, hasn’t turned out so well: She joined the state supreme court’s unanimous ruling ordering the state to grant same-sex marriages and its unanimous ruling giving class-action lawyers yet another hammer to chip away at New Jersey’s economy.
Lee Solomon, Christie’s most recent nominee to the supreme court, was once endorsed by Pro Choice New Jersey, and has been described as a pro-choicer apparently because of his opposition to parental notification for minors seeking abortions. No wonder conservative New Jersey state senator Michael Doherty believes Solomon will maintain the liberal status quo on the court.
Failed supreme-court nominee Bruce Harris — who acknowledged in confirmation hearings that he had almost no courtroom experience — turned out to be anything but a judicial conservative, comparing opposition to same-sex marriage to slavery.
Nominee Philip Kwon was more of a blank slate; we have no reason whatsoever to think that he adhered to Christie’s stated judicial philosophy. Was he picked because he and Christie were buddies at the U.S. Attorney’s Office? Who knows?

We haven’t even begun to discuss Christie’s lower-court appointees. Can any of them be described as highly qualified nominees with a record of adherence to the rule of law and traditional legal principles? Maybe so; maybe not. We have no idea, and Christie hasn’t done anything to promote the impression that he has taken these positions seriously.

Second, Christie could have spent some of the time he spent recording rants on YouTube and PR-stunt videos making the case for judicial reform. Instead, he gave these issues the back of the hand. When asked about the Supreme Court’s decision in Hobby Lobby v. Burwell, for instance, he flippantly asked “Who knows?” Sure, talking about judicial reform won’t get as many clicks or social media hits as a loud YouTube video, but it might actually lead to the very change that the state so desperately needs.

Today, just as when Christie took office, the biggest roadblock between him and his agenda is the New Jersey Supreme Court. Three years ago, the New Jersey Supreme Court issued its latest edict in micromanaging the state’s education budget. Just last year the court struck down regulations issued by the Council On Affordable Housing that attempted to relieve some of the crushing fiscal burden on local governments created by the court’s Mount Laurel decisions. And the court has been slowly rewriting criminal procedure, relying on social science instead of legislation to make it harder for law enforcement to figure out the rules ahead of time, ultimately making it harder to identify criminals. Some change . . .

Governor Christie has carefully cultivated an image as a stern-hearted politician who crushes anyone or anything in his way. But if Christie really wanted to play Governor Hardball, maybe he should have done it for the sake of achieving judicial reform, instead of political revenge.

David Cole on the “Roberts Court”


In the New York Review of Books, left-wing Georgetown law professor David Cole uses his review of three recent books as the vehicle for providing his assessment of the so-called Roberts Court. I say so-called because I think that the convention of naming the Court after the incumbent Chief Justice often obscures more than it enlightens—and because I think that the current Court is, alas, better understood as the Kennedy Court.

I may be applying the soft bigotry of low expectations, but Cole’s essay is much milder than I expected. Sure, he somehow manages to make his first paragraph about Bush v. Gore. Worse, in contending that the “Court’s five conservatives … relied on a wholly unprecedented theory” of equal protection, he conveniently omits to note that Justice Breyer and Justice Souter agreed with the majority that the Florida supreme court’s recount order violated the Equal Protection Clause. Plus, he repeats the baseless canard that the majority “announced” that it “would apply this [theory] one time only.” And, in his closing section, he complains that the Roberts Court “has been unremittingly conservative” on “access to judicial remedies for legal wrongs.”

But Cole agrees with Laurence Tribe and Joshua Matz (authors of Uncertain Justice: The Roberts Court and the Constitution) and Mark Tushnet (author of In the Balance: Law and Politics on the Roberts Court) that, as Cole puts it, “the reason so many cases are decided 5-4 is not so much that the justices are partisan or political in any simple sense, but that the cases pose genuinely close questions of competing values on which conservatives and liberals often disagree.” Indeed, contrary to the common caricature of the Court as conservative, Cole provides his own summary of cases in which the “Roberts Court” has “issued important decisions reaching liberal outcomes”:

It has affirmed the rights of married gays and lesbians to receive federal benefits, of prisoners to be free of overcrowding, of foreign detainees at Guantánamo to judicial review, and of criminal defendants to have effective assistance of counsel in negotiations over guilty pleas. The Court upheld Obamacare, and struck down Arizona’s anti-immigrant law that would have imposed onerous penalties on foreign nationals here who overstayed their visas.

It has protected the rights of unpopular speakers, invalidating laws prohibiting the depiction of animal cruelty, the sale of violent video games to minors, and lying about one’s military honors. This past term alone, the Court required police to obtain warrants to search cell phones of arrestees, affirmed the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from power plants, and struck down a Florida rule that permitted execution of intellectually disabled defendants with IQs over 70.

The third book that Cole refers to is Bruce Allen Murphy’s biography of Justice Scalia. Citing the book as “underscor[ing]” the “complex dynamics of Supreme Court decision-making,” Cole embraces Murphy’s thesis that Scalia “has had limited influence on the Court’s results” and has been “a court of one.” There is plenty of room for different views on that matter, and I haven’t faulted Murphy for advancing that thesis. (Anyone doing so at length, though, ought to explore whether and when it’s legitimate for a justice to compromise his legal views in order to build a consensus; as usual, Murphy is not an intelligent guide.) 

Cole notably doesn’t endorse Murphy’s cartoonish account of how Scalia’s politics and faith have supposedly influenced his decisionmaking. Cole’s statement that the “most engaging parts of [Murphy’s] book are, ironically, the many lengthy quotations from Scalia” would seem to reveal his fatigue with Murphy’s tedious, tendentious, and gaffe-filled screed. (Cole, I’ll note, makes an error of his own when he states that Scalia’s criticism of Justice O’Connor in an abortion case came in “his very first term on the Court”; the case he quotes from was decided in 1989, at the end of Scalia’s third term.)

This Day in Liberal Judicial Activism—July 29


1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005. 

Today’s Fourth Circuit Ruling Against Virginia’s Marriage Laws


In the latest demolition exercise, a divided panel of the Fourth Circuit ruled today that Virginia’s marriage laws violate the Due Process and Equal Protection Clauses of the 14th Amendment.

The basic issue on which Judge Henry Floyd’s majority opinion (joined by Judge Roger Gregory) and Judge Paul Niemeyer’s dissent divide is how to read the Supreme Court’s 1997 precedent in Washington v. Glucksberg—and therefore what standard of review to apply. In Glucksberg, the Court emphasized that a right, in order to be recognized as fundamental, must be “objectively, deeply rooted in this Nation’s history and tradition” and that this inquiry requires “a careful description of the asserted fundamental liberty interest.”

The majority, acknowledging that “states have refused to permit same-sex marriages for most of our country’s history,” contends that “Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights.” It maintains that the “fundamental right to marry encompasses the right to same-sex marriage” and that Glucksberg’s analysis is therefore inapplicable. (Slip op. at 41.) The Court’s cases, it says, “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” (Slip op. at 43.) It proceeds to apply strict scrutiny to Virginia’s laws and concludes that they fail strict scrutiny.

Judge Niemeyer criticizes the majority’s analysis as “fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage.’” He faults the majority “for never ask[ing] the question necessary [under Glucksberg] to finding a fundamental right—whether same-sex marriage is a right that  is ‘deeply rooted in this Nation’s history and tradition’ and  ‘implicit in the concept of ordered liberty, such that neither  liberty nor justice would exist if [it was] sacrificed.’” He points out that the majority can’t explain why its right to marry “does not also encompass the ‘right’ of a father to marry his daughter.” (Slip op. at 67-68; see also slip op. at 74-84.) He proceeds to apply rational-basis review and determines that Virginia’s laws survive that review.

I had initially assumed that Virginia attorney general Mark Herring’s irresponsible failure to defend his state laws meant that the case is now over. But I gather from the update to this post by law professor Josh Blackman that Supreme Court review remains possible.

Tonight’s Vote on Fourth Circuit Nominee Pamela Harris


At 5:30 tonight, the Senate will vote on Pamela Harris’s nomination for a life appointment to the increasingly-pivotal court of appeals for the Fourth Circuit.

As you may remember, Harris is the judicial nominee who thinks the Warren Court wasn’t liberal enough, that the Constitution gets its meaning “from what comes after” its enactment, and who thinks that Supreme Court justices should shift their legal views with the tides of public opinion.

With such a self-serving judicial philosophy, it’s no surprise that Harris’s views on the constitutional status of abortion range somewhere between “hard-Left” and “radical.”

Although lots of senators talk a big game on their respect for the Constitution and their opposition to key Obama administration policies on abortion, guns, energy, and much more, this vote will tell us whether or not they are serious. If you can’t vote against a lifetime judicial appointment for someone who has no idea how the Constitution is supposed to work, how can you claim to be supporting and defending the real Constitution?

This Day in Liberal Judicial Activism—July 28


2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”   

A Thought Experiment: RFRA and Lethal Injection


I’m curious how newly minted opponents of RFRA would respond to a hypo regarding RFRA and lethal injection.

The pre-execution drama in Arizona this week revolved around identifying the manufacturer of the lethal-injection drugs and getting information about how those relatively new drugs were chosen. 

Many companies have decided not to manufacture drugs for executions, both for moral and public relations reasons after being targeted by death penalty opponents. This refusal has the perverse effect of increasing the likelihood that executions will go awry because states then turn to new drugs with less of a track record.

Imagine that Arizona, concerned about its compelling interest in ensuring that its executions are carried out in the most humane manner possible, passes a law requiring pharmaceutical companies to provide those drugs to the state. Could a pharmaceutical company owned by religious opponents of the death penalty raise a RFRA defense? 

It strikes me that the same objections raised against Hobby Lobby’s RFRA claim apply here. The pharmaceutical company is for-profit and a corporation, there is an intermediate actor who is the one actually using the drug itself, and there are third parties (the condemned prisoners) who are affected. But the defense ought to be just as valid as it was for Hobby Lobby.

Note that the existence of the defense doesn’t mean it would succeed. A state interest in humane executions for example seems to me much more compelling than the interest in forcing a third party to pay for contraceptives. But it’s a good litmus test for people on both sides to make sure their discussion of this issue is about principles, not politics.

Some Irony


Law professor Rick Hasen perceives some “great irony” in “those who up until yesterday supported the DC Circuit’s strict textualist reading of the ACA now pointing to a statement made by a supporter of the law involved in its drafting as evidence of the statute’s meaning.” (My emphasis.) He links to my post from this morning.

There is no irony at all. I have not cited Gruber’s statement “as evidence of the statute’s meaning.” My post does little more than quote from Gruber’s statement and link to Michael Cannon’s long post, where Cannon writes (emphasis added0:

I don’t mean to overstate the importance of this revelation. Gruber acknowledging this feature of the law is not direct evidence of congressional intent. But Gruber is probably the most influential private citizen/government contractor involved in that legislative process. He was in the room with the people who crafted this bill. There may be videos of them talking about this feature too. (I wouldn’t know; I only researched congressional statements made pre-enactment.) At a minimum, however, with the D.C. Circuit and the Fourth Circuit and now Jonathan Gruber lining up against the idea that it is implausible that Congress could have meant what it said, we can dispense with that argument once and for all.

The D.C. Circuit majority concluded (1) that “established by the State” means established by the State, (2) that this meaning does not render Obamacare absurd, and (3) that the legislative history provides little indication, one way or the other, of congressional intent. Cannon properly uses Gruber’s statement in support of the second point.

More generally, it’s a routine part of debate to refute the other side’s case by arguing in the alternative: e.g., your point is irrelevant, but even if it were relevant, it’s factually wrong. Someone, for example, who believes that legislative history shouldn’t be consulted as evidence of the meaning of a statutory provision isn’t engaging in a “great irony” when he points out that the other side gets the legislative history wrong.

For what it’s worth—not that it matters here—as a general matter I of course can’t fairly be thought to embrace every part of a post that I approvingly cite.

Why Legislation Trumps Talking Points


In attempting to defend the IRS rule at issue in Halbig and King, the White House has appealed to the following proposition, allegedly so obvious you don’t need a “fancy legal degree” to understand it: “Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who are running the marketplace.”

But is the question of intent really that simple? Is it just a matter of “common sense” about what means is best to achieve the self-evident goals of a statute? 

On one level, determining congressional intent is simple, or at least should be. Here is a handy rule used regularly by “fancy” judges and lawyers: If you want to know what Congress’s intent was, look at the law they passed.

I’m being facetious, but that really is the first principle of statutory interpretation. You start with the text. 

And for good reason. Our Constitution establishes a representative democracy, in which, as Judge Griffith put it, “policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” 

The way those representatives make policy is not by making floor speeches, discussing the high-minded goals of legislation in press conferences, or making titles that promise great things like “affordable health care.” The way our representatives make policy is by passing laws. So the only legitimate way for our courts to give effect to that policy, rather than substituting their own policy views, is to give effect to the laws as written and passed by Congress

There are a lot of good reasons to stick with the text. One is that its objectivity — anyone can read and understand it – takes much of the guesswork out of planning your life or your business. 

A major reason America has become a successful nation is because we are a nation of laws. If you want to do business here you can be (relatively) confident that the rules of the game are out there and knowable — even if they are often complicated enough to require “fancy lawyers” to understand. Everyone from Mom and Pop to the multi-billion-dollar business prefers to operate in an environment where they can trust that the rules aren’t constantly changing with the whim of those in office. They may not like the rules, but they can plan their actions around them.

The inner thoughts and feelings of each of the 279 legislators who voted for the ACA, on the other hand, are not generally knowable. Many of those legislators may not have actually considered the implications of (or heck, even read) the provisions at issue. Should the law of the land depend on whether Nancy Pelosi did or did not read the bill before she helped pass it? I would hope not, or the ACA is likely not the only American law cast into serious doubt. 

The average American going about his or her daily life can be a lot more confident about decisionmaking if we don’t have to psychoanalyze the entire U.S. Congress in order to know what the laws mean.

Another important reason to stick with the text is that it limits the flexibility of unelected judges to import their own preferred meaning into laws. Trying to make sense of the effluvia from Capitol Hill is a hard enough job as it is if you simply stick with the text. 

Surely even the most conscientious judge may at times allow his or her policy views to unconsciously color the reading of a statute. But giving judges free rein to supplement the text with their view of legislators’ likely thoughts or their (easily cherry-picked) take on the general trend of the floor statements opens the door to importing those views implicitly.  And endorsing a view of statutory interpretation that allows a judge to interpret a law to achieve his “common sense” instinct about what the law ought to have said invites them to make their own policy views of first importance. This is what most of the allegations of “absurdity” in the Halbig and King context boil down to: it just seems wrong that the law would say what it says. Why would anyone vote for such a disastrous policy?

Yet deciding how to best achieve policy goals is the job of the legislator, not the judge. And common sense is decidedly slippery — it is rare that someone on either side of a heated debate does not believe he is backed up by simple common sense. Even more so when we are applying it after the fact — knowing in this case that 36 states would not set up exchanges, something that probably seemed unthinkable at the time.

Finally, it makes sense to stick with the text to ensure that Congress takes its own role seriously. Leaving the laws vague and letting the courts or regulators make the hard choices is tempting for someone who has to run for office regularly and doesn’t want to make enemies.  Why not just demand “affordable care” and let someone else take the hit for how it ultimately plays out? 

If legislators think that the regulatory agencies or judges will be able to clean up their messes, they have no incentive to do the job we elected them for. They are the ones who are supposed to be studying the policies they are voting on and making sure they will work correctly before blithely inserting them into the US Code and requiring the rest of us to live by them. A bit more circumspection ex ante would be a healthy development in our legislative process.

I’ve said sticking to the text should be simple. Congress has in this case enacted some serious sausage with the ACA so it’s no surprise that there are internally inconsistent and confusing provisions hidden in its 900 pages. But that’s no reason to give unelected regulators and judges the enormous power of rewriting that behemoth.  We need to take Congress at its word and give it the opportunity to fix the laws itself.  As the Constitution intended.

Re: “Marginally” Dishonest?


A follow-up to my post yesterday: In its ruling last week in Fisher v. University of Texas, the Fifth Circuit panel majority acknowledges (if rather backhandedly) that the University of Texas’s use of race in its so-called “holistic review” process was far from marginal:

Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s contributions to UT Austin’s diversity, including those that stem from race, holistic admissions would approach an all-white enterprise. Data for the entering Texan class of 2005, the first year of the Grutter plan, show that Hispanic students admitted through holistic review attained an average SAT score of 1193, African-American students an 1118, and white students a 1295. For the entering class of 2007, the last class before Fisher applied for admission, the corresponding data were 1155 for Hispanic students, 1073 for African American students, and 1275 for white students, this from a universe of underperforming secondary schools. [Emphasis added.]

The first sentence of the passage above strikes me as obfuscation. Given that the plaintiff wasn’t trying to exclude from the holistic-review process anything other than consideration of race and ethnicity, I gather that what the majority really means is:

Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s racial or ethnic contribution to UT Austin’s diversity, holistic admissions would approach an all-white enterprise.

(I’m unclear whether the majority is including Asian-Americans in the “all-white” category or whether their numbers explain why race-free holistic admissions would only “approach an all-white enterprise.”)

Relatedly, a reader writes:

On “marginally”: It is interesting to me that proponents of affirmative action (1) routinely try to sell it to the public on the “it is just a feather on the scale” model, the theory being that it only ever operates as a tie-breaker between two otherwise “clearly qualified” candidates, and (2) at the same time are quick to decry and lament the steep drops in minority enrollment that public universities have experienced when forced to comply with bans on the practice.  

Not Just O’Care Architect: The IRS Knew It Broke the Law


As Ed Whelan points out below, Jonathan Gruber gave the Patient Protection and Affordable Care Act exactly the same reading, where “exchange established by the State” is concerned, that Judge Griffith of the D.C. Circuit gave it in the Halbig case.  (I see from some Twitter traffic that Gruber is furiously backpedaling from a view that was plainspoken and uncontroversial at the time he offered it, but is now devilishly inconvenient.)

As Kimberly Strassel explains in her Wall Street Journal “Potomac Watch” column today, the IRS itself seems to have taken exactly the same view of the law’s meaning as the one in the Halbig ruling, until–the evidence strongly suggests–the agency was pressed into writing its regulatory thumb-in-the-dike for the hole opened up by 36 states’ refusal to establish exchanges.  

We know that in the late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. And we know that this working group initially decided to follow the text of the law. An early draft of its rule about subsidies explained that they were for “Exchanges established by the State.”

Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress’s report—to “senior IRS and Treasury officials.” The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to “Exchanges established by the State” disappeared from the draft rule.

Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange.

Yet rather than engage in a basic legal analysis—a core duty of an agency charged with tax laws—the IRS instead set about obtaining cover for its predetermined political goal. A March 27, 2011, email has IRS employees asking HHS political hires to cover the tax agency’s backside by issuing its own rule deeming HHS-run exchanges to be state-run exchanges. HHS did so in July 2011. One month later the IRS rushed out its own rule—providing subsidies for all.

Strassel’s source is an investigative report published by the House Government Oversight and Ways and Means committees.  If ever there were a committee report of which the Supreme Court could properly take judicial notice in a case–not to construe the meaning of the law, which is plain enough, but as evidence of agency chicanery–this is it.


Obamacare Architect Embraced Anti-Subsidy Reading


If this doesn’t quiet down the crazies on the Left, nothing will.

It turns out that leading Obamacare architect (and MIT economist) Jonathan Gruber embraced the exact reading of the exchange-subsidy provisions that the plaintiffs challenging the Obama administration’s application of those provisions have advanced. Specifically, in a January 2012 presentation, Gruber explained:

[S]o these health-insurance Exchanges … will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it

Cato’s Michael Cannon, who (with Jonathan Adler) has spearheaded the challenges, has much more here (including a video of Gruber’s remarks).

Update: As Gruber tries to run away from his comments, John Sexton and Peter Suderman highlight similar comments by Gruber on another occasion.

This Day in Liberal Judicial Activism—July 25


1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, will rail against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

Greenhouse Gas


The New York Times’s Linda Greenhouse predictably praises the recent court of appeals decision upholding the University of Texas’s use of racial and ethnic preferences in admissions. But as I noted on the Times’s website: 

The court’s analytical framework is obviously wrong: The purported educational benefits of adding racial preferences to the Top Ten Percent Plan were not demonstrated, and there was no discussion at all of the costs of such discrimination. The alleged benefits are dubious and trivial, while the costs are many, heavy, and undeniable. To give just one example of the latter: Despite all the attention lately that has been given to the well-documented problem of mismatching students and schools — setting the “beneficiaries” of racial preferences up for failure — there is not a word about it in the court’s opinion.

I also cannot let pass Ms. Greenhouse’s casual and false reference in her piece to “the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture.” Commonly, yes — but not marginally. This is, as Ed Whelan notes, a risible claim. As studies from conservative, centrist, and liberal scholars have all confirmed, race is weighed very heavily indeed in university admissions. 


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