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Monthly Archives: September 2014


Some slightly belated Constitution Day reflections

Yesterday was Constitution Day, on which Americans celebrate the anniversary of the signing of the U.S. Constitution, and institutions of higher learning throughout the land scramble for Constitution-themed programming, lest they jeopardize their federal funding. As for how we celebrate, well, let’s just say it’s a work in progress. There are no fireworks, or bacchanalia of feasting and football, or parades to commemorate veterans or to remember the accomplishments of organized labor. We don’t celebrate our foundational political document in the way that Jews celebrate theirs, with song, drink, and dancing with Torah scrolls. Perhaps the most appropriate celebration, barring adoption of a secular analogue to the Simchat Torah festivities, simply involves reflection on the Constitution. In that spirit, I offer some reflection:

  • The Constitution reflected the most sophisticated political philosophy of its era, as well as lessons learned from history, both ancient and very recent. So why is so much of the celebration devoted to a mindless veneration that refuses to acknowledge that we have an advantage over James Madison and company, namely 200+ years of practical experience with, and scholarship about, political institutions?
  • Make no mistake about it: when it comes to thinking about the Constitution, the American public is decidedly prone to mindless veneration. Just as Americans proclaim that the U.S. health care system is the best in the world, despite the substantial body of evidence to the contrary, we resist considering the prospect that other institutional arrangements might produce better governance. When our governance does not address the pressing issues of the day, or addresses them in a dysfunctional manner, we tend to attribute blame to individual political actors or parties, or to the political class as a whole. The implicit assumption is that it’s easier to make flawed human beings less flawed, or to improve our ability to identify and empower less flawed human beings, than it is to rethink the environment in which these flawed human beings operate. But the multitude of failed attempts throughout human history to perfect human behavior, coupled with what students of government understand about the significance of institutional design, should lead us to question that assumption.
  • Constitution Day’s focus on the text of the document–a variation on the Protestant principle of sola scriptura–underplays the importance of everything else that has come to shape constitutional understandings since 1787. These understandings reflect centuries’ worth of judicial interpretation, historical practices and traditions, and consensually accepted norms. States, for example, are obliged to respect virtually all of the protections enumerated in the Bill of Rights, but not because the Constitution’s text clearly commands that obligation. Rather, the incorporation of the Bill of Rights has resulted from an interpretation of the Fourteenth Amendment’s Due Process Clause that we (OK, Justice Thomas, not you) have accepted for some time. Try to envision states no longer bound to abide by the Bill of Rights, and you’ll see why the gloss placed on the Constitution should not be overlooked in favor of a focus on the original text alone.
  • Finally, if you’re not in the mood to celebrate the Constitution, I’d recommend two thought-provoking books by Sanford Levinson: Our Undemocratic Constitution (2006) and Framed (2013).

Now go out and take advantage of those post-Constitution Day sales!


Another lesson in why not to hyperventilate over lower court rulings

On Thursday, the D.C. Circuit Court of Appeals agreed to rehear the latest challenge to the Affordable Care Act (ACA) en banc (with participation of all of the circuit’s judges, as opposed to the standard three-judge panel). In so doing, it illustrated why breaking out your victory celebration midway through the second quarter of a game is ill-advised.

Opponents of the Affordable Care Act thought they had much to celebrate earlier this summer when a D.C. Circuit Court of Appeals panel held that the Act’s subsidies for health insurance were available only to purchasers who obtained their insurance through a state-run exchange. Under this reading, which relied on a curiously rigid application of textualism that textualists themselves normally reject, those who bought from the federal exchange because their home states declined to create their own exchanges would be ineligible to receive the subsidy. If the ruling were to hold, it would fatally undermine Obamacare by stripping out the subsidies that make insurance affordable for millions of people who did not previously have insurance, but are now required to do so by the Act’s individual mandate. Lamentations and rending of garments, under those circumstances, would be an appropriate response for backers of Obamacare, not to mention the several million people who would lose their affordable health insurance.

As it turns out, though, a Fourth Circuit Court of Appeals panel rejected the argument that prevailed in the D.C Circuit, thereby generating a split among the circuits that increases the likelihood that the Supreme Court will grant review. The ACA opponents from the Fourth Circuit quickly petitioned the Supreme Court for review, in the hopes that the Court wouldn’t pass on a second opportunity to deliver a fatal blow to Obamacare. But the plan to fast-track the case to the Supreme Court was threatened by the Obama administration’s petition to the D.C. Circuit to rehear the case en banc, where a sizable majority of Democratic appointees (unlike the Republican majority on the panel that heard the case earlier) would be likely to reverse the panel’s holding. A ruling by the whole circuit in favor of the administration’s position would eliminate the circuit split and improve the odds that the Supreme Court would pass on the issue altogether.

To prevent this scenario, ACA opponents had to convince the D.C. Circuit not to agree to rehear the case, thereby preserving the circuit split. While the petition requesting review of the Fourth Circuit’s holding argued that Supreme Court review is crucial to resolve uncertainty about the continuing legality of subsidies, the argument against rehearing in the D.C. Circuit claimed that en banc review is unnecessary because the issue of statutory interpretation addressed by the panel review does not rise to the level of “exceptional importance” necessary to justify en banc review. Alternatively, had the Supreme Court granted review of the Fourth Circuit decision before a ruling on the D.C. Circuit rehearing petition could be issued, the en banc petition would have been left for naught. Thursday’s announcement  precluded that possibility as well.

But ACA supporters might be advised to avoid excessively celebrating their recent good news. The absence of a circuit split decreases the probability of Supreme Court review, but not to zero. The Court could decide that the issue is sufficiently important to merit review even if all circuits that have spoken so far agree on the underlying legal issue. Should the Court go this route, we will be left with several cliffhangers. What will Justice Scalia’s brand of textualism lead him to do when confronted with a law he despises? Will Justice Kennedy, who does not typically share Scalia’s commitment to this interpretive approach, go along for the ride? Will Chief Justice Roberts continue to act strategically, as he had in the first round of Affordable Care Act litigation, in the face of the prospect of millions of people being stripped of affordable health insurance? The announcement of the en banc hearing reduces, but does not eliminate, the possibility that folks on both sides will face some anxiety until we eventually receive answers to these questions. As such, ACA supporters, as well as opponents, might want to wait before dumping the Gatorade buckets on the legal teams fighting for their respective positions.