[EL] ELB News and Commentary 3/2/15
Rick Hasen
rhasen at law.uci.edu
Mon Mar 2 10:13:00 PST 2015
“Justices Seem Skeptical of Independent Electoral Map Drawers”
<http://electionlawblog.org/?p=70643>
Posted onMarch 2, 2015 10:10 am
<http://electionlawblog.org/?p=70643>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports
<http://www.nytimes.com/aponline/2015/03/02/us/politics/ap-us-supreme-court-arizona-redistricting.html?ref=politics>.MORE
from Reuters
<http://www.reuters.com/article/2015/03/02/us-usa-court-election-idUSKBN0LY1VJ20150302>.
More to come.
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Posted inElections Clause
<http://electionlawblog.org/?cat=70>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Call for Papers: The Best of the Most/Least, Best/Worst, Etc./Etc.
of the U.S. Supreme Court” <http://electionlawblog.org/?p=70641>
Posted onMarch 2, 2015 10:06 am
<http://electionlawblog.org/?p=70641>byRick Hasen
<http://electionlawblog.org/?author=3>
Green Bag <http://www.greenbag.org/v18n2/v18n2_ex_ante_call.pdf>:
We invite submissions for our fourth micro-symposium, to be
published in the Green Bag and the Journal of Law. Theme: The Top
Ten Rankings of the Supreme Court. This is inspired, obviously, by
Rick Hasen’s The Most Sarcastic Justice (see page 215 below), and
Jay Wexler’s “Laugh Track” studies (see, e.g., 9 GREEN BAG 2D 59
(2005)). What makes Hasen and Wexler and their work special are
their combinations of scholarly rigor, good humor, and cleverness –
rare mixes in a sea of sloppy, snarky, partial, and partisan most/
least, best/worst, etc./etc. commentary about the Justices and their
court. Hasen and Wexler are, in the best sense of the term, old
school, like Currie and Easterbrook. See, e.g., David P. Currie, The
Most Insignificant Justice: A Preliminary Inquiry, 50 U. CHI. L.
REV. 466 (1983); Frank H. Easterbrook, The Most Insignificant
Justice: Further Evidence, 50 U. CHI. L. REV. 481 (1983). We want
more of that. Invited topics: Any original and empirical study
involving some kind of ranking of the Justices or their work,
accompanied by illuminating analysis and commentary, that will help
readers better understand the Supreme Court of the United States,
the people who work there, and the products of their labors. Length
limit: 1,500 words, including title, text, footnotes, author notes,
and everything else. (Yes, yes, we allowed Hasen and Wexler more
than that, but they were the pioneers, at least for this generation.
First pigs to the trough and all that.) Deadline: Finished works
must be received at editors at greenbag. org by August 1, 2015. No
extensions will be granted and no postdeadline tinkering will be
permitted. Selection criteria: We will select works for publication
based on how original, interesting, well-researched, well-written,
potentially useful, and good-spirited they are.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Final Version of “The Most Sarcastic Justice” Now Posted by the
Green Bag <http://electionlawblog.org/?p=70639>
Posted onMarch 2, 2015 10:05 am
<http://electionlawblog.org/?p=70639>byRick Hasen
<http://electionlawblog.org/?author=3>
Here. <http://www.greenbag.org/v18n2/v18n2_ex_post_hasen.pdf>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Earl Ofari Hutchinson: Why We Still Need a Selma”
<http://electionlawblog.org/?p=70637>
Posted onMarch 2, 2015 9:54 am
<http://electionlawblog.org/?p=70637>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.eurweb.com/2015/03/earl-ofari-hutchinson-why-we-still-need-a-selma/>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Groups to Obama: Act Now to Curb Pay-to-Play”
<http://electionlawblog.org/?p=70634>
Posted onMarch 2, 2015 9:50 am
<http://electionlawblog.org/?p=70634>byRick Hasen
<http://electionlawblog.org/?author=3>
Public Citizen Press Release
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=5427>:
Saying that President Barack Obama can singlehandedly curb the
pernicious influence of money in politics, more than 50
organizations today called on the him to issue an executive order
requiring government contractors to disclose their political spending.
“We’re now living in a Wild West campaign spending world,” the
groupswrote in a letter (PDF)
<http://www.citizen.org/documents/2015-sign-on-letter-for-govt-contracting.pdf>.
“[I]t is imperative that you act. There is no single solution to the
problem of Big Money dominance. In fact, there are many desperately
needed solutions. Today, we urge you to act on one option
immediately – tackling the issue of corruption in government
contracting.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Why Political Lies Shouldn’t Be Punished”
<http://electionlawblog.org/?p=70632>
Posted onMarch 2, 2015 9:48 am
<http://electionlawblog.org/?p=70632>byRick Hasen
<http://electionlawblog.org/?author=3>
Stephen Carter
<http://www.bloombergview.com/articles/2015-02-26/why-political-lies-shouldn-t-be-punished>:
The U.S. Supreme Court’s decision this week to let stand the lower
court ruling in the unsung case ofClayton v. Niska
<http://www.scotusblog.com/case-files/cases/clayton-v-niska/>didn’t
make any headlines. But for those of us who believe in a robust
debate under the First Amendment, the implications are unsettling.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Is Supreme Court’s chief justice ready to take down ObamaCare?”
<http://electionlawblog.org/?p=70630>
Posted onMarch 2, 2015 9:47 am
<http://electionlawblog.org/?p=70630>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/policy/healthcare/234200-is-john-roberts-ready-to-take-down-obamacare>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“G.O.P. Race Starts in Lavish Haunts of Rich Donors”
<http://electionlawblog.org/?p=70628>
Posted onMarch 2, 2015 9:42 am
<http://electionlawblog.org/?p=70628>byRick Hasen
<http://electionlawblog.org/?author=3>
Fascinating
<http://www.nytimes.com/2015/03/01/us/politics/gop-race-starts-in-lavish-haunts-of-rich-donors.html?_r=1>NYT
A1.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“The Supreme Court and Independent Redistricting Initiatives:
Uncertain Effects and Constitutional Doubts”
<http://electionlawblog.org/?p=70626>
Posted onMarch 2, 2015 7:20 am
<http://electionlawblog.org/?p=70626>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/03/supreme-court-independent-redistricting-initiatives-uncertain-effects-constitutional-doubts/>
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Posted incitizen commissions <http://electionlawblog.org/?cat=7>,ethics
investigations <http://electionlawblog.org/?cat=42>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Originalist or Original: The Difficulties of Reconciling Citizens
United with Corporate Law History” <http://electionlawblog.org/?p=70624>
Posted onMarch 2, 2015 7:14 am
<http://electionlawblog.org/?p=70624>byRick Hasen
<http://electionlawblog.org/?author=3>
Leo Strine and Nicholas Walter have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567416>on SSRN.
Here is the abstract:
/Citizens United/has been the subject of a great deal of commentary,
but one important aspect of the decision that has not been explored
in detail is the historical basis for Justice Scalia’s claims in his
concurring opinion that the majority holding is consistent with
originalism. In this article, we engage in a deep inquiry into the
historical understanding of the rights of the business corporation
as of 1791 and 1868 — two periods relevant to an originalist
analysis of the First Amendment. Based on the historical
record,/Citizens United/is far more original than originalist, and
if the decision is to be justified, it has to be on jurisprudential
grounds originalists traditionally disclaim as illegitimate.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
Read the State Court Order Requiring NC Voter ID Case to Go to Trial
<http://electionlawblog.org/?p=70621>
Posted onMarch 2, 2015 7:12 am
<http://electionlawblog.org/?p=70621>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://pulse.ncpolicywatch.org/wp-content/uploads/2015/02/Currie-Order-on-MJP.pdf>.
Commentary
<http://ballots.blogspot.com/2015/02/nc-id-curry-case-to-go-to-trial-on-4-of.html>from
Robbin Stewart.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
“U.S. Supreme Court Won’t Hear ProtectMarriage.Com v Padilla”
<http://electionlawblog.org/?p=70619>
Posted onMarch 2, 2015 7:10 am
<http://electionlawblog.org/?p=70619>byRick Hasen
<http://electionlawblog.org/?author=3>
BAN reports
<http://www.ballot-access.org/2015/03/u-s-supreme-court-wont-hear-protectmarriage-com-v-padilla/>on
the cert. denial in the campaign finance disclosure case stemming from
California’s Prop. 8.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Even After Return, Congressional Opposition to EAC Continues”
<http://electionlawblog.org/?p=70617>
Posted onMarch 2, 2015 7:09 am
<http://electionlawblog.org/?p=70617>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://blog.lib.umn.edu/cspg/electionacademy/2015/03/even_after_return_congressiona.php>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>
“Jeb Bush exploits non-candidate status to rewrite campaign finance
playbook” <http://electionlawblog.org/?p=70614>
Posted onMarch 2, 2015 7:08 am
<http://electionlawblog.org/?p=70614>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.miamiherald.com/news/politics-government/article11843192.html>from
the pre-presidential campaign trail.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
King: Obamacare Subsidies as Textualism’s Big Test
<http://electionlawblog.org/?p=70611>
Posted onMarch 2, 2015 6:50 am
<http://electionlawblog.org/?p=70611>byAbbe Gluck
<http://electionlawblog.org/?author=15>
In November, I participated in a SCOTUSblog symposium on/King/, the
Obamacare case that the Court will hear this week. The case, as I argued
then and still deeply believe, is textualism’s biggest test yet. Will
the textualists show us -as they have been arguing for the past 30
years–that textualism is indeed a sophisticated and objective method of
statutory interpretation that is a safeguard against judicial activism?
Textualism has had enormous success in the federal courts over the past
decade, but those judges who have moved in textualism’s direction will
surely question those moves if textualism doesn’t deliver what it
promised. Given that we are going to hear a lot of textualism talk this
week and in the coming months, and to help folks get up to speed on
these issues, I have reprinted (with permission ) my SCOTUSblog
contribution below:
Obamacare’s opponents have depicted the challenges in/King v. Burwell
<http://www.scotusblog.com/case-files/cases/king-v-burwell/?wpmp_switcher=desktop>/,/Halbig
v. Burwell/, and the other subsidies cases as the choice between clear
statutory text and vague notions of statutory purpose. This is a smart
strategy, because it creates the illusion of an easy choice for the
Court’s textualists, and even for most of the other Justices.
Textualists have spent three decades convincing judges of all political
stripes to come along for the ride, and have had enormous success in
establishing “text-first” interpretation as the general norm. In so
doing, textualists have repeatedly emphasized that textual
interpretation is to be sophisticated, “holistic” and “contextual,” not
“wooden” or “literal,” to use Justice Scalia’s words. A lot of us
(myself
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1546550>included)
have gone to bat for this version of textualism, arguing that it is
democracy enhancing and in furtherance of rule-of-law values, such as
predictability.
The/King/challengers put all that on the line, and threaten all that
textualists have accomplished. This is because/King/is not actually a
text-versus-purpose case. Rather,/King/is about the proper way to engage
in textual interpretation; specifically, about the interpretation of
five words in a long and complex modern statute. And no one has to – or
should – go outside the four corners of the Affordable Care (ACA) to
decide it. So let’s cast aside the red herring of untethered purpose,
and ask the question that gives/King/significance beyond the politics of
health reform (and is a reason for the Court to avoid those politics):
Will the Court follow, what Justice Scalia just five months ago
(in/Utility Air Regulatory Group v. EPA
<http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf>/) called
“the fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their place in
the overall statutory scheme”?
The five words at issue sit in a provision that requires the ACA’s
insurance subsidies to be calculated based on premiums for individuals
enrolled through an “Exchange established by the State under 1311” (ACA
§ 1401); the question is whether the IRS properly interpreted the ACA to
allow those subsidies also to be available on federally operated
exchanges (which now are the majority of exchanges). Section 1311
establishes the state-run exchanges and so, read in a vacuum, Section
1401 appears at first glance to deny the subsidies on federal exchanges.
In context, however, the words are at a minimum highly ambiguous, and
arguably actually clearly provide for subsidies on the federal exchanges.
Justice Scalia, an ardent proponent of judges not engaging in
“legislation” under the guise of interpretation, has argued that the
Court’s role is to adopt the interpretation that “does least violence to
the text”(/Green v. Bock Laundry/
<http://www.law.cornell.edu/supremecourt/text/490/504>). The IRS’s
interpretation accomplishes that goal: Section 1401 can still be read
literally because the section that authorizes the federal exchanges,
Section 1321, provides that if a state does not establish an exchange
under Section 1311, the Department of Health and Human Services (HHS)
“shall . . . establish and operate such Exchange within the State.” In
other words, HHS must “establish” a Section 1311 exchange, which is a
state exchange. Moreover, the Act defines “Exchange,” with a capital E,
three times in the statute as a “state” exchange. And HHS, in Section
1321, is told to establish “/such/[capital E] Exchange.” The Court need
not add or delete a single word of the ACA to reach this conclusion. (In
fact, the Court shouldn’t be engaging in that enterprise in the first
place. This is a/Chevron/case: an agency interpretation is at issue, and
so all that is required is that the agency’s own construction be
reasonable.)
On the other hand, as amply detailed in the briefing, the ACA’s/text
–/not its purpose or its legislative history, or anything else that
textualists don’t generally consider – is slashed to pieces under the
challengers’ reading. Two examples from a list of many offered in the
briefing:
* Section 36B(f)(3) requires “[e]ach Exchange (or any person
carrying out 1 or more responsibilities of an Exchange under section
1311(f)(3) or 1321(c)” to report the premiums doled out. Section
1321 is the/federal/exchange provision, and so this section is
rendered meaningless if the federal exchanges have no subsidies.
* Likewise Section 1312(f) provides that only “qualified individuals”
can purchase on an Exchange but defines a qualified individual as
one who “resides in the State/that established the Exchange/.”
Failure to understand a federally operated exchange as the legal
equivalent of a state exchange would mean that federal exchanges
have no customers.
Justice Scalia’s own statutory interpretation treatise argues (at pages
63 and 168) that “there can be no justification for needlessly rendering
provisions in conflict if they can be interpreted harmoniously,” and
that statutory provisions should not be interpreted to render them
ineffective or superfluous.
Textualists also advocate structural, contextual interpretation. As
Justice Scalia’s treatise puts it (at 168): “[N]o interpretive fault is
more common than the failure to follow the whole-text canon, which calls
on the judicial interpreter to consider the entire text, in view of its
structure and of the physical and logical relation of its many parts.”
The subtitles of the ACA immediately surrounding the provision in
question are a set of interlinking pieces: they add new requirements on
insurers to make insurance accessible; impose the infamous individual
mandate on the public to populate the insurance pools; and create the
federal and state exchanges and authorize the subsidies (which the
exchanges deliver) to make insurance purchase accessible and affordable
enough for the individuals now required to purchase it. In their 2012
joint dissent in/NFIB v. Sebelius/, Justices Scalia, Kennedy, Thomas,
and Alito read these parts as making no logical sense without one
another and also read the statute to include subsidies on federal exchanges:
“Congress provided a backup scheme; if a State declines to participate
in the operation of an exchange, the Federal Government will step in and
operate an exchange in that State.”
and then:
/“That system of incentives collapses if the federal subsidies are
invalidated./Without the federal subsidies, individuals would lose the
main incentive to purchase insurance inside the exchanges, and some
insurers may be unwilling to offer insurance inside of exchanges. With
fewer buyers and even fewer sellers,/the exchanges would not operate as
Congress intended and may not operate at all./”
The 2012 Supreme Court brief of the state governments likewise read the
statute as providing subsidies through the federal exchanges: “/If a
State is not willing to create and operate an exchange, the federal
government will step in and do so itself. ACA § 1321(c). Subtitle E then
establishes tax credits and other subsidies for the lower-income
individuals and small businesses that purchase plans on the
exchanges./ ACA §§ 1401–21.” It is no coincidence that the section of
the ACA in which all this appears is entitled “State Flexibility
Relating to Exchanges”; the provision establishing the/federal/exchange
(Section 1321) also has the title “State Flexibility.” By using this
terminology, the text by its own terns gives states the/choice/– without
penalty – between operating an exchange or letting the feds do it for them.
The 2012 plaintiffs – represented by the same lawyer in/Kin/g – even
argued that the/entire/Affordable Care Act should have been/struck/down
without the subsidies, because it could not function without them.
Textualists apply several canons of construction premised on the
assumption that Congress does not write statutes to fail. One is
constitutional avoidance. Another is severability. (Both were used to
save the ACA in/NFIB/.) Related is the major questions rule, which
presumes that Congress is not subtle when it makes a major statutory
move. The/King/challengers are asking the Court to adopt a reading that
assumes that Congress purposefully designed the federal exchanges
without the very same subsidies that in 2012 even the ACA’s opponents
viewed as essential to the statute’s functioning. In other words, they
are now arguing that Congress intentionally configured the federal
exchanges to be doomed to fail. If that isn’t a major question that
requires an explicit statutory statement, what is? The purpose of all of
these rules – avoidance, severability, major questions – is to keep
judges from “legislating”; that is, from interpreting a statute in ways
that would make it unrecognizable to enacting Congress, as the proposed
reading surely would.
In an effort to lend plausibly to their interpretation, the challengers
have spent the past year constructing a narrative that the Exchange
provisions operate exactly like Medicaid does: that Congress needed a
“stick” – taking away the subsidies – to convince the states to operate
the exchanges themselves. I have illustratedelsewhere
<http://balkin.blogspot.com/2014/03/obamacare-subsidies-before-dc-circuit_24.html>that
this reading of legislative history is inaccurate, but more importantly
for this post, note that the challengers have to look/outside/the text
of the statute to even try to construct this narrative. The text is
fatal to this argument. Another common textual rule of
interpretation,/exclusio unius/, draws strong inferences from Congress’s
utilization of statutory structure in one part of a statute or related
statutes and its omission from another. Medicaid is explicit that states
lose their funding (and there is no federal fallback) if they do not
cooperate. The ACA has/not one word/on that point in the exchange
context and instead does what Medicaid doesn’t: the ACA provides
fallback federal exchanges. This is/exclusio unius 101:/Medicaid shows
that Congress knows how to be explicit if it wishes to use a federalism
“stick.” The lack of an analogous provision for the exchanges leads to
precisely the opposite of the challengers’ reading under textual analysis.
Textualists have spent the past thirty years persuading even their
opponents of the jurisprudential benefits of a sophisticated text-based
interpretive approach. The/King/challengers put that all at risk. To be
clear: my argument isn’t about the merits of the ACA. The ACA isn’t
perfect health policy. But the/King/challenge/is/all about the ACA’s
merits. They have vowed to destroy the statute at any cost, even if it
means corrupting textualism to do it.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“How Obscure Rule Could Give Boehner a Way Out of DHS Mess”
<http://electionlawblog.org/?p=70609>
Posted onFebruary 28, 2015 1:47 pm
<http://electionlawblog.org/?p=70609>byRick Hasen
<http://electionlawblog.org/?author=3>
Fascinating
<http://blogs.rollcall.com/218/house-rule-boehner-dhs-appropriations-shutdown/>.
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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http://electionlawblog.org
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