Thursday, June 28, 2012

Reflections on Roberts' Healthcare Opinion

As many know, the Supreme Court's eagerly anticipated healthcare decision came down this morning.  Chief Justice Roberts wrote the majority opinion, though he did not have a majority for every proposition.  My bottom line is that this opinion is a slam dunk win for the liberals and a work of craftsmanship if not statesmanship by Chief Justice Roberts.

  1. Though many are reporting that the Court gutted commerce clause doctrine, see, e.g., this article on Slate, I disagree with that view for two reasons.  First, Roberts' opinion on the commerce clause does not in any way change existing commerce clause doctrine.  Wickard v. Filburn, which is considered to be one of the most if not the most expansive understanding of federal commerce power, is cited approvingly by CJ Roberts.  No important (or unimportant) commerce clause cases were overturned by CJ Roberts today. One can read this case to say that five Justices believe that there are limits on Congress' power under the commerce clause.  That is true. But the current commerce clause doctrine is in fact quite broad.  With the exception of the individual mandate, which is very much sui generis, there is very little that Congress would want to do that it cannot do under the commerce power.  You can view the commerce power fight as a fight among those who believe that Congress can do anything under the commerce power, those who believe that Congress can do almost anything, and those who believe that there are real substantive limits on Congress' power.  CJ Roberts' opinion in the middle category. So, in reality, (given that the Court upheld the individual mandate), the liberals did not lose much, if anything.  I can't think of any federal law that is in jeopardy as a consequence of the Chief's opinion. If this case stands for the idea that Congress can regulate activity  but not inactivity, it will not do much damage to commerce clause jurisprudence. (One might argue that Roberts narrowed the necessary and proper clause; but to the extent that he did, the necessary and proper analysis is predicated on the scope of the substantive commerce power.  Given that the scope of the commerce power remains quite broad, the narrowing is, at this time, limited.)
  2. Second, Roberts was writing for himself in that part of the opinion.  The dissenters declined to join his opinion. So everything written on the commerce clause is just Roberts' view and not that of the majority of the Court.  Further, I don't think that that part of the opinion was necessary to the holding (though Roberts says otherwise, but he is not very persuasive on that point.)  So, I don't think there is a commerce clause holding. (Candor compels me to admit that there is a split among some of my colleagues on this point.)  (And of course, even if there is a commerce clause holding, see point 1 above).
  3. While the liberals lost nothing under the commerce power, they gained under the Taxing power.  In an opinion for the Court, joined by the four liberals, the Chief made it clear that just because Congress does not have the power under the commerce power does not also mean that it is disabled under the taxing power.  The Court noted that Congress' taxing power is greater than its commerce power, which is quite broad as we established above. Congress can use the taxing power to stimulate behavior and encourage activity.  This is a big win for the liberals here.
  4. In Part IV of this opinion, which is joined by Justices Breyer and Kagan, narrowed the Medicaid portion of the Act, holding that the Medicaid provision as written is coercive.  CJ Roberts ruled that Congress cannot remove all of the state's medicaid funding for failing to comply with the ACA's medicaid funding requirement.  This is not much of a restriction on Congress' power. Congress can still impose conditions spending on the expenditure of federal funds.  Congress can modify conditions on existing programs.  What Congress cannot do is threaten to terminate funding on other significant independent grants.  That's unconstitutional coercion.  This is not a significant limitation on the spending power and even Breyer and Kagan were happy to go along with it.
  5. Roberts ought to get points for craftsmanship and statesmanship.  The opinion is clearly and sometimes beautifully written.  It is deft (and deceiving) in many places.  It is not too heady to say in places the opinion reminds me on John Marshall's astuteness, except that Roberts is a better writer.
  6. Roberts should also get credit for being a statesman.  This opinion preserves some important legitimacy for the Court.
  7. Conservatives will spin this case, but they lost today.  There was no significant modification of the commerce power. The ACA was upheld essentially intact.  Congress' taxing power was expanded.  The spending power survived without any significant modification. Conservatives were worried about Kennedy, but it was John Roberts who delivered the crucial and painful blow.   Conservatives had four solid votes to strike down the entire ACA.  This is a big lost for them.  When you combine the healthcare decision with the immigration decision decided on Monday, it was not a good week to be a conservative.

Monday, April 2, 2012

Wondering about the Success of Kentucky Basketball, Race, and What Ifs. . .

It is that time of year again: March Madness is back.  Tonight, Kansas plays Kentucky for the national championship.  Yet something about the game makes me uneasy.  The feeling of unease began during the Kentucky-Louisville game last Saturday night.  There were many possible reasons.  For example: seeing Coach Calipari on the sidelines, he of the vacated records at UMass and Memphis; associating the University of Kentucky with the new one-and-done trend in college basketball; the hypocrisy of keeping student-athletes out of class for as long as they do during March in search of glory and money.  But it wasn't any of that.

Instead, it had something to do with race.

There is something jarring about Kentucky basketball.  Watching the game Saturday night, one could not help but admire the skills and athleticism of the players on the court.  I loved watching Marquis Teague, whom I saw playing in high school and who has grown immeasurably since January; Anthony Davis, who happens to be the second freshman to ever win the Naismith award as college player of the year; and Michael Kidd-Gilchrist, slated by some experts as a top-five pick in the upcoming NBA draft. These are three of the four freshmen who joined the team this past year.  The sophomore class includes Terrence Jones and Doron Lamb, also expected to be drafted in the first round.  Incidentally, these players all happen to be black.

Here's what bothered me: quite often, CBS would turn to the crowd after a great play, perhaps after a time out.  And not once did I see one Black face in the stands rooting for Kentucky.  This is not to say that Kentucky basketball does not have any Black fans; I am sure it does.  Rather, the point is that Kentucky's fan base is overwhelmingly white, while its basketball players are overwhelmingly Black.  Hence my unease.

Without question, Kentucky basketball has now become the sexy destination for elite basketball players.  Yet I cannot help but wonder about the politics -- racial or otherwise -- of the fans as compared to the politics of the players.  I also wonder about college admissions and whether these players would be accepted at institutions such as the University of Kentucky without their basketball skills.  I wonder where these fans stand on affirmative action and the upcoming Fischer case.  For those then alive, I wonder about their thoughts about Black players before 1969, the year when Kentucky basketball first integrated.  I just wonder.

And here's what I really wonder about: what if all these one-and-done players, the Anthony Davis' and the Kidd-Gilchrist's, decided to play together not at the white University of Kentucky, but at a historically black college, or even at the University of Detroit or Wayne State University? What would such a decision do for the city of Detroit, or for historically-Black colleges in general?

That is my dream.

Saturday, March 24, 2012

Op-Ed on the Constitutionality of the Affordable Care Act

My op-ed in The Palm Beach Post arguing that the Affordable Care Act (or "Obamacare" as everyone likes to call it) is constitutional is available here.  Elizabeth Price Foley of FIU College of Law wrote a competing op-ed, arguing that the Act is unconstitutional, available here.  Enjoy!

Thursday, February 23, 2012

Thoughts on Evan Kaufmann, Terrence Cody and Memory

This past Sunday, the New York Times' Sports section featured a story about Evan Kaufmann, an American-born hockey player who plays for the German national team.  This is a gripping story and a must-read.  For me, it connects to an issue that I've been thinking about for quite some time about the uneasy relationship between Black high school athletes and major college sports.  The question is one of historical memory: How do we choose to remember, and why do we sometimes choose to forget?  More importantly, do we have a  responsibility as individuals to honor these memories, whatever they may be, and to live our lives accordingly?

For here's the thing: Evan Kaufmann is an American Jew, playing in Germany and for the German national team because, according to the Times, this is "his best pro opportunity to play hockey."  Should Kaufmann have the right to do that?

This is not the easiest of questions.

Wednesday, February 22, 2012

What Will Kennedy Do in the Texas Affirmative Action Case?

The Supreme Court has agreed to hear an affirmative action case that challenges the affirmative action program administered by the University of Texas.  Many commentators think that this case signals the end of affirmative action.  Afterall, why would the Court take this case if not to overturn its 2003 decision in Grutter v. Bollinger? For those despairing about this case, I want to make the case for some cautious optimism.  I also want to present a more nuanced analysis than the analysis that I'm seeing on some of the blogs and in the media.

First, it takes four Justices on the Court to grant cert, but it will take five Justices to overturn the judgment of the court below, a panel of the 5th Circuit Court of Appeals, which upheld the constitutionality of the Texas affirmative action program.  (By the way, the author of the 5th Circuit opinion is the conservative judge Patrick Higginbotham, who wrote a very strong and careful opinion upholding the Texas plan.) I don't know which Justices voted to take the case, but there are easily four Justices who would vote to strike down the program and maybe even reverse the Court's decision in Grutter.  Chief Justice Roberts, Justices Scalia, Thomas and Alito are all good bets to both strike down the program and find that the constitution does not allow raceconscious decisionmaking by state actors.  So this leaves Justice Kennedy.

Second, Justice Kennedy's views on race is more nuanced than the commentators are giving him credit for.  Unlike his fellow compatriots on the right, especially Justices Scalia and Thomas, and maybe even the Chief, Justice Kennedy does believe that the government can take race into account as long as the government does so in a manner that is consistent with the Constitution.  Even in his dissent in Grutter, Justice Kennedy cited Justice Powell's Bakke opinion approvingly for the "principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual." He closed his opinion in Grutter and by "reiterat[ing] [his] approval to giving appropriate consideration to race in this one context." More pointedly, in the Parents Involved case, Justice Kennedy stated explicitly, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue."  This means that as a matter of principle, Justice Kennedy agrees with the diversity rationale.  This is why commentators who fail to distinguish between Justice Kennedy and the other conservative Justices are making a mistake.

Third, unlike the other Justices on the right, Justice Kennedy has consistently expressed solicitude for the circumstances in which folks of color find themselves. In Grutter, he cited approvingly, "the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities."  Justice Kennedy expanded upon this theme in his concurrence in Parents Involved.  In that case, he made the argument that even though we aspire to live in a colorblind world, the reality is that race continues to matter.  Along with Justice O'Connor's opinion in Grutter, Justice Kennedy's concurrence in Parents Involved is the most sophisticated attempt by a conservative Justice to to reconcile conservative ideology with a view of the constitution that takes into account the equality concerns of Americans of color.

Fourth, and this is where the rubber meets the road, Justice Kennedy has a narrow view of the types of governmental programs that can use race consistent with the Constitution. In he disapproved of the University of Michigan Law School's affirmative action program in Grutter because the thought that race played too big of a role in the admissions process.  He thought the Michigan Law School's program was the equivalent of a quota.  He disapproved of the programs in the Parents Involved case because neither Seattle nor Louisville, according to Justice Kennedy, fully explained the manner in which they took race into account  He did not think they used race as one consideration among many other considerations.  He wrote that "Race may be one component of . . . diversity, but other demographic factors, plus special talents and needs, should also be considered."  What he objected to is "Assigning to each student a personal designation according to a crude system of individual racial classification."    He encouraged government actors to use "race-neutral means first  and "if necessary" they can use "a more nuanced, individual evaluation of school needs and students characteristics that might include race as a component."

Fifth, this two-tiered approach, first use race-neutral means and then use a more limited race conscious approach that makes a narrow use of race, is precisely the Texas program.  Texas first employed its Ten Percent Plan, pursuant to which 10% of high school graduates are automatically admitted to the University of Texas.  The University then conducted a study and determined that the Ten Percent Plan did not yield sufficient diversity.  According to the 5th Circuit's opinion, "After more than a year of study . . .,  [the University of Texas] adopted a policy to include race as one of many factors considered in admissions."  That policy authorized the University to take race into account with respect to the pool of applicants that were not admitted to UT under the Ten Percent Plan (it is that policy that the plaintiffs challenge in the case.)  The 5th Circuit also found that UT does not engage in a racial quota, does not keep an ongoing tally of admits by race, does not try to mirror the state's racial demographics, and applicants of every race, including white students, can make the case that their race will contribute to the diversity of the school.

It is not inconceivable that Justice Kennedy would vote to affirm the Texas plan.  I would be surprised if Justice Kennedy reversed course and concluded that racial diversity is not a compelling state interest.  I would not be surprised if he decided that the Texas plan however idd not pass constitutional muster.  This would be consistent with what he did with the Michigan case and the Seattle and Louisville cases.  But I also think that the Texas plan coms closest to a narrowly-tailored program that Justice Kennedy described in his prior opinions. Consequently, this plan is tailor made for Justice Kennedy and he might just do the right thing in this case.

Tuesday, February 21, 2012

Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

Wednesday, February 15, 2012

The Strange yet Unremarkable Case of Jeremy Lin

Stop me if you've heard this story before: A terrific high-school athlete is overlooked during the recruiting process because he does not fit the stereotype of what college athletes are supposed to look like.  He ends up at a terrific college, yet not an athletic powerhouse.  He has a terrific college career, but pro scouts ignore him the same way college coaches ignored him before. He catches on with a pro team, and then another, and then another.  He is not sticking with any one team for long.  And then, almost out of necessity, he gets a chance.  One chance.  One time.  One game.  And he blows it out of the water.  

The story is almost out of central casting, tailor-made for Angelo Pizzo.  For those not paying attention to the world of sports in the last week or so, this also happens to be the story, in a nutshell, of Jeremy Lin, Taiwanese American point guard for the New York Knicks.  How in the world do we explain the fact that a multi-million dollar system designed to scout talent missed as badly as it missed with Jeremy Lin? Here's the cold reality:
"It's the Asian thing," says former NBA player Rex Walters, who's Japanese-American and wound up with [Jesse] Evans' job at [the University of San Francisco]. "People who don't think stereotypes exist are crazy. If he's white, he's either a good shooter or heady. If he's Asian, he's good at math. We're not taking him."
Lin looks like a math major, not a basketball player.  Simple as that.

But make no mistake, this is not a new story. We have seen it a million times.

This is the story of Toby Gerhardt or Brock Forsey, white running backs in a world where running backs happen to be black; or the story of many black quarterbacks in a world where quarterbacks happen to be white.  The argument applies to basketball players and concert pianists, to college professors and football coaches, to welfare recipients and college students.  Stereotypes abound, and they affect our decision-making in ways that we often fail -- or refuse -- to recognize.

Think about what this means for debates over hiring and college admissions.  Close your eyes a moment and think about what a college student is supposed to look like, or better yet, a college professor.   As you do that, try to imagine what happens when a faculty gets together to choose a new colleague, or worse yet, when a faculty gets together to vote on a tenure case.  Even those who have never been privy to one of those meetings have a pretty good idea of what goes on. 

Ask Rex Walters.

Wednesday, February 8, 2012

Hello I am Spongebob...

...and this is opposite day. When I woke up this morning, I did not expect to see that Rick Santorum had won the caucuses/primaries in Missouri, Minnesota and Colorado yesterday. Even more amazing (at least to me) is that Mitt Romney came in third in Minnesota, a state that he won in 2008 and competed for this year. For Santorum, yesterday’s wins mean that he has changed the narrative about Romney’s frontrunner status, but the Republican primaries also raise interesting questions about the underlying legal regime that serve as a backdrop to these contests.

For example, Romney is extremely well-funded, both as a candidate and through a pro-Romney SuperPAC. He outspent Gingrich 5-1 in Florida, and won the state by 14 percentage points. Many blame this huge influx of money into the Republican primary and the rise of SuperPACs on Citizens United, and there is some truth to that. As we all know, money matters and the more money one can raise, even from corporate donors through unaffiliated, pro-you SuperPACs, the better your chances of winning the election. But Romney lost all three contests yesterday, despite his resources and despite the fact that he had hoped to win Minnesota and had spent money there. He lost to a candidate who is a pauper by comparison. Santorum had limited resources, but he spent time in each state, shaking hands and talking to voters.

So yes, it is certainly true that money in elections matters; that having organization and boots on the ground matter….but I still like to think that yesterday’s contests show that if the voters don’t like you, you won’t win. Although I feel for Romney given that this is his second bite at the apple, I do find it somewhat reassuring that the voters still have some say in this process.

Or it could just be that voter turnout was down yesterday and that increased Santorum’s chances of winning. Either way, I would rather believe in the system. Yay democracy!

Tuesday, February 7, 2012

A Word on the Supreme Court and the Old "Strict Constructionism" Canard

As the U.S. Supreme Court readies itself to decide major cases about Obama's health care law, Arizona's notorious immigration law, and the constitutionality of the Voting Rights Act, a recent editorial in the New York Times focuses needed attention on the connection between the Supreme Court and mainstream politics.  According to the Times:
Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.
This is not a new story, not by any means, but its lessons are worth remembering: just as the law thrusts itself into politics, it is also true that "politics shape the court." 

This is an important reminder, especially in an election year, when conservative candidates will undoubtedly intensify their promises to nominate "strict constructionists."  The hypocrisy is palpable; judicial activism knows no one party or ideology.  But one thing is true: conservatives have skillfully managed to set the terms of the debate.  This means that a decision striking down the VRA, for example, would be seen in conservative quarters as a triumph of our new federalism, not as an activist response to the work of Congress; yet a decision upholding the health care law would similarly be seen as a constitutional failure to uphold federalist principles.  This is clearly nonsense.  

I am not sure what it will take to alter the terms of the debate.  But we should not stop trying. 

Tuesday, January 17, 2012

Ward Connerly Deserves to be Paid More Because he's Black

According to this New York Times article, Ward Connerly is in financing trouble and is being accused of financial mismanagement.  His chief accuser is Jennifer Gratz, the lead plaintiff in the University of Michigan anti-affirmative action case.  One of the alleged financial irregularities is Mr. Connerly's pay, which by one calculation is about six times more than some others in similar positions.   Roger Clegg appears to justify the discrepancy in pay on the grounds that Mr. Connerly, as the black face and leader of an anti-affirmative action movement is singularly invaluable.  This is the key excerpt from the piece on this score:

One reason Mr. Connerly has been a particularly effective advocate is that he is black. Mr. Clegg said there were “few people who can do or would do what he does,” adding that it is hard to set a salary on a job that requires enduring racially charged name-calling from fellow blacks.

I'm confused.  I thought these folks were supposed to be colorblind? 

Monday, January 9, 2012

Mitt Romney and Path Dependent Processes

Mitt Romney often justifies his moderate record as governor of Massachusetts (and subsequent leap to the right) as a deviation since he was the governor of a democratic state with a legislature that was, at the time, 85% democratic.  In the primaries, he has been criticized extensively for “flipflopping, or changing positions on issues such as abortion and health care and not being “a true conservative.”  But I wonder the extent to which the other candidates for the Republican nomination and the press are discounting the effect of path dependence on Romney’s alleged “shift” to the right in reviewing his record as governor. 

The fact that Romney became governor of a state that is historically democratic in almost every respect except the governorship limits his ability to govern to the right.  This is reflective of a state that has been a Democratic stronghold for years, but has voters who are willing to vote for moderate Republicans for at least some state offices.  Path dependence is relevant here because the investment in the rules, process and norms by Romney’s predecessors and prior legislatures into Massachusetts government over the past 250+ years make deviations by modern day officials very costly.  Even if we just consider the past century, Democrats have invested more into this governing framework than Republicans just by virtue of the fact that Democrats have won more elections.  While the governorship oscillates between Democrats and Republicans, the Democrats have (and have had) a supermajority in both Houses, meaning that legislation can be passed over the governor’s veto if the governor is a Republican.  Because of path dependent effects (and an overwhelmingly Democratic culture), there is a strong status quo bias that makes it difficult, if not impossible, for Republicans like Romney to shift the Massachusetts government to the right.  At best, all Romney could have done (if he wanted to get anything done) is govern in the middle.

Now you may argue that this has little to do with Romney being for abortion, on one hand, and then against it, on another.  Or passing universal health care in Massachusetts and then threatening to defund a similar program on the federal level.  Maybe it does not, but I think that it is worth recognizing that, in assessing Mitt’s policy positions, he was a red governor in a blue state and this fact did affect his ability to govern to the right.  At the end of the day, you may still conclude that he is a "flipflopper," but standing up for “core conservative principles” does not mean much if nothing gets done.  Governance requires compromise.