Author: Gerard Magliocca

0

Reforming the OLC

In a post a few weeks ago I noted that the reconciliation process on health care would test the practice (dating back to the 1970s) that rulings of the Senate parliamentarian are not overturned by the presiding officer (e.g., the Vice-President).  So far, on the most consequential legislation in decades, that tradition remains intact, which suggests that it is now a settled rule.

This raises the following question–if the parliamentarian’s office can consist entirely of civil servants, why can’t the same structure be used for the Office of Legal Counsel (OLC) in the Executive Branch?  For those who think that John Yoo’s work there was problematic because he just told the President what he wanted to hear, one solution would be to end the practice of having political appointees there at all.  Of course, the Attorney General or the President would retain the right to overrule opinions by the OLC civil servants, just as the Vice-President (or a Senate majority) can overrule the parliamentarian, but in time that power would probably wither away because the political costs of exercising it would be too high.

UPDATE:  Here is a paper by Brad Lipton that makes a similar argument.

1

Test Case on the Individual Mandate

Here’s something to chew on.  Let’s say you want to litigate the constitutionality of the individual mandate. Who would be the most sympathetic plaintiff?  (“I don’t want to buy health insurance because . . .” )  It can’t be somebody who is poor (they get subsidies) or has religious objections to medical care (they are exempted from the requirement).  Is it somebody who says that in my state I can only buy insurance from company X, and I don’t want to be insured by it for one reason or another?

8

Slender Majorities

An argument against the health care bill is that, as Jefferson said, “Great innovations should not be forced upon slender majorities.”  As a historical matter, you can find cases where this was done (two that come to mind are the renewal of the draft in 1940 (or maybe it was 1941), which passed by one vote in the House, and the [Cherokee] Removal Act of 1830, which survived the key procedural challenge in the House by one vote).

More generally, the proposition that broad bipartisan changes are somehow better than partisan ones is far from clear.  You can find plenty of major errors made by supermajorities (Prohibition) that reflected a kind of group-think mentality.  And you don’t often hear folks in parliamentary democracies lamenting the lack of bipartisan support–they just assume that the Government will put through its program and, if people don’t like it, they’ll vote somebody else in the next time.  The fetish for bipartisanship seems to be distinctly American.

Read More

8

Where Things Stand

Time for some special weekend blogging as the health care vote draws near!  When the House GOP starts objecting to unanimous consent requests for Democratic motions to “revise and extend remarks,” that’s when the fun will really start.

In a series of posts over the last year, I’ve explained that there is a robust pattern in constitutional politics that recurs every generation:

1.  The established party system implodes.

2.  There is a realigning election.

3.  The new movement introduces landmark legislation that repudiates a central pillar of the prior regime.

4.  That legislation faces extraordinarily intense resistance.

5.  That resistance is met by procedural innovations to overcome that opposition.

We are now at stage 5 (the combination of deem and pass and reconciliation).  After Scott Brown’s election in January, I noted in this post that we were at stage 4.  (This post pointed out that we were at Stage 3 over the summer.)  I’m drafting an article (that will hopefully be done this summer) that puts the health care debate in context by looking at the similar experience of earlier generations (the Jacksonian example, which involved the Indian Removal Act of 1830 and the Bank Veto, is discussed in my book).

Stage 6 involves the escalation of resistance.  Republicans could say, “Well, we fought hard against health care reform but we lost.  Now let’s move on to other things.”  Don’t bet on it.  Instead, they are going to turn the midterm election into a referendum on the Act.  That will set the stage the next round of battles as each side tries to interpret the actions of the voters in November.

Stage 7 comes when King Kong (or Mighty Joe Young) gets involved–the Supreme Court.  What will the Justices do with this Act?  That may be one of the great constitutional cases of our time.  You now have two issues–the procedure used to pass the bill in the House and the power of Congress to impose an individual mandate.  I think the procedural argument will not go far, but the unusual way in the which the bill passes will taint the legislation (consciously or not) when the Justices take up the substantive issue.

Now you can certainly come up with a good doctrinal argument in support of the individual mandate.  As I pointed out in this post, though, doctrine is a poor tool for predicting what will happen in these moments. I’m more impressed by the fact that lots of people think that the individual mandate is unconstitutional, as expressed by the growing number of states that are passing resolutions or (in Idaho) statutes that say as much.  This is more telling, I think, about what the Justices will do.  I hope to address that question in my draft article as well.

UPDATE:  The House Democrats just announced that they will not use “deem and pass.”  There will be a separate vote on the Senate bill.  That eliminates any viable procedural challenge to the statute in court.

3

Deem and Pass

I would like to raise a constitutional question about the proposed rule that the House of Representatives may use to pass health care reform.

Article I, Section 5, Clause 3 provides that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”  Suppose that the House passed a rule (by less than a 4/5 majority) stating that “the health care bill shall be passed by a voice vote.”  I think we can all agree that this would be unconstitutional, even though it would be useful because it would allow members to not go on the record as voting Yea or Nay.

How is deem and pass different from my hypothetical?  I guess the best answer is that there is a recorded vote on something–a vote on whether to deem a bill passed under certain conditions.  I wonder, though, whether that distinction can avoid the broad language of the Journal Clause (“any question shall”).  The whole point of deem and pass, after all, is to avoid taking an up-or-down vote on a question (the Senate version of health care reform).

Moreover, I would be interested to know whether the previous uses of this rule were on bills with less than a 4/5 vote for final passage or not.  The mere fact that deem and pass has been done before is not sufficient, it seems to me, to establish that the practice is lawful if more than 1/5 of the House objects.  Indeed, if the previous instances were all on noncontroversial matters, that would reinforce my argument.

10

Standards for Assessing Judicial Nominees

A question raised by the Sotomayor nomination that is an issue for all judicial nominees is what standard should be used to determine whether someone is too extreme or “outside the mainstream” to be confirmed. (For purposes of discussion, let’s exclude issues about ethical problems or a lack of credentials.)  The main problem that I have with these confirmation fights is that I don’t know what standard is being applied.

Read More

0

Cloture Reform

According to this story, Senate Democrats will be holding a hearing later this month to consider alternatives to the current filibuster rule.  (Of course, the story assumes that Democrats will have a majority in 2011 when the Senate could, at least under one theory, change its rules by majority vote.  And that Harry Reid will still be in the Senate next year.  But why fuss over these details.)

If they’re looking for ideas, there’s always this.

11

Law & Technology

I am teaching a seminar on law and technology next semester, and I’m looking for a book or an article that addresses–at a relatively high level of generality–the disruptive impact of technological change on doctrine. (Or perhaps an excellent case study of how this occurred in a particular area).  Any suggestions would be most welcome.