Author: Gerard Magliocca


The Grand Jury in Ferguson

Up until now, I have not had anything to say about the events in Ferguson. I’m not an expert on policing or racial profiling, and sometimes you have to know your limitations. But I am fascinated by the deliberations of the grand jury, which are a throwback to another time.

The most common phrase that goes with “grand jury” nowadays is “ham sandwich.”  Not so here.  Ordinary citizens are carefully considering whether an indictment or “true bill” should issue in a controversial case.  This is what the Framers had in mind when they wrote the grand jury into the Fifth Amendment, and they were drawing on a rich colonial and British tradition of grand juries shielding people from wrongful accusations or expressing the community’s view on a criminal prosecution.

The trouble now is that this only works when the case reaches an astronomical level of visibility.  In ordinary cases, an information is at least as good, if not better, at serving the functions of a grand jury (especially when combined with some form of prosecutorial accountability.)  This may explain even ardent supporters of incorporation seem uninterested in reversing Hurtado and making the grand jury requirement applicable to the states.



Close to Home

82px-William_Jennings_Bryan_cph.3b33180I recently learned an interesting fact that is not relevant to any current event.  William Jennings Bryan gave his acceptance speech for the 1900 Democratic presidential nomination across the street from my office.  In those days, candidates accepted their nomination after (not during) the convention.  Indeed, there was a tradition where a delegation from the convention went to the candidate’s home to present the invitation to run.  When Bryan gave his acceptance speech, he chose an outdoor rally in Indianapolis as the venue, and that location is now mostly occupied by the campus on which my law school sits.  (I’m sure there is a plaque somewhere the designates the exact sp0t.)

This was be the second most important speech ever given in Indianapolis.  The most important was this one.


Does King v. Burwell Present Constitutional Difficulties?

Here is an interesting point raised in this piece by The New Republic.  If the Court interprets the ACA to say that subsidies may go only to states that set up exchanges, then wouldn’t that raise a Spending Clause issue under South Dakota v. Dole and NFIB v. Sebelius?  Maybe that use of Congress’s spending authority is too coercive (whatever that means) because the subsidies are large and a state would suffer a lot if they had a health insurance system without federal subsidies while their neighbor had one with subsidies.

Mind you, I can see why what Congress may have done with the ACA subsidies is constitutional, but that’s not the question.  The question is whether the challenge to the Act raises “constitutional difficulties” that should be avoided by not reading the Act as providing for conditional spending.  I’m not sure what to think about this yet.


The Roberts Convention

When I think about NFIB v. Sebelius, my understanding of what Chief Justice Roberts did was to say that in an election year the Justices appointed by one political party should not strike down the signature legislation of the other political party.  I have no idea what the Chief Justice thinks that the Chief Justice did two years ago, but how would what I just said apply to King if the decision is 5-4 against the Administration.

Well, 2015 is not an election year, and King would not strike down the Affordable Care Act.  But is an adverse ruling tantamount to striking it down given that Congress will not do much in response?  I don’t know.  I get different views on that from health law experts.  Some say this would be crippling, others say not so much.  One would think that the briefs will try to convince the Chief one way or the other on this–that matters as much as the technical aspects.

One other note–Paul Krugman’s column in today’s NY Times today on King is the liberal equivalent of a Rush Limbaugh tirade.  I don’t have time to go through all of the flaws.  I love reading him and think his economic views are spot on, but on this one he doesn’t know what he’s talking about.


American Founding Son

I see Amazon is temporarily out of stock of my John Bingham biography, but don’t let that discourage you from buying the book.  (Yes, this is shameless self-promotion.)  More substantive posts about King coming tomorrow.


The Most Important Statutory Case?

Today I was thinking that King could be the most important statutory case decided by the Supreme Court.  How many other candidates are there?  The early cases under the Sherman Anti-Trust Act come to mind (Northern SecuritiesStandard Oil), and maybe one or two involving the Civil Rights Act of 1964.  Anything else?

UPDATE:  I suppose Ex Parte McCardle was more important.


King v. Burwell-The Gruber Tape

Yesterday I said that my view is that Congress did not intend to use subsidies as a carrot for states to create exchanges under the ACA.  What is the best argument on the other side?  The answer is that Jonathan Gruber, one of the architects of the law, said in 2012 in a public Q&A that the subsidies were a carrot.    Gruber now says that he misspoke.

I have significant reservations about relying on this statement.  First, is this in the record?  Thus, can the Court consider this at all?  Second, even if it is in the record, Gruber did not give testimony in the District Court.  Maybe he is lying now when he says he made a mistake.  Maybe he is telling the truth.  I don’t know.  The way we figure these things out is through a fact-finder.  The way not to do this is through appellate briefs.



King v. Burwell

The blockbuster case of this Term (depending on the timing of the next cert. petition on same-sex marriage) is the case granted today that could cripple the Affordable Care Act.  I’ve always thought that the Supreme Court would take this (nice try–DC Circuit en banc) and that there is a good chance that the Administration would lose there.

What about the question of who should win?  The most plausible explanation of the contested language is that Congress did not intend to limit the subsidies to state exchanges.  Why does the statute say that then?  Because Scott Brown was elected in a special election to fill Ted Kennedy’s seat.  This deprived Democrats of their filibuster-proof majority in the Senate.  Thus, the final bill was passed in the Senate through the reconciliation process (which only requires a simple majority).  There was no conference committee or the usual procedures to fix errors in the bill.

What should a court do about this?  The language about state exchanges is not ambiguous.  The problem is that it is inconsistent with the rest of the statute, the intent of Congress, and could lead to an absurd result.  Supporters of the Act are trying to make that an ambiguity argument because that gets the IRS interpretation Chevron deference.  I am  skeptical about this argument.  And normally if the text is unambiguous then you do not look at the legislative intent or anything other than the possibility of an “absurd result.”  So this may end up being the point on which King turns.


Poll Taxes and Voter IDs

The voter ID laws from Wisconsin and Texas are sure to reach the Supreme Court at some point, and so I’m trying to think through how the Twenty-Fourth Amendment (banning poll taxes in federal elections) might apply to these laws.

Let’s focus on folks who do not have an ID that a state considers valid.  (Maybe the person is elderly, for example, and never obtained a driver’s license.)  Suppose the state says that this person can get an ID for free, but to do so they have to go through some process.  If that process were onerous, then I think it fair to conclude that this would impose a poll tax.  The question is how burdensome is too burdensome.  Is the standard that if somebody could not vote as a result, then there is a violation?  Or do we judge this by some reasonableness standard?

One thing about the Twenty-Fourth Amendment that makes it different from other constitutional prohibitions is that it imposes a clear rule.  A $1 poll tax is just as unconstitutional as a $500 poll tax.  This may suggest that a conditional poll tax (in lieu of paying the fee for an ID, do this) should be assessed in a similar way black and white way.  In other words, a balancing test is not appropriate in this context.

Of course, this analysis does not cover a situation where someone has an ID and just forgets to bring it to the polls.  In that scenario, there is no poll tax and no constitutional violation–the issue falls under the Voting Rights Act.