Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.
Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.
NYT says it is a “possible” rules violation for HRC to use private email. What’s the defense she’s complied with the law?
A constitutional challenge to contribution limits on traditional political action committees has been turned back by a federal judge in Virginia, who ruled that the limits remain valid under Supreme Court rulings dating back to the 1976 landmark case Buckley v. Valeo (, E.D. Va., No. 14-397,summary judgment order, 2/27/15).
David Karol at The Monkey Cage.
Conner Johnston has written this student note for the UCLA Law Review.
Salvador Perez has written this piece for the Stanford Law Review Online.
My read of the transcript was no. But I’ve now heard from three very smart people I know who were in the courtroom who said Justice Kennedy seemed more in play in the case than it appeared to me from the cold read of the transcript. I hope that’s right.
I’d love to be wrong on this one!
I have now had a chance to review the transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission and the news is not good. It appears that the conservative Justices may be ready to hold that citizen redistricting commissions which have no role for state legislatures in drawing congressional districts are unconstitutional. What’s worse, such a ruling would endanger other election laws passed by voter initiative trying to regulate congressional elections, such as open primaries. For those who don’t like campaign finance laws because they could protect incumbents, this is a ruling that could make incumbency protection all the worse, removing the crucial legislative bypass which is the initiative process (for congressional elections).
The question in the case arises from the Constitution’s Elections Clause, giving each state “legislature” the power to set the rules for Congressional elections if Congress does not act. The key question is whether the people, acting through a state’s initiative process as lawmakers, are acting as the legislature for purpose of this clause. If not, redistricting done without the involvement of the legislature would be unconstitutional. (Before the Court agreed to take the case, it seemed settled that Legislature could include the initiative process of a state.)
From my read of the transcript, Chief Justice Roberts, Justice Scalia, Justice Alito, and Justice Kennedy all seemed skeptical that the word “legislature” used in the Elections Clause could refer to an initiated redistricting process in which the legislature is not involved. Part of this turns on what Legislature meant at the time of the Constitution’s drafting, as well as the use of the term Legislature in other parts of the Constitution which seems to more clearly refer to the representative body. Of course, there was no regular initiative process at the time of the founding, but that fact can cut either way. There are also two precedents which seemed to support the broader reading of “legislature,” but not only the conservatives, but also Justice Breyer, did not believe those cases settled the case.
When you add in Justice Thomas, who is likely to join fellow conservatives in reading Legislature in the narrow textual way, and possibly Justice Breyer, that looks like a majority which will reject a redistricting commission in which the state has no involvement.
What’s worse, Justice Scalia and others suggested that Congress (which has primary power over congressional elections) could not simply authorize redistricting commissions for drawing districts, because doing so would be an end run around the alternative power given to state legislatures.
And if the Court opens this pandora’s box, it is not clear how far it goes. Can legislatures be partially involved in the process? What if there is a veto power for either the legislature or a commission over alternative plans. And how far would this stop other laws affecting congressional elections passed by initiative? Justice Kagan asked:
Well, Mr. Clement, well how about that, because I thought that the legislature was completely cut out as to most of those things. I mean, you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, vote by mal; 1962, Arkansas, use of voting machines. All of things, these things were done by referendum or by initative with the legislative process completely cut out. So would all of those be unconstitutional as well? And we can go further. Im ean, there are zillions of these laws.
The worst part is that the initiative process is the best way to deal with legislative self-interest in the political process. And the Court seems poised to take away the one tool to keep down partisan gerrymandering, to keep the legislature honest, and to make sure the current process protects the will of the people.
What a shame.
[This post has been edited.]
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@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.
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 groups wrote in a letter (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.”
Fascinating NYT A1.
Leo Strine and Nicholas Walter have posted this draft 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.
BAN reports on the cert. denial in the campaign finance disclosure case stemming from California’s Prop. 8.
News from the pre-presidential campaign trail.
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, 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 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) 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). 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.”
“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 King – 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 illustrated elsewhere 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.
Lyle Denniston previews the Arizona redistricting case at SCOTUS.
The Justice Department is stepping up scrutiny of the increasingly cozy ties between candidates and their outside allies, a move that could jolt the freewheeling campaign-finance atmosphere ahead of the 2016 elections….Anthony Herman, another former FEC general counsel, said it appears that federal prosecutors “view themselves as filling a role — to the extent that they think the FEC is not on the job, they think part of their job is to fill that gap.”
Even so, pursuing coordination cases and securing convictions is not easy without inside information. The few known cases in which federal prosecutors have investigated illegal coordination were driven by tips they received while pursuing other alleged crimes.
“It is going to be very difficult to bring these kinds of cases and to ferret out instances of unlawful coordination,” said Herman, a senior counsel at Covington & Burling.
Nick Confessore: “WaPo piece on illegal coordination probes is basically a big Justice Department beg for whistleblowers. Hard to make these cases.”
A Wake County judge has refused to dismiss a challenge to North Carolina’s voter ID law, saying in a ruling issued Friday that most of the claims in the lawsuit are strong enough to take to trial.
The new Republican-controlled Congress is trying to pump fresh life into a long-running probe of alleged targeting of conservative groups by the Internal Revenue Service.
Seeking to jump-start the stalled inquiry, GOP lawmakers raised concerns at a House hearing on Thursday night about possible IRS wrongdoing during the course of the probe.
The hearing by the Oversight and Government Reform Committee revealed few new details, however, and Democrats accused Republicans of airing the allegations prematurely, before all the evidence has been gathered….
Investigators from the IRS inspector general’s office also suggested some unnamed IRS officials might have withheld crucial information about the backup tapes. “There is potential criminal activity,” said deputy inspector general Timothy Camus, in response to a question by Rep. Jim Jordan (R., Ohio).
Mr. Camus and his boss, IRS inspector general J. Russell George, cautioned repeatedly that their investigation isn’t yet complete, and Mr. Camus acknowledged that suspicions of withholding evidence might prove unfounded.
Now available for pre-order:
Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge Studies in Election Law and Democracy) Paperback – May 31, 2015
The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law. I have previously detailed why the case is textualism’s big test. Today, in Politico, I explain why the case is also fundamentally about state rights. The question is whether the Court’s federalism doctrines–which, let’s not forget, the Court applied against the Government in the last Obamacare case–whether these federalism doctrines, like the Court’s textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one. After all, isn’t that the point of have a rule of law in the first place?
Here is an excerpt and a link.
The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.
The challengers maintain that the case is simply about reading plain language. (I have detailed elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.
The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.
A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.
Prosecutors took a hard line Thursday with demonstrators who participated in a rare disruption inside the U.S. Supreme Court, adding additional charges against them and saying disrupting the high court is different from other protests in the nation’s capital.
The demonstrators, five women and two men, were arrested last month after standing in succession inside the court and shouting protests against the court’s 2010 Citizens Unitedcampaign finance ruling. Each person stood and spoke after the court’s justices took the bench but before oral arguments began on Jan. 21, the fifth anniversary of the court’s Citizens United decision. The decision freed corporations and labor unions to spend unlimited amounts on Congressional and presidential elections.
Pretty clear they are worried about further disruptions.
Michael Morley and Nick Stephanopoulos join our Jeffrey Rosen to discuss an upcoming Supreme Court case from Arizona that could dramatically shape the future of the legislative redistricting process.
Extensive Paul Blumenthal/Ryan Grim report at HuffPo, which I look forward to reading.
What could go wrong?
The following is a guest post from Josh Douglas:
A new constitutional amendment affirmatively granting the right to vote could have a significant impact on protecting voting rights for all Americans. Most significantly – and perhaps paradoxically – we are likely to see the biggest effects of a federal amendment where we least expect it: in state courts.
Professor Heather Gerken, in a characteristically eloquent and well-reasoned new article, claims that pursuing a new constitutional amendment enshrining the right to vote is “not worth the candle.” The heart of Professor Gerken’s argument is that the benefits of a new right-to-vote amendment do not justify the costs involved, particularly as Supreme Court Justices and other federal judges are unlikely to alter the scope of voting rights analysis given the likelihood that, to pass, the amendment’s language would have to be too vague.
But a constitutional amendment granting the right to vote does not need federal judges, or even the U.S. Supreme Court, to have a big impact. That is because many state courts follow federal law even when construing their own state constitutions. So a new provision in the federal Constitution, even if couched in broad platitudes, will have corollary effects on state constitutional law.
The doctrinal implication of a federal right-to-vote amendment depends on a concept known as “lockstepping,” which I discussed in this article analyzing state constitutional protection for the right to vote.
Many rights are listed in both federal and state constitutions. Yet even when state constitutional protection is textually broader than what is afforded under the U.S. Constitution, many state courts simply follow – or lockstep – their state constitutions to be in line with the federal constitution. The right to vote is a perfect example of this phenomenon. Every state constitution (besides Arizona’s) affirmatively confers the right to vote to the state’s citizens, a broader grant than the lack of an explicit right within the U.S. Constitution. Yet many state courts lockstep their state-level protection so that it is the same as the U.S. Supreme Court’s more restrictive interpretation of the federal right to vote.
A U.S. constitutional amendment affirmatively granting the right to vote would have a trickle down effect on these state courts. No longer would state judges be able to lockstep the state constitution’s grant of voting rights with the U.S. Supreme Court’s narrow jurisprudence. Instead, a state court that chooses to lockstep would follow the analogous explicit right within the U.S. Constitution, making the protection in the state and federal constitutions coextensive – and broader than it is now.
Having an affirmative constitutional right to vote makes a difference in judicial decision making at the state level. Courts that currently lockstep their state constitutions with federal law tend to rule more narrowly toward voting rights; state courts that independently construe their state constitutional right-to-vote provisions as broader than federal law tend to rule more expansively toward voting rights. The hot-button issue of voter ID provides a great example. In 2008, the U.S. Supreme Court upheld Indiana’s voter ID law under the Equal Protection Clause of the Fourteenth Amendment. Litigants then turned to state courts around the country, challenging voter ID laws under the state constitutions’ more explicit and broader right-to-vote provisions. Courts that properly construed their state constitutions as going beyond the federal constitution, such as in Pennsylvania and Arkansas, invalidated the voter ID laws. But courts that lockstepped their state constitutional protection with federal law, such as in Georgia and Wisconsin, generally upheld the state’s laws. If there were a right-to-vote provision in the U.S. Constitution, it is more likely that these courts would have lockstepped their state constitutions with that broader federal protection.
Further, as I recount in a new article, state courts resolve tons of election law cases, dealing with voter ID, felon disenfranchisement, and the voting process, among others. By and large, when state courts lockstep their state constitutions with federal law, they provide less protection to the right to vote. Although lockstepping in this setting is itself problematic (for reasons I discuss in my article), a federal right-to-vote amendment would mitigate that concern. Even if federal courts might be slow to adapt, state courts that currently lockstep would have to recognize this change in federal law and adjust accordingly.
A constitutional amendment granting the right to vote would thus have an impact that goes well beyond the federal judiciary. It could affect hundreds or thousands of cases at the state level – which is, after all, where the majority of election litigation occurs. This is a meaningful change that is worth the effort: in addition to its many other virtues – such as signaling the importance of voting rights and energizing people to care about this issue – a constitutional amendment can have a significant substantive effect on state court protection of the right to vote.