Don’t Buy the Cooperative-Federalism-Makes-Halbig-Logical Argument

I had hope to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another new, and inaccurate, narrative about ObamaCare to take hold. Over at Volokh, my friend Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and penalize them if they don’t).  It is true we see schemes like that all the time–Medicaid is a prime example–but the insurance exchange design at issue in these cases is NOT one of them.  This federalism argument was made before the D.C. Circuit and even Judge Griffith didn’t buy it in his ruling for the challengers.  I tried to dispel this myth back in March, when I wrote the following on this blog. As I said there, this isn’t Medicaid—it’s the Clean Air Act.

 ”This is not a conditional spending program analogous to Medicaid. 

The challengers’ strategy in this round has been to contend that the subsidies are part of an overarching ACA “carrots and sticks” strategy to lure states into health reform and penalize them if they decline.  On that version of the story, it might make sense that subsidies would be unavailable in states that do not run their own exchanges. In their view, the subsidies are therefore exactly like the ACA’s Medicaid provision (from appellants’brief: “The ACA’s subsidy provision offered an analogous ‘deal’ to entice states to establish Exchanges—because Congress (wisely, in hindsight) knew it had to offer huge incentives for the states to assume responsibility for that logistically nightmarish and politically toxic task.”)

Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid.  Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback:  Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you.  In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA).  If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program—the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies.  More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012).   The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate.  If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional.”

* * *

It may be true that the ACA’s politics have created a landscape no one ever predicted—one in which federalism-focused states, whose congressional representatives were demanding the states’ rights to establish exchanges instead of the federal government—have decided that politics is more important than federalism and opted out.  But what’s happened in hindsight doesn’t change what happened when the statute was enacted and how the statute is designed. What happened when the statute was designed was that no one thought the states needed a carrot to do this and the statute was never designed as a “use or lose it” incentive, like Medicaid


Dept. of Ewwww…Groping Petition Canvassers

Water bond petition workers caught on home surveillance video:

Canvassers working on behalf of the Let Claremont Vote Committee started making the rounds last week, circulating a petition for a separate measure calling for voter approval on the city’s water bonds.

At around 6:45 p.m. on Wednesday, July 16, two canvassers—an unidentified male and female—arrived to the Claremont home of Pat O’Malley. His wife, Shelley, had just finished giving their baby a bath when she passed by the family’s home surveillance monitor and witnessed the couple at their front door.

After watching the monitor for a moment, Ms. O’Malley couldn’t believe her eyes. The man was groping the woman, right there on the O’Malley’s front porch.

NSFW video.


The Mixed Alarcon Verdict: Time To Abolish Candidate Residency Requirements

The LA Times Soumya Karlamaga reports that former LA City council member Richard Alarcon was found guilty on some, but not most, counts of voter fraud and perjury (his wife was found guilty on some charges as well). There will be a motion for a new trial and appeals from the Alarcons. At issue was whether Alarcon and his wife intended to return to his in-district home while he worked outside his district. This trial, like the Ron Wright trial, turns on the meaning of “domicile” and candidate residency laws which require getting into the head of a politician (never a comfortable place to be) and discerning his intent.

In my view, it is time to abolish candidate residency laws. (This is not an excuse for Wright or Alarcon—if they violated the rules as they were at the time they were running, then they should be punished. It is an argument about going forward).

Here is what I wrote in Slate a few years ago, when an Illinois court said that Rahm Emanuel could not run for mayor of Chicago because he was not a resident (while he was serving as White House Chief of Staff in Washington DC:

Monday’s decision is wrong on many levels. Whether Emanuel’s move to D.C. for a year should affect his mayoral chances is a question for the voters, not the courts, to decide. Emanuel’s residency is no secret—it has been a defining campaign issue. If Chicago voters don’t want to vote for Emanuel because they think he’s a carpetbagger (even though this strains credulity given his longstanding Chicago ties), they can reject him at the ballot box. Now, in a nonpartisan election, they’ll have to choose among a long list of candidates, none of whom has polled as strongly as Emanuel. Finally, should a politician really face a penalty like this for serving the president? Is it really true that no good deed goes unpunished?

The appellate court’s overly technical reading of Illinois law risks denying Chicago voters their first-choice candidate for mayor. For no good reason, the court has thrust itself into the political thicket. If there’s time, the Illinois Supreme Court should get the judiciary out of the fray and leave the question of who should be Chicago’s mayor to the voters.

The Illinois Supreme Court went on to reverse the lower court and allow Emanuel on the ballot and the voters elected him.

The idea that we need to protect voters from carpetbagging outsiders is outdated and patronizing. If voters don’t want the outsider to be the representative, they can vote that way. But does anyone think the quality of Alarcon’s representation of his district depended at all on whether his primary residence was a few miles outside his district? And even if they did, the remedy would be to vote him out of office.

There’s no good reason to let prosecutors go after politicians on cases which require rummaging through the clothes and baby pictures in a politician’s house. This leaves open room for selective prosecutions and mistakes. Let’s repeal these candidate residency laws.


“Bad Readers: The judges who ruled against Obamacare are following Scalia down a terrible path of interpretation.”

I have written this new Jurisprudence essay for Slate. It begins:

Unless you are a lawyer or a glutton for punishment, you probably want to avoid reading the new D.C. Circuit and 4th Circuit opinions reaching conflicting results on the legality of key provisions of the Affordable Care Act—the parts that provide subsidies for Americans who sign up for health insurance through the exchanges the law created. The opinions are full of jargon parsing the intricacies of the mammoth health care law.

But well within the weeds of these lawyerly discussions is a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?


“Garvey Schubert Barer adds Attorney Brad Deutsch to its Washington, D.C. office”

Press release via email:

Garvey Schubert Barer has announced the addition of Attorney Brad Deutsch to its Washington, D.C. office, where his practice will focus on Public Policy, Lobbying and Political Law, and on Communications, Media and Information Technology.

Prior to joining the firm, Brad Deutsch served for eight years as Chief of Staff and Senior Legal Advisor to Commissioner Steven T. Walther at the Federal Election Commission, where he had previously served as Assistant General Counsel.  During his tenure at the FEC, he advised Commissioner Walther, (who served as FEC Chairman in 2009 and as Vice Chairman in 2008), on all aspects of Campaign Finance Law and Administrative Law.  At Garvey Schubert Barer, Brad Deutsch will provide strategic advice to candidates, political committees, corporations and trade associations in all areas of Federal and State Political and Election Law.

Brad Deutsch’s practice will also focus on broadcast station transactions and regulations before the Federal Communications Commission, where he previously served as Special Assistant to the Chief of the Mass Media Bureau and as a Supervisory Attorney.  Brad also has extensive experience assisting broadcast clients with complex transactions, licensing applications and rulemaking proceedings, derived from his prior work experience in private practice with the law firm Hogan & Hartson LLP (now renamed Hogan Lovells US LLP)….


“Nick Di Iorio, longshot GOP candidate for Congress, signed to star in reality show about ‘unwinnable’ races”

NYDN reports.

UPDATE: From the campaign:

Earlier this year, Nick Di iorio was approached by several producers interested in filming the Nick for New York campaign.  One proposed a reality show format.  The campaign contacted the Federal Election Commission (FEC) in order to understand the rules and permissibility of such a reality-style documentary show, should any cable television network propose an agreement to fund and distribute it.  The FEC advised the campaign to submit an Advisory Opinion Request, which the campaign did.

The Nick for New York campaign has not received any reality show proposals from any cable television networks at this time.  The campaign never actively sought out reality-based media opportunities, and is not seeking out reality-based media opportunities.

Nick’s primary concern is to focus attention on his campaign message: that people must come before politics.  It’s why his “100 Days of Service” is a centerpiece of his weekly campaigning.  And it’s why his top priorities are education reform, charter schools, and corporate tax reform.  Nick believes Representative Maloney has forgotten these big issues.  She is more concerned with voting with her party (~95% of the time).  And she is out of touch; to sit on the House Oversight Committee and not understand how a 501(c)(4) organization works is unacceptable.

New Yorkers deserve better, and Nick hopes any media attention will draw people to learn more about him.  They will find a man with a passion for serving his community.


“NH faces lawsuit over new election law”

Manchester Union Leader:

The New Hampshire Civil Liberties Union is suing the state over a new law that it says will stack the deck against third parties trying to gain ballot access.

The lawsuit, filed July 22 on behalf of the Libertarian Party of New Hampshire, challenges a requirement that nomination papers for a political organization “be signed and dated in the year of the election.”


“Partisan Gerrymandering and the Efficiency Gap”

Nick Stephanopoulos and Eric McGhee has posted this draft on SSRN (forthcoming University of Chicago Law Review).  Here is the abstract:

The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be shaped into a legal test.

In this Article, we take the Justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis.

Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years — and peaking in the 2012 election — plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several likely will remain extreme for the remainder of the decade, as indicated by our sensitivity testing.

Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and eight percent for state house plans, but only if the plans probably will stay unbalanced for the rest of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s “unanswerable question” of “how much political…effect is too much.”


#Halbig: Participation of Senior DC Circuit Justices in En Banc Review

There’s been some confusion about what role senior judges play in the en banc review.  After looking at the rules, it appears that senior judges do not get to vote on whether to take the case en banc, but if the case is taken en banc senior judges who were on the panel do get to participate in the decision of the case if the judge wants to do so. I’ve put the relevant parts of the rules in bold below:

If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted.
When rehearing en banc is granted, the Clerk enters an order granting the rehearing en banc and vacating the judgment by the original panel, either in whole or in part, as circumstances warrant. This order is posted on the Court’s web site and is published in the federal reporter system. An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish. The Court has followed a variety of procedures in conducting rehearing en banc. On occasion, only the original briefs have been considered; in other cases, the Court has requested supplemental briefs. The Court almost always hears oral argument in considering a case en banc.
The Court sitting en banc consists of all active judges, plus any senior judges of the Court who were members of the original panel and wish to participate. When the Court sits en banc with an even number of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or judgment under review, and it may publish the en banc Court’s divided views.


“The Tangled Web of Paul Ryan’s FEC Request”

Brian Svoboda:

At issue in Advisory Opinion Request 2014-06 is whether Representative Paul Ryan’s leadership PAC, Prosperity Action, may promote the sale of his upcoming book on the Internet beyond de minimis levels. Representative Ryan intends to receive royalties from the book.

The Federal Election Commission published two drafts of a response to his request. The first, Draft A, would grant it. The second, Draft B, broadly asserts that “the Act’s personal use prohibition applies to leadership PACs, such as Prosperity Action.” Adopting Draft B would be a significant policy change for the FEC. In its legislative recommendations just last year, the FEC asked Congress to amend 2 U.S.C. § 439a to cover leadership PACs, saying: “Congress might not have considered the application of the personal use prohibition to this particular type of political committee.”

But at the heart of the request is a highly technical question that vexed many during the failed prosecution of John Edwards….


Fourth Circuit Rules in FAVOR of the Government in the Obamacare Subsidies case

Making sure our readers keep up with this whiplash-causing day in the land of health reform: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn’t even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I’ve been arguing in previous posts), Judge Davis also argued that this isn’t a case of “textualism v. purposivism” or statutory text versus some amorphous concept of congressional intent.  Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government.

[cross-posted at Balkinization]


“Obamacare Ruling: Congress’s Dysfunction Hands Power to the Courts”

David Wessel:

The appellate court ruling on Obamacare underscores an increasingly important side effect of today’s congressional dysfunction and gridlock: The rising power of the courts, particularly the U.S. Supreme Court.  Congress, unable to agree on almost anything, is incapable of responding to court interpretations of often-vague statutes even when the Court invites a response.

That’s a big change.

“Polarization already is leading to an increase in the power of the [Supreme] Court against Congress, whether or not the justices affirmatively seek that additional power,” Richard Hasen, a University of California at Irvine law professor noted in a 2012 law review article.  In the past two decades, the rate of congressional overriding of Supreme Court statutory decisions has plummeted, he found, from an average of 12 in each two-year congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to 2.8 average number of overrides for each term from 2001-2012.


“I’d love to write for Electronic Law Blog”

I get spam all the time offering me free content for the blog, so long as I just include a little link to something special.  But I really liked this one I got this morning:

just thought I’d send a quick email because I wanted to let you know how much I enjoyed reading the articles on Electronic Law Blog. I have a keen interest and have been a writer on law-related topics for a year now, and sites like yours are always appreciated for inspiration.

I’m really interested to know if you’re looking for new contributors to your blog, as I’d love to put myself forward as a possible contributor.

Over the last few years I’ve written for some well-known publications and have received some really positive feedback for my writing. I really believe my writing would resonate perfectly with the readers of your site, my background is within family law, separation and divorce.

I had a piece published recently that I was particularly proud of, titled ‘Jess and Cathy talk about divorce’, you can see it here:…


D.C. Circuit Rules Against Govt in ObamaCare Exchange Subsidies Case

The D.C. Circuit has just ruled, 2-1, that the critical subsidies are not available to consumers buying insurance in states where the exchanges are operated by the federal government, rather than the states.   Initial reaction- more to come: The opinion  is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn’t even the basis for these provisions–the Finance committee’s was) and gets it wrong anyway (as I argued here);  it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges.  The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What’s more, applying the exclusio unius presumption  (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA — and one that did not go through the usual linguistic “clean up” process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years–turning it into a wooden unreasonable formalism  rather than the sophisticated statutory analysis that textualists have been claiming they are all about.


[cross posted at Balkinzation]


“Democrats challenge petition seeking spot in gubernatorial primary”

Buffalo News:

Democrats have turned to a lawyer who helped craft some of the state’s complex election laws to try to keep a challenger to Gov. Andrew M. Cuomo from getting onto the September Democratic gubernatorial primary ballot.

Martin Connor, a former State Senate minority leader from Brooklyn and one of the state’s most respected election lawyers, is in charge of the legal team seeking to challenge the designating petition submitted last week by Zephyr Teachout, a Fordham University law professor who is seeking to run against Cuomo in a primary.