Tag: hit&run

[Note: This post was coauthored with Professor Josh Blackman.] In an earlier post, Josh noted that Texas v. U.S. reminded him of the film Groundhog Day: “the same script repeats itself over and over again, in slightly different contexts.” Indeed, questions Chief Justice Roberts and Justice Kagan asked in 2012 augured, with a remarkable degree of clarity, two issues presented in Texas v. U.S.  First, is the mandate separate from the penalty? Second, would someone who is subject to the mandate, but not the penalty, have standing? Josh covered the arguments about these issues on pp. 176-184 of his 2012 book, Unprecedented. Read those pages first, then come back to this post. Still didn’t click? Then-Judge Kavanaugh makes a cameo. Go on, click. We’ll wait. 

Welcome back. On Monday, March 26, 2012, Greg Katsas (now a judge on the D.C. Circuit) argued before the Supreme Court on behalf of NFIB concerning the Anti-Injunction Act question presented. Most people focused on the second day, which considered the constitutional basis of the mandate. However, the first day proved to be the most pivotal for the saving construction. More importantly, for our purposes, it was also a critical day for the issue of standing.

Justice Kagan raised this issue during oral argument in a way that affects the standing issue in Texas. She asked:

Justice Kagan: Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing? 

This question, with precision, addresses the facts presented in Texas: the private plaintiffs are subject to the mandate, but do not have to pay a penalty for going uninsured. But, as Justice Kagan’s question shows, this dynamic is not new. Indeed, even in 2012, there were some people who were subject to the mandate, but were statutorily exempt from having to pay the penalty: (1) individuals who could not afford coverage, (2) taxpayers with income below the filing threshold, (3) members of Indian tribes, (4) people with short gaps in coverage, and (5) those who have “suffered a hardship” as defined by the Secretary.

Katsas answered that for such people, the mandate standing by itself still causes an injury-in-fact. 

Mr. Katsas: Yes, I think that person would, because that person is injured by compliance with the mandate. 

Justice Kagan: What would that look like? What would the argument be as to what the injury was? 

Mr. Katsas: The injury—when that person is subject to the mandate, that person is required to purchase health insurance. That is a forced acquisition of an unwanted good. It’s a classic pocketbook injury. 

Consider the declarations of the two private plaintiffs from NFIB, Mary Brown and Kaj Ahlburg. Mary Brown, for example, wrote that she “will be harmed if I am required to obtain and maintain such insurance, which I neither need nor want, or to pay the prescribed penalties for non-compliance.” Starting in 2014, the payment of the penalty could have caused a separate Article III injury. 

But when the case was being litigated, the penalty had not yet been assessed. Rather, standing was premised on the mandate. Brown wrote, “to comply with the individual insurance mandate, and well in advance of 2014, I must now investigate whether and how to rearrange my personal finance affairs.” She added, “in order to comply with the individual mandate I believe that I would have to plan and take appropriate action before 2014 so as to meet its requirements if I am to avoid being penalized for not comply when this requirement becomes effective.” 

As a general matter, a Plaintiff only has standing to challenge a specific provision of law that provision injures her. The overbreadth doctrine in the First Amendment context serves as an exception to this general rule. It allows persons whose speech may constitutionally be restricted by a statute, and who therefore are not injured, to challenge the statute on the ground that it also reaches the protected speech of others. Ordinarily, however, if you are not injured by a particular provision, you lack standing to challenge it.

The sole basis for Brown’s Article III injury was the mandate–not the penalty. Indeed, the government’s motion to dismiss in NFIB argued that the private Plaintiffs lacked standing because “the minimum coverage provision . . . will not take effect until 2014 [4 years later] and it is entirely speculative whether the individual plaintiffs will be injured” (page 22) by “the provision.” DOJ did not mention in its discussion of standing the role that the penalty, which also would not be collected until 2014, played in the standing analysis. The District Court agreed with the Plaintiffs’ arguments. Judge Vinson ruled that Brown and Ahlburg showed they had an injury “because of the financial expense [they would] definitively incur under the Act in 2014,” and they needed “to take investigatory steps and make financial arrangements now to ensure compliance then.” Once again, there was no discussion of the penalty.

The private plaintiffs maintained this posture throughout the litigation. Their Supreme Court brief explained: “Here, likewise, Private Respondents are not preemptively defending against the ‘penalty’ that § 5000A(b) would impose [in 2014] if they were to violate the mandate, but instead are attacking § 5000A(a)’s unconditional legal “[r]equirement” to purchase insurance in the first place.” 

Indeed, the penalty could not provide the injury-in-fact because the Plaintiffs never planned to pay the penalty. Why? Brown and Ahlburg were “law-abiding citizens who intend to comply with the mandate unless it is invalidated.” That is why they challenged the mandate–the penalty could never injure them! 

Earlier in the argument, Greg Katsas elaborated on this theme in a colloquy with Chief Justice Roberts:

Chief Justice Roberts, Jr.:  Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing. 

Critics of the Texas litigation likewise routinely describe the mandate as “toothless.” Katsas replied in much the same way that the Texas plaintiffs respond. 

Mr. Katsas: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.

Indeed, in support of this claim, the NFIB brief cited the 2008 Congressional Budget Office report, which found that “many individuals . . . would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation’s laws.” (Josh discussed that CBO report here.) The brief added, “That finding readily confirms the common-sense proposition that the interest of law-abiding citizens [like Brown and Ahlburg] in challenging burdensome legal requirements exists independently of the sanction that would be imposed for non-compliance.” (This argument is precisely the same argument that the Texas plaintiffs advance.)

Some critics, both then and now, think that Katsas’s argument was wrong–maybe even silly. During oral argument, Chief Justice Roberts seemed genuinely skeptical. But in his written opinion, Roberts put his skepticism aside. Though he did not directly address the standing question, he had to accept NFIB’s position to reach the merits of the challenge to § 5000A(a). Otherwise, the Plaintiffs would have lacked standing to challenge the mandate, and only the mandate in 2010 when the case was filed.  But he did not dismiss the case due to a lack of standing. Part III.A of his opinion is necessarily premised on the fact that people are injured by a purchase mandate that has no collateral consequences. 

In Part III.A, Chief Justice Roberts concluded that the mandate to purchase insurance cannot be supported by Congress’s powers under the Commerce and Necessary and Proper Clauses. That is, he rejected the government’s argument that “Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act’s other reforms.” 

However, in this section–which stretches nearly ten pages in length–Chief Justice Roberts makes no mention whatsoever of the penalty. He also does not discuss what would be the crux of Part III.C: that there were no “no legal consequences” for going uninsured. In Part III.A, Roberts necessarily assumes–contrary to the Solicitor General’s representation–that under the natural reading of the statute, it is  unlawful to go uninsured, even if there are no collateral consequences for doing so other than being a law breaker. 

Greg Katsas, arguing on behalf of NIFB, operated on the presumption that this mandate would induce some people to purchase insurance. We read Part III.A of the Chief Justice’s opinion as consistent with Katsas’s legal argument in NFIB: the mandate and the penalty are separate legal provisions. That is, the mandate stands alone as a command to buy insurance–not having insurance would be unlawful–regardless of whatever collateral legal consequences may follow from engaging in this unlawful (in)activity. And that mandate, by virtue of its enactment, is unconstitutional. 

Simply stated, in Part III.A of the controlling opinion, the only possible basis for the private plaintiffs’ standing was the injury caused by the mandate, and the mandate alone–that is, by making it unlawful to be uninsured. In Part III.A, the plaintiffs’ standing to challenge the requirement was not made to turn on any injury inflicted by the penalty. 

Indeed, because the provisions were separate, standing to challenge § 5000A(b) would not have enabled the plaintiffs to piggyback a challenge § 5000A(a). Parties need an independent basis to challenge distinct portions of the law. It was the legal requirement or duty to have insurance, not the penalty for failing to insure, that imposed a burden in the business owners represented by NFIB. 

Stated differently, standing to challenge the penalty would not have allowed the plaintiffs to challenge the mandate as a separate legal requirement. Part III.A of Roberts’s opinion only works if Katsas was correct, and the “forced acquisition of an unwanted good,” in the absence of a penalty, was an injury in fact. Roberts, implicitly at least, adopted NFIB’s theory of standing: the mandate cause an injury in fact. 

How does this history affect the current litigation? The private plaintiffs in NFIB and the private plaintiffs in Texas assert the same injury. The first Texas plaintiff, John Nantz, declared, “I value compliance with my legal obligations … [t]he repeal of the associated health insurance tax penalty did not relieve me of the requirement to purchase health insurance.” The second plaintiff, Neill Hurley, added, “I continue to maintain minimum essential health coverage because I am obligated to comply with the [ACA’s] individual mandate.” 

The Texas plaintiffs suffer an injury-in-fact for the same reason that the NFIB plaintiffs suffered an injury-in-fact: the mandate imposes a legal obligation to purchase insurance, without regard to any collateral legal consequences. Indeed, the Texas plaintiffs have a far more imminent injury in fact: they need to maintain insurance now, whereas the NFIB plaintiffs had to make financial arrangements in the present to purchase insurance in the future. 

Chief Justice Roberts’s recent decision in the census case may also bear on this analysis. A recent 28(j) letter by the private plaintiffs in Texas explains why:

But the Court held that plaintiff states had “met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully.” Slip op. 10. Similarly, here, Individual Plaintiffs’ purchase of minimum essential coverage is a likely and predictable reaction to 26 U.S.C. § 5000A(a)’s legal command. Indeed, if the “predictable effect of Government action” (slip op. 11) on private decisionmakers is sufficient to establish traceability for standing even when those decisions are unlawful, the Individual Plaintiffs’ lawful decisions to comply with the individual mandate are an even more likely and predictable reaction. The Court relied on evidence introduced at trial that “noncitizen households have historically responded to the census at lower rates than other groups.” Slip op. 10. Likewise, plaintiffs’ briefs point to similarly objective evidence in the form of two CBO reports (from 2008 and 2017) concluding that some individuals will comply with the mandate absent penalties.

We recognize that the other elements of the standing inquiry may be different in Texas, but Part III.A of NFIB resolved the injury-in-fact question for Nantz and Hurley. 

The penalty, however, was important for two other aspects of NFIB. First, if the penalty was in fact a tax, then the Anti-Injunction Act (AIA) provided a statutory bar: suits to enjoin the collection of that revenue could not be filed until the tax was assessed in 2014. The Court agreed with the Solicitor General, and ruled that the penalty, at least for purposes of the AIA, was not a tax. Yet, once the Court cleared the AIA’s statutory jurisdictional hurdle, the Plaintiffs would still need to prove that they suffered an injury-in-fact. In 2012, the only possible injury was preparing to comply with the mandate. 

Of course, as we discussed in our previous post, the penalty played a second important role in the so-called saving construction.  Specifically, in Part III.B of NFIB, Chief Justice Roberts turned to the government’s alternate argument based on the taxing power: “Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.” Chief Justice Roberts concluded that “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals ‘shall’ maintain health insurance.” However–and this is a huge however–the mandate can be read “as imposing a tax . . .  for the reasons set forth below” in Part III.C. 

Why is this framing of the alternate argument so critical? Because if the reasons “set forth in” Part III.C no longer hold, then the saving construction supported there is now inapplicable. And indeed, Josh explained here why the saving construction no longer holds. This conclusion is both obvious and well nigh undeniable: (a) a $0 mandate cannot raise revenue, so (b) the “penalty” cannot be upheld as a tax,” therefore (c) Chief Justice Roberts’s analysis in Part IIIA now applies full force. Namely, his acceptance of NFIB’s argument that the standalone mandate is unconstitutional, regardless of the penalty. And the basis for standing in that portion of the opinion is the mandate, and the mandate alone. 

Stated simply, Roberts’s skeptical questions for Katsas in oral argument, which formed the basis of his saving construction in Part III.C, did not impact, in the least, his Commerce and Necessary and Proper Clause analysis in Part III.A (which we discussed in our previous post). This subtle point–which affects both the standing and merits question–has been lost in virtually all of the discourse about NFIB, and Texas. 

This conclusion brings us to Judge O’Connor’s analysis. He wrote:

Despite the Intervenor Defendants’ logical gymnastics, the undisputed evidence in this case suggests the Individual Mandate fixes an obligation. The Individual Plaintiffs assert they feel compelled to comply with the law. Pls.’ App. Supp. Prelim. Inj., Ex. A (Nantz Decl.) ¶ 15, ECF No. 41 (“I value compliance with my legal obligations . . . [t]he repeal of the associated health insurance tax penalty did not relieve me of the requirement to purchase health insurance”); Pls.’ App. Supp. Prelim. Inj., Ex. B (Hurley Decl.) ¶ 15, ECF No. 41 (“I continue to maintain minimum essential health coverage because I am obligated to comply with the [ACA’s] individual mandate”). 

Judge O’Connor accurately restated Judge Katsas’s argument on behalf of NFIB. Although Chief Justice Roberts asked questions about this position during oral argument, in Part IIIA of his written opinion, he assumed that Katsas’s analysis was valid. Judge O’Connor continues:

This should come as no surprise. “It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction.” . . .  But the fact that many individuals will no longer feel bound by the Individual Mandate does not change either that some individuals will feel so bound—such as the Individual Plaintiffs here—or that the Individual Mandate is still law.

Judge O’Connor’s ruling, on both injury-in-fact and the constitutionality of the mandate, is completely consistent with NFIB. Indeed, these topics are closely related. If the mandate does create a legal requirement, then it also creates an injury-in-fact. Under Part III.A of NFIB, the mandate performed both functions in 2012, and still performs both functions today. 

Let’s sum up this series of blog posts. Texas v. U.S. raises three challenges to the ACA:

1. the constitutionality of the individual insurance “requirement” or mandate, after the “penalty” cum tax has been set at $0; 
2. whether the mandate, without a penalty, creates an injury-in-fact; and 
3. whether the “requirement,” if now unconstitutional, is severable from the rest of the ACA. 

In these blog posts we have defended the correctness–or at minimum the reasonableness–of Judge O’Connor’s rulings on the first two of these issues: after passage of the TCJA, the individual insurance requirement or mandate is unconstitutional, and in NFIB the Court assumed that the mandate, standing by itself, imposes an Article III injury-in-fact. The third issue is distinct from these two questions.

Of course, we can be completely right about the first two of these questions, and the remainder of ACA would still be constitutional if the individual insurance mandate can be severed from the rest of the Act. But the severability question is only reached and answered correctly if the first two questions are correctly resolved first.

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Riverside County Supervisor Jeff Hewitt is a successful pool construction entrepreneur, one of four elected officials governing an area of California with a population of 2.4 million, and the most powerful public official in America affiliated with the Libertarian Party.

“Being a libertarian is the most important thing to me. It’s who I am,” says Hewitt. “Everything I do, I always think about: Is it hurting somebody? Is there something I can do to lessen the inquisition of the government and have it instead defend our rights like it’s supposed to?” 

Before he was elected to his county seat in November 2018, Hewitt was mayor of the town of Calimesa, where he cut ties with a state fire agency because it was charging too much.

In 2018, Hewitt, whose largest donor was the libertarian tomato magnate Chris Rufer, spent less than half the money campaigning than did his union-backed establishment Republican opponent—and won anyway. He says that the Riverside County Libertarian Party has seen a 42 percent spike in registration since his victory.

Hewitt’s district is historically Republican but has skewed Democrat in recent years, something he says he was able to capitalize on to best his opponent.

“I think that one of the biggest mistakes that libertarians make is to think that Democrats are harder to persuade than the Republicans are,” says Hewitt.

Despite his electoral success, Hewitt still faces considerable opposition from his fellow board members on several core issues. On a measure to approve a new union contract that Hewitt believes will bankrupt the county, even his conservative Republicans colleagues failed to join Hewitt’s sole dissenting vote.

But Hewitt believes that if he sticks with his principles, he’ll inspire other libertarians to join him in the fight. He recommends starting on the local level.

“Pick a race that you can win,” says Hewitt.  “Then it won’t be so lonely for me.”

Produced by Zach Weissmueller.

 

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The worst humanitarian crisis in modern Venezuelan history is unfolding against the backdrop of a power struggle between President Nicolás Maduro and opposition leader Juan Guaidó.

Because Maduro’s government has refused to publish basic data, it is virtually impossible to know the full scale of the disaster. But human rights organizations, independent agencies, and journalists on the ground have painted a gruesome picture of a country in economic ruin, with crumbling infrastructure leading to chronic power blackouts and residents unable to meet basic human needs.

Food shortages began in earnest in 2015, when supermarket shelves went empty. Venezuelans reported waiting hours to get the few items available for purchase each day.

While that part of the crisis has lessened in the past year, hyperinflation and the price of food have risen severely. As a result, many Venezuelans face a double bind: Either they cannot find basic staples or they cannot afford them.

In a study published in 2018 by a group of Venezuelan universities, 61 percent of survey respondents said they went to bed hungry on a regular basis, with 89 percent saying they did not have enough money to buy food. Over 60 percent reported having lost weight as a result of food scarcity.

The United Nations’ Food and Agriculture Organization (FAO) confirmed in 2018 that the rate of undernourishment in Venezuela has more than doubled, from less than 5 percent between 2008 and 2013 to 11.7 percent between 2015 and 2017.

Putting food on the table is not the only problem Venezuelans face. The most recent and comprehensive report, released by Human Rights Watch, revealed the country’s health care system to be in “utter collapse” marked by severe shortages of medicines and health supplies, hospitals without regular access to utilities, and the deterioration of emergency services. The study confirmed numerous reports that outbreaks of once-eliminated vaccine-preventable diseases, such as measles, diphtheria, and tuberculosis, have resurfaced. Maternal and infant mortality rates have also risen dramatically.

How could it get this bad? While U.S. sanctions imposed in 2017 may have played a role, it was ultimately the Venezuelan government that created the conditions for today’s catastrophes.

Back in the mid-2000s, the late President Hugo Chávez had direct access to the highest oil windfalls of any administration in Venezuelan history. He engaged in reckless spending, nationalized and ruined hundreds of private firms, and installed a currency control scheme that distorted the prices of imported goods.

This had grave consequences. By 2017, the FAO found, domestic food production in Venezuela could sustain just 30 percent of the population. The group cited the regime’s destruction of the farm industry as one of the main reasons.

As the price of oil declined and money began to run out in 2015, Maduro—Chávez’s hand-picked successor—acted to curb food imports at a time when Venezuelans needed them most.

Initially, Maduro denied the existence of a humanitarian crisis. When he could no longer hide the problems, he blamed them on an “economic war” by the United States, which he said was bent on destroying his regime.

For years, Maduro refused to allow aid of any kind into the country, saying it was a foreign intervention disguised as humanitarian assistance. He finally relented in late March, allowing the Red Cross to bring in food and medicine under his strict supervision.

The government’s reasons for controlling the flow of aid are sinister. A 2016 investigation by the Associated Press revealed that the reselling of scarce goods has become a means of personal profit for the armed forces. The humanitarian crisis thus plays into the regime’s hands: By controlling lucrative food and medicine resources at the ports, Venezuela’s military enriches itself and is less likely to heed calls by the opposition to abandon Maduro.

But most poor Venezuelans cannot afford to purchase food at all. Their only hope is in handouts provided by Maduro. According to the 2018 study, 87.5 percent of citizens were receiving government food boxes in 2017. As a result, millions of people are caught in a dependence trap that drastically increases the cost of mobilizing against the current regime.

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Police in Italy have arrested the mayor of Bibbiano and 17 other people including social workers, other politicians, and doctors and psychologists. They say the group forged evidence of parental abuse, including “brainwashing” children into saying their parents had abused them, in order to remove the children from their homes and sell them to other people.

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[Note: This post was coauthored with Professor Josh Blackman.] Last December, in Texas v. United States, Judge Reed O’Connor found that the entire Affordable Care Act was unconstitutional. (One of us, Josh Blackman, wrote about the decision here and here). The Court concluded that the Tax Cuts and Jobs Act of 2017 (TCJA)–which reduced the ACA’s shared responsibility payment to $0–rendered the individual mandate unconstitutional. 

We have our own quibble with how Judge O’Connor framed both the issue and his conclusion, which we will develop below. But, when properly reframed, we agree with his holding that the individual insurance requirement is unconstitutional. (What follows from that conclusion is a distinguishable issue.) 

In our view, the individual insurance mandate in § 5000A(a) did not become unconstitutional when the penalty was reduced to zero; it had already been held to be unconstitutional by five justices in NFIB v. Sebelius (2012). Chief Justice Roberts wrote: “Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate.” (Our emphases added.)

Instead, by adopting a “saving construction” of the “penalty” as a tax, Chief Justice Roberts upheld the “penalty” in § 5000A(b)–now zeroed out by the TCJA–and § 5000A as a whole–not the insurance mandate in § 5000A(a). Roberts alone was the swing vote, combined with the reasoning of the block of four progressive justices who saw no constitutional problem with the individual insurance mandate itself. Only Roberts rested his reasoning on a saving construction of the “penalty” as a tax. He, and he alone, justified adopting this construction on the ground that the insurance “requirement” or mandate was unconstitutional. As he wrote:

[T]he statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. (emphases added.)

So the “requirement” or “command” in § 5000A(a)–that is, the mandate–was dead. Long live the “penalty” in § 5000A(b) and § 5000A as a whole as a tax. However, if the “penalty” in § 5000A(b) can no longer be read as a tax, then neither can § 5000A as a whole. And, because of the holding of Chief Justice Roberts and the four other conservatives the mandate in § 5000A(a) was, and still is, unconstitutional. The mandate was declared constitutionally dead in 2012 and, like the parrot in Monty Python, the mandate remains dead to this day. To paraphrase John Cleese: The Mandate is “bleedin’ demised. It’s passed on. This [mandate] is no more. It has ceased to be. It’s expired…. This is an” ex-mandate.

Critics of Judge O’Connor’s, however, contend that he fundamentally misread NFIB v. Sebelius. They argue, first, that Chief Justice Roberts upheld the insurance mandate as a tax because the mandate itself imposed “no legal consequences” other than the payment of the penalty. That is, people merely had a choice between buying insurance, or paying a non-coercive penalty cum tax Those who choose either path have “fully complied with the law.” Second, the tax is now zero, which eliminates the only legal consequence of failing to purchase insurance.  Now, the only choice left is to not buy insurance, in which case a person has still “fully complied with the law.” Third, the rest of the ACA is unaffected by lowering the tax to zero. 

We think the critics, rather than Judge O’Connor are misreading NFIB. Their reading of NFIB is all-too-common, and is one that we have both encountered repeatedly over the past seven years since the case was decided. However, this reading of the case fails to account for the precise framework of the saving construction. Judge O’Connor stated it well:

It is critical to clarify something at the outset: the shared-responsibility payment, 26 U.S.C. § 5000A(b), is distinct from the Individual Mandate, id. § 5000A(a). For one thing, the latter is in subsection (a) while the former is in subsection (b).

Judge O’Connor added:

[T]he Supreme Court’s reasoning in NFIB, all hinge on an understanding that the Individual Mandate and the shared-responsibility payment are two very different creatures. The saving construction in NFIB [of § 5000A] was available only because § 5000A(a) triggered a tax. And § 5000A(b) was a tax because it produced some revenue for the Government.

Our analysis, which supports Judge O’Connor’s holding, can be summarized with three premises. 

First, Chief Justice Roberts determined that the individual mandate in § 5000A(a)–standing by itself–imposed a legal obligation to purchase insurance. He then held that this “command” or mandate was unconstitutional–without regard to the penalty in § 5000A(b). Specifically, he held that an individual purchase “requirement” cannot be supported by Congress’s powers under the Commerce and Necessary and Proper Clauses. Roberts’s holding on § 5000A(a) was a crucial step that enabled him to adopt the “fairly possible” reading of the penalty in § 5000A(b)–and § 5000A as a whole–over its natural meaning. 

In this crucial respect, Chief Justice Roberts swing opinion was in agreement with the four conservative justices (Scalia, Kennedy, Thomas, and Alito) to form a five justice majority on this issue. The conclusion that the individual insurance “requirement” is unconstitutional was true in 2012, and remains true following the TCJA. 

Second, invoking the doctrine or “duty” of judicial deference to Congress, Chief Justice Roberts tried to avoid a finding that the core of the ACA was unconstitutional. To do so, he held that the “penalty” in § 5000A(b), which enforces the insurance “requirement” in § 5000A(a), could be read as a tax because it resembles a tax–namely it raises revenue as part of the usual income tax process, and it was not set at a punitive or coercive level. For these reasons, the “penalty” can be treated as a tax “incentive” rather than as an actual penalty enforcing a requirement or command (which would be unconstitutional). 

In other words, due to his “saving construction,” there is no longer an actual mandate in the ACA. (As we discuss below, Roberts’s opinion is not always precise in using the term “the mandate,” which muddied this point.) Rather, he held that § 5000A as a whole can be read, not as a command, but as merely giving a person a choice between buying private insurance or paying the (noncoercive) tax. 

Roberts’ decision to treat the penalty as a tax was bolstered by the government’s representation that there were no “negative legal consequences” for going uninsured, beyond paying the penalty. As Roberts wrote, “[n]either the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” Roberts’s reasoning makes a critical distinction between an insurance requirement which makes it unlawful to go uninsured, and a tax, which need only be paid. However, because of the TCJA there is no longer any payment due to the IRS. This raises the critical question: can the penalty and § 5000A still be read as a tax? 

Third, in NFIB, Chief Justice Roberts held that it was “fairly possible” to read the penalty imposed on the uninsured as a tax. After the penalty was set to zero, is it still “fairly possible” to read it as a tax? Along with Judge O’Connor, we think not. Because the exaction no longer raises revenue–one of the two key components of Chief Justice Roberts’ analysis–the saving construction topples.

Because the $0 exaction can no longer be construed as a tax, we are left with the conclusion of our first premise: the individual mandate in § 5000A(a)–standing by itself–was held in NFIB to be an unconstitutional command to purchase insurance. Five justices agreed that this authority cannot be supported by Congress’s powers under the Commerce and Necessary and Proper Clause. 

Crucially, in NFIB, Chief Justice Roberts did not rest his Article I analysis of § 5000A(a) on whether the mandate carried with it legal consequences. The enforceability of the mandate did not enter into this stage of his analysis. Congress lacks the power to require someone to buy insurance, regardless of what other legal consequences follow–or don’t follow–from such a legal requirement. Judge O’Connor reached this exact conclusion about the mandate. And we think he was correct to do so, if for no other reason than that NFIB is binding precedent on inferior court judges.

There is one more argument we need to address. The language in Chief Justice Roberts’s opinion does not always precisely track his reasoning. This disparity may be attributed to the hasty manner in which the opinion was drafted. According to several reports, Roberts switched his position sometime after oral argument. We surmise that he had to write large portions of the opinion rather quickly, and without the benefit of constructive feedback from any of the eight other justices–none of whom joined this portion of his reasoning. 

At any rate, in his opinion, the Chief Justice writes: “The question is not whether [the Solicitor General’s reading of the mandate] is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one. . . . The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read. . . .” (emphases added). Nor is this a mere slip of the pen. Later he writes, “Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

We concede that “the most natural interpretation” of this language is that Chief Justice Roberts held that “the mandate” was constitutional as a tax, but that is not the only “fairly possible” reading of the reasoning of his opinion. When that reasoning is taken into account, we think the Chief Justice’s opinion is best read to hold that the mandatory “requirement” in § 5000A(a) is unconstitutional (see above). By “the mandate,” we think the Chief Justice is referring to § 5000A as a whole, which he concludes is “fairly possible” to construe to be providing covered taxpayers with an option to buy health insurance or pay a modest, noncoercive tax. 

Roberts explained: “Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power.” Had the Court upheld an actual requirement or command to buy private health insurance, Roberts would have needed to recognize such a “new federal power.” Instead the Court “determine[d] that Congress has used an existing one”–in particular the power to provide noncoercive tax incentives. “Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations.” Tax incentives are options, not requirements or commands, which is what made them constitutional for the Chief Justice.

Throughout his opinion, the Chief Justice referenced the constitutionality of § 5000A. For example, he wrote “Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax.” (Emphasis added.) We read this citation as a reference to § 5000A as a whole.

But even if we are wrong about the terminology, at worst, the Chief Justice modified the meaning of “the mandate.” Indeed, § 5000A(a) of the ACA only uses the term “requirement,” and not “mandate.” It is, therefore, fairly possible to read him as saying that the existence of a noncoercive “penalty” cum tax in § 5000A(b) transforms an unconstitutional mandatory “mandate” into a constitutional optional “mandate.” The logic of his argument suggests that “the mandate” he says he upheld refers to §5000A as a whole and not to §5000A(a).

Reading the Chief Justice this way also explains why Judge O’Connor adopted the terminology he did: because the penalty cum “tax” converted the mandatory “requirement” into an optional “mandate,” if the penalty cum “tax” is removed from the ACA, we are now left with the mandatory requirement of § 5000A(a). And five Justices have already held that this true mandate was unconstitutional under any of Congress’s powers: the Commerce, Necessary and Proper and Tax Powers.

Terminology aside, we think that a close reading of Chief Justice Roberts’s opinion in NFIB strongly supports Judge O’Connor’s opinion on the unconstitutionality of the insurance mandate. This is the key: Chief Justice Roberts–together with the four conservative justices–has already held in NFIB that the standalone mandate in § 5000A(a) is unconstitutional, even though it imposes no collateral legal consequences. The Chief Justice–and only he–then relied on this holding to justify his invocation of the doctrine of “constitutional avoidance” to adopt a “saving construction” that was not the natural reading of the statute. He “avoided” the consequence of declaring unconstitutional the core of the Affordable Care Act only because the penalty in § 5000A(b) could be read as a tax (and thus so too could “the mandate” of § 5000A). 

The precise issue that Judge O’Connor decided was resolved in NFIB. Standing alone, the individual insurance “requirement” in § 5000A(a) of the statute is unconstitutional, and was so held in 2012. But in 2012, the requirement did not stand alone. It was followed by the penalty in § 5000A(b), which the Chief Justice found could be characterized as a tax. Today, § 5000A(b) no longer fits that characterization. In sum, because the unconstitutional “requirement” of § 5000A(a) now stands alone, Judge O’Connor was correct to follow the Court’s holding in NFIB that this requirement is unconstitutional.  

We also think a close reading of oral argument reinforces this conclusion and assists in understanding the second issue raised by Texas v. United States: standing to challenge the ACA. We will turn to this topic in our next post.

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Blueprint: The Evolutionary Origins of a Good Society, by Nicholas A. Christakis, Little, Brown, 544 pages, $30

We finally have an answer to the nature/nurture debate, and it appears to be yes.

It took billions of years of biological evolution for bacteria to morph into humanity, but the human ability to learn and to teach each other new tricks means that useful behaviors and ideas don’t have to take biological time to spread through the species. Their emergence, the ways we spread them, and the ways they change over time amount to a kind of cultural evolution.

A cultural discovery—our pre-human predecessors’ capture of fire—externalized the digestive system that evolution had shaped for our variety of ape. That freed biological energy to grow a big brain. In Blueprint: The Evolutionary Origins of A Good Society, Nicholas Christakis argues that this coevolution has equipped us with a “social suite” of traits that arose through genetic evolution and that have been amplified by cultural evolution, which has in turn influenced our genetic evolution toward propensities that support the social suite. These include the “capacity to have and recognize individual identity,” “love for partners and offspring,” friendship, social networks, cooperation, “preference for one’s own group (‘in-group bias’),” “mild hierarchy (that is, relative egalitarianism),” and “social learning and teaching.”

Christakis, a physician and a sociologist at Yale, buttresses his arguments with evidence from social science, evolutionary biology, genetics, neuroscience, and network science. He presents evidence from beyond the laboratory, drawing examples from the history of shipwrecks and communes and from studies of elephants, bonobos, and dolphins. He even addresses philosophical objections to his claim that our genetic and cultural history prepared humans “to make a particular kind of society—one full of love, friendship, cooperation, and learning.”

(If you’re familiar with the “Halloween incident” at Yale, you might be surprised at Christakis’ optimism: After his wife, at the time also a member of the Yale faculty, wrote an email to students pushing back against warnings about “culturally unaware and insensitive” costumes, both spouses were confronted and shouted at by students. He eventually stepped down from his role as head of a residential college but retained his tenured professorship, while she stopped teaching at the university altogether.)

Christakis embraces a “glass is half full” interpretation of human sociality, but he doesn’t shy away from the inseparable shadow consequences of the same traits: Our ancestors learned to be kind when they learned to be more effective groups of killer apes. People all over the world observe social norms of fairness and reciprocity, even without direct reward, in part because our otherwise different societies punish non-cooperators. We cooperate with others in our in-group in order to compete with out-groups. In gene-culture coevolution, contradictory and conflicting behaviors can power a kind of evolutionary arms race. Nature (pre-wired capabilities, such as the capacity for cooperation and social learning) and nurture (cultural development of teaching) can act as complementary forces, together driving the elaboration of cultural forms and the expansion of the social suite.

“Evolution,” Christakis writes, “provides the underlying foundation for human culture by equipping us with the ability to cooperate, make friends, and learn socially.”

Key to Christakis’ arguments are the concepts of pre-wiring and exaptation. While a hardwired trait might equip a species of bird to voice the same tune everywhere in the world, a species pre-wired for birdsong might invent different songs in different environments. The former is often used to describe traits that are reflexive or instinctive. Hardwired compels; pre-wired enables.

Exaptation is an evolutionary trick that human beings are not alone in exploiting, although we are particularly good at it. It means that a species can repurpose a trait like feathers, which probably evolved as a form of thermal insulation, to do other things, such as fly. Exaptation also bridges genetic and cultural forms of evolution. While long, slow, biological evolution provides us (and other species) with a strong tendency for parents to form lasting partnerships—”pair-bonding”—human cultures provide a wide variety of cultural forms, such as monogamy, polygamy, and polyandry.

The biological advantage of pair-bonding is that the father stays around to help the mother take care of the offspring they have produced. This close partnership assures the father that he is indeed helping raise his own children, which is particularly useful in our species, which requires an investment of years of care before a child can act as an adult. And it assures the mother that she has help finding food and shelter while she births and nurtures offspring. As Christakis puts it: “The evolutionary psychology of both men and women is to exchange love for support.”

Christakis claims that over time, humans learned to extend the affection and partnership we have with our mates to our kin, then to our kin’s friends, then to all the members of a strongly defined group—an expanding circle of attachment that enables us to form social networks and complex societies. When maternal love becomes marital love and those forms of love expand to create friendships, a norm of expectations spreads through the group: Friends expect reciprocity, a balance of favors asked and offered. Relationships with in-laws take a variety of forms in different human societies, but in all cases they expand the circle of people one expects to trust. As networks of trust grow, a norm of cooperation emerges: Everybody expects others to help further the aims of the in-group. I may do favors for people in my group, even if they aren’t kin and even if they haven’t done anything for me, because I know that I can also count on other members of my group to do me favors.

In any group, some people will be willing to cooperate and others will “free ride” on the work of the cooperators. When free riding reaches a certain point, cooperation breaks down. Extensive research suggests that “altruistic punishment” may be a kind of social glue that maintains an acceptable level of cooperation. Think of how you’d like to tell off that person who cuts in line ahead of you. That’s altruistic punishment—a norm upheld not by a police force but by public opinion.

Culture, as Christakis defines it, is “knowledge that is transmitted between individuals and across time, that can be taught and learned, and that is distinctive to groups…a set of beliefs, behaviors, and artifacts that are shared by members of the group and are typical of it, and that are socially transmitted.” Other species exhibit social learning, but human beings are by far the best at deliberately inculcating other members of our group with useful knowledge. In other words, we’re the best at teaching.

Human beings have compulsions and talents—some that most would consider “good,” and some that most would consider “not good.” We also have tools to create workarounds for the “not good” part: norms that enable people in groups to cooperate, even if they don’t know each other; punishment that keeps “free riding” low enough that people will contribute to public goods; reputation that enables trust among people who may not have dealt with each other before.

The critical uncertainty is choice: Will our pre-wiring—together with toxic cultural forces, such as racism—lead to fiercer, meaner, better-armed tribal conflict? Or will the part of us that expands love from mates to friends to shipmates come to dominate? Christakis is optimistic. I hope he’s right.

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On Wednesday, the US Court of Appeals for the Ninth Circuit issued a decision upholding a trial court ruling blocking President Donald Trump from diverting military funds to build his border wall. The ruling closely follows the reasoning of the district court decision it upheld. I analyzed that earlier decision here.  Both decisions address the president’s attempt to use Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall, even though Congress refused to allocate as much money for border barriers as Trump wanted.

As the majority opinion by judges Clifton and Friedland explains, if Section 8005 does not authorize Trump’s attempted diversion of funds, then the president would be in violation of the Appropriations Clause of the Constitution, which gives Congress exclusive control over the public purse. The Founders considered it essential to deny the executive the power to control the federal budget, thus preventing any one politician from being able to combine the powers of “the sword” and “the purse,” as James Madison put it.

The majority’s analysis of Section 8005 strikes me as compelling. The statute allows diversion of funds only for “higher priority items, based on unforeseen military requirements, than those for which originally appropriated…” And “in no case” may the the executive transfer funds “where the item for which reprogramming is requested has been denied by the Congress.”

Far from being an “unforeseen” need, funding for wall-building repeatedly demanded by the president over the last two years:

Defendants mistakenly focus on the assertion that [the Department of Defense] “could not have anticipated that [the Department of Homeland Security] would request specific support for roads, fences, and lighting.” Even assuming that is true, the fact remains that DHS came to DoD for funds because Congress refused to grant DHS itself those funds. And when properly viewed as applying to the broader “requirement” of a border wall, not to DHS’s specific need to turn to an entity other than Congress for funds, it is not credible that DoD did not foresee this requirement. The long history of the President’s efforts to build a border barrier and of Congress’s refusing to appropriate the funds he requested makes it implausible that this need was unforeseen…

The same history also makes clear that the funding in question was denied by Congress, which is an additional reason why Section 8005 does not authorize it:

Even if there could be doubt about how to interpret “unforeseen,” it is clear that Congress denied this request…

Construing section 8005 with an eye towards the ordinary and common-sense meaning of “denied,” real-world events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority….

In sum, Congress considered the “item” at issue here—a physical barrier along the entire southern border, including in the Yuma, El Paso, Tucson, and El Centro sectors [at issue in this case]—and decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item. To call that anything but a “denial” is not credible.

As I have pointed out previously, the stakes here go far beyond the specifics of the wall issue. If the Trump administration can use terms like “unforeseen… requirement” to allocate funds for the wall, it—and future administrations—can use similar tactics to spend money on all sorts of purposes that Congress never authorized. This would go a long way towards concentrating the power of the “purse” and “sword” in the hands of one person—exactly the result the Founding Fathers hoped to forestall by giving Congress exclusive authority over appropriations. Conservatives who might be happy to see Trump do this to build the Border Wall will not be so thrilled if the next Democratic President uses similar tactics to building projects he or she believes are needed for the “Green New Deal” or other liberal policy goals.

The Ninth Circuit ruling was a 2-1 decision, with a dissent by Judge N. Randy Smith. It is potentially significant that the two judges in the majority are both Democratic appointees, while Smith is a Republican appointed by President George W. Bush.

However, it is also notable that Judge Smith did not argue that Section 8005 gives the president the authority the administration claims. Rather, he merely contends that the plaintiffs in the case –  the Sierra Club and the Southern Border Community Coalition (an alliance of various liberal/progressive groups in the border area)—do not have the right to bring a claim against the wall-building project.

Smith contends that “[t]he majority has created a constitutional issue where
none previously existed” and that its analysis risks “turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue.” It is indeed true that the plaintiffs’ claim turns on the correct interpretation of Section 8005. There is no violation of the Appropriations Clause of the Constitution if 8005 authorizes the president to divert the funds in question. But it is not true that the majority’s analysis turns every dispute over statutory delegation into a constitutional question. That happens only in cases where exceeding statutory authority enables the president to spend money for purposes not authorized by Congress, thereby transferring a congressional power to himself. In many other situations where a president acts beyond the scope of statutory authority, there is no such intrusion on congressional authority, and therefore no violation of the constitutional separation of powers.

Because (in his view) there is no constitutional issue here and because he argues that Congress mandates that this sort of case be brought under the Administrative Procedure Act, Judge Smith concludes that there can be no “equitable” cause of action against the wall transfer. He concedes that it is possible to bring a case under the APA. But the plaintiffs in the case are, in his view, not the right parties to bring it, because the “zone of interests” protected by the APA, with respect to Section 8005, only covers “economic interests.” The Sierra Club and other plaintiffs in this case  assert only “aesthetic, recreational, and generalized environmental interests.”

I am not an expert on either equitable causes of action or the APA. So I will defer most of the heavy lifting on these questions to others with greater knowledge. It seems to me, however, that the majority’s analysis of these issues is more persuasive than Judge Smith. I would add, also, that his distinction between “economic” and “recreational” interests seems flawed. The two are not mutually exclusive categories. To the contrary, recreation is a major industry and the ability to engage in recreational activities in a  given area is surely an asset with economic value. The fact that the groups in question do not lead recreational tours in the border area for profit does not alter the fact that the ability to do so qualifies as an “economic interest.” If the construction of the wall undermines a local landowner’s ability to raise crops on his land, that would surely qualify as an “economic interest,” even if the owner in question did not grow the crops for profit, and had no plans to do so. The same goes for disruption of recreational activity.

Judge Smith’s reasoning would not preclude all possible lawsuits against the wall, however. Even if the Sierra Club and other similar plaintiffs are not within the appropriate “zone of interests,” there are many plaintiffs who surely do have such interests, such as local governments and private property owners who own land in the area whose use might be disrupted by the wall, and who use that property for purposes that go beyond nonprofit recreation.

The current ruling is only a decision to uphold a preliminary injunction blocking the funding diversion until the court of appeals can reach a final decision on the merits. However, the trial court judge in the case has recently issued a final decision on the merits, and that ruling is expected to be reviewed by the Ninth Circuit soon. The decision on the preliminary injunction makes it highly likely that the court will decide the same way on the merits, since “likelihood of success on the merits” is one of the criteria for issuing a preliminary injunction (and the majority makes clear they believe the plaintiffs deserve to prevail).

For reasons discussed in my earlier post on the trial court decision, the rulings in this case do not address several issues that are likely to come up in other wall-related cases. These include whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976 (whose invocation was necessary to trigger the use of some of the funds Trumps wants to access, but not those at stake  in this case), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. These issues may well be litigated  at least some of the many other wall-related cases pending before various federal courts.

The rulings in this case are the first to address the substantive issues at stake in the wall litigation. In June, a different federal trial court dismissed a wall lawsuit filed by the Democratic-controlled House of Representatives because the judge concluded the House lacked standing to file the claim. I analyzed that ruling here. Even if the standing decision stands up on appeal, it is unlikely to prevent judicial review of Trump’s wall-building plan, because there are many other lawsuits against it brought by parties who clearly do have standing, even if the House does not. The real significance of the standing decision is its potential impact on other separation-of-powers disputes between the president and Congress.

The Ninth Circuit ruling is another notable success for opponents of the wall. However, we are still in the early stages of what is likely to be a lengthy legal battle. It is not a good sign for the plaintiffs that the judges who have ruled on wall-related cases so far, seem to have split on ideological/partisan lines. If the issue gets to the Supreme Court, that court, of course, has a 5-4 conservative Republican majority. If the justices also split along ideological lines, the plaintiffs will lose.

On the other hand, neither of the Republican judges who have ruled against plaintiffs in the decisions litigated so far, have done so on the merits. Both rejected the claims in question on  narrow procedural grounds (standing and “zone of interests” analysis) that would only bar a subset of wall plaintiffs, while clearly allowing lawsuits by others to go forward.

 

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Earlier this week the Institute for Justice (I.J.) filed a lawsuit in federal court in Mississippi seeking to overturn that state’s unconstitutional new restrictions on the use of certain common terms to identify a variety of plant-based foods.

Mississippi’s law dictates that a “plant-based…food product shall not be labeled as meat or a meat food product.” While Mississippi claims the law is intended to clear up consumer confusion, it does nothing of the sort. “It doesn’t matter if the product also states on the label that it’s 100% vegan, plant-based or meatless,” Bloomberg News reports.

If it’s not intended to clear up confusion, then what’s the point of this labeling mandate? Simple protectionism. The law, which was passed in March but took effect this week, is intended to protect makers of meat products (e.g., hamburgers) from competition from plant-based alternatives (e.g., veggie burgers) by barring the latter, for example, from using the term “burger” to refer to their veggie burgers. 

The list of people who are confused by, say, this hey-it’s-vegan! burger, is so short as to be nonexistent. That’s because, as you may have noticed, vegan food packaging is, like vegans, not exactly quiet about its vegan bona fides.

“Context matters,” Justin Pearson, the I.J. attorney who filed the lawsuit, told me this week. “Under the First Amendment, businesses should be able to use almost any word they want, as long as consumers understand what they are saying. People know that vegan burgers do not come from cows. That is why they are called ‘vegan.'”

The Mississippi law is one of several similarly awful ones around the country. I condemned a comparable Arkansas law in a column earlier this year, noting that “the only reason government cares a lick about this issue is that they are beholden to powerful agricultural interests that want to use the government to stifle competition from small-but-growing rivals.” Last year I also blasted a similar Missouri bill.

“These laws are anti-competitive and anti-consumer, not to mention unconstitutional,” says Michele Simon, a lawyer and executive director of the Plant Based Foods Association (PBFA), a membership group that’s one of the plaintiffs in the case, in an email to me this week. “That is why PBFA has teamed up with our member Upton’s Naturals and the Institute for Justice to sue Mississippi, not only to stop the law there, but to send a message around the nation that these efforts will be challenged.“

Mississippi lawmakers would probably chafe at someone calling their new law a fine example of the nanny state. After all, several years ago, as I detailed cheerily, state lawmakers adopted what they dubbed an “anti-Bloomberg bill.” That law forbade local governments from enacting local restrictions on food, including taxes on fast food or soda.

But Mississippi lawmakers are also the same people who adopted protectionist statewide restrictions on catfish marketing in 2015, which I noted at the time served no purpose but one: “If this sounds suspiciously like a protectionist measure, that’s because it is.”

What’s more, though Mississippi lawmakers and regulators have positioned themselves as defenders of meat, their actions suggest otherwise—at least when it comes to meat from animals raised by small, local farmers in the state. As I detail in my recent book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, overbearing and unnecessary Mississippi food-safety rules mean that few if any small farmers in the state can sell steaks and other meat products at farmers markets there.

If left to its own devices—freed from the vice-like grip of Mississippi lawmakers and regulators—there’s ample evidence the marketplace can sort all this out.

Last month, for example, fast food giant Arby’s, which loudly proclaims itself to be home of “the meats,” announced that it had created what may be the first meat-based plants. Their first offering? The “marrot,” which is basically turkey that’s been shaped and colored to look like a carrot. 

“[W]e said, ‘If they can make meat out of vegetables, why can’t we make vegetables out of meat?'” Arby’s chief marketing officer Jim Taylor told Fast Company last week. Taylor says Arby’s has applied for a trademark for the term “megetables,” a portmanteau of “meats” and “vegetables.”

Arby’s also declared it would never, ever sell plant-based meat substitutes such as the meh Impossible Burger, which has gained a following at Burger King and other competitors. Why? Its customers want said meats.

While the marrot and megetables are just a marketing concept as yet, I must declare my love for what Arby’s is doing: using the marketplace to innovate, differentiate, and reinforce its brand. That’s exactly what PBFA members and other plant-based food producers are doing, too. They should be able to continue doing that without suing to protect their First Amendment rights. 

“Anyone who cares about the free market should find the Mississippi law and others like it very troubling,” says the PBFA’s Simon. “Our members are competing fair and square in the marketplace.”

They are. And hopefully, the court will allow that competition to continue. 

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For decades, democratic socialism was an old man’s ideology. Its adherents were aging hippies, old-time union organizers, and folks who fondly remembered the pre-’60s left. As recently as 2013, the average member of the Democratic Socialists of America (DSA) was 68 years old. Even today, the ideology’s best-known spokesperson, Sen. Bernie Sanders (I–Vt.), is 77.

But Sanders is suddenly an outlier. Today, most DSAers are young: The average member is 33. The ideology’s second-best-known spokesperson, Rep. Alexandria Ocasio-Cortez (D–N.Y.), is just 29. And the DSA’s ranks have grown larger as well as younger. Socialist gatherings buzz with youthful energy, and they are taking place all over the country.

This movement is flexing its political muscles, having helped elect a number of candidates to office—most famously Ocasio-Cortez, who has quickly become a prominent voice in Congress. The DSA has every intention of shifting the “Overton window” of American politics far to the left. And if we’re not careful, it might succeed.

Despite his own advanced age—and even though he’s not a member of the group himself— Sanders is by far the person most responsible for bringing this wave of young people into the DSA. His groundbreaking 2016 campaign for the Democratic presidential nomination helped spread socialist ideas to a generation born after the collapse of the Soviet Union.

“Bernie Sanders is who introduced me to socialism,” says Alex Pellitteri, co-chair of New York City’s chapter of the DSA’s youth arm, the Young Democratic Socialists of America. “I was a Democrat, I was a liberal, but I had never really crossed that line to socialism.”

Essentially, Sanders has done for democratic socialism what Ron Paul did for libertarianism in the late ’00s: make it an exciting, cool, radical alternative to the mainstream parties’ staid orthodoxies. Just as Paul challenged other Republicans’ commitment to waging increasingly unpopular wars, Sanders slammed Democratic frontrunner Hillary Clinton for her Wall Street ties, her hawkish foreign policy, and her general lack of left-wing bona fides. Clinton won the nomination, but Sanders put up a much better fight than expected—a testament to the popular appeal of the ideas he was proposing.

Those ideas included a single-payer health insurance system, free tuition for all college students, a federal minimum wage of $15 an hour, and a more progressive tax system that confiscates wealth from the richest 1 percent and redistributes it to everyone else. Such proposals are particularly popular with younger Americans. According to a 2018 Harvard Institute of Politics poll, 55 percent or more of 18- to 29-year-olds support a $15-an-hour federal job guarantee, free college tuition, and Medicare for All. In a Harris Poll this year, 73 percent of millennial and Gen Z respondents thought the government should provide universal health care, and about half said they’d prefer to live in a socialist country. While Americans overall have a much more favorable view of capitalism than socialism, Americans between 18 and 24 do not: 61 percent have a positive reaction to the word socialism, compared to 58 percent for capitalism.

One reason for this is that people like Sanders have studiously worked to get a softer definition of socialism into circulation. Throughout the 20th century, the word evoked either the working class directly seizing the means of production or the government nationalizing industries, setting prices, and reducing or abolishing the right to own private property. The latter was much more common in practice, and the countries that took that route—the Soviet Union, mainland China, the Eastern European states, etc.—had horrific human rights records. Socialist regimes found it necessary to negate a whole host of individual rights and to arrest or murder dissidents in order to realize their ends.

But the founders of the DSA rejected Soviet-style socialism. They had more in common with the socialist parties of Western Europe, which established generous welfare states and sometimes nationalized industries, but which operated within the boundaries of a democratic political system, not a one-party police state. In 1962, future DSA founder Michael Harrington quarreled with the authors of the Port Huron Statement, a leftist student manifesto, because he felt they hadn’t denounced the Soviet Union in strong enough terms. About a decade later, Harrington’s former faction of the Socialist Party split off to form the Democratic Socialist Organizing Committee, which later merged with another organization to become the DSA.

When today’s most prominent democratic socialists are asked to explain their ideology, they tend to skimp on the substantial structural questions and lean on paeans to dignity, generosity, and equality. Sanders has defined democratic socialism as “the understanding that all of our people live in security and dignity” and “a government and an economy and a society which works for all.” Ocasio-Cortez defines it as “democratic participation in our economic dignity.”

It shouldn’t be surprising that democratic socialism, reduced to a set of pleasant-sounding buzzwords and some proposals to give more people free stuff, is having a moment.

And what a moment it is. “When Harrington died in 1989,” The Nation observes, “his organization hadn’t grown much beyond the 6,000 aging members it had had at its founding.” After a quarter-century, the members were even more aged and little else had changed. The DSA’s official magazine, Democratic Left, had 6,700 subscribers in 2016.

A year later, in the wake of Sanders’ first presidential campaign, the magazine had more than 28,000 paid subscribers. By 2018, it had 46,000. The organization now claims about 50,000 members. Many of them are concentrated in New York City, but DSA chapters can be found in 180 towns across the country.

The success of democratic socialism is much broader than just one organization. The socialist magazine Jacobin, founded in 2010 by Bhaskar Sunkara, increased its circulation from 10,000 in 2015 to 40,000 in 2018. The socialist podcast Chapo Trap House, which debuted in March 2016, is now the second most popular account on the crowdfunding platform Patreon, and its hosts rake in an average of $123,500 in donations per month.

Democratic socialists have won electoral victories too. The DSA is not a political party and does not run its own candidates, instead endorsing Democrats and independents who it feels are sufficiently committed to socialism. (Sex and the City actress Cynthia Nixon, for instance, received the DSA’s endorsement in her unsuccessful 2018 primary run against New York Gov. Andrew Cuomo.) In the 2016 and 2017 elections, DSA-backed candidates won a smattering of races around the country, including a seat in the Virginia House of Delegates. And in 2018, Ocasio-Cortez, a 20-something organizer and complete political unknown, won a stunning Democratic primary victory over incumbent Rep. Joe Crowley. She became an overnight sensation, and in the general election she was one of two DSA members to capture House seats. Rashida Tlaib (D–Mich.) was the other.

Ocasio-Cortez’s savvy use of social media has generated tons of press coverage. She now has more Twitter followers than House Speaker Nancy Pelosi (D–Calif.). Conservative websites and cable channels love to pillory her, but that has only helped her become one of the most visible members of Congress.

Sanders is the only major 2020 presidential candidate to self-identify as a democratic socialist. But most of the Democrats have signed on to DSA-friendly policies. Sens. Kamala Harris (D–Calif.), Elizabeth Warren (D–Mass.), and Kirsten Gillibrand (D–N.Y.) have joined Sanders in backing Medicare for All. The Green New Deal, Ocasio-Cortez’s pie-in-the-sky plan to tackle climate change while creating public works projects, has been endorsed by a host of candidates: Sanders, Warren, Harris, Gillibrand, Sens. Cory Booker (D–N.J.) and Amy Klobuchar (D–Minn.), and former Housing and Urban Development Secretary Julián Castro.

If the centrist standard-bearer, Vice President Joe Biden, wins the Democratic nomination, it will be a setback for the movement. But democratic socialists are not pinning all their hopes on the presidency, even as they work to install Sanders in the White House. They are patiently growing their ranks, expanding their influence, and increasing their cultural cachet.

So far, the strategy is working. If you assumed that socialism’s appalling 20th century failures would relegate it permanently to the ash heap of history, you were wrong.

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Well, let me just start by getting this on the record: “Good lord, man, I can’t support that.” (And, yes, the version I remember is the “nun-beating” one.) But while this is nasty behavior (see CBS News, Fox News, Today), which should indeed be criminal, I’m skeptical about the apparent police theory that this is second-degree food tampering under Texas law:

Before the suspect was identified as a juvenile, police said she could have faced up to 20 years in prison. They had planned on arresting her on a charge of second-degree felony tampering.

Texas Penal Code § 22.09 provides,

(a) (2) “Tamper” means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.

(b) A person commits an offense if he knowingly or intentionally tampers with a consumer product [including food] knowing that the consumer product will be offered for sale to the public ….

(d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree.

The problem is that licking food doesn’t seem to “make it probable that the consumer product will cause serious bodily injury”—possible, yes, probable, no. To be sure, a nonprecedential Texas case does seem to stretch the “probable … will cause serious bodily injury” a bit, but that case involved someone sprinkling powdered feces on food, which strikes me as quite a bit more dangerous. (A jury sentenced the defendant to five years in prison.) The licked ice cream strikes me as comparable in dangerousness to guacamole at a party in which people were double-dipping, or for that matter a tub of ice cream into which someone had stuck a spoon that she had eaten from.

It’s not that it’s great for public health, and it’s certainly a gross violation of property rights. But this particular Texas statute doesn’t seem to cover it.

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