Month: November 2021

With the geocentric model, the earth is at the center of the universe, and the planets rotate around the earth. But from the outset, this model was flawed. Astronomers observed that the planets do not move across the sky in a straight fashion, as would be expected if the earth was stationary. Rather, the planets moved forward, and then backward. How could this retrograde motion be explained? Defenders of the geocentric model conceived of the so-called epicycles. In fact, the planets that orbited the earth also orbited within a small circle. This orbit-within-an-orbit explained the retrograde motion of planets. But why would the planets orbit within the epicycle? Who cares! The elites found a way to defend the geocentric model of the universe. And the geocentric model of the universe is dogma.

The geocentric model of the universe is a good analogy for Roe v. Wade. From its birth, the case had no grounding in the Constitution. None. And that flaw was patent to everyone. But in order to defend this new-found right, the Supreme Court had to distort countless other areas of the law. Justice O’Connor’s observation in Thornburg v. ACOG was prescient: “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”

Five decades later, we are stuck spinning in a never-ending series of epicycles. Consider a few examples of how Roe has distorted our law:

• Stare Decisis: “The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the ‘central holding.’ It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 993 (1992) (Scalia, J.).
• Freedom of Speech: “Today the ad hoc nullification machine claims its latest, greatest, and most surprising victim: the First Amendment. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting).
• Freedom of Speech: “What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” Hill v. Colorado, 530 U.S. 703, 741 (2000) (Scalia, J., dissenting).
• Facial Challenges: “In fact, it is not clear that any woman would be deprived of a safe abortion by her inability to obtain a partial birth abortion. More medically sophisticated minds than ours have searched and failed to identify a single circumstance (let alone a large fraction) in which partial birth abortion is required. But no matter. The ‘ad hoc nullification’ machine is back at full throttle.” Stenberg v. Carhart, 530 U.S. 914, 1020, (2000) (Scalia, J., dissenting).
• Tiers of Scrutiny: “These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Thomas, J., dissenting).
• Severability: “H.B. 2 contains what must surely be the most emphatic severability clause ever written. . . . [JB: S.B. 8 said hold my beer.] But despite this language, the Court holds that no part of the challenged provisions and no application of any part of them can be saved. . . There is no possible justification for this collateral damage.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2331 (2016) (Alito, J., dissenting).
• Third-Party Standing: “And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.” June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2153 (2020) (Alito, J, dissenting).

Perhaps the biggest epicycle is Casey itself, which purported to “reaffirm” the “central holding” of Roe while at the same time gutting the case’s central trimester framework. Sadly, Justice O’Connor fell victim to the “ad hoc nullification” machine.

Now, the Texas cases are poised to create new epicycles for sovereign immunity, Article III standing, Ex Parte Young, In Re Debs, or countless other doctrines.

The only way to end these vicious epicycles is to repudiate the geocentric model. Enough emanations and penumbras. I did’t used to think Roe must be overruled. But the oral arguments in the S.B. 8 case convinced me of this path. Otherwise-sober judges were forced to contort themselves to find a way to save this rule. The slippery slope arguments are red herrings. In the wake of RAV v. St. Paul, no state thought to ban hate speech through private enforcement action. In the wake of Citizens United, no state thought to ban political contributions through private enforcement action.  In the wake of Heller, no state thought to ban handguns through private enforcement action. Indeed, prior to Heller, only D.C. and Chicago banned handguns. And if the Court is so worried about protecting AR-15s, they should grant a case concerning that issue.

Everyone knows this issue is only about abortion. Five decades of Roe led to S.B. 8. Justice Kagan inadvertently made this point

Isn’t the point of a right that you don’t have to ask Congress? Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?

This putative “right” has no basis in the Constitution, and was manufactured by the Supreme Court–in spite of what the majority of people think. To paraphrase Judge Easterbrook, “this case pits the principle of self-representation, which appears in the Constitution, against the ‘right to abortion,’ which does not.” In hindsight, this jab was a self-own.

What happens next? The Court should hold the Texas cases, overrule Roe in Dobbs, and then DIG both Texas cases. At that point, Texas’s pre-Roe abortion law would be reanimated, and S.B. 8 becomes irrelevant. The Due Process Clause jurisprudence will be restored, and federal courts jurisprudence will be maintained. The political fallout will be severe. Let the people settle these issues.

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President Joe Biden’s “Build Back Better” plan was pitched as a once-in-a-generation rebalancing of America’s socioeconomic scales. Democrats were going to “Tax The Rich” and use the proceeds to fund a massive expansion of government benefits for everyone else.

Now, the package appears likely to deliver an overall tax cut for America’s wealthiest citizens.

In large part, that’s because Democrats now plan to fully repeal a cap on the state and local tax (SALT) deduction. The cap, imposed as part of the 2017 federal tax reform law, allows Americans to deduct up to $10,000 in state and local tax payments from their federal taxes. That cap is high enough that it covers the vast majority of Americans, but the changes made in 2017 meant that wealthy Americans could no longer take advantage of a sort of backdoor subsidy that eased the burden of living in a high-tax state or locality.

Unsurprisingly, restoring the SALT deduction (or at least raising the cap) has been a priority for lawmakers from California, New Jersey, New York, and other high-tax states. It appears they will get their way.

Today’s news is encouraging for a SALT cap repeal to be included in the final reconciliation package — a huge win for New Jersey!

Read my statement here w/ @RepTomSuozzi @RepSherrill: pic.twitter.com/07TPwj9R1u

— Rep Josh Gottheimer (@RepJoshG) November 2, 2021

There’s no way around it: Removing the SALT cap is a huge tax break for a small number of very wealthy Americans. According to the Tax Policy Center, only about 9 percent of households will see any benefit from repealing the cap. The wealthiest 1 percent of American households will receive 56 percent of the benefits.

Meanwhile, “approximately 99 percent of the decrease in tax liability accrues to taxpayers with $100,000 or more of economic income,” according to the Joint Committee on Taxation, an independent number-crunching agency housed inside Congress.

Including the SALT cap repeal in Biden’s revised “framework” would transform the overall package into a $30 billion net tax cut for the wealthiest 5 percent of Americans next year, according to a recent analysis from the Committee for a Responsible Federal Budget (CRFB), a nonprofit that advocates for reducing the budget deficit.

“A five-year repeal would cost roughly $475 billion, with $400 billion of the tax cut going to the top 5 percent of households,” the CRFB concluded. “That is more than any other part of Build Back Better, including the Child Tax Credit, spending on child care and pre-K, climate-related tax credits, or health care funding.”

There’s nothing inherently wrong with cutting taxes, of course, and the wealthy already pay a disproportionately large share to the federal government. But the SALT deduction is problematic on libertarian grounds because how much you pay to your state government should not affect how much you owe to the federal government. Wealthy residents of California or New York who want to pay less in taxes should move to a lower-tax state or vote for politicians who will cut taxes—not have their tax bills subsidized by residents of other places.

It’s also bad policy because the SALT deduction effectively serves as a subsidy for state governments that impose high taxes. Because residents of those states do not have to bear the full burden of their state and federal taxes, politicians in those places are insulated against the political costs of approving expensive and often wasteful projects. And abolishing the SALT deduction has for years been part of bipartisan plans to overhaul federal tax-and-spending policies.

It’s notable that repealing the SALT cap was not something Biden included in the framework he announced on Friday. Almost immediately, however, there were reports that Democratic leaders were giving assurances to their members that the SALT cap repeal would be included in the final package. Those rumors were finally confirmed on Tuesday by Rep. Josh Gottheimer (D–N.J.), a longtime advocate for repeal.

It’s no wonder why Biden and other Democrats were trying to keep the SALT cap repeal a secret. Its inclusion makes the overall package significantly less attractive to progressives—possibly even unprogressive in their eyes, given the overall cost of the SALT cap repeal and the thin slice of well-to-do Americans who benefit from it. And studies show that repealing the SALT cap might also make housing even less affordable, cutting against another professed goal of Biden’s supposedly progressive agenda.

With the inclusion of the SALT cap repeal, Biden’s “Build Back Better” plan would “do more for the super-rich than it does for climate change, childcare, or preschool,” tweeted Jason Furman, the former chairman of President Barack Obama’s Council of Economic Advisors. “That’s obscene.”

“The last thing we should be doing is giving more tax breaks to the very rich,” Sen. Bernie Sanders (I–Vt.) tweeted on Tuesday. “Democrats campaigned and won on an agenda that demands that the very wealthy finally pay their fair share, not one that gives them more tax breaks.”

Given the haphazard negotiations between Congress and the White House in recent weeks over a bill that increasingly seems likely to be Biden’s best shot at passing a major set of domestic policies before the midterm elections, there’s no way to know what will happen next. Advocates of the SALT cap repeal seem fairly confident of getting their way, but progressives, or the White House, could still force a change of direction.

After all, progressives in the House of Representatives have already had to swallow the removal of a politically popular paid leave program from Biden’s agenda on the grounds that its inclusion was too expensive. The paid leave problem would have cost an estimated $540 billion over 10 years, while the SALT cap repeal will “cost” (in the form of reduced revenue) about $475 billion over just five years, according to CRFB’s analysis.

A few days after paid leave was discarded, Democrats are now promising to shovel big bucks into the bank accounts of some of the wealthiest people in America. That progressive takeover that we’ve heard so much about doesn’t seem to be going according to plan.

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In yesterday’s oral argument in Whole Woman’s Health v. Jackson, a majority of Supreme Court justices seemed ready to rule against Texas and allow the lawsuit challenging SB 8 to proceed. This developments leads some commentators – including my co-blogger Stephen Sachs – to worry that the Court can’t reach that conclusion in a way that has “limiting principles.” If abortion providers can file preenforcement lawsuits against SB 8, despite the fact that the law delegates all enforcement to private “bounty hunters” (thereby seemingly ensuring that no state official is an appropriate defendant) are there any state laws they can’t challenge in the same way?

The answer to this concern is that the slippery slope issue on the other side is far, far worse. If the Texas SB subterfuge works, it will create a roadmap for undermining judicial protection for a wide range of other constitutional rights. By contrast, even if a victory for the plaintiffs opens up the door to preenforcement challenges to other laws, federal courts have lots of other ways to dispose of frivolous lawsuits, and states are, in any event, nowhere near as vulnerable as private parties threatened with violations of their constitutional rights.

Let’s take each of these points in turn.

First, it is essential to recall the utter lack of limiting principles to Texas’ position in the SB 8 case. As detailed in my previous writings on SB 8 (see here and here), the SB 8 strategy for evading judicial review can be used against virtually any other constitutional right, including gun rights, free speech, or freedom of religion. As Chief Justice John Roberts pointed out in yesterday’s oral argument, there is also no limit to the size of the fine a state can impose on its targets. If the $10,000 or more allowed by SB 8 doesn’t create enough of a chilling effect on the right targeted by the state, the latter can up the ante to $1 million or even more. These points aren’t just my interpretations of Texas’ position or even the Chief Justice’s interpretation; Texas Solicitor General Judd Stone admitted both of them during the argument.

Steve Sachs and others argue that we need not worry too much about the above issues, because they will only be a problem in cases where courts are likely to rule against the rights-holders. If the latter are on solid legal ground, courts will swiftly vindicate them if any private plaintiff sues to try to collect the “bounty.” Potential defendants therefore need not worry about ever having to pay damages, regardless of the size of the latter.

This isn’t nearly as reassuring as it might seem at first glance. Many constitutional rights have fuzzy boundaries where there is room for judicial discretion in determining how far they extend. That is obviously true of abortion rights under Roe v. Wade and later Supreme Court precedent. But it’s also true of gun rights, speech rights, property rights, freedom of religion, and many, many others. There are, thus, many situations where there will be at least some uncertainty about whether a court will vindicate defendants in SB 8-style bounty hunter suits. Preenforcement judicial review is the only effective way to prevent such possibilities from creating grave “chilling effects” where many people have to preemptively surrender their rights before even getting a chance to litigate them.

This danger is heightened by the reality that even a small chance of losing an SB 8-style case can have a serious chilling effect if the potential liability is large enough. Consider the Chief Justice’s hypothetical example of damages of $1 million. If there is even a 5% chance that a defendant will lose, that’s an expected liability of $50,000 ($1 million multiplied by 0.05), an amount large enough to deter many individuals and small businesses from exercising their rights. And if, like SB 8, the bill permits multiple lawsuits targeting the same defendant and also forces the latter to pay plaintiffs’ attorneys fees if they lose, the risk can be even higher.

For these and other reasons (many of them detailed in the excellent amicus brief by the Firearms Policy Coalition), SB 8 is a potential road map for stifling judicial protection for a wide range of constitutional rights. If the Supreme Court lets Texas’ subterfuge stand, it would set a very dangerous precedent.

If setting that precedent were compelled by the text or original meaning of the Constitution, perhaps we would perhaps just have to live with it. In reality, however, nothing in the text or original meaning protects state laws from preenforcement judicial review merely because the power of enforcement is delegated to private litigants. Much the contrary. As the FPC brief also explains effectively, part of the point of the Fourteenth Amendment was to give both Congress and federal courts broad power to protect constitutional rights against shenanigans by state governments. The Amendment even specifically bars states not only from enforcing laws that violate the “Privileges or Immunities” of American citizens, but also even from “mak[ing]” them in the first place. Preenforcement review is likely the only way to forestall the latter.

All that stands in the way of preenforcement lawsuits is a series of ill-conceived judicially created doctrines that give states “sovereign immunity” against many suits by individuals, and limit federal court injunctions targeting state court judges. Sovereign immunity for states against their own citizens is itself a bogus doctrine at odds with the text and original meaning. As the FPC brief points out, any sovereign immunity that does exist is also to a large extent superseded by the Fourteenth Amendment (which is the vehicle for most constitutional-rights lawsuits against state and local governments).

It is likewise an error to give state judges any special exemption from injunctions necessary to protect constitutional rights. They are bound by the federal Constitution no less than other state officials are. Indeed, fear of potentially biased state court judges was one of the reasons why the Reconstruction-era Congress enacted the Fourteenth Amendment in the first place, and sought to ensure broad access to federal courts for people threatened with state violations of their federal constitutional rights – a principle the Court recently vindicated in Knick v. Township of Scott (2019), which eliminated previous barriers to filing Takings Clause cases in federal court.

By contrast, any slippery slope effect on the other is modest. As noted in one of my earlier posts on SB 8, federal judges have various tools for swiftly disposing of cases against state governments that lack merit.  Unlike private parties threatened with liability under SB 8, state officials are unlikely to be deterred by the risk of large monetary judgments against them, because they can draw on the public fisc to pay damage awards. Neither their personal livelihood nor the future economic viability of their institutions is likely to be placed at risk.

In cases where a lawsuit challenging a state law does have merit, broader availability of preenforcement judicial review will be a feature, not a bug. It will allow constitutional rights to be protected faster, and at lower cost to potential victims. What’s not to like?

Thus, there is no good reason to fear allowing preenforcement judicial review of any and all constitutional rights claims against state governments where there would otherwise be a risk of creating a “chilling effect” if claimants could only rely on “defensive” litigation.

To my mind, the best way of resolving the issue is to adopt the position advocated by the FPC, and simply sweep away anything in existing precedent that blocks lawsuits against any state officials who might otherwise have the power to enforce a potentially unconstitutional law. If this results in overbroad injunctions that cover some officials who don’t have relevant authority, there is no real harm in that, as the effect will be simply to enjoin them from doing things they cannot do anyway.

But if the justices prefer to split hairs and limit any potential lawsuits to state court clerks or other “ministerial” officials whose participation is necessary to enforce SB 8, that is still better than giving free rein to Texas’ subterfuge, and thereby setting a dangerous precedent. The attempt to distinguish clerks from judges strikes me as arbitrary and  even silly. But if the Court is unwilling to directly limit or modify ill-advised precedents that insulate state judges from federal-court injunctions, focusing on clerks (or other lowly, but essential officials) is a reasonable strategy that is still preferable to the alternative of letting Texas’ ploy work.

Ultimately, it comes down to this: the SB 8 gambit has highlighted a hole in current Supreme Court precedent, one that – it turns out – can be exploited gut judicial protection for a wide range of constitutional rights. The Supreme Court should plug the hole. The best way to do so would be to fully sweep away the misguided precedent in question, as FPC suggests. But if the Court isn’t willing to go that far, a more limited (even if somewhat arbitrary) fix is preferable to the vastly more dangerous slippery slope on the other side.

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