Guest Post

  • December 19, 2014
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School. This piece first appeared at The Incidental Economist.

    Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available.

    Writing the counterpoint allowed me to pull together a punchy, non-technical, and thorough explanation for why I think the challengers should lose this case. It also gave me a chance to emphasize the strongest argument in the government’s favor—a point that’s at risk of getting lost in the fog of statutory analysis.

    To prevail, it’s not enough for the King challengers to show that it’s possible to read the ACA to eliminate tax credits from states that refused to set up their own exchanges. They must also demonstrate that the ACA does so unambiguously—and that the IRS’s contrary interpretation is therefore unreasonable. Under Chevron, if the ACA could be read in a couple of different ways, the courts owe deference to the IRS’s authoritative decision about how best to read it.

    The challengers must therefore believe that the judges and commentators who read the statute differently than they do—including yours truly—are all behaving unreasonably. That’s an extraordinary claim, one that, as Adrian Vermeule has noted, “verges on self-refutation.” As I explain in my counterpoint:

    [E]ven if you think that Adler and Cannon’s [interpretation] is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong.

    That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, Adler and Cannon deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

  • December 12, 2014
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    In his piece, “Torture Is Who We Are,” Peter Beinart rightly exposes the Pollyanish mindset that would describe the United States as “intrinsically moral” with torture that has occurred since 9/11 “represent[ing] an aberration.” Beinart is of course right to point out that post-9/11 waterboarding is hardly the first time in U.S. history that Americans have been guilty of torture -- he cites slavery, waterboarding of Filipino prisoners during the Spanish-American War and electric shocks delivered to the genitals of prisoners during the Vietnam War as some grotesque examples. There are others. Civilian law enforcement authorities used waterboarding and sleep deprivation on domestic criminal suspects decades before 9/11. A U.S. soldier waterboarded a Vietnamese prisoner in 1968

    So Beinart is right in one sense -- torture is not something new in American history. It cannot be seen as an aberration from a previously morally upright, torture-free history. But there is one important difference that he misses, that makes his analysis more pessimistic than it need be.  Torture by Americans is not new. The idea that Americans can torture with impunity, however, is new. In each of the examples I listed, there were consequences for the torturers. A Texas sheriff and his deputies who waterboarded a criminal suspect were themselves convicted and sentenced to prison. The U.S. soldier who waterboarded a Vietnamese prisoner was court-martialed. When law enforcement authorities subjected a suspect to questioning for 36 hours without sleep, the Supreme Court threw out a conviction based on the coerced confession that had been extracted.  The same is true for one of Beinart’s examples.  A U.S. military officer who waterboarded Filipino prisoners was court-martialed, suspended from command for one month and fined $50.  Moreover, before 9/11, even when torture was not punished, no one proudly defended it or attempted to justify it -- instead, it was swept under the rug, as often happened during the Vietnam War. There is one essential exception to emphasize: slavery.  Slaveowners openly tortured slaves with impunity.  This is of course a central fact of American history, not truly an “exception”, except in the limited sense that it varies from the other examples I have given where torture before 9/11 was either punished or else covered up.  What has changed since 9/11 as compared with most of the examples noted is that there are now people willing, even proud, to defiantly defend torture

    Beinart is correct that “America has tortured throughout its history.” Before 9/11, however, there were usually consequences for torture: torturers faced prosecution and punishment in the criminal justice system. This is part of what it means to be true to the rule of law: when the law is violated, offenders are punished. No country can guarantee that all of its law enforcement officials, soldiers, or government officials, will refrain from torture. But countries that uphold the rule of law can guarantee that torturers will be prosecuted. 

  • December 10, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

    More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

    Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

    Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

    Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

    That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.

  • December 9, 2014
    Guest Post

    by Rob BostonDirector of Communications for Americans United for Separation of Church and State.

    The December holidays took an unusual turn at the State Capitol Building in Tallahassee, Fla., this year: A display sponsored by a group called The Satanic Temple is coming to the rotunda.

    How did this come about? Ironically, a series of actions by state officials led to this unorthodox display. A few years ago, Florida officials decided it would be nice to have a nativity scene in the capitol rotunda in December. They were aware that they couldn’t put one up themselves. A Supreme Court decision from 1989 called County of Allegheny v. ACLU bars governments from erecting purely religious symbols in public spaces.

    But a private group could do it – as long as the area in question was deemed an open forum for free speech. Lo and behold, the rotunda was declared an open forum, and the crèche came in.

    Of course, an open forum for free speech means just that – open to all kinds of free speech. So in 2013 the nativity scene wasn’t alone. An atheist group erected a banner offering people a happy Winter Solstice. One Floridian erected a “Festivus pole” made of empty beer cans. And “Pastafarians” put up a depiction of their beloved Flying Spaghetti Monster.

  • December 5, 2014
    Guest Post

    by Paul Bland, Executive Director, Public Justice.

    *This post originally appeared on the blog for Public Justice.

    I regularly hear consumer and workers’-rights advocates say this crazy thing to me: “the cases on forced arbitration are so bad, they can’t get any worse.” Um, wrong. A Missouri Court of Appeals recently issued a decision that bears me out on this point, in Johnson v. Rent-A-Center.

    In this case,an 88-year-old “neighborhood staple”, Kenny Johnson, rents a refrigerator from Rent-A-Center.  A guy from Rent-A-Center comes out to the consumer’s house twice to service the refrigerator. Then, the guy came a third time, the plaintiff alleges, wearing a Rent-A-Center uniform. And, according to the lawsuit and news reports, the Rent-A-Center guy, Eric Patton, seriously beat the man with gashes to his head and robbed him. He wasn’t discovered for three days. The assailant has been criminally charged.

    So in the mouse print of the “agreement” the consumer had to sign to rent the refrigerator was a forced arbitration provision. The forced arbitration provision says that the arbitrator, not a court, will decide when the arbitration clause applies to some dispute. But in this case, the consumer makes a pretty strong point: he went to Rent-A-Center to get a refrigerator, he didn’t go there requesting that they send a guy to his house to beat him up and rob him.

    Too bad, the court says. Listing some very pro-corporation U.S. Supreme Court decisions, the Missouri court holds that it has to enforce the arbitration clause, and let the arbitrator decide whether the dispute over the guy beating up the consumer is covered by the consumer’s contract about renting the refrigerator.  In fairness to the Missouri Court of Appeal, it directly stated that it was bound to follow a U.S. Supreme Court decision, “regardless of whether we agree with the reasoning expressed therein.”