Friday, May 29, 2015
A few days ago The New York Times published an article entitled “Four Words that Imperil Health Care Law Were All a Mistake, Writer Now Says.” [HERE] A major point presented by this article is that these four words in the Patient Protection and Affordable Care Act of 2010 are at the heart of the legal difficulties associated with this legislation. These words are: “established by the State”. I do not think that this is the only source of interpretative problems in the law, but I digress. This phrase appears over a dozen times in various contexts throughout the bill that was enacted into law. The Times article offers the opinions, of several well-placed individuals involved with the efforts to promulgate the bill, that these words are: “the most contentious” of the bill; “a product of shifting politics”; “inartful”; “a drafting error”; or, “inadvertent language”.
Back in March of 2010 prior to the enactment of this legislation, I offered some thoughts about it HERE at the Mirror of Justice. As I said at that time,
I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.
I also noted in my March 2010 contribution that the meaning of words and their implications are important to legislators and citizens. They are clearly important to lawyers, administrators, and judges, too. I also argued in my earlier posting that there could well be issues raising the requirements of Article I of the Constitution. One of them is: did each house pass the bill in the same form? What was the “same form”, if it ever existed? One veteran legislator involved with the enactment has suggested that the four words “established by the State” “clearly contradicted the main purpose of the legislation.” The purpose of legislation is vital to legislative enactment, but so are other issues. Is it clear what the “purpose” of the Patient Protection and Affordable Care Act is? Another person familiar and involved with the background of the bill’s enactment stated in the Times article that the pending case before the Supreme Court dealing with the meaning of the “four words” involves language that is “so contrary to the intent of those who had written the legislation.” I agree that legislative intent is also quite an important matter in ascertaining the meaning of bills and, therefore, the meaning of laws which incorporate the text of the enacted bill. But what was the intent of this legislation? There is no published legislative history, i.e., committee or conference committee reports, to help us answer these questions about purpose and intent. This is where Catholic legal theory could well have a role to play, but a sound approach to legislative drafting and interpretation also do, too.
Throughout my almost thirty years as a law teacher, I offered courses in legislation. I have long considered that a fundamental course in legislation, especially its interpretation, is crucial to legal education. Not every dean, academic dean, or faculty member has agreed with me. But once again, I make my appeal for the inclusion of this kind of course in indispensable legal education. The “Catholic element” of my view is that the human law has to be founded on objective human intelligence comprehending the intelligible reality; moreover, this stated foundation reflects the principle that the law is a servant not the master of society and all its members. Thus, the words of laws—statutes—need to be clear about what is expected and what is not. After all, fair notice to all members of society about the scope and meaning of the law is vital. Hence, it is critical that lawyers have a fundamental grasp of the tools of statutory construction.
These tools begin with a careful evaluation of the plain meaning of the text; then they consider the intent (what were the legislators, or at least those responsible for bills and their committee consideration, thinking and generally discussing amongst themselves); closely related to intent but sufficiently distinct to merit a different discussion is the purpose or what are the purposes of the proposed legislation, i.e., what objective is the text designed to achieve. Once these issues are addressed, the lawyer must consider the coherence of this legislation with the other laws (e.g., the Constitution, related statutes, and pertinent regulations) that have a bearing on the subject matter of the legislation. There are other considerations as well, but these are the fundamental ones. For those who may be interested in what I consider to be these other issues, you may look at my article in Volume 68 of the Mississippi Law Journal beginning at page 225 (1998)—which develops two earlier essays I wrote that were published in Volume 16 of the Seton Hall Legislative Journal (1992).
I believe that one of the continuing difficulties that this law will face stems from the conflict, internal and external, with the laws dealing with patient care and health. While this is not the only one, I suggest that the meaning of Section 1555 dealing with the freedom not to participate in federal health insurance programs will be another source of legal disputes. If my prediction proves to be an accurate one, the occurrence of these disputes may well be a source of how to teach legislation and its interpretation in the future. In the meantime, the interpretative exercises of the Patient Protection and Affordable Care Act will likely continue.
Here, in USA Today, is my friend Robin Fretwell Wilson, following up on the mentioning in the same-sex-marriage arguments last month of the possibility that religious institutions that reject same-sex marriage will get "Bob Jones-ed" (i.e., lose tax exemptions):
If the Supreme Court finds a constitutional right to same-sex marriage, it can, and should, leave room for states to accommodate those who adhere to a traditional view of marriage. And if the Supreme Court allows the states to debate and decide the marriage issue themselves, then states will continue to have the freedom to accommodate both gay couples and religious dissenters. Every state that has legalized same-sex marriage to date has done this, and while some of their solutions are imperfect, all of them would be a huge improvement over a winner-take-all approach that secures rights for some at the expense of others.
The reality is that same-sex marriage and religious dissent can coexist in this country, but it will require hard work and a lot of good will from all sides.
At Distinctly Catholic, Michael Sean Winters has a post called "Remember, Scalia is the culprit", in which he (among other things) responds to the concerns expressed (appropriately, in my view) by a friend of his about Judge Posner's opinions in the ongoing Notre Dame litigation. (On those opinions, read -- for starters -- Kevin Walsh.)
Winters notes that the federal RFRA, which Posner interpreted and applied (incorrectly, in my view), was a response to the Court's Smith opinion, which was authored by Justice Scalia. (I would add that, in my view, it makes more sense to read Smith as acknowledging what the Court had really been doing for the previous three decades -- except in Yoder -- than as dramatically departing from longstanding precedent or understanding.) He concludes with this:
I do not expect, and I would not applaud, bishops denouncing Justice Scalia from the pulpit. But, when an advocate for religious freedom, bishop or otherwise, denounces Obama and leaves Scalia unscathed, you know that there is an agenda at work and it does not have to do with protecting religious freedom. It is a political and legal agenda. That may be fine for the Becket Fund. It may be fine for GOP presidential aspirants. It should not be fine for the Church.
I respectfully disagree. It matters, a lot, when evaluating what actors do, what those actors' roles empower and authorize them to do. Justice Scalia (and the other justices who joined his opinion) believed that the First Amendment's Free Exercise Clause is given, not made, and that it does not authorize courts to create exemptions from generally applicable laws that burden -- so long as they don't target -- religiously motivated practice. This belief is not accepted by all experts, to be sure, but it is accepted by some and is, at the very least, plausibly rooted in history and practice. (For more, see this short paper of mine.)
In contrast, President Obama (or any other President, or any other elected or appointed official who is exercising the discretion that they in fact possess to accommodate -- generously, stingily, or not at all) should be seen as making a choice -- he could accommodate religion more, and better, but has decided that so much accommodation, but not more, is appropriate -- and not as limited in his choice by the given-not-made meaning of the Constitution. (There are some First Amendment limits on accommodation, but they are not, in my view, implicated in the HHS mandate debate.)
"The Church" has no expertise in constitutional law and so -- while she certainly can criticize, on moral grounds, the rule that Justice Scalia believes our Constitution sets down -- it seems appropriate not only for (the great folks at) the Becket Fund but also for bishops, etc., to distinguish between judges who interpret the positive law and officials who could accommodate religious believers and respect religious freedom but choose not to.
Now, all that said, I think Winters is correct to remind his friend, and his readers, that the business of accommodating religious objectors to general laws necessarily involves making decisions -- debatable judgment calls -- about what to "count" or recognize as a "substantial burden" or what to credit as a "compelling" government interest. Laws like RFRA do not, and could not plausibly, give to religious objectors an automatic trump or veto. Their claims have to be evaluated and assessed, and this process will not be neat and mechanical. The problem with Posner's opinion is not, as I see it, that he set about determining what, in fact, the law requires Notre Dame to do, but that he did so in a way that is not consistent with the precedent (Hobby Lobby) that the Court told him to apply.
Thursday, May 28, 2015
Check it out. Here is the abstract of the review:
The central themes in Brinig and Garnett’s Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America distill as easily as they haunt. Well-understood is that the United States needs to improve the quality of education as well as its equitable distribution across various sub-classes of students. Paradoxically, students most in need of high-quality education services — including minority students, particularly those from low-income households in urban areas, are more likely assigned to under-performing public schools. Historically, the nation’s Catholic schools provided urban students, including many minority students from low-income households, with more efficacious yet less expensive educational services than their urban public school counterparts. Brinig and Garnett’s book identifies and discusses an especially lethal interaction of an array of key trends: While the need for high-quality, low-cost education services continues its ascent, Catholic school closures accelerate and, in so doing, threaten efforts to help improve the urban education landscape. To make matters even worse, as Brinig and Garnett also argue, the consequences of Catholic school closures extend beyond the education realm and degrade the stability of urban communities. Brinig and Garnett’s work on this topic is important as the policy issues remain timely and novel as they enlist data and empirical methods into their analyses. As a result, Brinig and Garnett’s book is not only important for what it says, but also how it says it.
Wednesday, May 27, 2015
ABA Journal: "Faith and fiscal responsibility cause many conservatives to change their view of the death penalty"
The ABA Journal reports.
As with much social-issues reporting, it is difficult to get a sense of the magnitude of the reported shift in attitudes. The article quotes Kent Scheidegger, an excellent prosecution-oriented lawyer, as saying the shift in conservative attitudes is overblown:
“It’s a strategy of the other side to find people who fit that mold and promote them,” he says. “Every great once in a while you get a murder victim’s family member who says they are opposed and they get lots of support and exposure. Now they’re trying the same thing with people they identify as conservatives.”
That may be the case; hard to say. But perhaps the strategy is more effective these days because conservatives who oppose the death penalty are more numerous these days. That seems to be the case in Virginia, anyhow. A good example of a shift is former Virginia Attorney General Mark Earley,Sr., who described his changed perspective at a symposium last year at the University of Richmond School of Law.
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Tuesday, May 26, 2015
Claremont Review of Books recently invited me to review Katha Pollitt’s new book Pro: Reclaiming Abortion Rights, alongside two other books on abortion, for their upcoming summer issue. I’ll post when the review is out, but for now, I wanted to cut through much of what has been written contra Pollitt’s book—and there is good reason for pro-lifers to express frustration on almost every page with a real misapprehension of the substantive arguments within the abortion debate—to point out an intuition of Pollitt’s that resurfaces throughout, the response to which needs to be integrated more fully into pro-life argument.
Even though Pollitt concedes the science, she, like so many of her friends in academia, is stuck in the philosophically untenable (and historically embarrassing) distinction between “human beings” and “human persons.” But here’s the intuition that Pollitt enunciates, following Ronald Dworkin, as a reductio ad absurdum in the pro-life movement: killing an embryo cannot be morally equated with killing a five year old, an infant, or even a late term fetus, but the pro-life position necessitates this moral equivalency in its support of fetal personhood. Pollitt maintains that pro-lifers don’t really even believe in this moral equivalency (after all, we don’t see pro-lifers picketing at IVF clinics where spare embryos are routinely discarded).
Perhaps if people who claim zygotes are persons had to spend a week arguing with Ronald Dworkin, they would collapse in exhaustion and admit that a fertilized egg is not the same as a five-year-old. Perhaps they would admit that they, too, would be more upset by a fire that killed four hundred workers in a factory or young people in a club…than at a fire in a fertility clinic that destroyed four hundred frozen embryos.
And so, Pollitt reasons, pro-lifers must believe what any reasonable person believes: human worth grows as the human being grows, thus not all human beings are worthy of equal legal protection (especially in a contest with a pregnant woman).
But here’s where I think Pollitt is right: most pro-lifers don’t really believe that killing an embryo is the same as killing a five year old. But, I think, many pro-lifers think they should believe that—to be fully pro-life. They aren’t comfortable making the distinction, for fear of falling into philosophical gradualism. And here’s where masterful pro-life philosopher Christopher Kaczor comes in: in a 2011 First Things article that is short enough to be required reading for everyone reading this post and articulated whenever Pollitt/Dworkin’s argument is raised, Kaczor shows that pro-lifers need not believe that all killings are equally egregious to resist the gradualism at the heart of much academic pro-choice thinking. All human individuals have equal moral worth. This is the pro-life position. But it is more egregious to kill a five year old or even a late term fetus than it is to kill an embryo, andyet each of these killings is still morally wrong. Taking Kaczor’s argument a step further, it is more devastating to lose four hundred workers in a factory than four hundred embryos, even if, tragically, four hundred human lives have been lost in both. The sorts of philosophical distinctions Kaczor makes are necessary to grasping the real consistency within pro-life argumentation—distinctions Americans are less and less capable of making (and understanding) in political debate today.
The Order enjoining the Obama administration from implementing DAPA (granting temporary legalized status to as many as 4.3 million persons residing in the United States without authorization) will remain in force until after the 5th Circuit Court of Appeals has a chance to decide the merits of the case.
After President Obama announced a program (DAPA) "[a]llowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years ... provided they have lived in the United States continuously since January 1, 2010, and pass required background checks." If implemented, this action would grant temporary legal status to up to 4.3 persons residing in the United States without legal authorization. Texas and 25 other states sued in U.S. District Court in Texas to set aside the administration's action on the grounds that a) the administration failed to follow the rulemaking procedures set out on the Administrative Procedures Act (the APA) and that the President had violated the separation of powers by usurpsing Congress' legislative authority.
The Disctrict Court enjoined implementation of the program and held that the Obama administration had violated the APA. It did not rule on the constitutional grounds, but it was pretty clear from the Court's ruling that if forced to reach the constitutional issues, it would conclude that the administration had acted unconstitutionally.
Today the 5th Circuit denied the Obama administration's request to lift the stay. It will hear the merits of the administration's appeal in July, but its opinion today gives us clues to how it will approach the merits. The administration should not be encouraged. Here are a few snippets:
Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.
[N]or does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.
[W]e would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.
The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.
DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.
The big story coming out of the weekend was the Irish referendum on same-sex marriage, accompanied by barely concealed glee in some quarters at the humiliation of the Catholic Church. Here’s a hypothesis to ponder about the historical reach of theological ideas and the place of Catholicism in different cultures (not so much about the substance of the same-sex marriage debate itself), even if it might not hold up in every detail to scrutiny.
As Damian Thompson writing at the Spectator notes here, the influence of Catholicism in Ireland has waned for various reasons (most especially the sex abuse scandal), and one factor he mentions in passing is “the joyless quasi-Jansenist character of the Irish Church.” Indeed, while the Church’s influence across Europe has fallen, the collapse in those parts of Europe (or places missionized by Europeans) arguably influenced by Jansenism has been ferocious: the Low Countries (we think of Jansenism as primarily a French movement, but Cornelius Jansen himself was Dutch and Bishop of Ypres), France, Quebec, and Ireland. The place of the Church in the culture of those parts of European Catholicism less tinged by Jansenism has fared a bit better: Poland, Austria, Bavaria, Italy, and, most especially, Spain and Portugal and their former colonies in Latin America and the Philippines.
I am simplifying a great deal here, of course. There was, for example, a robust Jansenist movement in parts of modern-day Italy, and, more importantly, it is hard to say how much Jansenist influence there really was in Irish Catholicism (captured by the “quasi-” in Thompson’s essay). Because of English persecution, there were no seminaries in Ireland up through the end of the eighteenth century and so Irish clergy were often trained at Jansenist French seminaries, and there might have been some Jansenist influence in the early days at Maynooth, the Irish national seminary founded in 1795. But the scope of the actual influence of Jansenist ideas on folk Irish Catholicism is much harder to determine, as Thomas O’Connor notes in his 2007 entry on “Jansenism” in The Oxford Companion to Irish History (“The frequent claim that Irish Catholicism was Jansenist-influenced springs from the tendency to confuse Jansenism with mere moral rigorism.”). Jansenism was just one (perhaps small) factor among many contributing to Seán Ó Faoláin’s “dreary Eden.”
If there is something to this, though, we shouldn’t be surprised. Jansenism—with its hyper-Augustinianism, insistence on human depravity, confused doctrine of freedom and grace, other-worldliness, and moral rigorism—was theologically pernicious (condemned in Cum occasione by Pope Innocent X in 1653 and in Unigenitus dei filius by Pope Clement VI in 1713). A Catholic culture shaped by it distorts our understanding of the human person and society, and bad theological doctrines about God, human nature, and sin can wreak havoc even if the institutional forms of the Church endure for a time. Jansenism produced a towering genius in Blaise Pascal and a minor genius in Antoine Arnauld, but it was an unfortunate development in early modern Catholicism. As we think about how to build (or re-build, as it may be) Catholic culture, we would do well to remember that joy is at the heart of the gospel, and a Catholic culture drained of such joy by Jansenism or its cousins will, when the time comes, all too easily be swept away.
At the Stanford Law Review, Mark Rienzi has clear and short paper ("Substantive Due Process as a Two-Way Street") in which he suggests an approach to the pending same-sex-marriage cases that, he suggests, will reduce the conflict and tension that the Court's Equal Protection / "animus" approach risks causing. He writes, among other things, "There is no inherent conflict between same-sex marriage and religious diversity. As with most other issues, our society remains capable of adopting a live-and-let-live approach in which same-sex marriage is recognized as a constitutional right, but religious dissenters are neither punished for their beliefs nor forced to violate them."