Monday, September 1, 2014

A Brilliant Denunciation of Originalism

Following up on my post on law office history, during my research I came across this brilliant piece on why we should take originalism out behind the barn and shoot it.  Originalism was proposed by conservative legal theorists as a way of reigning in activist judges.  Instead of allowing judges to impose their own policy preferences, make them follow what was meant when the Constitution (or the relevant amendment to it) was enacted.  Simple. The problem has turned out to be that it does nothing of the kind.  The historical record is often far from clear, so instead of binding judges by history, originalism simply encourages law office history, i.e., cherry-picking historical evidence and citing it out of context to make a legal argument.
Or, as the author of the article says:
[H]istory shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. . . . But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.
I will concede history can stop a lot of judicial activism that we have experienced.  The author says that basic history shows that references to "domestic tranquility" (or "domestic violence") clearly refer to insurrection and rebellion and not to wife-beating.  I will add that the historical record provides no support for constitutionalizing the issues of abortion or same sex marriage.  But then again, one could figure that out simply by reading the text of the document.

This leads to another point the author seeks to make.  Appeals to history and originalism reduce, rather than increase, the Constitution's accessibility.  The Constitution is written to be accessible to enlightened layperson (i.e., a moderately educated person with no special training in law or history, who has nonetheless read the Constitution itself).  It uses remarkably simple and accessible language with very little legalese.  Supreme Court interpretations of it should be accessible to an enlightened layperson as well.  IMHO (perhaps not shared by the author) that rules out using the Constitution to uphold abortion or same sex marriage, since it says nothing whatever on either subject.  But the author is quite right to point out that if interpreting the constitution requires a detailed study of conditions in the 17th and 18th Century, it ceases being accessible to the general public, or to lawyers and judges, for that matter, and becomes knowable only to professional historians.  "[D]ebates about text and structure and policy and institutional allocation of power are least potentially accessible to the public." More controversially, he argues that being bound by the historical record prevents judges from taking policy into account.  I am not altogether sure I agree.  I basically share the opinion that policy making should be left to the elective branches of the government and not the courts.  On the other hand, to the extent that originalism means that all branches of the government must address the issues of 1787 rather than the issues of today, or that the purpose of the Constitution is to ensure that if anything new and unexpected comes up, the government's hand will be tied and it will be forbidden from dealing with it barring a constitutional amendment, then the point is well taken.

Actually, the warning that mere appeals to originalism are not sufficient to prevent judicial activism should have been apparent for a long time.  Just read the Dred Scott decision. Often I think that debates on the role of judges should have their own equivalent of Godwin's Law -- whoever first compares an opposing viewpoint to Dred Scott loses.  Conservatives use Dred Scott as a code word for Roe v. Wade.  Robert Bork's The Tempting of America holds up Dred Scott as the first example of substantive due process and thus the precursor of all judicial activism.  And these accusations are justified to the extent one means that the Scott is a terrible example of what happens when judges decide the outcome in advance based on their own policy preferences and then seek a rationalization for them.  But it is also a prime illustration of why originalism will not prevent such activism.  Justice Taney's reasoning rests almost exclusively on originalism:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
A better expression of originalism could hardly be found.  Taney goes on to say:
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
Taney then goes on to cherry pick every historical source he can find, from the Articles of Confederation up through 1848 to show that that black people had none of the rights of citizenship when the Constitution was written and were scarcely even considers as persons.  It is as egregious an example of law office history as one could possibly ask for.  And it ends with as fine a statement of originalism as anyone could ask for:
If any of [the Constitution's] provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
Clearly, then, lip service to originalism does nothing to restrain activist judges.  And, indeed, in Scott, one can see why they felt the need to rely so heavily on originalism.  The Supreme Court was making a morally indefensible argument.  Unable to make any plausible case on the merits, the Supreme Court passed the buck to an earlier generation, claiming that its hand were bound by their decisions.  Thus if Dred Scott offers any plausible argument it is this -- if your case cannot be made on the merits, maybe you shouldn't be making it.

Oceana Has Always Been at War with Eastasia

One of the most striking things about people most vociferously calling for some sort of military intervention against ISIS -- they have a strong overlap with the people most vociferously calling for intervention to bring down Assad in Syria just last year, and ignoring warning that bringing Assad down would most likely benefit -- well, not ISIS which had not yet been formed, but definitely people a lot like ISIS, who definitely did exist at the time.  Such fears tended to be dismissed.

The sight of people who just last year called for intervention on one side of a civil war now calling for intervention on the other side puts in mind nothing so much as 1984.  The world is divided into three great powers, Oceana, Eurasia, and East Asia that are in a constant state of war and shifting alliances. We see things from the perspective of Oceana (which includes England).  Invariably Oceana is always allied with one of the Asian powers and at war with the other.  (Whether Eurasia and East Asia ever join forces against Oceana is not addressed).  Every few years, the alliances change and suddenly Oceana goes from being at war with Eurasia and allied with East Asia to being at war with East Asia and allied with Eurasia.  Whenever that happens, all the back records have to be changed to deny the shifting alliance and make it appear that Oceana has always been at war with East Asia, and before long everyone (including most people who altered the records) starts believing it.

As recent events have shown, this is depressingly plausible. It was presumably inspired by the Nazi-Soviet Pact, when the Soviet Union went overnight from being allied with Nazi Germany against the Western Allies to being allied with the Western Allies against Nazi Germany.  And, of course, the Pact came as a complete shock, since up until then the two countries had been mortal enemies.
Nor did it begin with the Nazi-Soviet Pact.  Try reading about the countless wars that went on in Europe in the 17th and 18th Centuries over the balance of power.  The shifting alliances are enough to make your head spin.  This is strongly hinted at in the late 18th Century poem The Battle of Blenheim, about the War of Spanish Succession in the early 18th Century.  (Try reading an account of the war and see if you can straight all the Eurasia-East Asia moments).

"My father lived at Blenheim then,
Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.

"With fire and sword the country round
Was wasted far and wide,
And many a childing mother then,
And new-born baby died;
But things like that, you know, must be
At every famous victory.

"They said it was a shocking sight
After the field was won;
For many thousand bodies here
Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.

Even in the Napoleonic Wars, when there were real ideological and social issues at stake, the frequency of shifting alliances is shocking.  And, well, consider the Nazi-Soviet Pact.

In short, our current Eurasia-East Asia moment is not so extraordinary  Quite the contrary, it is all to ordinary.  But that doesn't mean that we have to let our leaders get away with it.

Saturday, August 16, 2014

Reflections on Clive Bundy and Ferguson, Missouri

The news out of Ferguson, Missouri is bad all around.  On the one hand are riots that are immistakably unacceptable and must be suppressed.

On the other hand, we have some very disturbing images of the very embodiment of the militarization of the police that so many people have long been warning against.  We have images of police looking and acting like an occupying army in ways that have created shock and outrage broadly across the political spectrum.

Joining the comments section of the thoughtful social conservative, Rod Dreher, who has roundly condemned such militarization, the results have


been depressingly familiar.  It has not taken long for conversation to polarize politically.  (I am as much to blame as anyone else).  One subject that has been frequently raised, by both sides (myself included), is the comparison with the Cliven Bundy ranch standoff.  A frequent comment on the rights side of the discussion has been that right wingers, including Clive Bundy, have been concerned about the militarization of the police for a long time, to the point of buying up military gear to defend against it, and that liberals have responded with nothing but hostility and are coming in on the act only when black people are on the wrong side of the militarization.

I would disagree on several counts.  For one thing, the liberal/left (especially civil libertarians like the ACLU) have been protesting the militarization of the police for a long time.  (Particularly in the context of the War on Drugs, whose victims have very often tended to be black). For another, while we should applaud members of the libertarian wing of conservatism like Rand Paul or Reason magazine that have shared these concerns, I (and others) have serious misgivings whether the militarization of the regular police and overuse of SWAT teams and the like is the reason right wingers have been stocking up on arms and forming paramilitaries.  Somehow the tendency to stock arms and form paramilitaries seems to vary more with which party holds the White House than anything else. And a lot of such groups concerns have less to do with actual conduct by local police forces than imagined UN conspiracies and the New World Order and so forth.

But most significantly, I do not agree that there is anything inconsistent about both opposing the militarization of the police and the formation of private paramilitaries to counter them.  To oppose both simply means that one is opposed to a general militarization of society.  It means that safety and security will not be achieved by a universal civilian arms race.  It means:
[T]he general More Guns approach to social ills — is the absolute abandonment of civil society it represents. It gives up on the rule of law in favor of a Hobbesian “war of every man against every man” in which we no longer have genuine neighbors, only potential enemies. You may trust your neighbor for now — but you have high-powered recourse if he ever acts wrongly.
Whatever lack of open violence may be procured by this method is not peace or civil order, but rather a standoff, a Cold War maintained by the threat of mutually assured destruction. Moreover, the person who wishes to live this way, to maintain order at universal gunpoint, has an absolute trust in his own ability to use weapons wisely and well: he never for a moment asks whether he can be trusted with a gun. Of course he can!
I can also raise several other points about Clive Bundy in the light of recent events in Missouri.
  1. Bundy belonged to a group that believed the Federal Government had no law enforcement powers, but that enforcement should rest purely with the county sheriff.  There is no question that the BLM overreacted in a heavy-handed way in the first place that was largely responsible for the escalation and standoff.  But in theory, the real objection of the Patriot movement is not that the BLM was heavy-handed and overreacted, but that it was the federal government.  The possibility that local police or sheriffs might be equally heavy-handed and prone to overreaction is not one that occurred to Bundy and his crowd.  Recent events suggest that it should.
  2. Needless to say, Bundy's group never paused to consider whether private paramilitaries are necessarily lovers of liberty, or whether they are capable of abusing their power.  Of course private militias would never threaten liberty!  They are us, after all.  As I have argued many times before, all the dangers that go with militarization of police apply no less to militarization of civilian society as well.
  3. Rioting and looting are worse offenses than overgrazing federal land and failing to pay grazing fees.  But the Bundy standoff is a greater overall threat to the rule of law.  It is rather like the distinction some right wingers used to make between criminals and terrorists.  Criminals merely break laws.  They have no objection to law when applied to other people.  Terrorists oppose the whole system of law.  Well, I do not agree with the assumption that they should therefore be placed outside the protection of law, but there is a point here.  Rioting and looting are crimes that must be suppressed, and I favor prosecution of rioters and looters.  But in the end, riots will burn out and law will return.  What is alarming about the Clive Bundy standoff is that it sets the precedent that a private citizen who raises a large enough private army can be exempted from laws.
  4. And finally, what about race?  I will just say this.  Maybe if the people of Ferguson had taken out their military-style weapons, called up their private paramilitary and forced the police out of their neighborhood, the Patriot movement would have applauded.  Maybe I should give the Patriot movement the benefit of the doubt and assume that they would have applauded in such an instance.  But I would ask anyone who claim they would have applauded to give me the benefit of the doubt when I say that I would not have applauded in such a case.  I would have been alarmed.

Saturday, August 9, 2014

Probable Cause: US and New Mexico

And while we are on the subject of the Supreme Court and surveillance, there have been some interesting cases coming out of both the US and New Mexico Supreme Courts on the subject of probable cause.

For anyone who does not understand how these things work:  It is by now established that the Bill of Rights in the US Constitution applies to the states through the Fourteenth Amendment.  The Supreme Court's interpretations of the Bill of Rights apply equally to the Federal Government and all states.  The states, meanwhile, have their own bills of rights.  Each state supreme court is free to decide that its own bill of rights provides a greater degree of protection than Federal Bill of Rights.  A State Supreme Court interpretation that goes beyond the Federal interpretation will apply only within that one state, and not to federal agencies operating within the state.  For instance, the US Supreme Court has ruled that if the police suspect a crime but lack probable cause, they may investigate on the pretext that they are investigating something else that does have probable cause.  Most often, this means if for some reason they suspect drugs, they may pull a car over for a traffic violation, and anything they find while investigating the traffic violation will be admissible.  (A "pretextual" stop).  New Mexico does not allow pretextual stops and requires the police to be actually investigating what they say they are investigating.  Although I consider myself a civil libertarian, I must say that pretextual stops do not bother me, perhaps because they are such a staple of police movies and TV shows as a vital element of investigations.

In May, New Mexico has come out with two rulings holding that the New Mexico constitution holds greater protection against warrantless searches and seizures than the US Constitution, one that I have misgivings about and one that I applaud.  Significantly, though, both were made by the Court of Appeal.  The New Mexico Supreme Court has granted certiorari (appeal) in both cases, so the Court of Appeals decision may not be final.

The first case is State v. Paananen. Store security caught a shoplifter hiding several items under his jacket.  They detained him and called the police.  The police arrived, arrested him, and in the process of searching his backpack after the arrest, discovered drugs in it and charged him with drug possession as well.  The common law rule was that police could arrest a suspect without a warrant if they had probable cause to suspect him of a felony, unless the arrest was made in the suspect's home, in which case a warrant was required.  Arrest for a misdemeanor could be made without a warrant only if the suspect committed in in the presence of the police.  The Supreme Court appears to have incorporated the at home vs. in public distinction for felony arrests into the Fourth Amendment.  But it has allowed warrantless amendments for misdemeanors when authorized by statute.  New Mexico has a statute allowing police to arrest a shoplifting suspect without a warrant if there is probable cause.

New Mexico has apparently moved away from this common law distinction and now allows warrantless arrests, even for felonies, only if there is probable cause and an exigency that prevents the police officer from obtaining a warrant.  (Exigency might include a danger of the suspect escaping or destroying evidence).  Paananen extended this rule to misdemeanors and said that, despite the statute, the police could make an arrest only if they either first obtained a warrant, or there was an exigency that did not allow a warrant.*  Presumably, then, they thought the police should have gotten a warrant before going down to the store.  I do not know enough about police procedure to know how much this would inconvenience the police, but I am inclined to think that the threat to liberty in this case is outweighed by the inconvenience to the police, and to hope the New Mexico Supreme Court overturns this one.

The other to do with technological searches.  It is a decision I applaud.  I see some faint hope that the US Supreme court may be trending in the same direction and hope that they adopt the same rule.

Some background is in order here.  Originally, the Fourth Amendment applied only to actual physical intrusions on on the suspect and his property.  Under 18th and even 19th Century technology this might be reasonable; by the 20th Century it became increasingly troubling.  In the 1928 case of Olmstead v. US, the Supreme Court held that wiretapping a telephone did not require a warrant unless there was an actual physical intrusion on the property.  This left a lot of room for intrusion on private and personal conversations.  It was overturned in the 1967 case of US v. Katz.  Katz went beyond merely extending the Fourth Amendment to wiretapping telephones and changed the standard of the Fourth Amendment beyond physical trespass.  Hypothetically, it established a two-prong test (judges just love "prongs") for when an intrusion violated the Fourth Amendment: (1) did the suspect have a subjective expectation of privacy, and (2) does society recognize that expectation as reasonable. As a practical matter, people engaging in or plotting a crime necessarily have a subjective expectation of privacy, otherwise they wouldn't be plotting a crime.  The question is whether is really a one-prong question of whether there is a "reasonable expectation of privacy."

The courts' interpretations of "reasonable expectation of privacy" are, shall be say, a bit eccentric.  The courts have found no reasonable expectation of privacy for peeking through the window, or for peeking with binoculars, but a reasonable expectation for a telescope.  There is no reasonable expectation of privacy against aerial surveillance, but a reasonable expectation against infared detectors.  There is no reasonable expectation against a canine drug sniff, but a reasonable expectation before opening an actual container.  And so forth.  The main thing all of this has proven is that an "objectively reasonable" expectation of privacy exists mostly in the judges' imagination and that some other standard is needed.

The Supreme Court made a preliminary hint at changing the rule in the 2011 case of US v. Jones.  At issue was whether a warrant is required to place a tracking device on a car.  The Supreme Court unanimously ruled that it is.  They split 4-4-1 over why.  Justices Scalia, Thomas, Roberts, and Kennedy ruled that a warrant is required because placing a tracking device on a car involves a physical intrusion and therefore falls within the Fourth Amendment under Olmstead.  It makes an originalist argument -- at the time the Fourth Amendment was adopted, it was addressed to physical trespass on property.  A physical intrusion into a carriage would have violated the Fourth Amendment in 1791; physical intrusion into a car (to place a tracking device) therefore violates the Fourth Amendment today.  The opinion does not expressly repudiate the Katz standard of "reasonable expectation of privacy."  To the contrary, it strongly implies the contrary, that either a physical intrusion or a violation of "reasonable expectation of privacy" would require a warrant.  But it leaves the door open for a return to Olmstead and a physical intrusion standard.

Justice Sotomayor writes a concurrence so incoherent that I have no idea what she is talking about. Justice Alito, Ginsburg, Breyer and Kagan write a concurrence that appears to call for significant changes in what is considered a "reasonable expectation of privacy."  While agreeing that the Fourth Amendment protects privacy as it existed in 1791, the concurrence argues that what is really relevant is not 18th Century law, but 18th Century technology.  The type of surveillance that is practical now was unthinkable in the 18th or 19th Centuries (and often even in the early 20th Century) because the technology for it simply did not exist.  The argument appears to be that what would have been technologically feasible in ages past does not violate a reasonable expectation of privacy, but what requires modern technology does.  This makes sense in some ways.  It acknowledges that technology has changes things, and that these changes have to be taken into account.  But it has the weakness of historical arguments in general -- it requires judges to masquerade as historians.

This is why I applaud the recent New Mexico Court of Appeals decision in State v. Davis.  Davis deals with a helicopter that flew overhead and saw evidence that a fenced-in property had been used to grow marijuana.  The US Supreme Court has upheld aerial searches as not requiring a warrant.  The Court of Appeals held that the New Mexico Constitution imposes a higher standard of protection.  It rejected the argument that government agents flying overhead are no different that private citizens in, say, a balloon show or air show, flying overhead.  Not true, the Court said; private citizens are cruising for the sake of cruising and if they see your marijuana, it is purely incident.  Government, by contrast, is engaged in deliberate surveillance, looking for marijuana.

Instead of the nebulous "reasonable expectation of privacy" standard, the Court of Appeals set a much more concrete two-prong test.  (Again with the prongs!)  First, the goal of the government must be to intrude.  The Court gave the hypothetical of a police officer who accidentally falls against a piece of soft-sided luggage and feels a brick-like object that resembles a bail of drugs.  Perhaps more realistically, government might engage in aerial surveying to make a topographical map or trace weather patterns and accidentally come across evidence of drug use.  (That would not require a warrant, but could be probable cause to obtain a warrant).  Second, if the information otherwise could not be obtained without a physical intrusion into the target's home or cultilage (yard).  The Court gives this requirement in the context of aerial surveillance.  It cites a US Supreme Court case about infared detectors.  But one can readily imagine it being applied in any case of technological surveillance, such as wiretapping, electronic surveillance, tracking devices, and so forth.  It avoids the need for any mushy questions about "reasonable expectation of privacy," or any outdated questions about physical intrusion.  If the information gathered would require a physical intrusion absent the technology, a warrant is required.

So, what sort of surveillance would not require a warrant?  Surveillance of who enters and leaves a house is an obvious one.  Following a car is another.  Yet another is an informant wearing a wire. Since the suspect voluntarily admits the informant, the use of informants has long been held not to require a warrant.  The wire gives an instantaneous and fully accurate account of the suspect's conversations, but, after all, the informant could have done that anyhow, albeit less quickly and accurately.

I regard Davis as an excellent decision.  It recognizes the real dangers that modern surveillance technology poses to privacy, addresses it with a clear and objective standard that is (reasonably) easy to follow and offers real protection to privacy, and it relies on the here and now, rather than the historical record.  I hope the New Mexico Supreme Court affirms it.

_______________________________________________
*I assume this would still allow arrest without warrant in misdemeanor domestic violence cases because of the danger of continued violence if the police did not make an arrest.

One Argument for Supporters of Obamacare Not to Use

This article tries to argue that case that Congress could not have mean to exclude federally created exchanges when it said "exchange established by the state" by citing various instances in which the statute uses that phrase in ways that can't possibly exclude federal exchanges:
Elsewhere in the statute, Congress referred to state-established exchanges when it clearly meant exchanges more generally. The ACA, for example, limits who can buy insurance on an exchange to those who “resid[e] in the State that established the Exchange.” Read literally, this would prohibit anyone in states with federal exchanges from buying insurance on those exchanges. Federal exchanges would be useless. That can’t be what Congress meant.
I would strongly recommend against making this argument.  Obamacare opponents are apt to seize upon it and make it seriously.  If a state declines to set up an exchange, then residents will be forbidden from buying insurance on a federal exchange.  Hurray!  That will allow states to block anyone from benefitting from Obamacare by declining to set up exchanges, and strengthen the constituency for repeal (since so many people do not benefit from the monstrosity).

Or consider this argument:
Similarly, the ACA says that states have to maintain their Medicaid eligibility standards until “an Exchange established by the State” is up and running. This provision was meant to provide stopgap protection for Medicaid beneficiaries until the exchanges went live. But, read literally, it would forbid a state that declined to establish an exchange from ever relaxing its Medicaid standards. Again, that’d be batty.
Once again, if you make this argument as an absurdity, Obamacare opponents will probably seize upon it and make it seriously.  That will allow them to reap two benefits at once:  (1) It will prevent any broadening of Medicaid eligibility and ensure that poor people cannot receive broader access to healthcare; and (2) it will allow them to blame Obamacare.  Two for one!

If you keep in mind that the two-fold goal of opponents of Obamacare is to prevent people from benefitting from it, and then to complain that no one is benefitting, these arguments play right into their hands.  So beware of making them, lest you be taken seriously.

Monday, August 4, 2014

Law Office History

I have not followed all the ins and outs of the debate on subsidies on federally-created exchanges. However, it appears that opponents of Obamacare, combing through the vast mountain of material on the law's enactment, have found two videos by one of the architects of the law seeming to suggest that he thinks only people who buy insurance on state-created exchanges will be eligible for subsidies. Against this is the vast quantity of evidence that they intended nothing of the kind.  Which should carry more weight?

Let me digress for a moment to talk about my law school days and the fascinating Professor Fritz who taught history of law.  He disagrees with people who look down on "law office history," i.e., the selective marshaling of historical evidence to make a legal point.  To criticize law office history, he says, is to expect lawyers to act like historians rather than lawyers.  He made this comment in the context of some Scalia opinion that justified itself with an extraordinarily dubious historical argument. He said that there is no point in criticizing Scalia for cherry picking and quoting out of context -- that is what lawyers do.

My answer to that is two-fold.  First, I can attest that lawyers act as zealous advocates of their clients and do, indeed, cherry pick and cite out of context.  They are allowed to do so because there is always a lawyer on the other side pointing out when they cherry pick and cite out of context so the judge will not be deceived.  Judges, on the other hand, are not supposed to be advocates.  When a lawyer presents a load of bullshit under the guise of advocacy, it is the judge's job to point out that it is bullshit and go with what the law actually says, no cherry picking or citing out of context.  Sometimes the law is unclear and a judge must decide between two (or more) plausible interpretations.  But it is a judge's job not to be bamboozled by a clever lawyer, not to be the clever lawyer doing the bamboozling.  My other answer is that if lawyers (or judges) are not historians, then they shouldn't impersonate historians.

Suppose I decided that our current form of jury trial that requires a unanimous verdict of twelve jurors in a criminal case is too long and cumbersome, and that we should instead have thirteen-member juries that decide by simple majority.  Sounds crazy, no?  And to advocate such a thing now would be crazy. But I could make a decent law office history argument that this was the original intent of the Founding Fathers.  First, I would point out that the original body of the Constitution, before even any amendments were added, says, "The Trial of all Crimes, except in cases of Impeachment, shall be by Jury."  (U.S. Constitution, Article III, Section 2, paragraph 3).  I would further point out that when debate on the U.S. Constitution began the very first opinion published criticized the requirement that a jury verdict be unanimous and called for a 13-man jury to decide by simple majority.  And no one seems to have refuted this argument.

Of course, anyone opposing me will have ample counter-argument.  This was one opinion expressed out of an approximately 50,000 pages that have been preserved from the time.  The reason no one even attempted to refute it was that it was such an eccentric viewpoint as not to seem worth even debating. A huge volume of commentary exists praising the (unamended) Constitution for requiring a jury trial in criminal cases and demanding to know why it did not require a jury trial in civil cases as well.  When various state conventions proposed amendments, the one thing they all agreed on was that trial by jury should be required in civil cases as well.  In short my argument would be every bit as crazy as it sounds.  But if a serious political movement got underway for 13-member juries to decide by majority vote, this argument would no doubt get a respectful hearing from the courts and whether judges accepted it or not would depend on whether they favored or opposed such juries, not whether the argument was good history.  (It is not).

The same applies to the Obamacare debate.  The lawyers who argue that really Congress intended only people buying insurance on state-created exchanges to be eligible for subsidies and wanted to deny them to people buying insurance on federal exchanges are practicing a bit of law office history, albeit of a very recent event.  In this they are only acting as zealous advocates of their clients, and I don't begrudge them the argument.  The other side should respond by practicing its own law office history and pointing out the vast mountain of evidence to the contrary.  What does bother me is the thought that it is judge's political inclinations, not the actual evidence, that will make judges decide whether to accept this bit of law office history or not. Lawyers may acceptably practice law office history; judges may not.

The Politics of Halbig

It may be a little late to weigh in on Halbig v. Burwell, but better late than never.  The first and most obvious point is that it is a spectacular demonstration of just how broken our political system has become.

Consider:  The question of the individual mandate was a deep constitutional question, even if it was a novel one.  If the Supreme Court had held that Congress could regulate only economic "activity" and not "inactivity," the individual mandate would have been unsalvageable short of a Constitutional amendment.  The Hobby Lobby decision turned on a statute (RFRA), rather than the First Amendment, but constitutional questions lay not far below the surface.  This latest opinion lies in a simple glitch in statutory language that Congress could correct in a single afternoon.  That this is considered outside the realm of possibility.  I would say the fact that it is calmly accepted that if the Supreme Court holds that subsidies are only available to people who purchase insurance on state, not federally, created exchanges, millions will simply have to lose their insurance because Congress would sooner see them suffer than change a few words in a statute is sheer madness.

I am also a bit skeptical about it.  Consider the politics of it.  Suppose the question goes to the Supreme Court.  As the decision draws nearer and nearer, millions will be in fear that their subsidies might be in jeopardy.  This will create pressure on Congress to do something to reassure them.  And, after all, Congress need only change a few words in the statute and the whole suit will become moot.  Holding out and insisting that you want millions of people's subsidies to be in jeopardy looks like very bad politics to me.  And suppose that the Supreme Court decides that, indeed, only people who buy insurance on state exchanges are eligible for subsidies.  Suddenly millions will be stripped of their health insurance and Republicans will be dancing in the street with glee.  That sounds like even worse politics. After all, Republicans have never quite come out and said that they simply don't think some people should have health insurance.  They always come up with some other reason to oppose Obamacare. To be caught actually applauding people losing health insurance could be embarrassing.  And to fight to the last against a quick and easy fix seems even worse.

Of course, I may be miscalculating the politics here.  The usual Republican calculus has always been that since Obama is President, he will be blamed for everything that goes wrong, and therefore the worse they make things, the more they benefit.  Thus this time when people lose their insurance subsidies, Republicans will blame "Obamacare" and vow to repeal the monstrosity.  Winning issue! But I see a problem here.  As one conservative once said explaining why liberals don't bet many votes, "It's the substance, stupid!"  The same goes for conservatives.  Denouncing the evil of "Obamacare" for people in states with federal exchanges for the sudden loss of subsidies may be popular.  Vowing to end this monstrosity may also be popular.  But not restoring subsidies and instead stripping subsidies even from people buying insurance on state exchanges is not going to be popular.

And there may be another problem as well.  Republicans are usually good at blaming Obama for our country's woes, except during a head-to-head confrontation, when Republicans tend to do very badly. If the Supreme Court strips millions of their subsidies, Obama need only call on Congress to pass very simple legislation to fix the problem, and Congressional Republicans will have a most awkward time explaining why they are unwilling to do so.

Of course, my calculation here might be wrong.  The real issue might be that Republicans are highly successful at blaming Obama when they stick to obstruction, but are invariably blamed when they try to force something over.  (See government shutdowns, debt ceiling showdowns).  Since in this case they will simply be obstructing a fix, they may hope to win out.

Be that as it may, this unseemly enthusiasm for stripping millions of their subsidies is a most disturbing sign of the times.