2019-07-23 19:40:45

The European Court of Justice ruled last summer that the European Union’s absurd regulatory scheme for genetically modified organisms (GMOs) must be applied to gene-edited crops. Such regulations, however, are scientifically nonsensical. GMO crops (typically modified by adding genes from other organisms)and gene-edited crops (using techniques like CRISPR to modify genes already in the crop variety) are safe for people and for the environment. Such crops need no more regulation than do crops created via conventional techniques such as crossbreeding or random mutation by blasting them with ionizing radiation and harsh chemicals.

Now foods labs are telling would-be E.U. regulators that there are no tests that can reliably distinguish between gene-edited and conventional crop varieties. Why? Because many of the edited genes are indistinguishable from those in naturally occurring organisms. Consequently, E.U. regulators are worried that gene-edited horrors from the U.S., such as Calyxt’s healthy high-oleic-acid oil or Intrexon’s non-browning lettuce, might sneak into European supermarkets undetected.

Before gene-editing, plant breeders would first identify a useful gene in a landrace variety, e.g., mildew resistance, and then onerously crossbreed generation after generation to transfer the gene into a more productive commercial variety. Biotechnologists can now induce mildew resistance by simply editing a few DNA pairs in the corresponding gene in the commercial variety to match the ones found naturally in the landrace.

In contrast to the bioluddites in Europe, regulators in the U.S., Brazil, Argentina, and Australia have sensibly declared that they do not intend to regulate edited crops with mutations that could have occurred in nature.

Hermann Broll, a researcher in the Department of Food Safety at the German Federal Institute for Risk Assessment in Berlin, according to Nature, noted that even if food testing labs could find the edits, regulators would still struggle to prove that the DNA variant they’ve identified is the result of gene editing, rather than a natural mutation. “I do not have a clue as to the solution—and I have not seen anywhere any clue yet,” said Broll.

Here’s a suggestion: Go back to the European Court of Justice and urge the judges to overturn their metaphysical ruling, which found that one of two identical genes must be regulated if it happens as a result of editing, while the other escapes administrative scrutiny if it is a natural or radiation-induced mutation.

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2019-07-23 18:25:11

A major conflict is now underway on the U.S. Supreme Court between Justices Elena Kagan and Neil Gorsuch over the issue of judicial deference to the administrative state.

Their division centers in part on whether or not a contentious Supreme Court precedent, Auer v. Robbins (1997), should be kept in place by the justices or struck down in its entirety. In Auer, the Court held that when an “ambiguous” regulation promulgated by a federal agency is challenged in court, the judge or judges hearing the case should respect the expertise of the agency and its staff and therefore defer to the agency’s interpretation of its own regulation. An agency’s interpretation, the Court held in Auer, is “controlling unless plainly erroneous or inconsistent with the regulations being interpreted.”

Last month, the Supreme Court decided a case that asked the justices to overrule Auer once and for all. Writing for a narrow majority in Kisor v. Wilkie, Justice Elena Kagan managed to save Auer from total destruction. “Auer deference retains an important role in construing agency regulations,” Kagan wrote. “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision.”

Critics of Auer deference argue that the doctrine is tantamount to judicial abdication, that it tells judges to stop doing their judicial duty. Kagan acknowledged those critics, but insisted that the doctrine, while deferential, though still have some teeth. “First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference.” According to Kagan, Auer “is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear.”

Justice Neil Gorsuch was not persuaded by Kagan’s positive view. “It should have been easy for the Court to say goodbye to Auer,” Gorsuch wrote. Not only does Auer require judges “to accept an executive agency’s interpretation of its own regulations even when that interpretation doesn’t represent the best and fairest reading,” but the precedent also “creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'”

Gorsuch also challenged Kagan’s claim that the Auer doctrine has some judicial teeth. On a daily basis, Gorsuch wrote, federal judges “reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution. Yet when it comes to interpreting federal regulations,” he continued, “Auer displaces this process and requires judges instead to treat the agency’s interpretation as controlling even when it is ‘not…the best one.'”

It is no surprise that Kagan and Gorsuch are now squaring off over this particular issue. In their respective pre-SCOTUS careers, the two figures basically stood on opposite sides of the same general debate.

For example, in a 2001 article for the Harvard Law Review, Kagan, who was then a Harvard law professor, made the case for broad judicial deference not only to federal agencies, but also to those presidents who seek to wield extensive influence over federal regulators. As an example of this phenomenon in action, she pointed to President Bill Clinton:

Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals. Whether the subject was health care, welfare reform, tobacco, or guns, a self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions—regulations, guidance, enforcement strategies, and reports—to showcase and advance presidential policies. In executing this strategy, the White House in large measure set the administrative agenda for key agencies, heavily influencing what they would (or would not) spend time on and what they would (or would not) generate as regulatory product.

Under Kagan’s view, the courts should generally extend to same deference to such presidential behavior as the courts already extend to the regulatory agencies.

Gorsuch, by contrast, established himself as a critic of judicial deference to the administrative state while serving as a judge on the U.S. Court of Appeals for the 10th Circuit. In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, for example, Gorsuch challenged the notion that judges should defer to an agency’s interpretation of an “ambiguous” federal statute. “Under any conception of our separation of powers,” Gorsuch wrote, “I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more.”

In sum, when the next big case testing the bounds of judicial deference to the administrative state reaches the Supreme Court, it will be Kagan and Gorsuch drawing the battle lines.

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2019-07-23 16:13:09

On Fox News last night, between the commercials for self-lubricating catheters and class-action lawsuits over defective hip replacements, you may have seen Tucker Carlson ranting about the release of “hundreds of violent criminals” onto the streets of America.

In a segment on his show, Carlson said that a source within the Trump administration had provided his show with exclusive data on crimes committed by the roughly 3,100 federal inmates who were released earlier this month under the FIRST STEP Act, a criminal justice reform bill passed by Congress last December.

“So far this year, more than 2,000 federal prisoners were put on the nation’s streets thanks to the FIRST STEP Act,” Carlson begins. “You might remember that law. It was sold to lawmakers and the rest of us a way to ease overcrowded prisons and give a second chance to nonviolent offenders. That’s not what it’s turned into.”

Carlson continues:

In fact, that law has allowed hundreds of violent criminals and sexual predators back on the street. An administration official provided this show exclusively with data on what crimes were committed by the felons being released under the FIRST STEP Act. Turns out most of them were not in jail for smoking a joint 30 years ago. Instead, of the roughly 2,200 inmates who’ve been set free so far, 496 of them were in prison on charges related to weapons or explosives. Huh. Two hundred and thirty nine had committed sex offenses such as rape and sexual assault, 106 committed armed robbery, and 59 had committed aggravated assault or murder. That’s not what we were promised.

This is the part where gentle viewers are supposed to clutch their hearts and say, “My God, what’s happening to my country?”

The actual story is much less alarming. 

All of the inmates Tucker is referencing had their release dates moved up because the FIRST STEP Act forced the federal Bureau of Prisons (BOP) to change the way it calculates the amount of “good time” credits inmates can earn through good behavior to shave days off their sentence.

You see, in the federal prison system, inmates were supposed to be eligible for 54 days of good time credits a year. Keeping a clean disciplinary record is one of the only ways federal inmates can reduce their sentences, since there is no parole in the federal system.

In practice, however, they could only accrue 47 days a year, thanks to the absurdly complicated way BOP calculated the credits. (If you’re really a glutton for punishment, you can read a long summary of BOP’s good time credit formula in a 2010 Supreme Court ruling upholding it, which includes an appendix entry about the algebra equations involved.)

For a federal inmate doing 10 years of hard time, that meant losing 70 days of potential credit toward an earlier release.

The FIRST STEP included a provision to ensure that inmates can now actually receive 54 days of good time credit a year, and it required BOP to retroactively recalculate credits for current inmates and adjust their release dates accordingly. Because of a drafting error in the bill, that provision didn’t go into effect until July 19.

Lawmakers and advocacy groups who supported the FIRST STEP Act say the provision was simply a fix to clarify Congress’ original legislative intent. In other words, these inmates were getting out exactly when they should have under the spirit of the law.

“Every single office we met with during the course of the FIRST STEP Act was told about that provision,” says Jason Pye, vice president of legislative affairs at FreedomWorks, a conservative group that supported the legislation. “Virtually every communication we sent to the Hill about the FIRST STEP Act at least mentioned this provision, explained what it was, and why it was included in the bill. It was a feature of the FIRST STEP Act, and it was included to fix a misapplication of law by the Bureau of Prisons, which had calculated the 54 days of good time credit that could be earned by a prisoner to mean 47 days.”

All of the inmates Carlson is fulminating about were going to be released anyway—and sooner rather than later. Most were released from halfway houses or home confinement where they were finishing out their sentences. And they’re all still subject to three to five years of supervised release.

Naturally, Carlson’s millions of viewers were left without this information.

Does Carlson think these inmates are at a higher risk of committing new crimes because they were released a few months earlier than they would have previously been? Or is he simply outraged that they were released at all? If it’s the latter, his beef goes far beyond the modest FIRST STEP Act. More than 10,000 inmates are released from U.S. state and federal prisons every week, according to the Justice Department, for all manner of crimes. More than 95 percent of all state prisoners will eventually be released.

It’s unclear exactly what Carlson wants us to be upset about—only that he wants us to be upset.

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2019-07-23 15:40:40

Former vice president and current presidential candidate Joe Biden has a new criminal justice reform plan. It aims to remedy many injustices caused by policies backed by…Joe Biden.

“Equality, equity, justice—these ideas form the American creed. We have never lived up to it and we haven’t always gotten it right, but we’ve never stopped trying,” said Biden in a video released today. “The public is ready. They’re ready. They’ve had enough.”

In the video, Biden endorses the SAFE Justice Act. That bill, first introduced in 2017, would limit the application of mandatory minimum sentences to the highest-level drug offenders, according to a summary by the criminal justice reform group FAMM.

Biden has also endorsed a list of other, more substantive reforms, including the elimination of mandatory minimums, the abolition of private prisons, the expanded use of drug courts, and the end of the death penalty. He would also eliminate the sentencing disparity between crack and powder cocaine, and he thinks states should be allowed to pursue their own cannabis legalization policies without federal interference.

That last item is more tepid than what we’ve heard from some of his opponents, several of whom have endorsed the full legalization of recreational marijuana. It would nevertheless represent a significant step toward more liberalized cannabis laws nationwide.

Indeed, reformers will no doubt find a lot to like in Biden’s criminal justice plan. (His endorsement of expanded drug courts, which have a very mixed record when it comes to keeping people out of jail, is an arguable exception.)

The most striking thing about Biden’s proposals is how much they are a rejection of the candidate’s own legacy. As former Reason criminal justice reporter Radley Balko once put it, “The martial/incarceral state has had no greater friend in Washington over the last 35 years than Joe Biden.”

When he was a senator from Delaware, Biden was one of the original co-sponsors on the Anti-Drug Abuse Act of 1986. That law imposed mandatory minimum sentences for drug offenders and created the sentencing disparity between crack and powder cocaine, two policies Biden now says should be eliminated completely.

Biden was also a sponsor of the Anti-Drug Abuse Act of 1988, which expanded the application of the death penalty—another policy he now says should be abolished.

In this 1991 floor speech, Biden defends both policies:

Biden also supported the 1994 Violent Crime Control and Law Enforcement Act—indeed, he sometimes calls it the Biden Crime Law. That piece of legislation helped to drive mass incarceration at the state level by expanding federal funding for prison construction.

He now wants to that as well, with a $20 billion grant program encouraging states to shift their crime focus from incarceration to prevention.

Biden has not been totally devoid of self-reflection on his criminal justice record. He has described some of the harsh penalties for crack-cocaine as “a big mistake.” Even as a senator, he criticized some mandatory minimums.

Still, it’s breathtaking just how much Biden’s criminal justice platform implicitly repudiates his own record. Voters will have to decide for themselves whether this represents a genuine change of heart or a more cynical attempt to stay in tune with a party base hungry for reform.

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2019-07-23 12:00:10

New public records show Chicago police executed more than 11,000 search warrants over a five-year period, predominantly in the city’s low-income and minority neighborhoods, and nearly half of them did not result in an arrest.

Data obtained through a Freedom of Information Act request filed by Lucy Parson Labs, a police accountability and transparency nonprofit in Chicago, shows that Chicago police executed 11,247 search warrants between 2012 and 2017, most of them heavily concentrated in the South and West Side of the city.

Distribution of executed search warrants by Chicago police, 2012-2017

“It looks very much looks like the stop-and-frisk data sets that we’ve released, very much like the asset forfeiture data we released,” Lucy Parsons Labs director Freddy Martinez says. “It seems to match all of the enforcement patterns that we’ve seen over time by CPD, and follows the historical trend of where police are generating their activities, which is mostly poor neighborhoods.”

The public records come just days after Chicago’s Inspector General Joe Ferguson announced his office is investigating how Chicago police vet information and execute search warrants. The investigation was sparked by a string of lawsuits and a year-long series of stories by local news outlet CBS 2 that revealed a pattern of Chicago police executing busting into the wrong houses and terrorizing innocent families.

Sloppy, unverified search warrants led heavily armed Chicago police and SWAT officers to ransack houses; hold families, including children, at gunpoint; and handcuff an eight-year-old child in one case, CBS 2 found. In another case, 17 Chicago police officers burst into a family’s house with their guns drawn during a 4-year-old’s birthday party.

“Every one of these incidents is an aggravator and a perpetuator of mistrust that exists,” Ferguson said announcing the inspector general investigation. “It really calls for a greater accountability and examination.”

Chicago attorney Al Hofeld, Jr. has filed six lawsuits against the city on behalf of families who say there were wrongly subjected to violent, traumatizing police raids. In an interview with Reason, Hofeld called such raids a “silent epidemic that’s being inflicted on a mass scale on kids in Chicago.”

“Our work and CBS’ work has uncovered the fact that these wrong, raids where they traumatize children, occur frequently in the city, and for decades it’s been kind of an ugly fact that’s been overlooked,” he says.

In Hofeld’s newest lawsuit, filed last week, a Chicago family claims police officers raided their house three times in four months looking for someone they say they don’t even know.

Last June, Chicago settled a civil lawsuit by one family who claimed CPD officers stormed their house and pointed a gun at a three-year-old girl for $2.5 million. This June, two Chicago police officers were indicted on federal criminal charges alleging they paid off informants, lied to judges to secure search warrants, and stole cash and drugs from locations they raided.

Lucy Parsons Labs struggled for a year to get the data from the Chicago Police Department, which originally claimed the records did not exist.

The data shows just under 47 percent of the search warrants issued between 2012 and 2017 did not result in an arrest. However, a lack of an accompanying arrest is not necessarily an indicator of a botched raid. For example, the police may obtain warrants to search phones and other electronics. In nearly 800 of the search warrants, the address was listed on or near Homan Square, where the Chicago Police Department’s Evidence and Recovered Property Section is located.

There are other curious spikes in the data, though. For example, Reason’s analysis found that in most neighborhoods there were more search warrants that resulted in an arrest than did not. But in the Near West Side neighborhood, there were 160 search warrants executed over the five-year period that did not result in an arrest, compared to just 56 that did. The numbers don’t explain the cause of that disparity, unfortunately.

“It’s pretty hard to say one way or the other without access to more data,” says Matt Chapman, an independent journalist and self-described “civic hacker” who helped Lucy Parsons Labs visualize the data. “We had to go to the state attorney general’s office for a year to get this stuff. Unfortunately, we can’t make a strong conclusion because we don’t have as much info as we’d hoped, but we’re hoping Chicago will release more information in response to our requests.”

Chapman says, however, that the difference in the sheer number of search warrants was clear when he mapped the data onto a block grid of Chicago.

“The distribution is all in the South and West Side, whereas in the North Side most of the points didn’t even get filled in,” Chapman says. “Barely any search warrants happen on North Side. It’s very clear that this is lopsided.”

The data also show that search warrant executions declined from 2,278 in 2012 to 1,575 in 2017. That same year, the Justice Department’s Civil Rights Division released a damning 164-page report that found Chicago police routinely used poor police tactics that resulted in unnecessary and unconstitutional force, including against minors.

Reason has been reporting on the scourge of wrong-door SWAT raids for more than a decade. Radley Balko wrote in 2006 about the frequency and tragic outcomes of botched raids. They are often the result of poor information and a failure to do basic vetting, like checking to see if the subject of a search warrant still lives at the address. But they’re also a consequence of the militarization of police. The use of SWAT teams rose from around 3,000 deployments per year in 1980 to as high as 80,000 a year currently.

Chicago is not alone. In 2016, New York City’s Civilian Complaint Review Board reviewed hundreds of cases and found scores of illegal or botched home searches by NYPD officers.

In response to a request for comment, the Chicago Police Department said it was prohibited from commenting due to the pending inspector general investigation.

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On July 9, the 5th Circuit Court of Appeals heard oral argument in Texas v. United States. The three members on the panel were Judges Jennifer Walker Elrod, Kurt D. Engelhardt, and Carolyn Dineen King. You can listen here.

In my first post, I considered the arguments presented concerning standing. In this post, I will focus on the arguments presented concerning whether the individual mandate is constitutional. 

California (represented by Samuel Siegel) and the House of Representatives (represented by Douglas Letter) did not contend that the ACA’s individual mandate could be supported by Congress’s powers under the Commerce and Necessary and Proper Clauses. Nor could they. That result was foreclosed by NFIBJudge Elrod’s question (at 13:36) raised this point:

Do you agree that we are not at liberty to uphold this [mandate] based on the commerce or necessary and proper clause, given that there are five votes on the Court against those propositions?”

She’s right. Five Justices in NFIB expressly rejected that position. 

Rather, the intervenors argued that the ACA does not impose a requirement to buy insurance; to the contrary, the law gave covered individuals a choice between purchasing insurance and paying a modest, non-coercive tax. In other words, it is irrelevant whether Congress has the power to enact a mandate to purchase insurance, because Congress did not enact such a mandate. (Professor Marty Lederman summarizes this position in a post, aptly titled “There is no ‘mandate.'”) Therefore, it is completely irrelevant what Congress did with the 2017 Tax Cuts and Jobs Act (TCJA). The “choice” architecture has remained constant. Before 2018, people had a choice: buy insurance or  pay a tax of approximately $700. After 2018, the alternate choice became paying a tax of $0.  

Douglas Letter articulated this position during the oral arguments:

LetterThe Supreme Court majority [in NFIB] said there is a choice. You either shall maintain insurance or you shall pay this tax penalty. [Through the 2017 TCJA,] Congress has now said, we don’t want there to be any tax penalty. We want the American people to continue having a choice.

Indeed, Letter argued that this reading was the only permissible reading of NFIB:

Letter: With the proper respect here, you must rule this way because the Supreme court told us in NFIB what the statute means and in 2017 Congress said what it meant in the text and we know.

His reading of NFIB is a common one. Indeed, I have encountered it numerous times over the past seven years while teaching and writing about NFIB. Respectfully, it is an incorrect reading. Chief Justice Roberts only accepted the “choice” argument as part of the saving construction in Part III.C of his controlling opinion. However, that portion of his opinion is no longer controlling because Section 5000A can no longer be reasonably read as imposing a tax. Why? The penalty, which was reduced to $0, now raises no revenue. Part III.A, which held that the “most natural” reading of Section 5000A–imposing an unconstitutional command to buy insurance–is now the controlling opinion. 

To understand why Part III.C is no longer controlling, and why the choice architecture has crumbled, we need to take a stroll down memory lane. This post will quote at some length from my 2013 book, Unprecedented. I do so to demonstrate that the injury-in-fact debate in Texas is not new. It was resolved seven years ago. 

I agree with Chief Justice Roberts that  Section 5000A “reads more naturally as a command to buy insurance than [offering people a choice to pay] . . . a tax.” As a threshold matter, the notion that Section 5000A did not impose a mandate, but merely offered people a “choice” was manufactured at some point after the ACA was enacted. This argument was not made, publicly at least, while the law was being debated in 2009 and 2010.

During oral arguments, Judge Engeldhardt posed this question to Samuel Siegel, the lawyer for California (at 19:36):

Judge Engelhardt: Where are the statements from those who voted in 2010 saying, no worries, the individual mandate isn’t really a mandate? Even though it says shall, we are voting on it today, and citizens, this is an option, you can pay a tax, or you can buy the insurance… Where are the statements from 2010, saying don’t worry about the individual mandate, it’s actually not something that requires you to buy insurance.

California: I don’t know where those statements might be.

While writing Unprecedented, I searched the legislative history of the ACA to find support for the contention that Section 5000A imposed a “choice,” rather than a mandate. I couldn’t find anything. (I do not think the existence of such legislative history is necessary to resolve this question, but there are those who do find it useful.) I posed the same question to the ACA’s most ardent defenders, including Obama administration officials. They could point to nothing. I remain open to being persuaded otherwise, if anyone can point to any contemporaneous discussion from before March 2010 advancing the “choice” reading of Section 5000A.

Before the Supreme Court, Solicitor General Verrilli advanced the “choice” argument. This position emerged from Judge Kavanaugh’s dissent in Seven-Sky v. Holder. From p. 158 of Unprecedented:

Kavanaugh, however, made a point in passing that was not lost on the solicitor general. A statute similar to the one Congress enacted, but without the individual mandate, said the judge, would be absolutely constitutional. Kavanaugh reasoned that a “minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause).” By “eliminat[ing] the legal mandate language”—that is, by deleting a single sentence—the statute would be transformed from a command on people to purchase insurance to a mere tax on those who do not have insurance. The former was of dubious constitutionality, but the latter would be well within Congress’s powers. Kavanaugh was echoing Justice Stone’s whisper to Frances Perkins, “The taxing power of the Federal Government, my dear, the taxing power is sufficient for everything you want and need.” Like Frances Perkins before him, the solicitor general listened carefully. Simply eliminating one sentence—the mandate—would save the law. With an assist from Judge Kavanaugh, the solicitor general advanced this very argument at the Supreme Court.

(You can read the entire chapter here.)

After Judge Kavanaugh’s opinion, I noted, the government’s thinking shifted (at p. 163):

The decision to take a second look at the taxing power came from the top. One reporter who covers the Supreme Court told me that Verrilli personally “insisted on pushing” it. Of course, the “obvious problem” was that the word “tax” was not in the individual mandate provision. The word used was “penalty.” “Apart from that,” I was told by a senior DOJ official with no irony, that the tax argument “had a lot going for it.” Judge Kavanaugh’s opinion convinced the Solicitor General’s office that the “tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.” The “nomenclature was the only serious impediment to winning.” Despite this problem, the solicitor general believed that characterizing the mandate as a choice between maintaining insurance and paying a tax was not only a way of avoiding a serious constitutional question, but indeed the best reading of the law. Though it “wasn’t ideal,” the government determined that it “could manage” this argument. And the key to solving that problem of nomenclature fell directly on the shoulders of Donald Verrilli, with Judge Kavanaugh being credited with the “assist.”

The choice argument is not new. Solicitor General Verrilli advanced this argument to the Supreme Court in 2012 (at p. 179):

Verrilli pushed back against any questions about the mandate and rejected any assertions that it was an “entirely stand-alone” requirement to buy insurance. As the government noted in its brief, citing the opinion of Judge Kavanaugh from the D.C. Circuit,”To the extent the constitutionality of [the act] depends on whether [the minimum coverage provision] creates an independent legal obligation [a mandate], the Court should construe it not to do so.” In other words, in order to save the ACA, the Court should read the mandate to not be an actual mandate

Here is how Verrilli articulated the position in his brief:

Even in Judge Kavanaugh’s view, however, a “minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause.” Seven-Sky, 661 F.3d at 48. He suggested, for example, that Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing some- thing to the effect of: “An applicable individual without minimum essential coverage must make a payment to the IRS on his or her tax return in the amounts listed in Section 5000A(c).” Id. at 49. 

In fact, no “minor tweak to the current statutory language” (Seven-Sky, 661 F.3d at 48 (Kavanaugh, dissenting)) is required because Section 5000A as currently drafted is materially indistinguishable from Judge Kavanaugh’s proposed revision. Statutory provisions “must be read in * * * context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803, 809 (1989)). When understood as an exercise of Congress’s power over taxation and read in the context of Section 5000A as a whole, subsection (a) serves only as the predicate for tax consequences imposed by the rest of the section. It serves no other purpose in the statutory scheme. Section 5000A imposes no consequence other than a tax penalty for a taxpayer’s failure to maintain minimum coverage, and it thus establishes no independently enforceable legal obligation..

Had the Supreme Court accepted Verrilli’s argument, and found that “Section 5000A as currently drafted is materially indistinguishable from Judge Kavanaugh’s proposed revision,” then the mandate challenge in Texas v. United States would be without merit: the plaintiffs cannot challenge the individual mandate because there is no individual mandate! Letter and Lederman advanced this position. But the Court did not make such a holding. We know the Court did not make this holding because of the structure of Part III.A, III.B, III.C, and III.D of Chief Justice Roberts’s controlling opinion. 

I offered the following description of this structure on pp. 9-11 of my article, Undone (which was cited by Judge O’Connor): 

In Part III.A.1, the Chief Justice found that the individual mandate “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.'” In Part III.A.2, the Chief Justice concluded that the mandate cannot be “upheld as a ‘necessary and proper’ component of the insurance reforms.” That is, Congress could not mandate that people purchase insurance in order to implement the guaranteed-issue and community-rating provisions—the guards against adverse selection. However, “[t]hat [was] not the end of the matter.” 

In Part III.B, the Chief Justice considered if “the mandate may be upheld as within Congress’s enumerated power to ‘lay and collect Taxes.'” He posited that “if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.” Yet, he rejected that conclusion: “The most straightforward reading of the mandate is that it commands individuals to purchase insurance.” Therefore, the shared responsibility payment was not a tax. Still, that observation was not the end of the matter.

In Part III.C., the Chief Justice developed the so-called “saving construction.” He explained that “[t]he exaction the Affordable Care Act imposes on those without health insurance”—that is, the penalty that was not actually a tax—”looks like a tax in many respects.” The Chief Justice then listed three guardrails in which the “exaction”—that is, the shared responsibility payment—can be construed as a tax. First, “[t]he ‘[s]hared responsibility payment,’ as the statute entitles it, is paid into the Treasury by ‘taxpayer[s]’ when they file their tax returns.” Second, “[f]or taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status.” Third, “[t]his process” of making the payments, “yields the essential feature of any tax: It produces at least some revenue for the Government. . . . Indeed, the payment is expected to raise about $4 billion per year by 2017.” These three guardrails are essential to the saving construction.

Finally, the controlling opinion acknowledged that the shared responsibility payment can still be saved as a tax, despite the fact that it was primarily designed to “affect individual conduct,” not to raise revenue. However, that design cannot be achieved unless, in the first instance, the payment can be saved as a tax. Why? All of the exactions cited by the Chief Justice raised revenue as the means to “affect individual conduct.” In other words, people modified their conduct to avoid having to pay extra money to the government. For example, “federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking.” Some people will quit smoking to avoid having to pay the taxes, but even those who continue smoking will pay the tax. But Congress must have the power to enact the exaction in the first place. Critically, Justice Ginsburg, as well as Justices Breyer, Sotomayor, and Kagan, joined Part III–C of the Chief Justice’s opinion. As a result, there were five votes for the proposition that the individual mandate could be upheld as an exercise of Congress’s Taxing Power.

I’ve created a diagram to explain Part III of Chief Justice Roberts’s controlling opinion.

The Structure of NFIB v. Sebelius
The Structure of NFIB v. Sebelius

During oral argument, Texas Solicitor General Kyle Hawkins concisely explained why Part III.A is the only relevant portion of NFIB; parts III.B and III.C are now irrelevant:  (starting at 56:36)

Hawkins: My friend Mr. Letter is seriously misreading the Supreme Court’s decision in NFIB. NFIB holds that the individual mandate is unlawful. It holds that 5000A(a) is best read as a command to buy insurance. And it held that that command, despite being unlawful, can only be saved if it is fairly possible to read the law as a tax. It follows, if the law cannot fairly be read as a tax, then the original holding stands and the mandate is unlawful. I think it is crucial to understand the structure of Chief Justice Roberts opinion to see how he gets there. In Part III.A of Chief Justice Roberts’s opinion, he looks at the mandate. Only the mandate. Not the penalty. He says that the best way to read that is as a command to buy insurance. And then he says two things about it… That it’s a command to buy insurance. And two, that command cannot be justified by the Commerce Clause or by the Necessary and Proper Clause. That’s the end of III.A. He then shifts gears. In III.B and III.C of his opinion, where he says, given our holding in Part III.A we need to determine whether there is some way to save the individual mandate. And that’s what he finds out in III.B and III.C is that given the fact that there is a penalty provision, and given that the penalty is raising revenue for the government, he says that we can glue the individual mandate provision to the penalty provision, and once they are glued together, then they function as a tax. Such that the law can be saved by construing it as a tax, and that tax is available under the federal government’s taxing power.  Now what happened in 2017 is Congress took away everything that supported III.B and III.C of Chief Justice Roberts’s opinion. This [penalty] is no longer raising any revenue for the federal government. It no longer can be fairly characterized as a tax. So in light of the Tax Cuts and Jobs Act, Part III.B and IIII.C of Chief Justice Roberts’s opinion are irrelevant. The only thing we are left with then is Part III.A of Chief Justice Roberts’s opinion, where he holds that is a command to buy insurance.

At that point, Judge Elrod asked if the court should “sever” Parts III.B and III.C from NFIB. Exactly! I framed the analysis this way in Undone:

Therefore, the predicate of Part III.C of the controlling opinion in NFIB is no longer relevant. Or, to put it differently, Part III.C has now been severed from the opinion.

Virtually every critic of Texas treats Part III.C as controlling. It isn’t. Indeed, all of Chief Justice Roberts’s observations in Part III.C were hedged, offered as conditional statements. For example:

  • “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.”
  • “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws.”
  • “It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.”

None of these statements are premised on the best reading of the ACA; rather, they can only be supported in light of the saving construction; a construction that is no longer permissible. Part III.A held that the mandate was unconstitutional. Section 5000A was only saved by virtue of that saving construction.(I am perplexed by co-blogger Jonathan Adler’s assertion that Randy and I argued that the mandate was somehow “resuscitated” by the 2017 tax bill. Zeroing out the penalty in no way affected the mandate, which was a separate statutory provision. Indeed, we made the exact opposite claim: the mandate has been unconstitutional since 2012.)

Hawkins offered this explanation: 

Hawkins: Your honor, I think we read the Supreme Court’s opinion fairly in light of subsequent events. It is crucial to do so here. The entire basis for III.B and III.C is now off the table. Now Chief Justice Roberts in IIIA holds that this is a command, not justifiable. That is fully supported by the four dissenting Justices. There is no doubt, there were five votes, that it is a command not justifiable by the commerce power or necessary and proper clause. 

Perhaps you don’t believe me. Maybe you argue that this reading of NFIB is incorrect, and that Part III.C is still the holding, regardless of the saving construction. If so, look no further than Part III.D of NFIB. It is only two paragraphs, but Chief Justice Roberts explains the structure of his own opinion:

Justice Ginsburg questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Section 5000A can no longer “reasonably be read as a tax.” Therefore, we are left with a statute that “reads more naturally as a command to buy insurance.” And “[t]he Federal Government does not have the power to order people to buy health insurance.” As a result, Section 5000A(a) is now unconstitutional because it “read[s] as a command.”

Part III.C of NFIB saved Section 5000A as a whole–with the mandate and penalty glued together as a “tax” on going uninsured. That opinion did not hold that the mandate (Section 5000A(a)), in particular, was constitutional. Kyle Hawkins, the Texas Solicitor General, explained this premise during oral argument:

Hawkins: The best evidence that I’m right about this is Justice GInsburg’s dissent. In dissent she faults Chief Justice Roberts for discussing the commerce clause, for reaching the commerce clause holding. Justice Ginsburg said, look, this is obviously is a tax, and just say that it is a tax and be done with it. We don’t have to say anything about the commerce clause. But Chief Justice Roberts rejected that. And this is in Part III.D of his opinion. He responds to Justice Ginsburg III.D and he says, no, I have to reach a commerce clause holding because this is best read as a command to buy insurance. So I have … to give it the best reading possible. Then I have to assess whether that best reading is constitutional or not. And only after doing that analysis, then do I get to the taxing issue. I think that interplay between Chief Justice Roberts and Justice Ginsburg shows that our reading is correct, and the other side’s reading is incorrect because it elides the differences between those four different parts of Section III of Chief Justice Roberts’s opinion. 

At bottom, NFIB held that Section 5000A(a) creates a free-standing obligation. That obligation was unconstitutional in 2012. It was unconstitutional in 2017. And it is unconstitutional in 2019. Section 5000A(a) could be read as offering a “choice” to taxpayers from 2012 through 2017. Chief Justice Roberts reached this conclusion, as did then-Judge Kavanaugh. But Section 5000A(a) can no longer be read that way. Now, under the reasoning of both Roberts and Kavanaugh, plus that of the remaining joint-dissenters (Justices Thomas and Alito), Section 5000A(a) imposes an unconstitutional command to buy insurance.

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2019-07-23 13:30:46

The conservative, controversial, and buffoonish Boris Johnson has just been elected prime minister of the U.K. A triumphant Johnson promised supporters he would “deliver Brexit, unite the country and defeat Jeremy Corbyn” (leader of the U.K.’s center-left Labor Party).

Like President Donald Trump, Johnson “gained his country’s top political office by deploying celebrity, clowning, provocation and a loose relationship with the truth,” says the Associated Press.

Johnson’s ascension from mayor of London to highest non-monarch position in the country comes not after winning a nationwide general election—the next of which isn’t scheduled until May 2022—but courtesy of Conservatives votes only.

The party was asked to pick between Johnson and rival Jeremy Hunt to replace the current Tory prime minister, Theresa May. After what many considered a mismanagement of Brexit, May announced her resignation in May and will step down on Wednesday.

“We are going to get Brexit done on 31 October and take advantage of all the opportunities it will bring with a new spirit of can do,” said Johnson in a victory speech.

Johnson got 92,153 votes, according to the BBC, while Hunt received 46,656. “Almost 160,000 Conservative members were eligible to vote and turnout was 87.4” percent, the BBC reports.

Whether one finds Johnson’s election thrilling or horrifying, it’s something “that 12 months ago even his most die hard fans would have found hard to believe,” writes the BBC’s Laura Kuenssberg. Johnson “is a politician who is hard to ignore,” with “a personality, and perhaps an ego, of a scale that few of his colleagues can match. This is a man who even as a child wanted to be ‘world king’.”

Trump is a fan. On Tuesday morning, he tweeted:

Like Trump, Johnson—a one-time novelist and an editor of The Spectator magazine—has a history of writing and comments that are…not woke, to put it mildly. In 2008, he famously referred to black people as “pickaninnies,” later saying he didn’t realize the term was offensive. In a 2002 op-ed, he said any problem in Africa “is not that we were once in charge, but that we are not in charge any more…the best fate for Africa would be if the old colonial powers, or their citizens, scrambled once again in her direction; on the understanding that this time they will not be asked to feel guilty.”


Hot wife billboards banned. In keeping with this Roundup’s U.K. theme, here’s an amusing and disturbing look at how U.K. regulations against sexist advertising are playing out. An air-conditioner repair company ran an add that said “Your wife is hot! Better get the air conditioning fixed.” This “was ruled inappropriate and banned from a city’s buses,” notes the BBC:

It was meant to appear on seven buses in Nottingham but Adverta, which places adverts on buses and trams in the city, blocked it and said it could cause offence.

Lee Davies, who designed the ad, said it was “a little bit of harmless fun”.

Prof Carrie Paechter, director of the Nottingham Centre for Children, Young People and Families, said the advert was “like something out of the 1950s” and called for it to be removed. “If I had young children, I wouldn’t want them passing that on the way to school, because of the messages it gives them about society,” she said.


PayPal dumps child protection group. Federal pressure on payment processors to refuse service to sex workers—even legal ones—is often framed as a measure to stop human trafficking and child sexual exploitation. (Don’t ask how, it just is, OK?) Now even groups that work with sexually exploited minors may be getting caught up in the dragnet.


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The first post set out a conceptualization of the executive power, the Whig executive, according to which it is the ability to operate in an environment of legal rules that empower and constraint officials but does not itself provide any of those rules.  That post began the argument that the executive power of Article II consists entirely of that ability.  The first step was to point out that the limited view was one well-known understanding at the time of the framing.

The next step is to see that the Whig view was a natural understanding of “executive.”  Some officials “carry into execution,” in the words of the Necessary and Proper Clause, the law in that they conduct the operations of the government.  They transform the abstract rules of the law into actual conduct in the world, from operating post offices to inspecting incoming vessels.

The capacity to perform that function can reasonably be attributed to the executive power itself, which operates whenever the function is performed.  The rules that empower and constrain, by contrast, cannot plausibly be attributed to the executive power.  That concept is far too general to give any specific information about the existence or content of the many roles that implementing officials play.  Article II says nothing about the number or function of park rangers.

The armed forces are part of the executive component of government, subject to the law.  Their composition and funding are determined by Congress, not by Article II.  Commanders, including commanders in chief, are subject to the law.  The President’s status as Commander in Chief establishes civilian control of the forces but does not supply any of the law that governs them.

The Whig understanding of execution fits into the three-part division of government power found in the first sentences of Articles I, II, and III.  Legislative power makes and changes legal rules.  Executive power, which is distinguished from legislative power in the three-way conceptual scheme and separated from it in the Constitution’s institutional structure, is subject to rules made elsewhere.

The Whig understanding of executive power matches the contrast with legislative power so well that it is natural to wonder how anyone would think that it entails anything other than the capacity to proceed according to the law.  Broader understandings of executive power are indeed available, and were at the time of the framing.  Their source is in the British constitutional system.  In that system, the officer who held the executive power as Whigs understood it—who oversaw the operations of the government and carried out the law—was no mere chief civil servant.  The chief executive was the sovereign monarch, with many more powers.  The question about Article II is whether the American executive power includes any of the additional parts of the royal power.

Much of the royal power cannot be attributed to the executive power because it was legislative.  British monarchs held significant authority to make and change the legal rules that governed private people, like the power to set the standard of weights and measures.  All legislative power the Constitution grants is given to Congress, and the Vesting Clause of Article I does not style that grant as an exception to the executive power later given in Article II.  It identifies the legislative as one of the three powers of government and gives Congress so much of it as is held by the United States as opposed to the states.

Articles I and II together cannot be reconciled with the notion that the latter’s executive power is the whole of the royal power, and no one has ever believed that it is.  Rather, proponents of an executive power that goes beyond conducting the government and carrying out the law would include, not all the King’s authority, but control over foreign affairs.  John Locke identified foreign relations as a distinct governmental authority: the federative power.  Locke did not regard the federative as part of the executive power, but maintained that it was usually held by the same officer who carried out the domestic law.  The Article II executive power, goes the reasoning, includes the federative power.

A basic premise of the Constitution is that government power comes in three types, familiar from the first sentences of Articles I, II, and III.  A document that assumed a fourth power would confer it and not simply include it in one of the other three.  The Constitution does not need to confer a fourth power, because the three it does deal with are collectively exhaustive of what government can do, with respect to both domestic and foreign affairs.

That feature of the tripartite division of power can be easy to miss, because the tripartite division breaks the foreign-relations power into pieces.  The actual conduct of foreign relations is indeed an executive function.  Executive officials carry on foreign relations as they carry on all government operations.  Carrying on an operation, however, does not entail making policy about it.  Social Security officials make payments pursuant to statute, and subordinate State Department diplomats negotiate with foreign governments pursuant to instructions given them by their superiors.

Executive power has part of the federative power, but only the part about implementation.  Legislative power can make rules about foreign relations just as it can make other rules, and statutes can prescribe rules for diplomats just as the diplomats’ superiors can.  If the Constitution did nothing more than give Congress legislative power and the President executive power, the President would carry out policy made by statute in both the foreign and domestic arenas.  The federative power would be present in such a system, but would be divided between the legislature and the executive.  The tripartite system is enough, and no fourth power is needed.

The institutional structure the Constitution creates, however, might seem to undercut this conception of executive power.  That structure allocates the three powers to institutions that are politically independent of one another.  The Whig reading entails that executive power brings with it no policy discretion, and is wholly bound by the law.  If executive officials are therefore in an important sense subordinate to the law the legislature makes, why make them independent of the institution that makes the law?

Legislative and executive power do indeed complement one another.  Nevertheless, there are reasons to have an independent chief executive, and additional reasons to have an independent President, who is the chief executive and more.

As to the executive power, implementing officials inevitably will exercise substantial discretion even if the Constitution itself does not confer any on them.  A legislature that can in principle be as detailed as it wishes can in practice specify only so much.  What the legislature cannot specify, implementing officials must decide, so those officials will in fact make important policy choices.  Putting those policy choices under the supervision of a high official with an independent connection to the people is a good way to ensure that they will reflect the people’s will.

Next, an independent executive that administers law made elsewhere is justified on grounds that also support independent courts applying laws made elsewhere.  If the two operational branches are bound by the law, but not otherwise by the will of legislators, then legislators will have to convey their directives through the open channels of the law.  They will be less able to work through back-door communications to politically dependent officials who seek to curry favor with them.

Finally, presidential power goes well beyond executive power.  Perhaps the President’s most important authority is legislative: the veto.  That power justifies making the President accountable to the people through a distinct, and distinctly more national, electoral channel.  Similar reasoning applies to the treaty and pardon powers.  An independent President, and an independent executive, are in accord with the Whig conception of executive power.

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2019-07-23 12:30:49

Seattle was the first big city to pass a $15 minimum wage.

People there were excited.

“I think it’s pretty awesome since I benefit from it,” one told us. Another added: “I wish it was all over the place, not just Seattle.”

Now, five years after the law passed, the evidence is in: While some workers did earn more, entry-levels jobs decreased.

The politicians never mentioned that when they passed the bill, says Erin Shannon of the Washington Policy Center: “It’s really presented by minimum wage advocates as…a win-win for employers…a win-win for workers.”

She pointed us to a factory that moved hundreds of jobs out of state, and to a store that stopped hiring beginners because of the $15 minimum wage.

“The politicians, in Seattle especially, have no sense whatsoever about what it means to small businesses like us,” the owner of Retrofit Home tells us.

A minimum wage hurts young people who need a first job, say three young people who won a contest organized by Stossel in The Classroom, which provides free videos and lesson plans about free markets to teachers.

Dillon Hodes won the high-school-level video contest. He says a friend who worked at Kroger saw her hours cut as the store implemented a $12 minimum.

“Raising the minimum wage causes increased unemployment,” explains Rigel Noble-Koza, the college-level contest winner.

Stossel says he learned things from Noble-Koza’s video, which noted that Iceland, Norway, Sweden, and Switzerland have no national minimum wage.

The minimum wage “stops us from actually getting a job,” says Esther Rhoads, who won the high school essay contest.

She points out that the earliest advocates of the minimum-wage wanted to price black Americans out of the market.

About 100 years ago, blacks were often paid less but they were more likely to be employed than whites. Rep. Miles Clayton Allgood (D–Ala.) said he hoped the minimum wage would stop “cheap colored labor in competition with white labor.”

“It was meant…to keep the poor and the minorities from getting jobs,” Esther tells Stossel.

The minimum wag also harms young people.

Esther explains: “I’m 14. It’d be very difficult for me to find a job—my labor wouldn’t be worth $15 an hour.”

“If only politicians were as smart as those kids,” Stossel says.

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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2019-07-23 08:00:00

The Berkeley, Calif., City Council has unanimously voted to ban all new low-rise residential buildings from using natural gas. The buildings must have all-electric utilities. Council members say the move is aimed at combating global warming. The law also creates a $273,341-a-year post in the city’s Building and Safety Division to implement the natural gas ban.

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