Recess appointment, Round II

My post last night was based on the widely-reported but seemingly incorrect claim that the Senate was currently in recess, allowing the President to make a recess appointment to fill the vacancy on the Supreme Court created by the death of Justice Scalia.

In fact, it appears that the Senate will be holding pro-forma sessions during the break. Under the Supreme Court decision in NLRB v. Noel Canning, such sessions, even if no legislative business is done, establish that the Senate is not in recess:

For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.

That same decision found that, in general, the Senate must be out of session for at least 10 days for a recess appointment to be valid. Thus it would appear that, if Sen. McConnell is really determined to stonewall an appointment, the President cannot use the recess-appointment power to tunnel under that stone wall.

However, at least according to one reading of the decision, the President and his Democratic allies in the Senate have the ability to make the maintenance of that wall intolerably expensive, in political terms, and give everyone a huge horse-laugh at the Republicans’ expense. I think they should do so.

Continue reading “Recess appointment, Round II”

A recess appointment to the Court?

Update Several sources report that the Senate is in full recess until February 22, and the analysis below relies on that idea. But the Senate Democrats’ website says otherwise, reporting that the body is reconvening for pro forma sessions at three-day intervals.  If so – and that’s what I would have expected – the strategy outlined below does not work.

That raises a different question: if the Senate Democrats are willing to play hardball, can they force a full recess, for example by making quorum calls at the pro forma sessions and – as provided in the Constitution – voting to compel the attendance of absent members? Since the Republicans have more seats to defend, at some point the cost of staying in Washington just to keep the President from doing his Constitutional duty might become intolerably high, not to mention making the Republicans look pretty damned silly.

But in the meantime, treat this as a “never mind.” Sorry!

Continue reading “A recess appointment to the Court?”

Poisoning, chemical warfare, and the Controlled Substance Act

If the Supremes strike down using the Treaty Power to extend the reach of federal criminal jurisdiction in the case of the woman who tried to poison a romantic rival and was convicted of waging chemical warfare, where does that leave the Controlled Substances Act?

A woman tries (unsuccessfully) to poison her husband’s lover. The local prosecutor declines the case. The U.S. Attorney prosecutes under a statute implementing the Chemical Weapons Convention. The poisoner pleads guilty, reserving the Constitutional question, and appeals. The Supreme Court grants cert., and the oral argument features former SG Paul Clement for the poisoner and SG Don Verilli for the government.

The question is whether a perfectly ordinary criminal case can be federalized via the treaty power. Clearly, a general federal statute against homicide, or poisoning in particular, wouldn’t be within any of the enumerated powers of the Congress. But the President undoubtedly has the power to sign a treaty, and if ratified by two-thirds of the Senate, a treaty has the force of law. The chemical weapons treaty, like some others, requires each state party to enact appropriate domestic criminal legislation, and in this case the law passed by Congress more or less tracks the language of the treaty. (And yes, in case you’re wondering, the use of pepper spray and tear gas by police is specifically exempted. Doesn’t it make you feel good to know that cops can lawfully do to our own people things it would be a war crime to do to enemies?)

The objection raised by Clement is that the President and two-thirds of the Senate should not, by signing a treaty with Rinky-Dink and Tabasco, to be able to make any arbitrarily selected element of domestic policy a federal matter, thus gutting the doctrine of enumerated powers. That’s a reasonable enough concern on its surface, though I wouldn’t be surprised if concern that, e.g., women’s-rights legislation might be validated in that way underlay Clement’s willingness to take up the poisoner’s defense.

The whole thing sounds like a law-school hypothetical, without much practical interest. Maybe the Justices will duck by ruling that you can’t prosecute someone for “chemical warfare” unless she does something more … well, warlike … than trying to poison a personal enemy.

But if the Justices were to decide to limit this use of the treaty power, that decision might have an effect that (so far as I can tell from the reports) didn’t come up in the briefs or the oral argument.

It is not obvious on its face how the Controlled Substances Act could be constitutional except as applied to drugs carried across state lines; it certainly would have surprised Mr. Madison to learn that he and his colleagues had authorized the Congress to criminalize growing a plant in your own windowbox and smoking its leaves. That would have seemed to them an exercise of the police power, and thus the province of the states.

When the courts upheld the CSA, they did so partly on Commerce Clause grounds and partly on Treaty Power grounds. [I can’t find the original case; if you can, please say so in comments, or email me. But the Commerce Clause argument is repeated in the medical-marijuana case Gonzales v. Raich.]

Tracking Wickard v. Filburn, the Commerce Clause argument is is that, since production within a state might displace imports, it thereby becomes entangled with interstate commerce. But this is – if he Justices will pardon my French – complete, economically illiterate bullsh*t. In Wickard, the goal of the law was to support crop prices in order to maintain farmers’ incomes. So it was reasonable to say that someone who grew his own wheat to bake his own bread was removing his little bit of the demand from the market, thus (almost infinitesimally) reducing wheat prices nationally, defeating the purpose of the law.

But it is not the purpose – though it is the effect – of the Controlled Substances Act to provide incomes for drug traffickers. If a cannabis user in California grows her own, the effect on interstate commerce is to reduce the volume of illegal traffic, which can hardly be held to frustrate the purpose of the Controlled Substances Act in controlling interstate and international drug trafficking. (Yes, you could argue that it’s hard to prove the origin of a specific batch of drugs, but that at most might support a law allowing intrastate origin as an affirmative defense.)

So if the Treaty Power argument is no good – and it’s hard to see how it would be good for drugs if it fails for chemical weapons – then the CSA, as applied to intrastate activity, stands on very shaky legs.

Footnote Yes, I should have figured this out when Raich was being briefed, and organized a bunch of my fellow wonks to submit an amicus brief. And yes, Raich’s lawyers should have reached out to ensure that such a brief was written, or tried to distinguish Wickard in their briefs and oral argument. That failure irks me.

Still, I doubt it would have mattered; Scalia in particular seems to regard the constitutionality of the CSA as axiomatic. You can choose to believe that the Republican Caucus of the Court would be as willing to strike down drug laws as it was to strike down gun control and the Violence Against Women Act, but if do so before breakfast you should count that among your Six Impossible Things.

Yet another hunger strike in California’s prison system

Today is the first day of yet another hunger strike for inmates in California’s Pelican Bay supermax correctional facility.

The inmates have stipulated that the hunger strike will continue indefinitely, until five modest demands are met.

Jonathan Simon writes:

Supermax-style prisons are an American abomination that are rejected by most other societies and considered a human rights violation in many. Total isolation of prisoners without meaningful activities, visitors, or meaningful human contact has historically been reserved for disciplinary punishments limited to weeks or months. In California’s SHU scores of prisoners have served more than twenty years of such conditions, and hundreds for more than ten.

To get a sense of the prospects for success of this hunger strike, it’s worth bearing in mind the recent political and legal context. In 2011, the Supreme Court determined that the CDCR was in violation of its inmates’ constitutional rights in its persistent denial of their basic mental health and medical care (read the court’s opinion in Brown v. Plata here). That case resulted in an injunction to reduce massive overcrowding throughout the system, and upheld the decision to place the healthcare system into Receivership. Brown v. Plata wasn’t directly intended to alleviate to the situation faced specifically by inmates in the SHU. But Jerry Brown’s response to the court injunction is directly relevant to this hunger strike.

The Governor’s office has repeatedly requested that the court vacate its Receivership. Each time, it cites its claim that the CDCR has resolved the problems that precipitated the mid-‘90s cases that culminated in Brown v. Plata. On each occasion, these requests have been rebuked; the most recent time (in mid-April), the court’s rejection of the Governor’s request was especially humiliating. It reminded the Governor of the Supreme Court’s admonition:

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. [Emphasis added]

Things aren’t improving, the Governor’s office thinks they are, and inmates at Pelican Bay are willing to starve themselves to death to prove their point.

If you would like to contact Governor Brown, here’s the link.

The Artistic and Economic Legacy of a Landmark Antitrust Case

A Supreme Court Decision 65 years ago this week changed Hollywood forever

Hollywood_signThe marked decline in Hollywood’s fortunes in the 1950s and early 1960s (before Scorsese, Coppola, Evans et al saved the day) is usually attributed to the increasing availability of televisions in American homes. This was no doubt a factor, but equally important was a Supreme Court decision made 65 years ago this week: United States v. Paramount Pictures. The impact of this antitrust ruling was enormous both for the artistic content of studio movies and for the economic shape of the film industry.

Understanding the case requires an appreciation of the vertical integration of Hollywood’s business prior to the war. You may have noticed that many cities and towns have cinemas with names like “The Paramount”, “The Detroit Fox Theater” and “Warner” (including the hometown theater where I happily misspent a non-negligible portion of my West Virginia childhood). Those theater names are a legacy of the era in which the five major film studios owned the bulk of movie houses in the U.S.

Owning the theaters in which their movies played gave the big studios an extraordinary financial advantage in distribution, which they leveraged further by forcing independently-owned theaters to “block book” their products. If you wanted to show the hot new Bogart picture Casablanca in your independently-owned theater, you were strong-armed into also showing some Warner Brothers-made newsreels, short subjects and probably a low-budget second feature as well. And if you were an independent film producer looking for an audience, you pretty much had to go on your knees before the major studios to gain access to their theaters. The SCOTUS Justices knew an antitrust violation when they saw it, and their 1948 decision in the Paramount Pictures case forced the studios to give up ownership of theaters.

The artistic impact of the high court’s decision is not fully appreciated, even by film buffs. In the old business model, studios had regionalized audiences, which influenced their film production choices. In trying to explain why Broadway style musicals and cosmopolitan comedies were staples at MGM/Loews studio but not at 20th Century Fox for example, you need look no further than where their respective theaters were located: The former were concentrated in New York City and other parts of the Northeast, the latter were mostly further west, often in more rural areas.

Shorn of regionalized audiences, all the studios began playing a national game of pursuing audiences and lost their distinctive artistic approaches. Their products became more homogenized as a consequence.

Economically, the Paramount Pictures decision helped create what my pals Robert Frank and Phil Cook term a “Winner-Take-All-Market” in the movie industry. In the old system, all the studios could ensure at least some ticket sales by putting their own films into their own theaters. As theaters became free entities, competition was nationalized with no floor under what amount any studio might make and not much of a ceiling on what they might realize either.

Funnily enough, it was Paramount that first grasped the implications of the new market when it released The Godfather in a then shocking 400 screens nationwide. Soon afterward, Jaws tripled the size of that release. Both films made money hand over fist, and the blockbuster film era had truly arrived. From then on, a small number of films would make extraordinary profits, whereas the great bulk of films would make little or no money at all.

Gabbing health reform, Supreme Court, and why the Tea Partiers seem more effective than the Occupiers

Another Bloggingheads with Glenn Loury.

I’m frustrated that I didn’t express myself better and more-succinctly here. Having devoted so much time and energy to health reform, it’s hard to describe my relief. Had ACA been struck down, it would have been decades before another president would have tried something this hard. Anyway, here you go.

For those who want more of my reaction to the Supreme Court, you might look here, and here. Oh yeah, here, too.

The Chief Justice’s seizures

CJ Roberts’ opinion wasn’t a seizure, but may have been influenced by his experience of epilepsy.

Wingnut talk radio host Michael Savage :

It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.

Disgusting and silly? Sure, but there may be a seed of truth in the pile of horse dung.

The Supreme Court Justices range in age from Kagan’s sprightly middle-aged 52 to Ginsburg’s distinctly elderly 79. They all probably take some pill or other, and worry about their health. However, like members of Congress and the President they are protected from any real anxiety about unaffordable medical costs by the generous Federal Employees Health Benefits Program, a pocket Obamacare regulated exchange.
Robert’s epilepsy is in a different category to high blood pressure, arthritis, obesity, menopausal symptoms, erectile dysfunction, and the rest of the ills which ageing judicial (or for that matter blogger) flesh is heir to. It’s mainly genetic – the rest is a side-effect of trauma. It’s pure bad luck, and not a consequence of lifestyle. And it’s very serious.

Epilepsy often manifests itself in childhood, and so becomes a classic pre-existing condition for insurers. Epilepsy sufferers must be at high risk of being denied insurance like this young woman. The US associations of epilepsy victims and medical specialists have naturally supported ACA and welcomed the ruling.

It’s most unlikely that the experience of epilepsy swung Chief Justice Roberts’ vote by itself. But it is certainly an important contribution to his character, and gives him an insight into at least one category of serious medical need denied to his fellow justices. Tellingly, Roberts’ opinion (here, page 17) cites pre-existing conditions as one of the problems addressed by Congress in ACA. He does not mention ACA’s objective of reducing the number of uninsured Americans, as Ginsburg does (ibid, pages 5-9); for Roberts, the uninsured occur only as creators of the cost-shifting problem for medical providers and insurers.

Personal experience matters. As Harold wrote on the surprising breadth of support for the intellectually disabled and their caregivers:

It seems that everyone has a child or sibling, cousin, uncle, classmate, or friend who is personally touched by these issues.

So maybe when Roberts looked hard at Scalia’s scorched-earth assault on ACA, he saw the flames licking his own face, and recoiled.

ACA and federalism: a bleg

Would state-level individual mandate patches to ACA be constitutional?

Intrade gives the odds for SCOTUS ruling the individual mandate unconstitutional at 77% today. I’m glad I didn”t put any money behind my rash prediction for upholding, though it may still be borne out.

That is, a federal individual mandate. Is there any constitutional bar on the states reintroducing it to patch ACA, assuming the SCOTUS Republican caucus don’t have the nerve to trash the whole law?

My foreigner’s take on the situation is no.

Suppose the Pirate Communist Party takes control of Vermont. Its 95.2% share of the vote has been called suspicious by the WSJ, but it was certified by Diebold’s electronic voting machines, and they can’t be wrong, can they. The new VPCP régime has acted energetically in its first week and

  • nationalised all industrial and commercial enterprises with over $10m turnover, and set up workers’ soviets to run them 
  • abolished intellectual property
  • required all residents to buy a set amount of broccoli and maple syrup, the new “healthy Vermonter breakfast”
  • changed the name of the state to the “Vermont People’s Republic”.

Is any of this unconstitutional? The second conflicts with one of the enumerated powers of the federal Congress, and is dubious. But the others? The broccoli and maple syrup statute has been carefully worded so as not to intrude into the citizens’ fundamental right to privacy – they are compelled to buy the stuff, not eat it. The nationalisation was non-discriminatory and no restrictions have been placed on interstate trade.

Back in the dismal real world, with the prospect of a worse disaster than my Vermont fantasy, the survival of Romneycare in Massachusetts is very strong evidence that there’s no legal bar to a state-level health insurance mandate.

So if the mandate loses federally in SCOTUS, what’s to stop the 15 Democratic-controlled state legislatures  from adopting an individual mandate patch to ACA? And since the law would rapidly become unworkable without it, would there not be strong pressure on Republican state houses to follow suit?

Matthew O’Brien’s chart of the week: A good day for Aetna at the Supreme Court

A good day for Aetna. Not so good for the uninsured.

(This piece appeared first at Blog of the Century).

If you want to know what’s really surprising in economic policy, it’s sometimes helpful to listen to what people are saying. It’s sometimes much more helpful to watch what people are buying and selling with real money. On this, liberal and conservative economists are presumably in real agreement.

Thus, I’m really ticked off at Matthew O’Brien of the Atlantic, who stole a march on me with the chart of the week, shown below. O’Brien’s great column shows a graph of Aetna’s stock price over the past week. Aetna’s stock price rose 6.5 percent in a single day. Similar (slightly less dramatic) patterns can be observed for other major insurers.

Aetna