Learn from the experts: Jeffrey Toobin on the constitutionality of health care reform

An interview with Jeffrey Toobin in our monthly “Learn from the Experts” series.

I and others affiliated with Doctors for America will be interviewing Toobin tonight at 9pm eastern time regarding the constitutional challenges of health reform. This is one of our monthly Learn from the Experts DFA calls. If you want to listen in, detals are here.

If you have a question, throw it into the comment thread, and I will try to get an answer to it.

Illinois and the amazing disappearing property tax exemption

When Harold Pollack wrote about the recent Illinois Department of Revenue decision to withdraw property tax exemptions from three hospitals, he naturally focused on the impact of the decision on health care.  But those of us who work in other areas of the nonprofit sector are worried by the decision as well–or, if we aren’t, we ought to be.

Though the Revenue Department’s ruling and the Supreme Court decision on which it was based both concern hospitals, there are now working their way through the Illinois court system a pair of cases challenging the property tax exemptions of luxury retirement communities.  The plaintiffs are taxing districts which would otherwise be collecting big bucks from the communities, one of which is located on prime Chicago Gold Coast real estate–just around the corner, as it happens, from Northwestern’s Prentice Women’s Hospital, which will now (barring court intervention) have to pay property taxes on its equally valuable swath of land.  Lower courts have already ruled both retirement facilities unworthy of property tax exemption, and lawyers involved in both cases expect victory in the face of appeal based on the precedent of the hospital cases.

So what’s really going on here?  Certainly withdrawing tax exemptions from wealthy organizations sitting on expensive land makes sense from the standpoint of municipal budgets, which here as elsewhere are stretched beyond breaking.  So the Illinois Department of Revenue is following Willie Sutton’s [apocryphal] advice to go where the money is.

But what the Illinois Supreme Court has now said is that there are only three categories of tax-exempt real property under the Illinois Constitution: schools, churches and “charities.”  Further, the Court said, a “charity” is not simply any nonprofit organization, or even any nonprofit organization entitled to 501(c)(3) status and tax-deductible donations under the Internal Revenue Code.  A “charity” for Illinois property tax purposes is an agency that gives things away.  How many things?  Worth how much?  This remains unclear: perhaps a “charity,” like “pornography,” is simply something a court knows when it sees it.

And if the question is, “Are you a charity?” will the YMCA of Metropolitan Chicago be able to pass muster?  Will the Museum of Contemporary Art?  Will the Lookingglass Theater?  All three are located within spitting distance of the now-taxable hospital and retirement home.  So they’re likely targets for the next round of investigations.  What do they give away?  Worth how much?

(Just to confuse things even further: the Illinois constitutional standard is that only church property used for religious purposes is exempt; supplementary holdings are not.  I’m not aware of a parallel ruling about schools, but would expect the same standard to apply.  So if a charity owns property not used for charitable purposes–like, oh, vacant property the YMCA may someday use as a camp–will that be taxable?  If so, then it’s not even enough to be a charity–you have to be doing charity.)

As a consultant to charities, I’m supposed to be jumping up and down and screaming about this terrible precedent; but actually I’m not.  It’s long past time for us to ask the question whether arts organizations are genuinely charities.  (I’d ask the same question about well-endowed educational institutions and churches, but the Illinois Constitution prevents me from getting any reward for doing so.)  My only concern is how unaware nonprofit executives and Board members seem to be of the implications of these decisions.  Asked about her agency’s risk of having its property taxed, one executive dismissed the issue: “We’re a nonprofit–everything we do is charitable.”

Well, no.

This argument is playing out around the country.  What’s unique about Illinois is that the discussion is taking place in the courts rather than the legislature or the city council.  This interferes with any effort by nonprofits to rouse public opinion–or even themselves–in defense of their privileges.  Instead, the property tax exemption is going the way of the Cheshire Cat, bit by bit until there’s nothing left but the smile.

Let the Illinois nonprofit beware.

My letter to the Supreme Court on health reform

Dear Justices, if you plan to damage health reform, please do so openly, leaving your activist fingerprints on the product.

Dear Justices, if you plan to damage health reform, please do so openly, leaving your activist fingerprints on the product.

Before me is a beautiful column by Professor Mark Hall which describes the many logical and legal flaws in the 11th Circuit’s recent opinion declaring the individual mandate to be unconstitutional.

I can’t add much legal insight to what Professor Hall has produced. I confess that I find it laughable that people contest the connection between this mandate and interstate commerce. Long-standing federal policies regarding agriculture subsidies, medical marijuana, minimum wage, and many other matters have similar or weaker claims on the same terrain.

Reflecting years–indeed decades–of legislative fighting, interest group negotiation, and health services research, American government has finally enacted a package to achieve near-universal coverage. The final product includes a fairly weak individual mandate to keep as many people as possible in the insurance pool and to deter free-riding. The mandate may or may not be optimal policy. It’s a plausible and reasonable response to important concerns, negotiated among interest groups and policy experts subject to many months of analysis, congressional hearings, and public debate. This is precisely the sort of matter a restrained judiciary would let presidents and congresses hash out. Continue reading “My letter to the Supreme Court on health reform”

On Wisconsin!

On Tuesday I’ll drive from Chicago up to Sauk City, Wisconsin, to do voter protection, that is, pollwatching while holding a law degree.  Wisconsin historically has offered exceptionally inclusive voter access, including in-precinct same-day registration.  But one of the many delightful consequences of the Republican takeover of the state is a photo-i.d. law which isn’t supposed to take effect til the first of the year but is unclear enough to make for messy election days–precisely what the sponsors intended.  So I’ll go up there and do what I can to make sure everybody can vote, and hope that the selfsame “everybody” will throw the anti-collective-bargaining rascals out.

(Last weekend at the Bughouse Square debates–the Newberry Library’s annual effort to restore the fine art of soapbox speaking–the central topic was public-sector collective bargaining.   The young man speaking in opposition wore a Solidarity t-shirt as he argued that “public employee collective bargaining inserts needless conflict between citizen and citizen.”  Does he realize that Solidarity was a public-sector union?)

I’m going to Wisconsin because it’s a political situation about which I can do something–contra the whole debt-ceiling mess, about which I can do absolutely nothing.  I disagree with my colleagues on the left who think the President got backed into a corner on the debt ceiling because he’s weak.  He got backed into a corner because he’s actually trying to govern and the people he’s dealing with are not.

When the President was awarded the Nobel Peace Prize, skeptics wondered what he could possibly have done to deserve it.  It seemed pretty straightforward to me: his election meant the restoration of constitutional government in the world’s only superpower.  What could be more essential to peace?

Unfortunately, the Constitution had been damaged more than most of us realized, and merely electing a President didn’t guarantee its restoration–not when anti-government idealogues control the legislature and the judiciary.   All the finger-pointing on the left ignores the extent to which the right is engaging in the deliberate destruction of our governmental system.

The idea that people who hate government are controlling ours is actually more frightening than the notion that the President somehow betrayed us by averting a default.  The scary thing is, he did as much as he could.

The Compassion of Justice Alito

I have previously criticized Supreme Court Justice Alito in these pages, but I am here to praise him today. Below is the opening of his eloquent and to me persuasive dissent in Snyder v. Phelps.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.

The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.”

A most respectable friend told me recently of his discovering, in mid-life, that his kind, loving, hard-working Italian-American father was on friendly terms with the Mafia. Although there had been hints throughout his childhood of such an association, it did not become clear until his father’s funeral. At the very end of the service, a single black limo drove up and a single capo came out of the back seat, walked up to him and said quietly “I want you to know how much we respected your father, and that we share your grief”. The capo then turned around and just as quietly left. As my friend put it “Sure, they kill people and they engage in extortion, graft and loansharking, but even La Cosa Nostra knows not to make a spectacle at someone’s funeral.” Indeed.

The joke’s on us.

Christine O’Donnell’s politics are hilarious: she thinks we should go around telling people masturbation is wrong. Thing is, there’s a Supreme Court justice who’s very angry that we can no longer make it illegal.

Christine O’Donnell’s victory in the Delaware primary is indeed great news for the Democrats—and may finally get the media to pay attention to just how out of the mainstream Tea Party candidates really are.  I have to agree with Jonathan’s commenters, though: her saying masturbation is equivalent to adultery is a bizarre view but very different from calling for a government ban.  (Some people say masturbation is equivalent to adultery; some say people should have sex with butterflies.  Neither position, given that it will have zero effect on public policy and is not even a statement about public policy, either picks my pocket or breaks my leg.)

However, there is somebody who is appalled that we can’t ban masturbation: Justice Scalia.  Remember what he said in his dissent in Lawrence v. Texas (towards the end of section I):

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. …The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge.

What a massive disruption of the current social order, therefore, the overruling of Bowers entails.

(bold type added).

This was a completely unforced error.  Justice Thomas, also dissenting, wrote that banning gay sex, while in his view constitutional, was “uncommonly silly” [citing Griswold v. Connecticut], and that “punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”  Scalia could have said that, but he didn’t.  What makes him angry is not that a legislature might be able to jail people for spanking monkeys—but that it might not.

We’ll hear the last of O’Donnell after she gets the votes of everyone in Delaware who’s never masturbated.  Scalia, we’re stuck with.

Is the Western Climate Initiative Constitutional?

Brad Plumer in The New Republic rightfully celebrates the emergence of the Western Climate Initiative, which establishes a cap-and-trade system among several US states and three of the most important Canadian provinces: British Columbia, Ontario, and Quebec.  “Cap-and-trade is coming to the United States,” he notes, “and there is nothing that the Senate can do about it .”

But maybe lawyers can, because it’s not clear that states and provinces can actually enact these sorts of arrangements.  For the textualists among you, there is Article I, Section 10 of the Constitution, which provides that “no State shall enter into any Treaty, Alliance, or Confederation.”  I’m a little skeptical that any court would enforce this provision in this manner: after all, states have entered into hundreds of agreements and MOUs with their counterparts around the world.

More troubling for WCI is the federal government’s “Dormant Foreign Affairs Power,” which states that even if the federal government does not legislate on an issue, states cannot engage in foreign relations because that is reserved for federal control.  The Supreme Court has rarely ruled on the issue.  Four decades ago, in Zschernig v. Miller, it held that states could not deny certain property rights to citizens of Communist countries under the doctrine.  More recently, in Crosby v. National Foreign Trade Council, the Court has struck down state boycotts of products from Burma because of countervailing federal policy.  Crosby was a pretty easy case: there, Congress enacted a statute explicitly delegating to the President the authority to manage sanctions policy against the Burmese regime/

Most recently, however, in American Insurance Association v. Garamendi, the Court invalidated a California law that mandated certain disclosures of insurers who wanted to do business in the state.  The issue concerns companies that might have been implicated in the Holocaust.  California’s law forced insurers to disgorge information about their involvement; the Court said that the federal government had already worked out a deal with Swiss and German authorities.  But unlike in Crosby, the ”federal policy” was not a statute but quite literally a letter from then-Deputy Secretary of the Treasury Stuart Eizenstat.  Little wonder that Garamendi was a 5-4 decision.

Interestingly, this does not appear to be a doctrinal issue with an ideological base.  In Garamendi, the dissent was joined by the unlikely combination of Ginsburg, Stevens, Scalia, and Thomas;  Justice Souter, perhaps the Court’s greatest defender of state prerogatives, wrote the opinion for the majority (which is undoubtedly why then-Chief Justice Rehnquist assigned him the opinion).

Garamendi has been criticized by many commentators (including myself).  But it remains the law, and one could easily see a Palin or Romney Administration issuing “policy statements” explicitly designed to subvert WCI.  Even the EPA’s endangerment finding might qualify under the Garamendi tripwire.  It’s hardly a slam dunk, and it’s not obviously clear who would have standing to challenge the WCI trading scheme, but you can believe that the lawyers for polluters are working on it as I write this.

Kagan: against torture and arbitrary detention

She was against them, when Lindsey Graham wanted to shred the Constitution to permit them.

In 2005, Lindsey Graham – that very reasonable Republican – offered an amendment to strip the federal courts of all jurisdiction over detainee affairs. The goal was to prevent the court from deciding Hamdan v. Rumsfeld. Elena Kagan, whose coming Supreme Court nomination has some progressives up in arms, joined three other law school deans in writing a letter to the chairman of the Senate Judiciary Committee. The letter read, in part:

To put this most pointedly, were the Graham Amendment to become law, a person suspected of being a member of Al Qaeda could be arrested, transferred to Guantanamo, detained indefinitely (provided that proper procedures had been followed in deciding that the person is an ‘‘enemy combatant’’), subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.


We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of noncitizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of prisoners in Guantanamo, Iraq and Afghanistan. The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.

When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.

[Per Nina Totenberg, h/t Mark Memmott. Full text at the jump.]

I’m not denying that Graham is sometimes somewhat less rabid than his colleagues, or that there were other potential Justices who would have been more forthrightly liberal on a range of issues, including the limitation of executive power in the national-security area. But the fact that a relatively moderate Democrat was willing to speak out against torture and arbitrary detention in 2005, when even a relatively moderate Republican was all in favor of it, points up the gulf between the two parties, and the folly of the “progressive” strategy to punish Barack Obama from not being Bernie Sanders by sitting on their hands while the Republicans retake the House and add several seats in the Senate. Even Bernie Sanders wouldn’t be Bernie Sanders if he found himself in the Oval Office. That’s just life in the big city.

Continue reading “Kagan: against torture and arbitrary detention”

The Scalias of Justice

I rarely find myself at a loss for words, but Antonin Scalia has made me so.  What is the most apposite term to describe this argument?

The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

Casuistry?  “Specious or excessively subtle reasoning intended to rationalize or mislead.”  Specious implies “having the ring of truth or plausibility,” so that’s out, and excessive subtlety is not the problem here.  Sophistry?  “Plausible but fallacious argumentation.”  Again, plausibility is not in play.  Special pleading?  “A presentation of an argument that emphasizes only a favorable or single aspect of the question at issue.”  What would that favorable aspect be—that crosses are indeed the most common symbol, in some places, of the resting place of the dead?  Chicanery?  “Deception by trickery or sophistry.”  Sophistry (q.v.).  Idiocy?  “Extreme folly or stupidity.”  I’m no formal debater, but I don’t think that an argument from stupidity is what the good Jesuits at St. Francis Xavier taught Scalia, and he is plainly not an idot.  Babbittry? “Narrow-minded self satisfaction with an unthinking attachment to middle-class values and materialism.”  That’s getting warmer, but it’s unfair to middle-class materialists.

Does Justice Scalia actually not understand that the cross is, in the United States, the most common symbol of the resting place of the dead because most of those dead were Christians?  He’s plainly receptive to Ted Cruz [sic], representing the VFW and American Legion, who contends that the cross is not a religious symbol: “For many, many years, we have used the symbol of a Latin cross to memorialize fallen veterans.”

I don’t understand the penchant of so many devoutly religious people to insist that symbols of their faith are otherwise.  Every winter, when The War on Christmasâ„¢ flares up, you can count on some yahoo, who might happen to have a national radio program, insisting that there’s no problem with a crèche on the steps of City Hall—not by a narrow reading of the First Amendment—but because it’s not religious, it’s “historical.”  Of course, considering how things might appear to someone of another or no faith would constitute empathy, and we can’t have any of that in the high court.

Very different people

Jonah Goldberg on Sotomayor: just when you thought the debate could sink no further.

One more time with the Sotomayor speech, I’m afraid. Conservatives repeat instrumentally irrational Southern Strategy talking points so regularly that noting each time they do it is a waste of time. But academic standards are academic standards. And it pains me that Jonah Goldberg cannot read.

Goldberg in today’s L.A. Times refers to

Sotomayor’s now infamous line that she would hope a wise Latina would make better decisions than a wise white man. In the same speech, she somewhat favorably considers the possibility that there are “physiological or cultural differences” between races or genders that make some people better at some things (like judging) than others.

[I]f a white judge ever said anything similar, his career would be over.

I’m not sure why Goldberg thinks a white judge’s career would be over if he expressed hope that wise Latinas would make better decisions than he would. But I was even more struck by the claim that Sotomayor had said that physiological or cultural difference made some people judge better than others. I’d read the speech and several fine commentaries on it (e.g. Brad DeLong’s), and thought I would have remembered such a claim had Sotomayor made it.

Of course, she didn’t. What she said was:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

Sotomayor could have said that these differences make some people “better” at “judging” than others, had she meant to. Instead, she said that these variations will “make a difference,” and later in the speech she said what difference it makes: gender and culture affect “the facts that judges choose to see”�precisely not their ultimate judgments but their view of what’s factually salient.

Now then. The physiological difference alluded to here is, clearly, sex (not “gender,” I’d unfashionably claim, where physiological differences are concerned). And the “cultural differences” alluded to concern national origin. (Sotomayor can write: she keeps her references parallel.)

So there are two possibilities. Goldberg believes either

(1) That there are no physiological differences between men and women, nor cultural differences between people from New Guinea and people from Sweden, or

(2) That it’s offensive to think that sex differences or cultural differences have any impact whatsoever on how people think or the decisions they make.

If Goldberg believes (1), he’s a few cards short. If he believes (2), he’s a sort of egalitarian rationalist�but surely no cultural conservative. For being one of those presumably requires believing that sex differences, not cultural or social forces, explain traditional gender roles (some might go as far as to claim that “essential femaleness” and “maleness” explain why little boys fantasize about weapons and girls about makeup) and that the deficiencies of African-Americans’ culture, rather than, say, segregation-derived differences in wealth, or societal discrimination, explain racial inequality.

I submit that Goldberg believes neither (1) nor (2). I don’t think he’s lying, either. I think he doesn’t particularly know or care whether what he said is related to Sotomayor’s actual arguments or not�the stereotype having long since displaced the text among the sources he reads. He probably hasn’t even read the speech.

If a progressive female Latina columnist in a racially-charged context ever wrote with similar fecklessness, her career would be over.