A shortcut to abolishing the Electoral College; an appeal to free-thinking electors

Twice in the past five elections, the person who won is not the person who moved into the White House.

Hillary Clinton received 1.5 million more votes than Donald Trump, yet it’s Trump who is picking Cabinet members and will pick Supreme Court justices.


If this strikes you as unacceptable, please join the League of Women Voters of the United States in advocating passage of the National Popular Vote Interstate Compact. Each state adopting the Compact pledges to instruct its electors to vote for the winner of the national popular vote-which is to say, the winner. (We don’t say “popular vote” in any other context as if it were a lesser thing. A vote is a vote, and under our system voting is how we choose our leaders.)

Ten states and the District of Columbia, accounting for 61% of an Electoral College majority, have already adopted the Compact. But if you don’t live in California, D.C., Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont or Washington State, ask your state representative to introduce the Compact in the next session of the legislature, and then ask every person running for a seat whether s/he supports it.

Come on Colorado, Connecticut, Delaware, Maine, Nevada, New Mexico, Oregon, Virginia!-all blue states whose votes could get us to 219. And come on Michigan and Pennsylvania, which both had the Compact under consideration in last year’s legislative session: those two would make 255. Capture Florida, and lo and behold, we get to inaugurate the person we elected.

But. As long as the Electoral College is there, it should perform the function the Framers had in mind: preventing the election of a demagogue. We have just under a month to find 38 Republican electors willing to admit either that their standard-bearer is unfit for the office or that he just plain lost.

Who among them is willing to speak up? We’re all ears.

Reporters, lawyers, and moral turpitude

Would you hire Stephen Glass as a reporter? If not, what makes him fit to be a lawyer?

I didn’t follow the Stephen Glass libel-and-fabrication story when it broke, and haven’t followed his career since. Personally, I have no basis for an opinion about whether he’s morally fit to be a lawyer. But I note that none of the media outlets publishing denunciations of the California Supreme Court for disapproving Glass’s bar application has offered him a job as a reporter. A lawyer has lots of opportunitites to cheat people. If Glass can’t be trusted to conduct journalism, what makes him fit to conduct a law practice? Would you want him representing you? Or your opponent?

Obamacare Deception: Insurers (and maybe others) Need a Nice Letter from the FTC

Via Kevin Drum, Paul Waldman presents a truly epic post demonstrating that many insurers’ claims that rates are going up because of the Affordable Care Act are misleading and deceptive.  The press seems to have been duped into thinking that thousands of people are seeing their rates go up because insurers are telling them so.  But in fact, Waldman writes, many of the so-called Obamacare victims will actually benefit from the law.

What’s happening, according to Waldman, is a classic insurer bait-and-switch:

I want to talk about the thing that spawns some of these phony Obamacare victim stories: the letters that insurers are sending to people in the individual market….There’s something fishy going on here, not just from the reporters, but from the insurance companies. It’s time somebody did a detailed investigation of these letters to find out just what they’re telling their customers.

….If the woman I discussed from that NBC story is any indication, what the insurance company is offering is something much more expensive, even though they might have something cheaper available. They may be taking the opportunity to try to shunt people into higher-priced plans. It’s as though you get a letter from your car dealer saying, “That 2010 Toyota Corolla you’re leasing has been recalled. We can supply you with a Toyota Avalon for twice the price.” They’re not telling you that you can also get a 2013 Toyota Corolla for something like what you’re paying now.

I’m not sure that’s what’s happening, and it may be happening only with some insurers but not others. But with hundreds of thousands of these letters going out and frightening people into thinking they have no choice but to sign up for a much more expensive plan, it’s definitely something someone should look into. Like, say, giant news organizations with lots of money and resources.

If what Waldman says is true, that is indeed grotesque behavior, and one that the press should be investigating instead of getting their stories from the Republican National Committee.

But there is another thing.  It also violates century-old federal law.  The press isn’t the only institutioin that should be looking into this.

Section 5 of the Federal Trade Commission Act (15 USC 45) prohibits ‘‘unfair or deceptive acts or practices in or affecting commerce.’’  This is not an obscure law; it has been enforced for decades, despite conservative objections and more recent attempts by deceptive businesses to have it declared unconstitutional.  Any insurer claiming that a consumer must purchase a more expensive policy than what it also offered, and certainly claiming that a consumer must do so because of the Affordable Care Act, is violating the Federal Trade Commission Act.  This is not a close call.

When an insurer tells a consumer that his or her rates are going up because of the Affordable Care Act, and that is not the cause of the increase, it violates federal law.  This is also not a close call, although there is some ambiguity if the insurer can show that it had a reasonable belief that the ACA was the cause.  Insurers, however, know very well why their prices are going up.  Any insurer who says, “Gosh, we raised prices but we really didn’t know why, but we thought it was the ACA,” is essentially admitting that it doesn’t know what it is doing.  These claims should be treated with skepticism.

The trickier question is what happens when someone’s employer claims to its workers that their contributions to their insurance are going up because of the ACA.  Suppose Hobby Lobby (assuming it provides coverage) writes a letter to its employees telling them that they have to pay more because of Evil Kenyan Marxist Islamist Obama.  It knows that this is nonsense: it just wants to make its employees hate Obama as much as it does.  There are two questions here.  First, is this communication “in” or does it “affect commerce.”  If employees could change or alter their health plans because of it, then I would say yes.  If it is simple right-wing agitprop, I’m not so sure.  Second, at some point deception turns into a First Amendment issue.  If you couldn’t deceive people, then that would shut down the entire Republican media strategy over health care.  This is one reason why the connection with commerce is so important.

In any event, the Federal Trade Commission might want to send a letter to insurers participating in the exchange.  We are watching you.  Do not deceive people about this law.

Mythcarriage of justice?

In one trial by ordeal, people were found innocent if they sank in water. But were they in fact fished out before they died?

I served as a potential juror yesterday (and will do so again today because I wasn’t empaneled for a trial—if that happens again today, I’m off the hook). While cooling our heels we were shown what I thought would be the usual cheesy video about how jury service is our civic duty. While I agree it’s a civic duty, such videos—of which I’ve now seen many versions in three states—usually don’t convey much beyond that one-sentence sentiment.

But this video did something quirkier. To emphasize why jury service was important, it opened by dramatizing alternative, historically popular ways of separating the innocent from the guilty. More specifically, its first scene portrayed a medieval trial by ordeal. The accused was tightly bound and thrown into a lake: if he sank, he would be found innocent; if he floated, guilty.
That particular trial by ordeal is, as we all know, a hoary metaphor for perfect perversity. All trials by ordeal are absurd and arbitrary, but this version seems to guarantee not just that the innocent will be drowned (by the way, is that where Yeats got the line in “The Second Coming”?) but that those adjudged innocent by the trial procedure itself will be drowned. It’s always been hard for me to even imagine that people at the time could have thought this made sense.

Well, if the makers of this video got it right, these Middle Agers were smarter than we thought. As shown here, the judge waited about ten or fifteen seconds after the accused was thrown in. When he failed to float, the judge nodded to the spectators so that the guy’s friends and relatives could fish him out and revive him, sputtering but unharmed, while everyone cheered.

Two questions. First, for those with knowledge of legal history, is this right? Were those judged innocent in these trials quickly rescued? If so, the method was still ridiculous but for the opposite reason from what one would have thought: it guaranteed not that all innocent defendants, as well as the guilty, would die, but that almost all guilty defendants (except those with lots of air pockets in their clothes) would go free. Second, for everyone: am I right that almost everyone assumes the innocent who faced this kind of trial in fact drowned, or was it just me who thought that?


What Detroit means

The first thing I thought about Detroit is that the state’s appointment of a receiver demonstrated the Republican governor’s profound indifference to the democratic process of a Democratic city, not to mention a white governor’s profound indifference to a black city.   This may be true, but it’s also true that Detroit’s finances are such a catastrophe that, like New York in the 1970s, it seems to need an outsider to get its house in order. It helps that the trustee is African-American, though not very much: even temporary government without the consent of the governed should cause us alarm.

The second thing I thought about Detroit is that selling off the collection of the Detroit Institute of Art, which the trustee estimates would be sufficient to retire all of the city’s debt, is the best of a number of bad options. Museums nationwide are hyperventilating at the prospect, but they also think it’s sensible to keep on hand huge numbers of items that no one ever sees.  I don’t quarrel with the need to have a deep collection for research purposes, but I also don’t see why it’s considered bad form verging on unethical to sell the parts of the collection you’re not using in public to sustain the parts of the collection you ARE using in public, and at the same time not coincidentally making the sold pieces available to the public, albeit in a different location.

If there had been a Great Fire of Detroit, and the whole city destroyed, no one would argue that recreating the city’s art collection should take priority over food and shelter for the city’s people.  The years of financial mismanagement have incinerated Detroit just as surely as a physical fire; why shouldn’t we pay more attention to basic needs than to cultural institutions?

And isn’t the whole function of assets to provide financial security when income doesn’t suffice? Again, I wonder about the racial composition of those who champion the inviolability of the collection as against the racial composition of those who think it might be necessary to dispose of it. The state’s Attorney General has opined that the city may not sell them because they’re held in trust for the citizens.  But “The United States shall guarantee to every State in this Union a Republican Form of Government,” and I don’t notice anyone’s raising a ruckus about the loss of that part of our patrimony.

The third thing I thought about Detroit is that the bondholders’ interests are being given absolute priority over the interests of current and former employees, whose pensions are at stake. This is the case in Illinois as well, where at least some portion of the pension “crisis” could be solved by refinancing the debt and stretching out repayment but where that solution is not even considered because the bondholders don’t like it. I understand the value of the municipal bond market to cities’ ability to expand infrastructure but municipal bond investors are investors and should be prepared to accept some pain when they toss their dollars into what’s obviously a money pit.

And the fourth thing I thought about Detroit is that it’s Americans’ closest analogue to what’s casually referred to as “the European debt crisis,”  throughout which salvaging the Euro has meant satisfying bondholders at the expense of people who’d like to work or collect their pensions.   Very few commentators seem aware that the real crisis is one of self-government (or its destruction), or that the Germans have managed to do through economics what they couldn’t do through war, that is, run Europe.  When externally-imposed austerity hit Greece, all I could remember was the bumper sticker from the era of the junta: “Greece: Democracy born 508 BC, died 1967 AD.”  Or, this time around, “reborn 1974, killed again 2011 or -12 A.D.”  As the saying goes, same s**t, different day.

Back to Detroit: if I were trustee, I’d sell off DIA’s assets in a heartbeat and use the proceeds to protect employee pensions. If there was anything left for the bondholders, fine; if not, too bad: it’s the pensioners who paid their share and are entitled to what they were promised. Even after years of trashing public employee unions (brought to you by the Heritage Foundation and other fronts for wealthy people who don’t like to pay taxes or see working people make reasonable money), there must be some court somewhere willing to recognize that the obligation of contracts shall not be impaired.

Of course, I would never be chosen trustee, but that’s not the point. The point is, my solution is what would happen if Detroit were still governed by its people. Detroit: Democracy died 2013 A.D.

Are Filibusters of Executive Branch Nominees Constitutional?

President Obama’s announcement today making three nominations to the National Labor Relations Board should remind us that the GOP is the party of permanent constitutional crisis.  It has been quite clear from the beginning of the Obama Administration that the Republicans simply have no interest in allowing the NLRB to function.  That shouldn’t be much if a surprise: it’s what you believe if you are a plutocrat.  Besides, it’s nothing new: Republicans have explicitly stated that they will not allow any nominee to head the Consumer Financial Protection Bureau to come to a vote unless the statute is changed.

But it seems to me that this attitude has a constitutional dimension.

Article II of the Constitution not only vests “executive power” in the President, but it commands him to “take care that the laws be faithfully executed.”  The problem is that the President cannot do this if the Senate will not confirm any of his nominations.  And make no mistake: that’s the Republican goal here.  It does not want the CFPB or the NLRB to operate; it does not want the law to be faithfully executed.  But the Senate has the constitutional power to reject nominations.  So the clauses conflict — a quite common feature of the founding charter.  Does the Constitution contradict itself?  Very well, then it contradicts itself.  It is not large, but it contains multitudes.

Is there anything that the law can do about this?  On the most basic level, I think that the answer is no.  When it comes to the CFPB, the Republicans might be opening themselves up to criticism for violating the Constitution, but if anything would be a political question, it would be this.  I cannot imagine any court trying to review the intentions of Senators about why they vote against nominees: that would be the paradigmatic political question.

Nevertheless, I do believe that it makes the filibuster of executive branch nominations constitutionally suspect.  First, we should not read the Constitution to magnify opportunities for one branch to deny the other its core powers.  Second, we should not read the Constitution to enhance interbranch conflict: there is enough of it built into the document already.  Third, we should read the Constitution to enhance public accountability — one of the framers’ central goals — and the filibuster of executive branch nominations undermines it: the law isn’t being faithfully executed, and everyone is pointing fingers at everyone else.  Finally, the Constitution should not permit the empowerment of “false conflicts” between branches, and the filibustering of an executive branch nomination is not really an interbranch conflict at all: it represents a conflict between the President and a minority of one of the houses of Congress.
Continue reading “Are Filibusters of Executive Branch Nominees Constitutional?”

Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

Eric Cantor: The Last Honest Man

I agree completely with Mark about the grotesque refusal of the House GOP to renew the Violence Against Women Act, and about future Democratic strategy concerning it.  But I think that Cantor was being completely honest here.

Southern conservative hostility toward tribal courts goes back aways.  Consider the example of Sam Ervin, who nowadays is thought of as a folksy country lawyer doing battle with Richard Nixon, but in his time was a leader of southern segregationism.  At the very same time that Ervin was leading a filibuster against the Fair Housing Act, he also sponsored something called the Indian Civil Rights Act, which substantially limited the autonomy of tribal courts (and was itself later significantly watered down by the Supreme Court).  In other words, the imposition of federal law on white segregationist state courts was a violation of sovereignty, but the same measure against tribal courts was simply a matter of civil rights.

For Cantor, this is the same thing.  White people with jurisdiction over reddish-brown people: good.  Reddish-brown people with jurisdiction over white people: bad. 

It’s the closest thing that a modern southern conservative can get to reimposing the Black Codes.  What else is new?


From Law Student to Nonprofit Trustee

Making the rounds at law schools for Good Counsel: Meeting the Legal Needs of Nonprofits, I’m heartened to meet so many students interested in serving on charities boards in their communities.  My recent talk at Harvard Law School about how law students and young lawyers can start preparing for the trustee role is available here.