Neal Devins

Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA) than Congress did when enacting the ACA. Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding. Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions (“Party Polarization”), lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress. In this Essay, I will provide a descriptive account of Congress’s general disinterest in the Constitution when enacting the ACA. In so doing, this Essay will serve as a case study that bolsters th...

ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress's indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in "public goods" like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress's interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority party to raise constitutional objections to legislation. Third, there is no federalism constituency in Congress that pushes lawmakers to take federalism into account when enacting legislation. For this very reason, Republican...

The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.”This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising...

Over the past two years, Congress has considered proposals to strip federal courts of jurisdiction over same-sex marriage,1 the Pledge of Allegiance,2 judicial invocations of international law,3 the public display of the Ten Commandments,4 and legal challenges filed by “enemy combatants.”5 And while none of these proposals were enacted,6 some of them were approved by the House of Representatives.7 More striking, Congress expressed its disapproval of state court decision making in the Terri Schiavo case by expanding federal court jurisdiction.8 Specifically, rather than accept state court findings that Terri Schiavo, then in a persistent vegetative state,9 would rather die

I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tied to "majoritarian" social and political forces. (1) In explaining why I think this is so, I will not defend these decisions. It may be, for example, that these decisions were wrongly decided, or inconsistent with what the Justices have said in other decisions, or both. Moreover, these decisions may well reflect the personal preferences of the Justices voting to invalidate these laws. Instead, my point is that majoritarian forces help explain why the Rehnquist Court seemed so willing to strike down federal laws. Before turning to the Rehnquist Court and to the social and political forces that impact its decision-making, it is useful to provide some background to my project. Having spent much of the past sixteen years examining how constitutional law is shaped by both judicial and nonjudicial actors, I am quite convinced--as Robert Dahl put it in 1957--that the Court's const...

This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left-leaning academics, advocates, and judges have made this criticism — including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched popular opinion and elected government preferences.By contrasting state practices around the time of Roe (when there was comparatively little polarization) to state practices today (when there is extreme polarization), I will argue both that an indeterminate Casey-like standard would have been better suited to the less polarized 1973 period and that a rule-like Roe standard would be bett...

I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that often cause them to undermine federalism."1 In explaining why both state and federal officials discount federalism, John McGinnis and Ilya Somin's Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System provides an important and persuasive critique of the claim that the national political process inevitably protects federalism.2 My comments will extend Federalism v. States Rights in two ways. First, I will posit an alternative explanation as to why the national political process does not value structural federalism. In particular, I will argue that even if the American people were well informed about the benefits of federalism, they would still trade off those benefits in order to secure othe...

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the DOMA, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its sup...

INTRODUCTION 459 I. THE POLITICS OF INSTITUTIONAL DESIGN 462 II. THE DATA 469 III. EXPLAINING THE DATA: PARTY POLARIZATION, COMMISSIONER TURNOVER, AND THE APPOINTMENT OF PARTY LOYALISTS 477 IV. CONCLUSION: HOW PARTY POLARIZATION CONTRIBUTES TO PRESIDENTIAL CONTROL OF INDEPENDENT AGENCIES 491

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other way to advance the same policy priorities. Relatedly, party polarization cuts against bipartisan embraces of pro-Congress views of the law and cuts in favor of Democrats and Republicans advancing competing views of congressional authority. Finally, Congress makes use of institutional ...

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys general has a duty to defend state law against state and federal challenges, while a second group has no duty to defend state law in such scenarios. A third cohort of attorneys general has a power (and in some cases a duty) to attack state statutes of dubious validity. They may (or must) proactively file suit to obtain judicial resolution of constitutional questions. Given that these duties vary...

Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to req...

What a difference a year makes. In the summer of 2008, the Bush administration campaign to defend its enemy combatant policies lay in shreds. The Supreme Court had ruled against the administration’s initiative in 2004, 2006, and 2008—decisions that had been characterized as “the most important decision[s] on presidential power and the rule of law ever,” (Walter Dellinger), “a disaster for the war effort,” (Robert H. Bork and David B. Rivkin, Jr.), and “a historic rebuke to the Bush administration,” (The Washington Post). The 2004 and 2006 rulings declared that Guantánamo Bay detentions were subject to federal court review and that the administration could not unilaterally pursue its enemy combatant policies. In 2008, the Court ruled in Boumediene v. Bush that neither Congress nor the President could strip the federal courts of jurisdiction to hear Guantánamo habeas petitions. Making matters worse, with presidential candidates Barack Obama and John McCain both agreeing that Guantánam...

ABSTRACT Controversy surrounding private education involves questions of compulsory education's role in inculcating values, how much alike public and private schools should be, and the duty of educational institutions to conform to constitutional norms. This book examines government regulation and resistance, legislative and judicial approaches, and issues of equality and educational effectiveness in the context of private schools. Chapter 1 "Introduction: Private Schools and Public Values" (Neal E. Devins) provides a general overview of the topic. Following this the book is divided into four parts, with the remaining 12 chapters numbered consecutively from Chapter 1. Part I, "Private Schools and the Purposes of Compulsory Education," is comprised of the following chapters: (2) "The State's Interest in Racially Nondiscriminatory Education" (Robert K. Fullinwider); (3) "Values Inculcation and the Schools: The Need for a New Pierce' Compromise" (Michael A. Rebell); and (4) "Educational Choice as a Civil Rights Strategy" (Stephen Arons). Part II, "Law, Politics, and the Regulation of Private Schools," contains the following chapters: (5) "Employment Discrimination in Religious Schools: A Constitutional Analysis" (William P. Marshall; Joanne C. Brant); (6) "The Establishment Clause as a Limit on Governmental Regulation of Religious Schools" (Carl H. Esbeck); and (7) "Taxing Discrimination: Federal Regulation of Private Education by the Internal Revenue Service" (Jeremy A. Rabkin). Part III, "Private Schools and the Pursuit of the Public Good," contains the following chapters: (8) "Effective Schools and Equal Opportunity" (John E. Chubb; Terry M. Moe); (9) "Catholic Schools and Racial Segregation" (Robert L. Crain, Christine H. Rossell); and (10) "Education as a Public and Private Good" (Henry M. Levin). Part IV, "Prospects for Reform," contains the following chapters: (11) "Education and the Power of the State: Reconceiving Some Problems and Their Solutions" (John Lachs; Shirley M. Lachs); (12) "State Control of the Private School's Curriculum: An Essay in Law, Jurisprudence, and Political Philosophy" (Tyll van Geel); and (13) "The Constitution and Private Schools" (Erwin Chemerinsky). Each chapter contains a list of references, and the book includes notes on contributors and an index. (AF)