Fw: Re: Constitutionality of the Nebraska Exemption II

[Daniel Hoffman]

--- On Sat, 12/26/09, Daniel Hoffman <guayiya at BELLSOUTH.NET> wrote:

> From: Daniel Hoffman <guayiya at BELLSOUTH.NET>
> Subject: Re: Constitutionality of the Nebraska Exemption II
> To: LAWCOURT-L at TULANE.EDU
> Date: Saturday, December 26, 2009, 4:50 PM
> Several States are planning to sue,
> according to Senator De Mint, on the ground that the
> exemption violates Art. I, sec. 9 by giving preference to
> [ports of] one State over [those of] other States. 
> This seems quite a stretch, but it would solve the standing
> problem.
> 
> By the way, the invisible precedent in the room might well
> be Lochner.  According to Howard Gillman, what really
> moved the Court in Lochner was its hostility to special
> legislation.  Insofar as the exemption at issue here
> does not involve fundamental personal rights or suspect
> categories,
> DP/EP challenges to it would seem to smack of Lochnering.
> 
> Daniel Hoffman 
> 
> --- On Sat, 12/26/09, Janet Alexander <jca at STANFORD.EDU>
> wrote:
> 
> > From: Janet Alexander <jca at STANFORD.EDU>
> > Subject: Re: Constitutionality of the Nebraska
> Exemption II
> > To: LAWCOURT-L at TULANE.EDU
> > Date: Saturday, December 26, 2009, 4:17 PM
> > I know I said I would quit, but it
> > wasn't even a New Year's resolution.  Who would have
> > standing to raise the equal protection objection? --
> bearing
> > in mind the Court's current restrictive view of
> > standing.  Not a taxpayer of a state other than
> > Nebraska, I think, unless taxpayer standing were to
> be
> > expanded significantly from the usual context.  Not
> a
> > provider of medical services to non-Nebraska
> patients. 
> > The state of Kansas?
> >         Janet
> > 
> > At 08:06 AM 12/26/2009, Volokh, Eugene wrote:
> > >         I regret that
> > Prof. Tushnet and others are frustrated.  I too am a
> > bit frustrated, both by the tone of some of the
> responses
> > that I've been getting, and by the lack of response to
> my
> > question of what on Earth the rational basis test --
> which
> > the Court says means *something*, and which sometimes
> does
> > invalidate government action -- means if it is
> satisfied
> > merely by the desire to get Sen. Nelson's vote, and
> no
> > nonlaughable explanation is offered.  In fact, as I
> > understand many of the posts I've seen on this thread,
> that
> > is indeed the argument that some have been advancing.
> > > 
> > >         But perhaps I am
> > mistaken, and everyone would agree that the mere
> desire to
> > get Sen. Nelson's vote is *not* enough to pass the
> rational
> > basis test.  I certainly agree that the Court would
> > then be willing to accept many a very weak
> justification,
> > and one that might well be just a cover story.  Yet
> I
> > would think that some such justification would indeed
> have
> > to be adduced, and would have to pass at least some
> sort of
> > straight-face test.  I take it, for instance, that
> in
> > Allegheny Pittsburgh Coal, Papasan, and Olech, the
> Court
> > might have hypothesized *some* conceivable
> justification,
> > and rejected the rational basis challenge outright
> rather
> > than accepting it or at least remanding the case for
> further
> > proceedings (and thus signaling to lower courts that
> the
> > rational basis inquiry is to have some serious
> > meaning).  Yet it allowed the rational basis
> challenge
> > to prevail, or at least to go forward.  Is it just
> > because the lawyers were too dumb to come up with
> some
> > conceivabl
> > >  e hypothetical rationale that might be used to
> > justify the discrimination, and if only they'd thought
> hard
> > enough they could have come up with it, because one
> is
> > always available?  Or is there the need for something
> a
> > bit more plausible than that?
> > > 
> > >         As to "the
> > people of Nebraska are more deserving than people
> elsewhere
> > -- hardy farmers, tough winters, a somewhat
> disproportionate
> > number of distressed rural hospitals, a bunch of other
> stuff
> > that helps distinguish Nebraska from Kansas and Iowa,"
> I
> > took that to be shorthand for a facially implausible
> > argument that nonetheless ought to satisfy the Court
> because
> > any argument ought to satisfy the Court.  If the
> claim
> > is that this is indeed a sufficient explanation under
> even a
> > very weak rational basis test, I confess that it does
> not
> > seem to be adequate:  Hardy farmers, tough winters,
> and
> > an entirely hypothetical claim about
> disproportionately
> > distressed rural hospitals describes so many places
> that
> > it's very hard for me to see that as even a credible
> > hypothetical rationale (though maybe I'm being more
> > demanding here than the Justices would be).  Of
> course,
> > if there was some even contested data that does show
> > Nebraska as having a particularly disproportionate
> number
> > of
> > >  distressed rural hospitals, then I agree that
> > this would pass muster, and the Justices wouldn't
> pass
> > judgment on which side of the contest is correct (see
> Clover
> > Leaf Creamery).  But I hadn't heard of any even
> > contested claims on this score (though maybe I missed
> > some).
> > > 
> > >         Eugene
> > > 
> > > 
> > > > -----Original Message-----
> > > > From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
> > > > Sent: Friday, December 25, 2009 10:41 PM
> > > > To: Volokh, Eugene; LAWCOURT-L at TULANE.EDU
> > > > Subject: RE: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > > I understand and share Janet Alexander's
> > frustration at Professor Volokh's
> > > > repeated non-responsiveness, but I'll try
> once
> > more, and then subside.  I haven't
> > > > contended, and so far as I can tell no one
> really
> > has contended, that "we needed
> > > > Senator Nelson's vote" was a reason
> sufficient to
> > satisfy the rational-basis test
> > > > as applied by the Court, despite Professor
> > Volokh's repeated insistence that
> > > > that's the issue raised the state AGs'
> > challenge.  Of course people have
> > > > acknowledged that the *real* reason for the
> > provision's inclusion was that the
> > > > bill's supporters needed Senator Nelson's
> > vote.  But identifying that as the real
> > > > reason is different from saying that the
> > constitutional question is whether the
> > > > legislature's real reason for including the
> > provision in the statute must satisfy the
> > > > rational-basis test.  To (re)state the
> > obvious, that's why Williamson v. Lee
> > > > Optical is relevant.  The real reason for
> > the statute there was that medical eye
> > > > doctors were a more powerful interest group
> than
> > opticians, which is, in the
> > > > interest-group setting, just the same as
> saying,
> > "We enacted this statute
> > > > because we needed their votes."  (Another
> > case of the same sort if Olsen v.
> > > > Nebraska, if I recall the name
> correctly.) 
> > But the fact that this was the real
> > > > reason did not invalidate the statute, just
> as
> > the fact that the real reason for the
> > > > inclusion of pork-barrel projects in
> legislation
> > is that the appropriators needed
> > > > the vote of the Representative from the
> district,
> > because the Court was able to
> > > > invent a really really weak additional
> > justification, which no one seriously thinks
> > > > actually had any role in the legislative
> process
> > ("We'll use the random event that
> > > > someone's broken her glasses as something
> that
> > triggers an opportunity to
> > > > ensure that some randomly selected people
> get
> > their eyes checked by an eye
> > > > doctor").
> > > >
> > > > The contention that I and others have been
> urging
> > is that the rational basis test
> > > > would be satisfied even though "we needed
> Senator
> > Nelson's vote" was the real
> > > > reason for the provision's inclusion, as
> long as
> > the DoJ could come up with some
> > > > really really weak account of why Nebraskans
> were
> > more deserving of larger
> > > > federal subsidy than people in other states,
> and
> > I suggested the contours of such
> > > > an account.  I think the ball is now in
> > Professor Volokh's court to explain why
> > > > that account would *not* satisfy the
> > rational-basis test.  (To state the obvious,
> > > > simply restating the "we needed the votes"
> > question with respect to Papasan
> > > > and Olech isn't responsive to the issue as
> > properly framed, wholly apart from the
> > > > fact that the Court in those cases didn't in
> fact
> > say that "we needed the votes"
> > > > would not be an adequate explanation.)
> > > >
> > > > Mark Tushnet
> > > > William Nelson Cromwell Professor of Law
> > > > Harvard Law School
> > > > Areeda 223
> > > > Cambridge, MA  02138
> > > >
> > > > ph:  617-496-4451 (office); 202-374-9571
> > (mobile)
> > > >
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: Law courts on behalf of Volokh,
> Eugene
> > > > Sent: Fri 12/25/2009 11:57 PM
> > > > To: LAWCOURT-L at TULANE.EDU
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > >       If the courts
> > really were to say that rational basis scrutiny is no
> > scrutiny
> > > > at all, that might well be fine.  And I
> > agree that even pretty weak justifications
> > > > about how group A is potentially
> substantively
> > different from group B have been
> > > > accepted as satisfying rational basis
> scrutiny.
> > > >
> > > >       Yet the Court has
> > time and again asserted that rational basis scrutiny
> is
> > > > indeed some scrutiny, and not just in cases
> where
> > it seems like what's really
> > > > going on is a quasi-suspect classification
> (for
> > instance, Romer and Cleburne).
> > > > See, e.g., Allegheny Pittsburgh Coal Co. v.
> > Commission of Webster Cty., 488 U.S.
> > > > 336 (1989), which actually struck down a
> > discriminatory scheme on rational basis
> > > > grounds (there, an administrative scheme
> rather
> > than a legislative scheme, but
> > > > the case had since been treated as applying
> the
> > same test as that applicable to
> > > > legislative classification cases). 
> > Likewise, see Papasan v. Allain, 478 U.S. 265
> > > > (1986) (a legislative classification case),
> and
> > Village of Willowbrook v. Olech, 528
> > > > U.S. 562 (2000) (the "class of one" case),
> which
> > allowed rational-basis equal
> > > > protection challenges to go forward, though
> > didn't reach a final decision on how
> > > > those challenges would come out on the
> > merits.  Would it really have sufficed in
> > > > Papasain, for instance, for the state to say
> that
> > it needed to maintain its
> > > > classifications because it helped getting
> votes
> > for education?  Would it have
> > > > sufficed in Olech for the government
> agencies to
> > say that it had to disfavor Mr.
> > > > Olech because that's what it took to get
> some
> > critical government official's
> > > > support for some projects that the agencies
> > wanted?
> > > >
> > > >       Now maybe all
> > these cases are irreconcilable with Fritz et al., and
> the
> > > > Court sometimes engages in an entirely
> empty
> > rational basis review and
> > > > sometimes a minimal but not empty one. 
> Yet
> > then the question is:  Why use the
> > > > empty standard here rather than the minimal
> > one?  And under the minimal one,
> > > > given that the Court has seemed to call for
> some
> > serious even if weak scrutiny,
> > > > and has said that "this Court's review does
> > require that a purpose may
> > > > conceivably or "may reasonably have been
> the
> > purpose and policy" of the
> > > > relevant governmental decisionmaker," why
> should
> > it be so clear that the
> > > > Nebraska preference is constitutional?
> > > >
> > > >       Eugene
> > > >
> > > >
> > > > From: Law courts [mailto:LAWCOURT-L at TULANE.EDU]
> > On Behalf Of Mark
> > > > Tushnet
> > > > Sent: Friday, December 25, 2009 5:57 PM
> > > > To: LAWCOURT-L at TULANE.EDU
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > > I'm not sure what the authority is for
> saying
> > that something more than "this was
> > > > what was needed to get the votes" is
> *required*
> > to survive rational basis
> > > > scrutiny, although of course there are many
> cases
> > -- Williamson v. Lee Optical
> > > > being the one most cited, I think -- where
> the
> > Court imagines a barely plausible
> > > > explanation for the legislation.  But it's
> > clear that "this was what was needed to
> > > > get the votes" coupled with something
> barely
> > plausible (not necessarily relied on
> > > > by the enacting legislature) is
> sufficient. 
> > In Railroad Retirement Board v. Fritz,
> > > > the additional element, if it can be called
> that,
> > is the assertion that Congress
> > > > could reasonably have believed that people
> with
> > current connections to
> > > > railroads had a greater claim on the
> pension
> > benefits than people otherwise
> > > > identical who lacked current connections
> (or
> > maybe I have that backward, but
> > > > the point will be the same).  When I've
> > taught the case I've never been able to
> > > > come up with an explanation cast in
> > public-regarding or other terms for why the
> > > > first group could be thought to have a
> greater
> > claim than the second, and I've
> > > > never read anything doing anything other
> repeat
> > the Court's conclusory
> > > > assertion.  But, if Fritz is the law, why
> > wouldn't it be enough to say "this was
> > > > what was needed to get Senator Nelson's
> vote" and
> > "the people of Nebraska are
> > > > more deserving than people elsewhere --
> hardy
> > farmers, tough winters, a
> > > > somewhat disproportionate number of
> distressed
> > rural hospitals, a bunch of
> > > > other stuff that helps distinguish Nebraska
> from
> > Kansas and Iowa"?
> > > >
> > > > The pork barrel examples that have come up
> seem
> > to me to have the same
> > > > structure, on the reasonable assumption that
> we
> > describe something as a pork-
> > > > barrel provision when we think that the
> asserted
> > public benefit from the project
> > > > is significantly less than its cost: 
> "This
> > is what was needed to get the legislation
> > > > adopted" and "we can imagine the possibility
> that
> > this project might actually
> > > > have some modest public benefits."  More
> > tentatively, it also occurred to me
> > > > that one reason that pork-barrel statutes
> are OK
> > is something like what in the
> > > > law of takings is called the "average
> reciprocity
> > of advantage" (or something like
> > > > that).  District A gets something this
> year
> > in a pork-barrel provision, but District B
> > > > got something last year (or District C also
> gets
> > something this year), and in the
> > > > end everyone gets something -- not pork
> > provisions, but the non-pork aspects of
> > > > the appropriations bill (which, by
> hypothesis,
> > wouldn't have passed without the
> > > > votes from the people insisting on the
> > pork).  If that's right, maybe it's sufficient
> > > > that Congress believes that on the whole
> the
> > health care reform legislation is
> > > > good for the nation as a whole, and it
> wouldn't
> > pass without Senator Nelson's
> > > > vote.
> > > >
> > > > Mark Tushnet
> > > > William Nelson Cromwell Professor of Law
> > > > Harvard Law School
> > > > Areeda 223
> > > > Cambridge, MA  02138
> > > >
> > > > ph:  617-496-4451 (office); 202-374-9571
> > (mobile)
> > > >
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: Law courts on behalf of Volokh,
> Eugene
> > > > Sent: Fri 12/25/2009 1:21 PM
> > > > To: LAWCOURT-L at TULANE.EDU
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > >             
> >   I appreciate the argument for not requiring a
> "public
> > regarding"
> > > > justification for government
> classifications,
> > even under the rational basis test.
> > > > As I understand it, Justice Black
> persuasively
> > argued against the use of the
> > > > rational basis test, or any such scrutiny,
> for
> > ordinary legislation (setting aside
> > > > what are now seen as the heightened
> scrutiny
> > categories).
> > > >
> > > >             
> >   But I had always thought that the rational basis
> test
> > requires some such
> > > > justification, beyond just "this is what
> the
> > majority wanted" or "this is what the
> > > > legislators wanted" or "this is what we gave
> a
> > legislator to get his vote."
> > > > Otherwise, all laws would definitely pass
> the
> > rational basis test, since all their
> > > > classifications can be said to have been
> > rationally connected to the desire to get
> > > > the law passed (or enforced or retained in
> the
> > long term or what have you).
> > > >
> > > >             
> >   Am I mistaken?  When there's a challenge to a
> > law - or a part of a law --
> > > > on equal protection or substantive due
> process
> > grounds, on the theory that it is
> > > > not rationally related to a legitimate
> government
> > interest, is it enough to say
> > > > "the legislature put that provision in
> there
> > because it thought the provision
> > > > would help them get the law passed"?
> > > >
> > > >             
> >   Eugene
> > > >
> > > > From: Law courts [mailto:LAWCOURT-L at TULANE.EDU]
> > On Behalf Of
> > > > matthewhpolsci at AOL.COM
> > > > Sent: Friday, December 25, 2009 2:24 AM
> > > > To: LAWCOURT-L at TULANE.EDU
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > > This is a strange thing to deal with at 4
> o'clock
> > on Christmas morning, but Prof.
> > > > Alexander seems to me in the right ball
> > park.  I am not going to do the research
> > > > at this time of this day, but the reason I
> just
> > mentioned ERCOT is that Texas
> > > > electric utilities are outside the
> reliability
> > structure for the rest of the country,
> > > > and I think it is because there is a statute
> that
> > makes it so. The flow of electric
> > > > power, and the possibility of its
> unexpected
> > interruption, which is what is at
> > > > stake, is probably more vital to everybody
> than
> > the financial mechanisms for
> > > > health care.
> > > >
> > > > Whether the provision that Sen. Nelson got
> is
> > "stupid" is merely a matter of a
> > > > subjective value judgment, and I do not know
> that
> > "public regarding" has ever
> > > > been a criterion to decide what a Senator
> can or
> > cannot successfully insert into
> > > > legislation.  Indeed, I do not know that
> > "public regarding" has hitherto attained
> > > > status as a constitutional norm by virtue
> of
> > authoritative judicial decision.   So I
> > > > do not know how it is especially helpful for
> the
> > purpose that it has been raised
> > > > here.
> > > >
> > > >
> > > > Matthew Holden, Jr.
> > > >
> > > > -----Original Message-----
> > > > From: Janet Alexander <jca at STANFORD.EDU>
> > > > To: LAWCOURT-L at TULANE.EDU
> > > > Sent: Thu, Dec 24, 2009 2:31 pm
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > > How is it different from the Bridge to
> > Nowhere?  Or all the govt buildings in WV?
> > > > Or siting a big naval base, space center,
> or
> > other construction project or
> > > > government facility, that will bring
> billions in
> > jobs and revenue, in a particular
> > > > state? Why do Boeing et al. establish plants
> in
> > many states?
> > > >
> > > > Is the difference wanting to get the vote of
> a
> > Senator on the bill and having a
> > > > Senator who has seniority moving the bill?
> What
> > is the constitutionally
> > > > significant difference between reimbursing
> a
> > state for medical costs vs. paying
> > > > employees (working on the bridge or for the
> Navy)
> > directly?  The P&I argument
> > > > seems kind of indirect to me; it is not
> > individual citizens who are paying a
> > > > different cost for health insurance; rather,
> it
> > is zeroing out a payment that the
> > > > state would otherwise make.
> > > >
> > > > The "frontier states"  (Montana, the
> > Dakotas, Wyoming) also have special deals
> > > > on the financing.  Also unconstitutional?
> > > >
> > > > Special deals for states or constituents of
> > powerful senators may be deplorable
> > > > but they seem almost inevitable in an
> institution
> > like Congress.
> > > >         Janet
> > > >
> > > >
> > > > At 09:00 AM 12/24/2009, Volokh, Eugene
> wrote:
> > > >
> > > >             
> >   Seems to me that the justifications for the
> singling
> > out of the states are
> > > > pretty different, no.  Reconstruction
> > involved treating states specially because
> > > > of special conditions in those states. 
> The
> > Nebraska Exemption, as I understand
> > > > it, is treating the state specially because
> you
> > want the vote of the state senator.
> > > >
> > > >             
> >   Also, I wonder if Prof. Tushnet could explain
> exactly
> > what he meant
> > > > substantively by his parenthetical
> question.
> > > >
> > > >             
> >   Eugene
> > > >
> > > > From: Law courts [ mailto:LAWCOURT-L at TULANE.EDU]
> > On Behalf Of Mark
> > > > Tushnet
> > > > Sent: Thursday, December 24, 2009 7:07 AM
> > > > To: LAWCOURT-L at TULANE.EDU<mailto:LAWCOURT-L at TULANE.EDU>
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > >
> > > > Maybe this is too snarky, but doesn't this
> > describe Reconstruction?  (And if so,
> > > > doesn't that imply something about the
> arguments
> > being made by the Attorneys-
> > > > General?)
> > > >
> > > > Mark Tushnet
> > > > William Nelson Cromwell Professor of Law
> > > > Harvard Law School
> > > > Areeda 223
> > > > Cambridge, MA  02138
> > > >
> > > > ph:  617-496-4451 (office); 202-374-9571
> > (mobile)
> > > >
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: Law courts on behalf of Rush, Mark
> > > > Sent: Thu 12/24/2009 9:27 AM
> > > > To: LAWCOURT-L at TULANE.EDU<mailto:LAWCOURT-L at TULANE.EDU>
> > > > Subject: Re: Constitutionality of the
> Nebraska
> > Exemption II
> > > >
> > > > just weighing in quickly here.  I realize
> > that this is probably an extremely
> > > > academic argument, but...
> > > >
> > > > Had the other 49 states decided to select
> > Nebraska for a special penalty, would
> > > > the form of the situation be any
> different? 
> > Scholars (and Nebraskans) would be
> > > > outraged.
> > > >
> > > > Would that be unconstitutional though? 
> > Seems to me it would be an extreme
> > > > version of an unfunded mandate.  Those are
> > unfortunate, but not
> > > > unconstitutional.
> > > >
> > > > cheers
> > > >
> > > >
> > > > From: Law courts [LAWCOURT-L at tulane.edu<mailto:LAWCOURT->
> > L at tulane.edu>] On
> > Behalf Of Marvin Zalman
> > > > [aa1887 at WAYNE.EDU<mailto:aa1887 at WAYNE.EDU>]
> > > > Sent: Thursday, December 24, 2009 8:31 AM
> > > > To: LAWCOURT-L at tulane.edu<mailto:LAWCOURT-L at tulane.edu>
> > > > Subject: Constitutionality of the Nebraska
> > Exemption II
> > > >
> > > > Re: Mathew Manweller's query on the
> > Constitutionality of the Nebraska
> > > > Exemption.
> > > >
> > > > Yesterday while shaving it struck me that
> Senator
> > Nelson's deal favoring one
> > > > state over 49, thereby giving Nebraska
> businesses
> > a competitive advantage,
> > > > must offend the Constitution's privileges
> and
> > immunities clause in Art. IV, Sec. 1.
> > > > By the time I got to breakfast I thought
> that
> > such an interpretation would negate
> > > > 90% of federal legislation, which I suppose
> is of
> > the  pork-barrel variety. Thinking
> > > > it would be idiotic to pose the question, I
> put
> > it out of mind. Now that several
> > > > state AGs, including mine, are thinking
> along
> > this track I'd like to second
> > > > Mathew's question. As I have no (academic)
> truck
> > with the non-criminal side of
> > > > the Constitution I offer no comment on the
> > merits.
> > > > Marvin
> > > >
> > > > = = = = = = = = = = = = = =
> > > > Marvin Zalman
> > > > Professor
> > > > Department of Criminal Justice
> > > > Wayne State University
> > > > Detroit, MI 48202
> > > > Direct: (313) 577-6087
> > > > CJ Office: (313)577-2705
> > > > Fax: (313) 577-9977
> > > > aa1887 at wayne.edu<mailto:aa1887 at wayne.edu>
> > > > http://www.clas.wayne.edu/faculty/Zalman
> > > >
> > > > !SIG:4b336f85141301687111895!
> > 
>