Betsy DeVos kept her promise. As the education secretary vowed in September 2017, the department’s Office for Civil Rights last week formally proposed new regulations designed to create a more just process when campus tribunals adjudicate sexual-misconduct allegations. The proposed rules closely track recent court rulings favoring accused students.

In 2017 interim guidance, Mrs. DeVos had invited schools to develop fairer procedures under the law known as Title IX. But nearly all retained the Obama administration’s approach, which was heavily tilted against accused students. (The University of Kentucky was the most prominent exception.)

The most significant proposed change involves cross-examination, a fundamental element of due process. The Obama administration had strongly discouraged schools from allowing cross-examination of an accuser. “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” Anurima Bhargava, an Obama Justice Department official, told the Journal this August. That’s a presumption of guilt.

State and federal courts alike have held that the resulting processes are unconstitutional. In a case from the University of Michigan this September, the federal Sixth Circuit Court of Appeals ruled in favor of an accused student. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Judge Amul Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The Supreme Court, quoting legal scholar John Wigmore, has repeatedly described cross-examination as “greatest legal engine ever invented for the discovery of truth.”

The proposed regulations would apply that principle nationally. They would require live hearings in all Title IX cases, with lawyers or other advocates for the accused conducting cross-examinations of witnesses. Cross-examination can’t be effective unless accused students as well as accusers have access to all evidence—routinely denied to accused students under current practice.

The proposed regulations would require that accuser and accused alike have access to all evidence gathered in the investigation. If witnesses chose not to participate in the hearing, their statements would be discounted. The new rules would also dismantle the transparently unfair “single investigator” model, in which many colleges have allowed a single person, usually hired by the Title IX office, to be investigator, judge and jury.

One critical provision would mandate that schools turn over the materials they use to train adjudicators to either party on request. Washington’s Obama-era guidance required that Title IX adjudicators receive training in “the effects of trauma, including neurobiological change.” In practice, that is prejudicial: Many schools treat virtually any behavior by the accuser—including actions that real courts properly interpret as evidence of deception—as consistent with truthfulness. The University of Mississippi claims that “lies” by an accuser shouldn’t necessarily cast doubt on her credibility, arguing that lying simply is one of the “different responses” a victim can have to a sexual assault.

The proposed rules include provisions favorable to accusers as well. They stress that institutions must provide accommodations to students who allege sexual assault on campus or within school programs. The Obama administration notoriously mandated that schools apply the low “preponderance of evidence” standard in adjudicating claims. The new rules will permit them to continue doing so, and most almost certainly will. The regulations would impose limits on questioning about an accuser’s sexual history, in line with rape shield laws. They would retain an Obama-era requirement that schools allow accusers to appeal not-guilty findings.

In the past two years, groups representing sexual-assault accusers have insisted that they only want a fair process, not one that railroads accused students. Their response to the regulations proposed will provide a test of their sincerity.

The procedures that result from these new rules won’t be entirely fair to accused students. Unlike courtroom advocates, colleges lack subpoena power. And universities will still have strong incentives to favor accusers, if only to pre-empt media criticism or appease campus activist groups. But as the proposed regulations note, when a university “establishes an equitable process with due process protections and implements it consistently, its findings will be viewed with more confidence by the parties and the public.”

Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

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That campus Title IX sexual-misconduct tribunals are unfair to accused students is all but a truism. Since 2011, when the Obama administration forced a guilt-presuming reinterpretation of the 1972 law, more than 100 colleges and universities have been on the losing side in lawsuits filed by accused students protesting their treatment.

The Department of Education is planning to issue new regulations addressing the relationship between Title IX and fair procedures in cases of alleged campus sexual assault. The draft regulations are still under review, but as reported in the New York Times, they would in many ways produce a fairer approach to accusations of sexual misconduct on campus. If implemented, they would address many of the concerns that federal and state judges across the country have raised about campus tribunals. Based on the published material and information from a source familiar with the departmental development of the new policy, three salutary aspects of the proposed regulations particularly stand out.

First, they would complete Education Secretary Betsy DeVos’s work to make transparent the training regimes for campus sexual-assault investigators and adjudicators that colleges and universities implemented after 2011. The few examples of training materials that have been made public (almost always through litigation) seem designed to ensure disciplinary panelists presume an accused student to be guilty. And the secrecy of these materials frustrates accused students’ ability to defend themselves. We wrote about the issue of Title IX training last November; since our article appeared, biased training played a major role in another university legal setback, after the University of Mississippi employed training materials suggesting that an accuser’s lying be interpreted as a sign that the accused is guilty.

Courts have responded skeptically to the secrecy preferred by schools for their training guidelines. In a decision from earlier this year, U.S. District Court Judge John J. McConnell Jr. of Providence , an Obama nominee, rejected Johnson & Wales’s motion to dismiss an accused student’s lawsuit against the university by citing “the fact that [the student] asked for training material during the appeals process and it wasn’t obtained or given to him.”

DeVos’s interim guidance in September 2017 cautioned schools not to use training materials “that apply sex stereotypes.” The draft regulations confirm this point and—in a major change—require schools to divulge their training materials, upon request, to an accused student or any other party to a Title IX complaint. Such transparency would provide a powerful incentive against unfair procedures.

Second, the proposed regulations clarify that under Title IX, schools must treat all parties fairly. Just as a university’s biased treatment of an accusing student could constitute gender discrimination, so too could biased treatment of the accused student. This would be a welcome change from the Obama-era approach, which was geared almost exclusively toward helping accusers. One of the clearest explanations of why this change would matter came from Judge T. S. Ellis III of Virginia in a ruling against Marymount University. He noted that in evaluating an equity law, biased adjudication procedures “may well run afoul of Title IX” by “depriving students accused of sexual assault of the investigative and adjudicative tools necessary to clear their names.” The process must determine which (if either) of the students is the victim, rather than presuming from the start that the accusing student is.

Finally, the draft regulations require schools that hold hearings to provide for at least some form of cross-examination. An accused student, at a minimum, must be allowed to submit questions for the accuser through a panel. This would be a major change from the Obama-era guidance, which “strongly” discouraged any cross-examination by accused students. It’s unclear, however, whether the draft regulations would—as they should—require panels to ask all relevant questions requested by the parties. This flaw should be fixed before the draft regulations become final. Lawsuits against several schools, including Cornell, have exposed instances of panels unfairly limiting witness questioning.

The draft regulations’ bigger flaw is their failure to require schools to give accused students the right to have a hearing. As drafted, the regulations would still allow schools to use a practice, encouraged by the Obama administration, called a single-investigator model, where one person, hired by the Title IX coordinator, acts as investigator, judge, and jury—interviewing the parties and witnesses and writing a report that pronounces guilt or innocence. The Sixth Circuit, in a lawsuit filed by a University of Cincinnati student, held that “cross-examination takes aim at credibility like no other procedural device.” As a result, “whatever the outcome, ‘the greatest legal engine ever invented for the discovery of truth’ will do what it is meant to”—help the adjudicator to determine credibility and render a decision.

Recent years have shown that in cases involving allegations against students, colleges in most circumstances—whether due to fear of bad publicity, criticism from campus or faculty activists, or well-meaning assumptions that all accusers must be believed in order to rectify the injustices of the past—will adjudicate Title IX complaints through one-sided procedures. If the new regulations give schools the opportunity to continue to bypass cross-examination and other procedural protections by simply abolishing hearings, they will abolish them and an unfair system will be entrenched.

The draft regulations are, nonetheless, an important step in the right direction. After their publication, expected this month, will come a period of around 60 days for public comment, to which the agency is required by law to respond. Whether the resulting public discussion will be at all productive remains an open question. The draft proposals have already received hyperbolic criticism from accusers’ rights groups and prominent Democratic legislators. House minority leader Nancy Pelosi claimed they would create “extraordinary new barriers to justice for survivors.” To New York senator Kirsten Gillibrand, the new regulations amount to siding with “predators.” There can be little doubt that if the regulations are adopted in their current form, Pelosi, Gillibrand, and their allies will pressure colleges to eliminate hearings in Title IX cases as a way of avoiding even the minimal due-process protections that come from indirect questioning of the accuser.

K.C. Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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Last September, DeVos publicly called for fairness to both sides in campus adjudications. About two weeks later, the Education Department withdrew the Title IX “guidance” that the Obama administration had imposed to specify guilt-presuming procedures for the nation’s colleges and universities to use. DeVos has also ended the Obama practice of turning every allegation of sexual harassment into a sweeping, publicized federal investigation of all allegations university-wide over the past three years.

But these actions will only begin to undo the damage done by the previous administration. And to date, DeVos has had little impact on the deeper problem of systematic discrimination by universities against the accused. (Almost all students accused of sexual assault are male.)

In this #MeToo era, it might seem counterintuitive to suggest that campus systems have prioritized the interests of accusers over the need to achieve a just outcome. But in the context of student-on-student accusations, at least, college campuses are unlike the workplace, due both to campus ideology and to the effects of the Obama administration mandates. In 2011, 2014, and 2015, the Education Department’s Office for Civil Rights (OCR) issued “guidance” documents in the name of interpreting Title IX that effectively required more than 7,000 universities and colleges to use specified, guilt-presuming procedures to respond to sexual misconduct allegations. Announced with no public notice or opportunity for comment, these decrees resulted in procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” as 28 Harvard law professors wrote in an eloquent indictment in 2014. More than 70 judges have issued rulings (some of them preliminary) against schools for violating accused students’ rights.

Most schools executed the Obama-era guidance so zealously as to be even more unfair to accused students than OCR explicitly required. But now virtually all have refused to implement provisions of the DeVos OCR’s interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.

Fortunately, the education secretary may be preparing to do just that, and make campus Title IX proceedings far more just, through a necessarily protracted and complicated “notice and comment” rulemaking process that she announced last September. It is designed to produce by 2019 new regulations for enforcing Title IX that will seek fairness for both complainants and accused students.

DeVos has committed to a two-step process to create a fairer campus Title IX system. First, in September, OCR issued new “interim guidance” containing several promising policy changes. Among other components, the interim guidance tells schools to: avoid “sex stereotypes or generalizations” and give accused students detailed, timely written notice of the allegations against them; use the same standard of proof in sexual misconduct cases that “the school applies in other student misconduct cases,” reversing the Obama demand that schools use the lowest possible standard of proof in sexual misconduct cases, even if they use a higher standard in other disciplinary cases; ensure that the investigator(s) be “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” which seemingly excludes Title IX coordinators (whose powers the Obama administration sought to expand greatly) from the adjudication process, a provision that the final rules should make explicit; produce a written report “summarizing the relevant exculpatory and inculpatory evidence,” rather than simply looking for evidence that would support the accuser’s version of events.

Finally, the interim guidance placed “the burden . . . on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.” While this wording strongly implied that the accused student was entitled to a presumption of innocence, final regulations should make that implication clear-cut.

As the Supreme Court has stressed, effective due-process protections in noncriminal cases are most critical when the impact and “risk of an erroneous deprivation” is great. Yet even these modest steps toward fairness drew frenzied denunciations from virtually every Democratic politician who has spoken publicly about them and a hostile or cool reaction from almost all university officials who have commented.

As a result, DeVos has not yet been able to change things very much on the ground.

Notice and Comment Rulemaking

DeVos foreshadowed more important, detailed, and lasting regulatory changes when she vowed in September that “we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way,” as provided in the Administrative Procedure Act of 1946 (APA).

She stressed that just as one rape or one “aggressive act of harassment” is one too many, “one person denied due process is one too many.” The primary reference to due process for accused students in Obama-era OCR guidance, by contrast, was to caution that “steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

DeVos has eschewed what she calls Obama’s “rule by letter” approach. “We want to build a rule that’s enduring and seen by all as fair,” a top DeVos aide explains. “It’s a steady, thoughtful process, not a rush.”

The DeVos OCR initially has focused on developing detailed proposed rules for campus disciplinary proceedings involving alleged student-on-student sexual misconduct. After being finalized, approved by DeVos, and reviewed by the Office of Management and Budget and other agencies, the proposed rules will be published in the coming months. Interested parties then would have several weeks to file public comments.

The APA requires that agencies such as OCR respond in detail to the comments, which could take months; make any appropriate revisions in the proposed rules; seek input on those from OMB, the Justice Department, and perhaps other agencies; and issue final rules.

Accusers’ rights groups doubtless will criticize any new regulations, and court challenges are inevitable. But the final rules will have the force of law unless and until provisions are struck down by the courts or overhauled by the next administration, in another protracted rulemaking, or (less likely) by Congress.

Proposed Procedural Rules for Campus Sex Cases

The final regulations seem likely to include all the promising elements (presumption of innocence, requirement to document exculpatory evidence, avoidance of sex stereotypes, notice of allegations, prohibition of conflicts of interest and bias, elimination of a separate, lower standard for sexual assault cases) contained (and implied) in the interim guidance. But the interim guidance omits three requirements—two of them endorsed by federal appeals courts—that are absolutely critical to fairness.

First, the regulations should require schools to tell both complainants and accused students at the outset of the process that they have a right to have a lawyer at their own expense, or another advocate, represent them at every stage of the process.

They also should require schools to give every complainant and accused student a hearing before a panel of impartial adjudicators, with a right to meaningful and non-disruptive direct cross-examination of all witnesses, including the opposing party, on all contested issues of fact. The questions may be asked by the party’s lawyer, or by another chosen advocate, except that a complainant who objects to a personal, face-to-face confrontation with an accused student’s lawyer or advocate has a right to answer his questions on video if she so requests.

(Many schools now forbid lawyers from cross-examining the complainant or other witnesses or even speaking on their client’s behalf. These restrictions make it difficult for innocent students to present an effective defense.)

These changes would reverse the Obama-era OCR’s strong opposition to meaningful cross-examination of accusers, which the overwhelming majority of schools now prohibit.

That prohibition flouts both the Supreme Court’s description (quoting a legal scholar) of cross-examination as “the greatest legal engine ever invented for the discovery of truth” and the decision of the U.S. Court of Appeals for the Sixth Circuit, in a case filed by an accused student from the University of Cincinnati, recognizing that “cross-examination takes aim at credibility like no other procedural device.” The unanimous three-judge Sixth Circuit panel castigated the university for assuming that cross-examination only benefited the accused student: “In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.” That’s because “few procedures safeguard accuracy better than adversarial questioning.”

Second, the regulations must specify that procedures that are structurally unfair to either party—not just to the accuser—constitute gender discrimination under Title IX. From 2011 onwards, the Obama administration employed Title IX on behalf of a victims’ rights viewpoint, contending that campus policies it perceived as insufficiently tilted toward the interests of accusers constituted gender discrimination in violation of Title IX—even though not all complainants are victims and not all victims are female.

The logical corollary of this approach is that if a campus system that tilts too far in favor of the accused violates Title IX, a system that tilts too far in favor of accusers also constitutes gender discrimination. But the majority of courts that have addressed this issue have concluded (as a district judge in a case filed against Rider University recently did) that bias, even overwhelming structural bias, “in favor of the alleged victim of sexual assault . . . is not the equivalent of demonstrating bias against male students.” The more compelling view, which the regulations should adopt, is that of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit.

It refused in July 2016 to dismiss a student’s Title IX claim against Columbia University for anti-male discrimination. It ruled that a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

Even assuming for the sake of argument that discrimination against accused students does not violate Title IX, an obscure provision of the Higher Education Amendments adopted by Congress in 1992 appears to provide an independent source of authority for Education Department regulations designed to ensure fairness in campus adjudications of sexual assault. This provision requires colleges and universities to adjudicate all accusations of student-on-student sexual assault as part of their disciplinary systems. And that seems a sufficient basis for Education Department regulations to ensure that the adjudications be fair.

Third, the rules should require colleges both to make public all materials used to train investigators and adjudicators in campus Title IX tribunals and to ensure that the training does not discriminate against either complainants or accused students, including by generalizing about truthfulness. Federal regulations have required training disciplinary panels in all Title IX cases, even though no such requirement exists for other campus disciplinary offenses. Almost all schools now cloak their training materials in secrecy, even from accused students. As we have reported, the materials currently used by many schools stack the deckagainst the accused by suggesting without a scientific foundation that false allegations of rape are very uncommon; that any internal inconsistencies in the complainant’s account or contradictions of other evidence should be attributed to “the effects of trauma”; and that rigorous questioning of complainants is forbidden as “blaming the victim.”

Beyond these three critical components, Title IX regulations that seek to ensure a fair process rather than a pre-conceived result must:

Remind colleges that Title IX does not trump the Constitution’s protection of free speech or a professor’s right to academic freedom. Such a disclaimer would safeguard against notorious cases such as that of Northwestern University Professor Laura Kipnis, who— in the guise of policing “sexual harassment”—was subjected to a harrowing Title IX investigation for writing an article that criticized how Northwestern handled Title IX complaints.
Specify that the notice of allegations that must be provided to accused students before they are asked to respond must include copies of any written complaint by the accuser or witness statements and a detailed written summary of any verbal complaint or witness statement.
Accommodate criminal investigations by affording accused students a right to remain silent and requiring schools to defer campus proceedings for a reasonable time if so requested by police.
Prevent investigators from also serving as adjudicators and prevent both from deciding appeals in the same case.
Guarantee accused students a right to a meaningful appeal of any adverse finding for insufficient evidence, procedural violations, excessive sanctions, and newly discovered evidence.
Permit schools to mediate between parties and help them settle cases on an informal basis (a practice forbidden by OCR since 2001).
Reaffirm that OCR has no interest in limiting schools’ ability to provide counseling, medical, academic or housing accommodations, or other services to alleged victims of sexual misconduct.
The new regulations also should reverse one of the most troubling elements of the Obama-era guidance—a double-jeopardy requirement that schools with appeals processes (as virtually all do) must allow accusers to appeal not-guilty findings.

As could have been predicted, this provision has resulted in institutions using dubious reasons to overturn panel decisions in favor of accused students. Unlike the civil justice system, in most campus Title IX tribunals the accused student faces not only the accuser, but also a college employee of some type who functions as investigator or even de facto prosecutor, followed by an adjudicator trained with one-sided material. Forcing a student who overcomes all these obstacles to then obtain a second finding of innocence is deeply unfair.

The Need and Legal Justification for the Proposed Rules

“Any school that uses a system biased toward finding a student responsible for sexual misconduct . . . commits discrimination,” DeVos has said.

Congressional Democrats critical of DeVos, by contrast, too often appear to have viewed such bias as an irrelevant concern. In this pernicious framing—most recently offered by Rep. Jackie Speier (D-Calif.), the House Democrats’ point person on campus sexual assault policy—campuses need not much worry about fair procedures, since between 92 and 98 percent of accused students are guilty. Yet the studies referenced by Speier indicate that the evidence in more than half of allegations is ambiguous, demonstrating why in many cases, even a careful, unbiased, fair, professional fact-finding process cannot reliably separate the innocent from the guilty.

It’s undeniable that some schools, especially in cases involving allegations against high-profile athletes who bring in money to their schools, have made it difficult or impossible for student victims to achieve justice. Nonetheless, overwhelming evidence exists in the public record of campus procedures that have the effect, if not the intent, of denying accused students a fair opportunity to defend themselves. As Harvard Law professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen noted in a white paper titled “Fairness for All Students,” filed with OCR in August:

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. . . . The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. . . . Title IX officers have reason to fear for their jobs if they hold a student not responsible or [fail to impose] a harshly punitive sanction.
The prevalence of discrimination against accused students has been detailed by myriad journalists and scholars as well as by our 2017 book, “The Campus Rape Frenzy,” and books by Laura Kipnis and Robert L. Shibley. The journalists include Emily Yoffe, Cathy Young, Ashe Schow, and Robby Soave. The scholars include the 24 Harvard law professors mentioned above; 16 Penn Law School professors who issued a similarly reasoned open letter; and law professors Aya Gruber, Tamara Lave Rice, R. Shep Melnick, and Ben Trachtenberg, who have written individually on the issue. The nation’s leading campus civil liberties group, the Foundation for Equal Rights in Education (FIRE), for several years has cautioned that the implementation of Title IX has threatened fair treatment for accused students.

Finally, schools should voluntarily distinguish among allegations of (1) violations of the criminal law as defined by the state where the campus is located; (2) sexual harassment as defined in these rules; and (3) any lesser form of sexual misconduct specified in the school policies. (For DeVos to make these distinctions mandatory would arguably conflict with existing Clery Act regulations.) As DeVos has said, many schools enforce “ambiguous and incredibly broad definitions of assault and harassment.” Trivializing what is a felony in all 50 states serves the interests of no one.

These proposed rules may strike many as too prescriptive for a conservative administration that has vowed to cut back on federal regulation. And we wish we could think of a better way to protect the constitutional rights of independent-minded college students and professors.

But we can’t. The courts, limited to case-by-case decisions, cannot do it on a broad scale. And Congress, never a champion of the rights of accused people, will not do it. Nor will the states.

The paradox is that nothing short of muscular federal regulation will stop our politically correct universities from trampling the liberty of students and faculty.

Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

“KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).”

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Both parties in the case had credibility issues; he had violated a no-contact order, she had withheld from the university the bulk of their text messages. But the accused student possessed strong exculpatory evidence. He produced the full record of their communications, which included texts from the accuser to him discussing the encounter in a highly positive fashion and referencing a “plan” to have sex again. Further, a friend of the accuser, who saw her shortly after the incident, recalled her raving about her “really hot” experience.

Nonetheless, Brown’s disciplinary panel returned a guilty finding by 2-to-1. The decisive vote came from Besenia Rodriguez, the university’s associate dean for curriculum.

In subsequent court testimony after the accused sued Brown, Rodriguez admitted that she had not considered the accuser’s text messages or other post-incident behavior as having any bearing on the case. The reason, she said, was the hours of training that Brown had provided to prepare her to adjudicate the complaint—training required by the federal government. Rodriguez was specifically told that the impact of trauma on sexual-assault victims often causes them to behave in counterintuitive ways, such as not being able to recount a consistent set of facts or choosing to communicate with (rather than to avoid) the alleged assailant. “I felt like it couldn’t—I couldn’t really put myself in her shoes to understand why she was representing it that way,” explained Rodriguez, “so best not to attempt to judge her behavior.”

But judging the accuser’s behavior, noted U.S. District Judge William Smith, “was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.” He added, “It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence”—evidence severely damaging to the accuser’s credibility.

Smith invalidated the university’s decision, noting, even apart from Rodriguez’s dereliction of duty, the overall process was far from equitable. The Brown official who designed the training Rodriguez received, Alana Sacks, did not respond to a request for comment.

Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators. Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry. The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.

“In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.” Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”

The training mandate originated with the Obama administration’s 2011 “Dear Colleague” letter, which dictated campus procedures for sexual-assault allegations that dramatically increased the chances of guilty findings. Expanded guidance in 2014 from the Department of Education’s Office for Civil Rights ordered that the training include “the effects of trauma, including neurobiological change”—a phrase pregnant with hidden meaning. The Obama training requirements (without the “neurobiological change” part) were then formalized in a binding federal regulation in 2015.

While Secretary of Education Betsy DeVos has rescinded the 2011 and 2014 Obama commands, the 2015 regulation keeps most of the Obama training mandate in place. All the while, the secrecy of almost all the training materials has enabled them largely to escape public scrutiny.

“The biggest problem with these training materials,” says Justin Dillon, a Washington, D.C., lawyer who has defended dozens of students accused of sexual assault, “is that if the accuser comes in, contradicts herself and the evidence, all that gets explained away because of ‘trauma.’ Junk science like that makes it extraordinarily hard for students to defend themselves effectively. Schools cherry-pick studies without actually understanding anything about them; they just take this chicanery at face value. Students would need to first pay a lawyer, and then pay that lawyer to find a neuroscience expert who is both willing and qualified to take on this issue. And if you think lawyers are expensive, wait until you see how much experts charge.”

Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”

The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”

The role of the investigative report is especially important at Middlebury because, like more and more schools, it has abandoned disciplinary hearings on sexual-assault claims in favor of a single-investigator system. This was designed to shield the accuser from cross-examination, but also empowers a school-appointed official to serve as “detective, judge and jury,” in the words of Greg Lukianoff, president of the Foundation for Individual Rights in Education. In the specific system used at Middlebury, a college administrator renders the final decision based primarily on a report prepared by the investigator. The accused student and his representatives have no opportunity to cross-examine the accuser or the investigator. The training’s restrictions on the content of the investigator’s report thus have a direct effect on the final outcome.

After we wrote about the Middlebury training, the firm that conducted it, Margolis Healy, removed the associated material from its website. The company did not respond to a request for comment.

Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”

Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”

Emily Yoffe’s blockbuster September article in the Atlantic on “The Bad Science Behind Campus Response to Sexual Assault” uncovered widespread use of a concept called “tonic immobility.” Yoffe explored the pervasive influence of Rebecca Campbell, a Michigan State psychology professor, who claims that as many as half of all sexual-assault victims experience tonic immobility and that this condition, along with other neurological effects that occur during an assault, renders them unable either to resist or to recall the alleged attack accurately later. Campbell has done no empirical research on tonic immobility, and there is no clear evidence that the phenomenon—in which some prey animals go into a type of temporary paralysis when threatened—occurs in humans.

Training at Harvard Law School in 2014 borrowed heavily from Campbell’s ideas about tonic immobility, according to an article by Harvard Law professor Janet Halley. She said the school provides its tribunals with “a sixth-grade level summary of selected neurobiological research,” which claims that rape victims’ trauma causes neurological changes, which can result in tonic immobility. This “can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and ‘flat affect’ [so that her statements] can be ‘[m]isinterpreted as being cavalier about [the event] or lying.’ ” The Harvard training, Halley wrote, is “100% aimed to convince [disciplinary panelists] to believe complainants, precisely whenthey seem unreliable and incoherent.”

A still-pending case led U.S. District Judge John Padova to suggest that the University of Pennsylvania’s training of campus adjudicators is so biased that it may violate Title IX by discriminating against males. In a September 13, preliminary ruling, Padova cited the university’s training materials as a basis for rejecting Penn’s motion to dismiss a Title IX claim in a lawsuit filed by a student the school had found guilty of sexual assault.

Penn used a training document, “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators,” disseminated by Legal Momentum, a women’s advocacy group that has harshly assailed Betsy DeVos’s efforts to make the handling of campus sexual-assault complaints more fair. The 17 “tips” about accusers include:

“The fact that a complainant recounts a sexual assault somewhat differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” Legal Momentum provides no guidance on how adjudicators should identify “memory processes,” “inattentiveness,” or “deceit.” The implication that inconsistencies are irrelevant to assessing credibility is contrary both to our legal traditions and human experience.

“Victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” The Legal Momentum document goes on to offer examples suggesting that virtually any conduct or statement by an accuser—resisting or not resisting the alleged assaulter; subsequently contacting or subsequently avoiding the alleged assaulter; testifying emotionally or listlessly; recalling or not recalling events—is consistent with the guilt of the accused.

“False allegations of rape are not common” and “research places the [false rape report] rate in the general population between 2% and 10%.” But this research defines “false” extremely restrictively and excludes a great many cases in which the accused is clearly not guilty of sexual assault and many more in which the available evidence leaves unclear the veracity of the accuser’s account.

As for accused students, Penn’s training material seems designed to sow skepticism about their claims of innocence. The “typical” campus rapist, according to the document, might possess many “apparent positive attributes such as talent, charm, and maturity [and] a deep commitment to community service.” But such traits are “generally irrelevant.” Campus rapists “[p]lan and premeditate their attacks, using sophisticated strategies to groom their victims for attack and isolate them physically.”

Bernstein, the former top Baltimore prosecutor, expressed concern that the Penn training did not meet the “standards” necessary for an “objective process” that could determine the truth of allegations. Most of the tips, he notes, “leave a clear presumption of guilt in the investigator or adjudicator’s mind and provide a victim-centric explanation for otherwise inconclusive, inconsistent, and exculpatory testimony to the exclusion of other factors.” Legal Momentum did not respond to a request for comment.

The training materials and practices that have surfaced from other institutions are equally one-sided.

George Mason’s training plan contains a lengthy section instructing investigators and adjudicators to “avoid an implication of blaming a complainant,” such as by holding “the belief or expressing an opinion that a person who is alleging sexual assault was in some way responsible, whether wholly or in part, for what happened.” Testing an accuser’s truthfulness by asking about her pre-incident behavior with the accused student or why she waited for months to file a report or why she did not go to the police would all constitute blaming the victim. If even considering asking any such questions, the adjudicator is ordered by the training to adjourn the meeting and consult with fellow panelists before proceeding. There is no comparable caution regarding questions asked of accused students.

A University of Texas blueprint for sexual-assault investigations recommends reducing “the number of reports prepared by investigators,” so as to frustrate defense lawyers’ efforts to point out contradictions among an accuser’s statements. This recommendation belies any pretense that the university’s investigators are neutral fact-finders.

The training at Ohio State tells disciplinary panelists that as many as “57 percent” of college males “report perpetrating a form of sexual[ly] aggressive behavior,” among other points seemingly designed to prompt guilty findings. We are aware of no reliable study that makes such a statistical claim. The judge who cited the 57 percent did not say where Ohio State got it, and the school’s full training materials remain sealed.

Cooper Union’s training program describes a “typical” sexual-assault case as the work of a scheming predator: An upper class male who meets a freshman female at a party, accompanies her alone back to her room, and “pours ten shots out of a bottle he pulls out of his backpack” for her to drink. The accuser can later recall nothing, but believes that they had sex.

At SUNY-Plattsburgh, the school’s Title IX coordinator trains the members of sexual-assault hearing panels. In a recent appellate hearing in New York state court, it was revealed that she had misstated the university’s own definition of consent to make a guilty finding more likely, by ruling out “consent by conduct” to sex. SUNY’s lawyer conceded to the appellate judges that the coordinator’s explanations of Plattsburgh policy to the tribunal members were “admittedly confusing.”

The head of a Title IX disciplinary panel at the University of North Carolina, Charlotte, testified in federal court that his institution’s training prompted him to deny the accused student a chance to present friendly, post-incident text messages the accuser sent to him, even though they contradicted her claim that she had come to fear him after they had sex. The panel chair said that the training allowed the tribunal to consider only any messages that “directly answer[ed] the question of consent, to consent to sexual acts.” A federal judge called this exclusion of exculpatory evidence “troubling” and denied the university’s motion for summary judgment.

Such training regimes are the norm across the country, according to four lawyers we talked to and to public statements by two others who have through lawsuits obtained the training materials adopted by many schools. The training materials used by the vast majority of colleges still remain secret.

The new regulations that Betsy DeVos has promised to issue regarding campus proceedings—probably next fall, after publishing proposed rules and considering public comments—will likely continue to require training of some kind, which, at least for investigators, is sensible if it is done well.

Meanwhile, the training materials we have seen are flatly contrary to the Trump administration’s interim guidance for colleges on campus sexual-assault allegations, which provides that “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX.” DeVos has repeatedly called for colleges to make their processes fair to accused students as well as their accusers.

The time is ripe for some of the accused to file complaints with the Department of Education’s Office for Civil Rights challenging these training programs as violating Title IX’s prohibition on sex discrimination. Such complaints would encourage the Education Department to require that schools make public the contents of their training for sexual assault investigations and tribunals. The accused—many of whom have wrongly assumed that they would be treated fairly and the truth would set them free—would then know what they are up against.

KC Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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Not surprisingly, DeVos was immediately attacked. From her poor performance at her Jan. 17 nomination hearing to her preference for charter schools over public education and her Oct. 2 decision to rescind 72 policy documents on the rights of students with disabilities, DeVos has been a lightning rod. The campus sexual-assault speech was another opportunity for opponents to strike. On a call with activists convened in response to her speech a day later, former Vice President Joe Biden weighed in. Biden, who had been the force behind the Obama regulations, called supporters of the DeVos approach “culturally Neanderthals,” and told the activists they needed to stand up against people like “those Nazis marching” in Charlottesville.

Less predictable was the support DeVos received from other, traditionally liberal quarters. She won cautious applause from the editorial boards of the Washington Post, the Boston Globe and USA Today. Even more surprising, she is making common cause with some respected feminist law professors, major organizations of lawyers and even California Governor Jerry Brown, a progressive Democrat. On Oct. 15, Brown vetoed a bill designed to perpetuate the Obama regulations in his state, citing some “colleges’ failure to uphold due process for accused students.”

Most important, universities seeking to comport with the 2011 orders, which were adopted without the usual vetting by public notice and comment, have fared poorly when sued. Since 2011, accused males who say they were wrongly punished have been on the winning side of 69 judicial decisions–mostly preliminary rulings–and fewer than 50 have lost, according to my co-author, professor KC Johnson of Brooklyn College, an expert on campus due-process debates, who keeps a tally of lawsuits by students who say they were wrongly accused.

The Obama Administration’s actions on campus sexual assault were a textbook example of regulatory overreach. In the name of enforcing Title IX, it ordered thousands of universities to find an accused student guilty even if the evidence tipped only slightly (as by 51% to 49%) against innocence, impose sharp limitations on cross-examination of accusers and adopt “training” rules for campus courts.

AFT President: Betsy DeVos and Donald Trump Are Dismantling Public Education

After DeVos’ agency formally rescinded the Obama mandates with a stroke of a pen on Sept. 22, the Education Department announced that it would develop detailed replacement regulations for campus sexual-assault cases, publish them, invite public comments and then adopt final rules, probably by next fall. In the interim, it announced less-than-forceful guidance for schools on Title IX. In August, four feminist Harvard Law School professors wrote a joint letter to the Education Department urging reforms similar to those DeVos seems to be planning. But changing things on the ground will be a challenge at the many campuses that are steeped in presuming guilt.

Taylor co-authored, with KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books 2017)

This appears in the November 06, 2017 issue of TIME.

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Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more.

Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.

DeVos and her team have good reason for this two-stage approach to reforming enforcement of Title IX, the federal law prohibiting sex discrimination in higher education. She has vowed not to emulate the process used by the Obama administration in its now-notorious decrees of 2011 and 2014, when it issued dozens of pages of detailed “guidance” on Title IX compliance without prior notice and without giving the public a chance to comment.

The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.”

The Education Department’s announcement on September 22 was presaged two weeks earlier in a major address by DeVos at George Mason University’s law school, where she expressed grave concern about the unfairness of the Obama decrees and of many campus sex tribunals and declared that “no student should be forced to sue their way to due process.” Around 180 accused students have sued their schools since the Obama administration’s April 2011 “Dear Colleague” letter.

The DeVos criticisms echoed those of distinguished civil libertarians, law professors, and journalists. They have deplored the now-revoked Obama requirements that schools, among other measures, use a very low burden of proof (“preponderance of the evidence”) for branding an accused student a rapist; all but abolish meaningful cross-examination of accusers; and subject accused students to a form of double jeopardy by allowing accusers to appeal not-guilty findings.

These requirements dramatically increased the chances of finding an innocent student guilty, as scholarly research by John Villasenor has confirmed. As a group of Penn Law School professors stated, the Obama-era guidance placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” And as 28 Harvard law professors asserted, this led too many schools to establish procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

The “Dear Colleague” letter rescinding the 2011 and 2014 guidance quoted each of these passages, emphasizing the importance of due process in a way that would have been inconceivable during the Obama years.

The frenzied reactions of many Democratic politicians and campus activists to DeVos’s carefully reasoned, balanced speech and to the September 22 guidance show how difficult it will be to replace today’s systematic discrimination against accused students with disciplinary systems that will be fair to accusers and accused alike.

The Education Department announcement included an apt quotation from one of the nearly 70 state and federal court decisions upholding (often on preliminary motions) lawsuits filed by accused students. The opinion, by Judge F. Dennis Saylor, assailed a decision by Brandeis University in which a student had been found guilty of “sexual violence” for such offenses as awakening his sleeping boyfriend with kisses.

In an understated indictment of the unfairness at the core of the Obama approach, Judge Saylor wrote: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. . . . Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome.”

The interim guidance, which will remain in place until the Education Department conducts its notice-and-comment process and issues new regulations, points universities toward procedures designed to pursue the truth rather than presume the guilt of the accused.

Thus, for example, the interim guidance allows a college to depart from the Obama-required “preponderance” standard and to use instead the more rigorous “clear and convincing” standard of proof, if that is the standard that the school uses in non-sex disciplinary cases.

The interim guidance also gives colleges the option of allowing meaningful cross-examination, which the Supreme Court has described as “the greatest legal engine ever invented for the discovery of truth,” and of giving accused students the right to appeal without subjecting them to appeals by accusers of not-guilty findings.

But it seems likely that few colleges or universities will respond to the interim guidance by creating fairer procedures. University of California president Janet Napolitano, for example, who had castigated the Obama decrees in a 2015 article, has changed her tune since DeVos started championing due process. Napolitano claimed that DeVos was too focused on “outlier” cases of unfairness and vowed that the UC system would retain its current procedures — which one state judge compared to a “kangaroo” court — no matter what the Education Department does.

Accusers’ rights organizations roundly condemned DeVos’s move and doubtless would join their many faculty supporters in aggressively attacking any college president who chooses fairness to both accusers and accused over presuming male guilt.

If most schools, as we expect, reject the Education Department’s invitation to abandon their current one-sided policies, what will Betsy DeVos do?

We hope and believe that she and her team will issue strong new regulations specifying procedures that schools must use to qualify as fair, including those sketched above.

During the months before new regulations can be adopted, probably the greatest impact of the interim rules will be felt by university lawyers, who can no longer argue in court — as they have done with some success — that any unfairness in their procedures was mandated by the Education Department. That dog won’t hunt any more.

The interim guidelines still leave much to be desired. For instance, the Education Department continues to allow schools to use a deeply problematic, Obama-blessed system in which a single person serves as lead investigator, prosecutor, judge, and jury.

But we hope to see such flaws fixed in the final regulations. And if they are not, the courts might have the last word. In a major decision issued September 25, a three-judge panel for the Sixth Circuit Court of Appeals, including judges nominated by presidents of both parties, ruled against the University of Cincinnati because it failed to give an accused student any chance to cross-examine his accuser.

The Sixth Circuit concluded that in “he said/she said” cases that turn on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.” This was an implicit rebuke to the Obama policy and makes it more likely that DeVos will not merely permit but also require cross-examination rights for accused students.

For the most part, DeVos continues to move in the right direction, against overwhelming odds, to create a fairer system for all students.

KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).

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With his legislative agenda in trouble, President Trump could do a lot of good by using his executive power to reverse an egregious example of the Obama administration’s bureaucratic tyranny. I refer to the 2011 command by the Education Department’s Office for Civil Rights, and subsequent orders, forcing thousands of schools to take an aggressive role in the investigation and punishment of alleged sex crimes on college campuses.

Under threat of losing federal funds, almost all schools have willingly complied with a procedural regime that effectively presumes the guilt of every accused student, 99% of whom are male. These procedures include a virtual ban on cross-examination of accusers, a rushed process making it hard for an accused student to prepare a defense, and a mandate that those found innocent be subjected to appeals by accusers—a form of double jeopardy. The OCR also demands that schools judge guilt on the “preponderance of the evidence,” not the more rigorous “clear and convincing evidence” standard that was often used before, or the “beyond a reasonable doubt” standard that prevails in criminal cases.

Many universities have adopted other rules that compound the unfairness OCR explicitly demands. These rules redefine rape and sexual assault so broadly as to include almost all alcohol-fueled sex and many other commonplace, consensual sexual practices. Administrators have empowered campus sex bureaucrats—whose main mission is to please OCR—to decide accused students’ fates and “trained” them to view accused males as almost always guilty. Lawyers for the accused are barred from speaking in campus proceedings. The accused are often denied the right to see specific allegations or evidence against them.

OCR-mandated procedures have largely demolished due-process protections for many innocent (as well as guilty) accused males. Hundreds if not thousands have been falsely branded as rapists and expelled or suspended, with life-changing consequences.

So far Mr. Trump and Education Secretary Betsy DeVos have done nothing to limit the damage to justice and fairness from the Obama-era policy. The longer the status quo continues, the harder it will be to dislodge. Mr. Trump and Mrs. DeVos should require that schools either provide due process to accused students or leave alleged sex crimes to law enforcement.

The easiest and most obvious step toward reforming this wrongheaded system would be to revoke the OCR mandates. They came in the form of “guidance” for interpreting Title IX’s ban on sex discrimination, not as a formal, legally binding regulation. That means they could be revoked by the stroke of a pen.

But that step alone will not suffice. Nor can the courts undo much of the damage, although they have ruled in favor of many of the more than 100 accused males who have sued their schools. Guilt-presuming rules will remain in force at most federally funded colleges and universities unless the Trump administration requires them to respect due process, as well as the Title IX rights of both sexesto be free from sex discrimination.

Specifically, the administration should undertake the kind of rule-making its predecessor avoided by issuing guidance. It should gather evidence showing that many schools have systematically discriminated against accused students, which violates Title IX because those students are overwhelmingly male. And it should require universities that choose to adjudicate alleged sex crimes to adopt rules that protect the rights of accused students as well as accusers.

Those rules should, at a minimum, include rights to notice of the allegations and evidence, adequate time to prepare a defense, a fair hearing before an impartial panel, instructions that panelists presume accused students innocent until proven guilty, legal representation in campus proceedings, cross-examination (by a lawyer or other advocate) of all witnesses including the accuser, and a meaningful appeal of any adverse finding.

While such forceful regulatory action may at first blush make conservatives uneasy, it is the only way to counteract the vast damage done by the previous administration on this issue.

Sexual assault is a grave crime. Alleged victims should be treated with great kindness and respect, and violent criminals brought to justice according to the law. But there is no evidence that OCR’s commands have reduced the number of sexual assaults. By steering real victims away from police, OCR might well have kept some dangerous rapists out of prison, where they belong.

Mr. Taylor is coauthor with K.C. Johnson of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter Books 2017).

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Because the court sided with the president, Obamacare will continue in effect with no change from the current pattern of distributing to many millions of low-and-middle-income people in all 50 states the premium subsidies (in the form of tax credits) that make health insurance affordable for many or most of them.

Obama declared soon after the decision was announced that “the law is working and it’s going to keep doing just that. This is health care in America.”

Chief Justice John Roberts, the author of the opinion, and Justice Anthony Kennedy joined the four more liberal justices over a strong dissent by the three more conservative ones, wisely bowing to the clear, though incompetently expressed, intent of Congress to make health insurance affordable in all 50 states.

Roberts and Kennedy did the right thing despite Kennedy’s vote three years ago to strike down a key provision; despite the furious attacks they could expect from conservatives calling them traitors; and despite the tensions between Thursday’s decision and the principles of “textualist” statutory interpretation that both men largely espouse. (More on that below.)

Ironically, many Republican officeholders and politicians also will welcome the decision, at least privately.

They would be in a very difficult position had the Court adopted the dissenters’ view that a few words buried deep in the law’s 2,700 pages made almost 6.4 million low-and-middle-income people in the 34 affected states ineligible for subsidies and thus, in most cases, unable to afford insurance.

Roberts wrote persuasively for the majority that taken as a whole, the language, contextual meaning, structure, history, and overarching purpose of the Affordable Care Act (ACA) made legal in all 50 states the subsidies that the Obama administration has been distributing to make their health insurance affordable.

While admitting that the arguments of the dissenters and the plaintiffs about the “plain meaning” of the relevant ACA provision were “strong,” the chief justice held that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Spirited dissent

Justice Antonin Scalia’s dissent, joined by Clarence Thomas and Samuel Alito, was characteristically hyperbolic.

They thundered that the decision was “absurd,” “feeble,” “indefensible,” “interpretive jiggery–pokery,” and shows that “[w]ords no longer have meaning,” while concluding that “the discouraging truth [is] that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes top uphold and assist its favorites.”

The dissenters, like the plaintiffs in the case, King v. Burwell, argued that people in the 34 states that have left it to the federal government to establish the ACA-required online insurance “exchanges,” or marketplaces, rather than establishing exchanges for themselves, do not qualify for the premium subsidies.

They claimed that section 36B of the ACA means what it says when read literally and without regard to Congress’ intent: that subsidies are available only to people “enrolled . . . through an exchange established by the state.”

Chief Justice Roberts, however, held that while the law was “ambiguous,” the majority’s interpretation was both consistent with “the way different provisions in the statute interact” and necessary to avoid defeating the ACA’s purpose by sending insurance markets in the federal-exchange states into an “economic death spiral.”

Without premium subsidies, he explained, many people in those states could not afford insurance; many of those would become exempt from the law’s mandate that they buy insurance; other healthy people would also drop insurance; and premiums would soar.

Roberts further explained that the ACA “contains more than a few examples of inartful drafting,” because “Congress wrote key parts of the Act behind closed doors, rather than through the traditional legislative process. . . . As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Still, he said, a “fair reading” must take into account the fact that Congress passed the ACA “to improve health insurance markets, not to destroy them.”

Scalia retorted in his dissent that the Roberts interpretation “is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State” means ‘Exchange established by the State or the Federal Government“? He added that “[o]nly when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake.”

The closest the dissent came to addressing the law’s clear purpose of improving health insurance markets was to say that “even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act.”

Scalia added that “[w]e lack the prerogative to repair laws that do not work out in practice,” and that the Court’s “revision” of the ACA was not “respectful of congressional authority” but rather “judge-empowering” — and in a way that authorizes the federal government “to spend tens of billions of dollars every year in tax credits on federal Exchanges.”

Opposite decision

A decision going the other way could have caused the collapse of health insurance markets in the 34 affected states, with few but sick people continuing to be insured and, thus, soaring premiums.

Such a ruling against the president also would have sown conflict among Republican politicians and presidential candidates.

Congress would have been under heavy Democratic pressure to adopt federal legislation nullifying the Court’s decision lest Republicans be blamed for helping the Court take health insurance away from millions of Americans. Republican officials in the affected 34 states would have been under great pressure to create their own insurance exchanges.

But efforts to help Democrats “save” Obamacare would have offended Republican base voters.

Unlike the constitutional challenge to the ACA’s so-called  “individual mandate” that the justices rejected by 5-4 on June 28, 2012, Thursday’s decision focused on deciding what the subsidy provisions of the massive, hastily drafted ACA mean.

Roberts stunned Court-watchers when he sided with the four liberal justices and upheld the individual mandate in the 2012 decision, National Federation of Independent Business v. Sebelius.  His usual allies — Kennedy, Scalia, Thomas, and Alito — angrily assailed him. Many other conservatives called him a traitor.

This barrage was intensified by a well-sourced news report that Roberts had initially voted to strike down the individual mandate and changed his mind after liberals led by Obama had preemptively denounced any decision to strike down the mandate as politically motivated conservative “judicial activism.”

The mounting crescendo of conservative denunciations of Roberts will be even more bitter this time.

Had Roberts (and Kennedy) voted against Obama, on the other hand, it would have fed the kind of attacks that the chief justice dreads on the Roberts Court’s conservative, Republican-appointed majority as a bunch of robed politicians.

Textualism vs. intent

King v. Burwell, brought against Health Secretary Sylvia Mathews Burwell by four Virginia plaintiffs, posed a problem of principle for Roberts and Kennedy that is not widely understood. As noted above, both largely espouse the “textualist” approach to statutory interpretation embraced by the court’s other conservatives, and many others.

Textualism ignores the “congressional intent” proclaimed by congressional leaders and heeds only the words of a law’s text. One major justification for this approach is that a statute’s text is usually the best guide to what Congress meant, and the most resistant to manipulation by politicized judges. The other is to force Congress to say what it means and mean what it says for the sake of clarity and consistency in the law.

Textualism works pretty well with garden-variety statutes. But what’s a textualist to do when Congress quite obviously did not mean the words (“established by the state”) that some bleary-eyed staffer inserted into a massive pile of paper that no member (or few) ever read? And that nobody caught because of the peculiar politics that prevented that pile of paper from going to a conference committee for vetting? And when the law, like it or not, is enormously important?

Is the best answer Justice Antonin Scalia‘s suggestion at the March 4 oral argument that the court must read “established by the state” literally even if the wording “may not be the statute [that Congress] intended” and even assuming that it might “produce disastrous consequences?”

Roberts and Kennedy appear not to think so, and it’s a good thing too. Their votes, if not the main thrust of the Roberts majority opinion, seem to embody what a pragmatist might say:

“We all know that those four words were a huge blunder, saying the opposite of what Congress meant. But like it or not, this law is so important, and the wreckage caused by rigorous application of textualism would be so great, that we should rise above principle, put clarity and consistency aside this time, and do what we know Congress intended.”

Solicitor General Donald Verrilli made no such pragmatic argument in defense of the Obama interpretation, probably out of concern that it might seem unprincipled to textualist justices. Instead, he argued that in the context of other ACA provisions, the words “provided by the state” are a “term of art” that mean the opposite of what they say.

Verrilli’s argument was a stretch. But it worked — if only because Roberts and Kennedy were willing to temper their textualism with a dose of pragmatism.

Another challenge

King v. Burwell is not the last major legal challenge to Obamacare. Another case raises a possibility that despite the ruling for Obama on Thursday, billions of dollars in ACA subsidies for insured people with modest incomes may still be in peril.

In House of Representatives v. Burwell, the Republican-led House argues that the president violated the Constitution by using Treasury funds that Congress had not appropriated to pay for $175 billion in subsidies over 10 years. The administration has been using the money to reimburse insurance companies, as provided by the ACA, for helping modest-income insured people reduce out-of-pocket costs including deductibles and copayments.

The administration initially asked Congress to appropriate the money. Then, when Congress did not act, it claimed that it already had authority to use a separate account established for tax credits and refunds. Calling the payments an urgent priority, it proceeded with the spending in early 2014.

The House claims that Obama thereby violated Article I, Section 9 of the Constitution. It says: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

This “power of the purse” is seen by Congress as its most important protection against presidential usurpation of power.

The lawsuit got an apparently respectful reception from Judge Rosemary Collyer, of the U.S. District Court for the District of Columbia, at a spirited hearing on May 28. She aggressively challenged Justice Department lawyer Joel McElvain’s argument that the House had no legal standing to sue.

“So it is your position that if the House of Representatives affirmatively voted not to fund something… then that vote can be ignored by the administration, because after all no one can sue them?” Collyer asked McElvain. She added: “I want you to explain . . . why it’s not an insult to the Constitution.”

Judge Collyer, who was appointed by President George W. Bush, said she had “no idea” how she would rule on the standing issue, which is so far the only one before her.

The House filed its highly unusual lawsuit challenging the administration’s spending last November; the suit also seeks a ruling that the administration violated the ACA when it delayed implementation of the ACA’s mandate that certain employers provide health insurance to their workers.

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The program, which is run by the U.S. Department of Health and Human Services (HHS), has raised alarms among congressional critics, who call it a “slush fund,” because the department can spend the money as it sees fit and without going through the congressional appropriations process. The sums involved are vast. By 2022, the department will be able to spend $2 billion per year at its sole discretion. In perpetuity.

What makes the Prevention and Public Health Fund controversial is its multibillion-dollar size, its unending nature (the fund never expires), and its vague spending mandate: any program designed “to improve health and help restrain the rate of, growth” of health-care costs. That can include anything from “pickleball” (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.

“It’s totally crazy to give the executive branch $2 billion a year ad infinitum to spend as they wish,” said budget expert Jim Capretta of the conservative Ethics and Public Policy Center. “Congress has the power of the purse, the purpose of which is to insure that the Executive branch is using taxpayer resources as Congress specified.”

The concerns are as diverse as the critics. The HHS Inspector General, in a 2012 “alert,” was concerned that the payments to third-party groups came dangerously close to taxpayer-funded lobbying. While current law bars lobbying with federal money, Obama administration officials and Republican lawmakers differ on where lawful “education” ends and illicit “lobbying” begins. Nor have federal courts defined “lobbying” for the purposes of this fund. A health and Human Services (HHS) department spokesman denies that any laws were broken and the inspector general is continuing to investigate.

Republicans in both the House of Representatives and Senate have complained that much of the spending seems politically motivated and are alarmed that some of the federal money went to groups who described their own activities as contacting state, city and county lawmakers to urge higher taxes on high-calorie sodas and tobacco, or to call for bans on fast-food restaurants within 1,000-feet of a school, or total bans on smoking in outdoor venues, such as beaches or parks. In a May 9 letter to HHS Secretary Sebelius, Rep. Fred Upton (R,Mich) wrote that HHS grants “appear to fund lobbying activities contrary to the laws, regulations, and guidance governing the use of federal funds.” His letter included the latest in a series of requests for more documents and complaints about responses to previous requests.

Some Democrats, including Obamacare champion Sen. Tom Harkin (D, Iowa), are extremely unhappy with another use of Prevention Fund money. The Obama Administration plans to divert $453.8 million this year from that fund to use for administrative and promotional efforts to enroll millions of people in health insurance exchanges that are said to be vital to Obamacare’s success. Harkin calls this shift, which has not been authorized by Congress, “an outrageous attack on an investment fund that is saving lives.”

This extraordinary fund transfer coincides with HHS Secretary Kathleen Sebelius’s much-criticized solicitation of health industry officials for large “voluntary” corporate donations – on top of hefty tax increases – to help implement Obamacare. Together, they give the appearance of a desperate Administration effort to avoid the kind of “train wreck” that Senator Max Baucus (D, Montana), a principal architect of Obamacare, recently said he fears. That’s also one reason why Republicans who want to kill Obamacare refuse to provide additional funding for the exchanges.

An HHS spokesperson responded to an inquiry about the “lobbying” complaints by saying that “HHS is committed to proper oversight and monitoring of appropriated funds, and to awardees’ compliance with all applicable regulations and statutes related to lobbying activities.” As to the shifting of the $453.8 million, the spokesman said that it was necessary “because Congress did not provide the resources requested” and it would help individuals “sign up for affordable health coverage by supporting . . . call centers that provide customer service, consumer education and outreach.”

The lobbying controversy is akin to conservative complaints about the 2009 “stimulus” legislation, in which HHS directed some $373 million to a “Communities Putting Prevention to Work” fund to states, counties and cities and then onto to health advocacy organizations described in a Wall Street Journal editorial as “liberal pressure groups lobbying for fast-food taxes.”

With those stimulus grants largely spent, the Administration has used Prevention Fund money – dispensing more than $290 million in fiscal 2012 and 2013 combined – for very similar “Community Transformation Grants.” As in the case of the earlier grants, HHS made the grants through the federal Centers for Disease Control and Prevention (CDC). Public documents, including CDC descriptions of grants’ goals as well as the reports that grantees must file, are honeycombed with references to seeking state and local policy changes, such as tax hikes on sugary beverages and tobacco and zoning restrictions on fast-food establishments.

Congressional investigators point to documents and federal websites, which detail the spending that critics call “illegal lobbying.” A few of the more than 100 examples cited by critics:

In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”
The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”
A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.

Among those who have expressed concern about questionable and possibly illegal use of Obamacare Prevention Fund money to lobby – an ambiguous term that the Administration interprets narrowly and its critics broadly – are HHS Inspector General Daniel Levinson; Sen. Susan Collins (R, Maine); and Chairmen Darrell Issa (R, CA) of the House Oversight and Government Reform Committee and Fred Upton (R, MI) of the House Energy and Commerce Committee.

Inspector General Levinson, a respected and veteran independent investigator, was first appointed to his position overseeing the vast HHS bureaucracy by President George W. Bush. He was retained in that job by President Obama, who also named him to the Government Accountability and Transparency Board. Last June 29, Levinson sent CDC Director Thomas Frieden an “EARLY ALERT.”

It warned that reports posted by CDC grantees “contain numerous examples of activities that, on their face, may violate anti-lobbying provisions,” and that “some of the CDC information, as well as the non-CDC resource materials posted to the CDC web site, appear to authorize, or even encourage grantees to use grant funds for impermissible lobbying.” The “alert” said that the IG would continue to “evaluate more broadly” compliance with lobbying restrictions. A Levinson spokesman declined recently to elaborate.

Collins, a leading Senate moderate, cited copious evidence in a May 1, 2012 letter to Sebelius that CDC has provided “official guidance to grantees that appears to include an expectation that federal funds are to be used for strategies that result in changes to state and local policies and laws.”

While stressing strong support for “the wellness and prevention mission of the CDC,” Collins cited examples including a report to the agency by the Pennsylvania Department of Health, which received a $1.5 million CPPW anti-tobacco grant in 2010. Thanks to the federal money, the Health Department reported, “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”

HHS and CDC say that not only have they heeded these complaints, but as HHS stressed in an April 1 letter to Upton, they have been committed all along to “proper oversight and management of appropriated funds, and to awardees’ compliance with all applicable regulations and statutes related to lobbying activities.”

Spending to influence state and local legislation, critics claim, violates a web of overlapping federal laws, beginning with the federal Anti-Lobbying Act of 1919, as amended in 2002, which says: “No part of the money appropriated by . . . Congress shall . . . be used directly or indirectly to pay for any personal service, . . . telephone, letter, printed or written matter, or other device, intended . . . to influence in any manner a member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.”

This language is clear, unambiguous, and much broader than the HHS regulations on lobbying. To be sure, these restrictions have long been interpreted narrowly by the executive branch, a bipartisan tradition that goes back at least to the administration of President George H.W. Bush. And the Justice Department has never enforced the law against anyone.

Still, the Sebelius interpretation of the Anti-Lobbying Act takes narrow interpretation to extremes, flying in the face of the statute’s very specific language. Sebelius testified on March 1, 2012 that the statute’s lobbying provisions don’t apply to “local lobbying” or lobbying by grantees, while acknowledging that a 2012 appropriation provision – which unlike the Anti-Lobbying Act provides no penalties for violators – barred such forms of lobbying.

HHS Assistant Secretary for Legislation Jim Esquea made a more detailed argument to the same effect in an April 1, 2013 letter to Rep. Upton, asserting that the statute prohibits “only large-scale, high-expenditure, ‘grass roots’ lobbying campaigns conducted by federal agencies that expressly encourage members of the public to contact their elected representatives with respect to legislative matters.” But Esquea relied on strained interpretations of obsolete precedents predating major amendments that, in 2002, explicitly broadened the Anti-Lobbying Act to cover for the first time lobbying of state and local officials.

CDC guidelines permit the state and city agencies that it funds “to work directly on policy-related matters across their equivalent branches of state or local government.” That sounds reasonable enough. But to critics it sounds like the guidelines would allow, if not encourage, a city health department to spend federal money on lobbying (in the fullest sense of that word) state and local lawmakers to raise taxes on tobacco and sugary beverages.

Some grants seem to fit this interpretation. A $7.6 million CPPW grant to the County of St. Louis to fund an anti-smoking “Community Action Plan” for local activists. Under that plan, “the Leadership Team will meet with the Governor and state legislators to advocate for the repeal of [the state law] that prohibits municipalities from levying their own cigarette excise taxes.” In quarterly reports to CDC for late 2010 through mid-2012 on how it had spent the federal grant, St. Louis County said: “Leadership Team members . . . met with officials from two municipalities about adopting a comprehensive smoke-free ordinance. . . . Coalition members met with two County Council members and the County Executive about strengthening the County’s new smoke-free ordinance. . .. Several people, including restaurant owners, testified at three consecutive County Council meetings in support of removing exemptions from the County’s smoke-free ordinance.”

Finally, St. Louis County used almost $2 million of its federal grant to pay the public relations-lobbying firm Fleischman Hillard for a media campaign to strengthen an anti-smoking ordinance and push related agendas.

Many grantees and the federal bureaucrats who finance them maintain that they can legally engage in efforts to “educate” both the public and officials about, say, the public health benefits of taxing tobacco and sugary beverages so as to reduce consumption. Chairman Upton, on the other hand, rejected in an August 2012 letter what he called “the improper distinction made by CDC between lobbying and ‘education campaigns.’

Enlisting other levels of government to do things [the federal government] can’t do openly on its own is the latest example of propaganda and politicizing efforts that only pretend to represent policy reform,” said Tom Miller, an expert in health policy and law at the American Enterprise Institute.

Other conservative health care policy advocates, such as Dr. Eric Novack, an orthopedic surgeon in Phoenix, complain that using federal dollars to lobby for more taxes and other liberal causes at the state and local levels is an abuse of power that skews the natural balance of state and local political forces. “With the hundreds of millions of state and federal dollars annually flowing their way, [health care advocates] are engaging in the lobbying equivalent of ‘shock and awe’ to get ever more money for themselves and to thwart efforts at real reform”, said Dr. Novack.

Critics have also suggested that Sebelius (and Obama) “lack the legal authority,” as Rep. Issa put it in his April 19 letter to Sebelius, to divert $453.8 million in Prevention Fund dollars to help pay for the establishment and operation of health insurance exchanges. Argues Grace-Marie Turner, president of the Galen Institute, an Alexandria, Virginia-based health-care think tank:

“The Obama administration is being very creative in devising programs it says fit within the definitions of ‘prevention’ and ‘public health.’ The reality is that this is a slush fund. The administration is using taxpayer dollars to further its political goals, without any congressional input. That is an open invitation to misuse and abuse of taxpayer dollars.”

But short of an unlikely bipartisan agreement, there’s not much that anyone in Congress can do about such complaints.

Strikingly, the most passionate denunciations of the $453.8 million diversion have come from a senior Democrat, Sen. Tom Harkin, self-described author of the Prevention and Public Health title of the Affordable Care Act. Harkin succeeded the late Ted Kennedy, (D, MA) as Chairman of the Senate Health, Education, Labor and Pensions Committee and has vowed to carry on Kennedy’s legacy of seeking universal access to health care and, especially, full funding of prevention programs.

“It is ill-advised and short-sighted to raid the Prevention Fund, which is making absolutely critical investments in preventing disease, saving lives, and keeping women and their families healthy,” Harkin said in his May 7 floor speech. “When it comes to Prevention, this Administration just doesn’t get it. . . . To slash money from this fund . . . is to cannibalize the Affordable Care Act in ways that will cost both money and lives. It is a violation of both the letter and spirit of this landmark law.”

In other words, the Democratic Chairman of the Health Committee is calling the Democratic President’s “raid” on the Prevention Fund illegal. But an HHS spokesperson counters that “this short term investment will result in a long-term public health gain by helping millions of people get access to care and improve our nation’s health.” Other officials stress that with an October 1 Obamacare deadline to start enrolling millions of individuals online, finding the money to create and implement the insurance exchanges is a major challenge to the success of Obamacare.

And money for setting up the exchanges is very, very short, despite an overall Obamacare price tag of trillions over coming years. One reason is that the Administration underestimated the cost, in part because contrary to its expectation, only 17 states have chosen to operate their own insurance exchanges. Another reason is Congress’s refusal to appropriate more money for such administrative expenses.

Meanwhile, it may not be easy to convince young or healthy people without employer-based insurance – especially men, and especially with incomes too high to qualify for Obamacare subsidies – that it would be a rational economic choice to buy a government-approved insurance policy costing (the Congressional Budget Office estimated in 2010) over $4,500 a year for an individual. By contrast, the Obamacare fine will be far smaller for some individuals.

The alternative choice of paying a relatively inexpensive Obamacare penalty for refusing to buy insurance may seem more attractive to many, especially after the Supreme Court stressed last June that such a choice carries no stigma of law-breaking. The Affordable Care Act set the penalty (which varies depending on income and the year) at only a fraction of what the insurance would cost people who don’t qualify for subsidies. At the same time, it guarantees a healthy person who chooses the penalty rather than the insurance the right to reverse course and buy the insurance at no extra cost not too long after he gets sick or injured.

So, as the Administration sets out to recruit enough young, healthy people to keep premiums from soaring, it may need every dollar it can find for advertising and outreach.

What some critics call a “slush fund,” may well turn out to be Obamacare’s own insurance policy.

The post Obamacare’s Slush Fund Fuels A Broader Lobbying Controversy appeared first on Stuart Taylor, Jr..

“When it comes to these marijuana initiatives, I think among the kinds of things we will have to consider is the impact on children,” Holder told a House appropriations subcommittee. “We are certainly going to enforce federal law.”

At a National Press Club luncheon, Kerlikowske asserted that “neither a state nor the executive branch can nullify” federal anti-marijuana laws, adding that “using marijuana has public health consequences.”

But the impact on children, and the public health consequences, are likely to be bad if the Obama administration cracks down on the hundreds of marijuana businesses that Colorado and Washington are preparing to license, regulate, and tax.

Such action would likely backfire — warping both federal and state drug policy for years to come — by aggravating the harm to public health, especially to kids, and the leakage of marijuana across state lines that the administration and other opponents of legalization want to prevent.

How would a crackdown backfire? By producing — immediately in Colorado, and eventually in other states — an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers lack the manpower to contain and the legal power to force the states to contain.

Consider how a federal effort to abort the state experiment would unfold in Colorado, where the voters (unlike those in Washington) chose to create both a state-regulated marijuana industry and another, largely unregulated, one.

In the state-regulated sector, marijuana growers and distributors must obtain licenses to do business, sort of like liquor licenses. They will pay many millions of dollars in state and local taxes and licensing fees. Colorado clearly covets the new sources of revenue, but a significant portion of that money will be spent on regulatory efforts that bolster the federal interest in discouraging exports across state lines while seeking to minimize sales outside the state-regulated system, sales to minors, unduly large quantities, impure and dangerously potent products, organized crime involvement, and other abuses.

The unregulated sector, which is already operating, comes from the initiative’s repeal of all penalties for growing up to six marijuana plants at a time at home (yielding roughly 1,000 marijuana doses per plant per year) and giving away up to an ounce (yielding roughly 200 marijuana doses) to anyone else.

If the administration exercises its broad prosecutorial discretion to allow the state-regulated market to operate without federal interference, that’s where most users will get their marijuana. Market forces will keep the grow-your-own-and-share market small.

But if the administration puts Colorado’s state-regulated marijuana sector out of business — as it probably could do, since that sector would consist of a limited number of easily identified operators — the grow-your-own-and-share market could well expand to huge proportions.

And there is no federal solution in sight to the public-health dangers posed by this grow-your-own-and-share market, or to its obvious potential for leaking into the criminal black market and across state lines.

In a nation with 4,400 DEA agents — one for every 3,000 regular marijuana users and one for every 170 state and local cops — it would be impossible for the federal government, acting on its own, to police more than a random handful of marijuana growers, or stop the considerable number who would sell some of it.

In addition, under the Supreme Court’s 10th Amendment precedents, the federal government has no legal power either to prevent states from simply repealing their own marijuana penalties or to require states to help enforce federal law.

The states can, in other words, simply stand aside and let the feds wage war alone on marijuana — which they lack the manpower to do.

So the result of an administration attack on state-legalized marijuana in Colorado would be to let millions of unregulated, unlicensed, untaxed, home-grown marijuana plants bloom, without state controls on quality, purity, or potency.

Importantly, such an attack would also spur leaders of the well-heeled marijuana movement to push for legalization without regulation both in Washington state (which currently bans all marijuana growing and distribution outside the regulated system), and in the other states (including Alaska and California) that appear likely to adopt partial legalization in the coming years.

These states might then emulate Colorado’s grow-your-own provisions, or simply repeal state penalties for small-scale marijuana cultivation and distribution as well as possession. (Federal law enforcers almost never go after mere users of marijuana.)

So if Holder and Obama want to do what’s best to protect kids, and public health, and to prevent exports across state lines, the path of federal-state cooperation is more promising than a doomed effort to crush the Colorado and Washington experiments. After all, the states want to protect public health and kids too. That’s what the regulations will be for.

And, as it happens, the federal Controlled Substances Act contains a statutory directive that the attorney general “shall cooperate” with the states on drugs including marijuana. It also authorizes him “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”

Given that leverage, federal-state agreements could be used to bind the states to detailed commitments to protect federal interests as well as to specify what state regulators and state-licensed marijuana businesses can and cannot safely do.

With almost 60 percent of the public saying that the administration should not enforce marijuana laws in states that permit its use (and with 52 percent favoring legalization), the time is ripe politically for the federal government to work with Colorado and Washington to prevent state-legalized marijuana from metastasizing into an uncontrollable free-for-all.

Meanwhile, the two states have been working on their new regulations for over five months with no guidance at all from Washington, D.C. The time for presidential leadership on marijuana is now.

The post Federal Crackdown on Legalized Pot Would Backfire appeared first on Stuart Taylor, Jr..