But let’s slow down a bit. Although Mueller has warned Trump’s lawyers that he might subpoena the president if he refuses to testify voluntarily, he might well elect not to. The two sides could compromise on a deal for testimony on limited subjects or only in written interrogatories. Or Mueller might see the risks, delay, and other costs of starting a subpoena battle as outweighing the benefits—especially if the evidence he has gathered does not clearly implicate Trump in any serious crime. Mueller’s risk in starting a subpoena fight is that he might win less in the Supreme Court than he could have gotten in negotiations, or even lose entirely.

This last possibility is something that Trump’s critics greatly underestimate. The popular analysis is that the Supreme Court’s decisions in U.S. v. Nixon (1974) and Clinton v. Jones (1997) require the president to obey a subpoena to testify before Mueller’s grand jury. Harvard’s Laurence Tribe exemplifies those who hold such presumptions. “The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider in March. “So Trump would have to answer every question or be held in contempt—unless he takes the Fifth Amendment.”

We are far less confident in this reading of Nixon and Clinton and that the Supreme Court would award Mueller an unqualified win. If Mueller subpoenas Trump to testify, and Trump fights, then the Court may well decide to limit the questions that the president must answer, if not quash the subpoena altogether. It would have leeway to deal such a setback to the special counsel within the parameters set in the Nixon and Clinton decisions. And whatever the justices may think of this particular president, they will show more care for the needs of the presidency than have the analysts who favor a total victory for Mueller in any battle with Trump.

Let’s begin with U.S. v. Nixon, in which the Supreme Court rejected President Nixon’s assertion of executive privilege in the face of special prosecutor Leon Jaworski’s subpoena for tapes, documents, and other materials relevant to the criminal trial of the Watergate burglars. The Court unanimously ordered Nixon to turn over to Jaworski the secretly recorded Oval Office tapes that he had subpoenaed. While the Court recognized that executive privilege provides some protection for a president’s confidential communications, it also ruled that this protection must give way to the prosecutor’s need for evidence “demonstrably relevant” to the pending criminal trial of several indicted Nixon co-conspirators.

Analysts like Tribe construe this as a blanket rule enabling the special counsel to subpoena not just Nixon’s tapes, but also the current president’s testimony. “US v. Nixon (1974) held the president must comply with a grand jury subpoena for his Oval Office tapes,” Tribe tweeted recently. “There is no basis for treating a grand jury subpoena for the president’s live testimony any differently.” This ignores the key limits and nuances of the justices’ analysis in the 1974 case. The Court did not conclude that the criminal process always outweighs executive privilege; rather, it concluded only that “the legitimate needs of the judicial process may outweigh Presidential privilege” (emphasis added).

Nixon’s mistake was in asserting too categorical a privilege—too broad in scope and too far removed from the specific case at hand. The Court rejected his assertion of “an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of non-military and nondiplomatic discussion.” And it then struck a careful balance: Absent a showing of military or diplomatic need for executive confidentiality, a subpoena for documents for which there was a “demonstrated, specific need . . . in a pending criminal trial” must be obeyed.

It is not hard to see defenses that Trump’s lawyers could mount. They could attempt to distinguish the two investigations by stressing that the case against Trump actually involves diplomatic sensitivities. It is, after all, a Russia investigation. And they could argue that U.S. v. Nixon only requires them to disclose documents for which the special counsel can provide a “demonstrated, specific need” in a “pending criminal trial.” Requesting information for matters not directly tied to an already-filed indictment could fall short.

And whereas Tribe and others discount the difference between a trial subpoena for tapes and a grand jury subpoena for testimony, the distinction seems important to the Court’s own analysis in U.S. v. Nixon for at least two reasons. First, in 1974, the Court stressed that the president’s tapes were to be screened first by the trial judge in camera—that is, secretly—so as to minimize the risk of improper disclosure. Could today’s justices feel confident that presidential testimony would not be leaked by someone, no matter Mueller’s directives or promises? Second, the Court stressed that merely divulging tapes would not expose Nixon to a risk of “being harassed by vexatious and unnecessary subpoenas” by Jaworski or others. Again, could today’s Court feel so confident that Trump would not face a flurry of subpoenas? The ex-New York attorney general’s myriad legal actions against Trump—more than 100, as of last December—suggest otherwise, especially concerning at a moment when the president’s diplomatic and national-security burdens are every bit as sensitive as Nixon’s foreign-policy responsibilities in 1974.

And any president’s preparation for testimony before a grand jury on the broad range of topics allegedly proposed by Mueller’s team would be far more burdensome than simply requiring Nixon to hand over some tapes. The proc­ess of preparing for and giving sworn testimony under questioning by a special counsel who has already indicted Michael Flynn, Paul Manafort, and George Papadopoulos would be time-consuming and arduous.

If Mueller does subpoena the president’s testimony, we should expect a more nuanced outcome than the unqualified victory envisaged by Trump’s most confident critics. Perhaps Mueller would succeed in compelling the president to testify, but only if his questions are tailored narrowly, clearly justified in terms of his investigation’s specific needs, and constructed to minimize their impact on U.S. diplomatic or military sensitivities. It is worth remembering that, as former U.S. attorney Harry Litman observed recently on Lawfare, “no sitting president has ever been forced to provide testimony as a target of a criminal investigation.” Bill Clinton received a subpoena from independent counsel Kenneth Starr, but Starr eventually withdrew it after the two sides struck a voluntary deal for limited testimony.

* * *

Which brings us to Clinton v. Jones, the Supreme Court’s 1997 decision rejecting a presidential claim of immunity from civil suits while in office. Like Nixon, Clinton asserted a categorical privilege: “temporary immunity from civil damages litigation arising out of events that occurred before he took office,” in “all but the most exceptional cases.” Again, the Court rejected the absolutist approach. And again, it took care to define its ruling very specifically rather than giving prosecutors a blank check to subpoena presidents. Citing previous presidents’ cooperation with civil lawsuits, the Court reaffirmed that executive privilege cannot “bar every exercise of jurisdiction over the President” (emphasis added), but stressed that the courts must be cognizant of—and even give “utmost deference” to—the executive’s own responsibilities.

The justices struck a careful balance in 1997: “The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.” It predicted that its decision, “if properly managed by the District Court,” would not “occupy any substantial amount of [President Clinton’s] time.”

In hindsight, the Court’s confidence can be justly mocked. But regardless of whether today’s Court would emulate the Clinton-era Court’s naïveté, we expect that the justices would at least announce a similar rule: If the president shows that the special counsel’s requests, and the threat of other actions against the president, “could conceivably hamper the President in conducting the duties of his office,” then the lower courts should “manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Again, the Court’s cautious approach in Clinton v. Jones seems to point towards its strictly managing Mueller’s demands for answers, as well as managing other legal proceedings brought against Trump. Justice Stephen Breyer was particularly sensible of these risks in 1997, which he stressed in an emphatic concurring opinion, and one trusts that he would reason from those concerns if the issue returned to the Court today.

Thus, when critics assert, as Loyola law professor Jessica Levinson recently did to Vox, that “I consider this case all but settled by Clinton v. Jones,” it is less careful analysis than wish fulfillment.

The facts of the current situation, moreover, might well reinforce the justices’ appreciation for the need to carefully calibrate rules governing the president’s susceptibility to legal process.

First, they will be aware that the risk of being indicted by a zealous prosecutor for perjury, even for what might in fact have been an unintentional misstatement of fact, is so great that criminal defense lawyers now routinely advise clients to invoke the Fifth Amendment. The president’s habit of telling bald-faced lies on an almost daily basis would make grand jury testimony especially perilous before a special counsel who has already indicted multiple Trump subordinates. If the Court required President Trump to testify, it would be setting the stage for an unprecedented and politically explosive invocation of his Fifth Amendment right not to testify.

Second, the justices may recognize that Trump’s recent statements and actions suggest a willingness to use his pardon power broadly, to preemptively immunize people within Mueller’s crosshairs—perhaps including his own self. Again, the justices might well act to avoid such a cataclysm.

Neither of us relish taking such considerations into account. The fact that Trump is a persistent liar and that there is genuine risk that he would wield the pardon power as a weapon of self-protection are sad reflections on the character of this president. The Court’s decisions in the Nixon and Clinton cases were emphatically contextual, and so likely would be any Trump-related decision. Such considerations might well incline at least some on the Court to see a decision to order Trump to answer Mueller’s questions as more dangerous to the president’s ability to do his job than anyone foresaw at the time of the Nixon and Clinton decisions.

Again, a Supreme Court win for Trump does not seem to us likely, but it is far from impossible. And a split decision, with two or more justices siding with the president, might embolden Trump. The president might simply defy the order and direct U.S. marshals not to enforce it, setting up a risky constitutional standoff between the executive and judicial branches.

The president may also be immune to an actual indictment while in office, as the Justice Department’s Office of Legal Counsel concluded during both the Nixon and Clinton years. (Other experts strongly disagree.) To the extent that Mueller’s questions are aimed at the president’s own conduct, the Court might conclude that presidential immunity to indictment renders such questions superfluous and thus an unjustified burden on the president. It would further, probably, be deemed improper for a criminal investigator to gather evidence solely for possible use in a House impeachment proceeding.

* * *

For all these reasons, we doubt that the justices would without qualification order Trump to answer every question Mueller wishes to ask. The Court might well put a time limit on any questioning, which Trump could use to run out the clock before the prosecutors get to many of the questions that they want to ask. The president’s latest defense lawyer, Rudy Giuliani, suggested such a limit in his May 2 interview on Fox News: “Some people have talked about a possible 12-hour interview. If it happens, that’s not going to happen—I’ll tell you that. It’d be, max, two to three hours around a narrow set of questions.”

And the justices might limit the subject matter that Mueller could ask about. The president’s lawyers would surely argue that many or even most of Mueller’s proposed questions, especially those inquiring into Trump’s firing of former FBI director James Comey, should be ruled out if Mueller cannot give the Court a “demonstrated, specific need” for answers to those questions—the standard in U.S. v. Nixon.

Trump would no doubt tie his objections to questions about the firing of Comey—and threats to fire Mueller and deputy attorney general Rod Rosenstein—to his power under Article II of the Constitution to fire subordinates. It is so broad, some serious legal experts argue, that even an allegedly corrupt motive, such as firing a subordinate to squelch revelations of misconduct, cannot be obstruction of justice or any other crime.

This is a hotly contested topic. Scholars such as Josh Blackman of the South Texas College of Law in Houston have detailed the argument that the exercise of a core presidential power cannot be obstruction of justice. While others emphatically disagree, some lawyers who are no fans of Trump also caution that it might be unwise for the Court “to demand that any president account to a prosecutor for his intent in making a personnel change,” as William Taylor, a respected criminal-defense lawyer, told us. Taylor added that a “president might have good reason to fire a law enforcement official who persists in an investigation the president thinks is improper or politically motivated.” Indeed, even Comey himself noted to Trump during an early 2017 meeting “that he could fire me any time he wished.” Giuliani has raised this point in public.

In addition, there remains the controversy surrounding the propriety of the investigation itself. Deputy attorney general Rod Rosenstein’s extremely broad original grant of power to Mueller—to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”—has been assailed as improperly reaching beyond suspected crimes of the Trump campaign and beyond the terms of the Justice Department regulation that Rosenstein invoked. U.S. District Judge T. S. Ellis told Mueller aide Michael Dreeben during a May 4 hearing on the charges against former Trump campaign chairman Paul Manafort: “If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals [or] anything the special prosecutor is authorized to investigate.” “You don’t really care about Mr. Manafort’s bank fraud,” Ellis added. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever.”

The composition of the special counsel’s team and the exposure of private anti-Trump comments by two former members have additionally spurred critics to accuse it of partisan bias. Might some justices share that suspicion? And is this the context in which the Court would take the unprecedented step of granting a special counsel unqualified power to subpoena the president’s testimony?

As the Supreme Court showed in the Nixon and Clinton cases, it knows well how to protect the president’s privileges and responsibilities without putting him above the law.

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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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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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Unless the next two Supreme Court appointees are strong opponents of racial preferences — a most unlikely prospect — the Court’s role since the 1978 Regents of the University of California v. Bakke decision as a modest restraint on use of such preferences is at an end.

To be sure, Justice Anthony Kennedy’s opinion for the four-three majority, upholding a racial-preference plan at the University of Texas, did not say in so many words that the Justices will bless virtually any racial preference plan that comes before them. And he did include perfunctory lines about the need for “strict scrutiny” of racial preferences.

But barring a surprise Trump win in the presidential election (which I would find even more distressing than the Court’s decision), few if any Court-watchers expect any significant restraint on racial preferences to come from the Justices after this decision, Fisher v. University of Texas.

“Considerable deference is owed to a university,” Kennedy wrote, “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

He minimized as “a factor of a factor of a factor” the complex but clearly large role of race. Justice Samuel Alito, in a fifty-one-page dissent that he summarized from the bench, said more candidly that the decision amounted to “blind deference” to the “[c]onsideration of race [that] pervades every aspect of UT’s admissions process.”

Henceforth, as Alito asserted, “Courts will be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” From the bench, Alito added: “This is affirmative action gone berserk.”

History has proved that — despite lopsided, longstanding public disapproval of racial preferences — the universities and powerful special interest groups are committed to continuing them without end. And almost all legislative bodies go along, in part for fear of being trashed in the media as racists if they object.

(To be sure, California and a handful of other states have prohibited state-sponsored racial preferences by ballot initiatives — which universities have largely circumvented by using various proxies for race in their admissions process.)

Kennedy — who had never before voted to uphold a racial preference — abandoned or gutted a list of rules limiting such preferences (noted below) that previous Supreme Court precedents had announced, going back to Bakke.

Racial integration of our universities is, of course, a good thing. And universities have achieved considerable racial diversity through means such as the Texas “Top Ten Percent Plan.” But engineering diversity through large, overt racial preferences aggravates racial stereotypes and resentments and often leads to social isolation, academic struggle, and understandable bitterness among members of the preferred groups.

The racial-preference fingers on the scales of the admissions processes at Texas and across the country are far heavier than one might imagine from media reports.

The best available statistics from the University of Texas suggest that the black students admitted under the overt racial preference plan (as distinguished from the facially race-neutral Top Ten Percent plan) have, on average, had SAT scores as much 450 points lower than Asian-American admittees, and 390 points below whites, out of a total possible score of 2400.

And according to a 2009 book by Thomas Espenshade and Alexandra Walton Radford (both supporters of racial preferences), who compiled academic data from a sample of highly selective, mostly private colleges, black applicants received “an admissions bonus . . . equivalent to 310 SAT points” relative to whites and 450 points relative to Asians on a 1600 point scale.

For example, a “black candidate with an SAT score of 1250 could be expected to have the same chance of being admitted as a white student whose SAT score is 1560, all other things equal.” There are similar racial gaps in admitted applicants’ high school grades.

These differences in academic preparation lead directly to vast gaps in academic achievement among racial groups at selective universities including Texas, and to rude and depressing shocks for black and Hispanic students who find themselves struggling academically after being assured that they will do well. Richard Sander and I demonstrated this in a 2012 book, Mismatch.

For example, numerous studies by respected scholars have shown that disproportionate percentages of preferentially admitted black freshmen who aspire to major in science and other tough subjects are forced by bad grades to move to softer majors – and that they would be more likely to achieve their ambitions had they gone to less elite schools for which they were better qualified.

Another study shows that students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.

The Court’s decision is dispiriting for those of us who do not wish to see desirable positions in our society increasingly allocated by race, into the indefinite future, and who agree with the Court’s repeated assertion — most recently by Kennedy himself, just three years ago, in an earlier ruling in the Fisher case — that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.”

The Fisher decision is of course welcome to the Obama administration and its allies, who have largely abandoned previous assurances that racial preferences would be a mere temporary deviation from merit-based admissions.

Indeed, then-Attorney General Eric Holder announced in 2012 that “I can’t actually imagine a time in which the need for diversity” — and, he implied, for racial preferences — “will ever cease.”

Among the previously articulated Supreme Court restraints on racial admissions preferences that Kennedy’s decision implicitly cast aside are the rule that “outright racial balancing . . . is patently unconstitutional.” In Fisher, Kennedy upheld a Texas plan that was clearly designed to bring racial percentages within the student body more into line with the state’s demographics. That’s what outright racial balancing is.

The decision also cast aside, without quite saying so, previous holdings that “a race-conscious admissions program [may] not unduly harm members of any racial group.”

Even if the Texas preference plan does not “unduly” harm whites (a debatable proposition), it discriminates flagrantly against Asian-Americans, a fact ignored by the majority and demonstrated by Alito. It also harms a great many of the African-American and Hispanic-American supposed beneficiaries, as discussed above.

Kennedy went through the motions of upholding yet another Supreme Court rule which he in fact gutted: that universities have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice” to provide adequate diversity. The university demonstrated no such thing, as Alito devastatingly detailed.

And, of course, the new decision makes a dead letter of the Court’s caveat in its 2003 Grutter v. Bollinger decision that equal protection prohibits “enshrining a permanent justification for racial preferences.”

Again, this is not to say that Kennedy’s opinion — for liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor — overtly cast aside the Court’s previous holdings. (Chief Justice John Roberts and Justice Clarence Thomas joined the dissent. Justice Elena Kagan was recused.)

Rather, Kennedy interpreted them into insignificance by accepting every argument made by the university, no matter how implausible or inconsistent with the same university’s previous arguments in the same case.

Not to mention Alito’s point that “UT’s crude [racial] classification system is ill suited for the more integrated country that we are rapidly becoming.”

Or his additional point that UT’s emphasis on preferences for socioeconomically well-off black and Hispanic students — as distinguished from the mainly disadvantaged black and Hispanic students admitted through the Top Ten Percent Plan — flouts the “purpose of helping the disadvantaged” that was originally the heart of affirmative action.

It goes without saying that enduring racial and socioeconomic inequality causes deep wounds in our social fabric, and that educational gaps are at the heart of these dire problems. But the evidence shows that large racial preferences make things worse, not better, while neglecting our most promising working-class and low-income students and papering over the real problem.

That problem is the large racial gaps in early academic achievement symbolized by the undisputed fact that the average black twelfth grader has acquired no more academic learning than the average white eighth grader.

The only real solution is to improve the education received by these children from birth through high school. Every bit of energy that is spent on sustaining a failed system of racial admissions preferences would be far better invested in teaching kids enough to make them academically competitive when they arrive at college.

But the Court’s decision appears likely to facilitate the continued use of racial admissions preferences as an excuse for continued neglect of the crippling effects of bad K-12 education on many black and Hispanic children.

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By making clear that racial affirmative-action preferences in higher-education admissions are likely to have the Supreme Court’s blessing for many decades to come, the Court might—just might—have set the stage for a more candid and constructive public discussion about how to make preferences work more effectively for the intended beneficiaries.

The June 23 decision should end the siege mentality among defenders of racial preferences—and that, in turn, should lead to much-needed transparency and honesty about the costs as well as the benefits of the very large preferences that most selective schools have long used.

Barring an improbable change in the Court’s membership, Justice Anthony Kennedy’s opinion for the 4-3 majority in Fisher v. University of Texas gives universities very broad latitude to design race-conscious admissions programs that they believe will foster more inclusive, multiethnic communities and educate students to function effectively in an ever more diverse world.

The decision should also move defenders of racial affirmative action to confront the hard truth that many African-American, Hispanic-American, and other minority students are handicapped by inadequate K-12 educations and find themselves struggling academically at selective schools.

Students admitted with modest racial preferences often thrive in college. But a wealth of social science evidence shows that those who receive unduly large preferences often lag far behind classmates with much stronger high school grades and test scores. Many of these students lose intellectual self-confidence, abandon career aspirations, and sink into social isolation.

Well over 20 empirical studies over the past 12 years by serious scholars have confirmed the common-sense perception that most students learn less if they are thrust into environments in which most of their peers are much better prepared to learn difficult material. The research has included large, experimental studies conducted by some of the world’s top social scientists in such diverse settings as the Air Force Academy in Colorado and elementary education in Kenya.

These “mismatch effects,” as they are called, have been particularly well documented in the sciences and in law school. They help explain why African-Americans attending college are only one-seventh as likely as whites to attain a science Ph.D., why many are forced to abandon their dreams of becoming physicians or engineers, and why there are huge racial gaps in bar-exam passage rates.

But mismatch effects are neither preordained nor universal. Supportive academic environments can offset or eliminate them. When racial gaps between entering students are relatively modest, students of color can raise their games and gain ground in college on somewhat better-prepared white and Asian classmates.

Universities could increase the benefits of affirmative action and minimize the costs by the simple expedient of truth in marketing—that is, by disclosing closely guarded data showing the size, and the apparent effects on academic performance, of the preferences they use to reach the racial targets they set for themselves.

How large a preference is too large? There is no simple formula. But lifting the veil of secrecy that universities now use to conceal data about their preference programs would foster better understanding of the trade-offs and more informed discourse about best practices.

In the past, academically underprepared minority students have often been misled by the universities that recruit them about their prospects for academic success. Transparency would help these students assess the strength of the competition that they would be up against and which schools might work best for them.

The same is true for alumni children and recruited athletes, many of whom receive admissions preferences that are (with the exceptions of athletic stars and kids of very large donors) much smaller.

We urged the Supreme Court in an amicus brief in Fisher to require universities to be transparent about the size and workings of their admissions preferences and their academic effects. The Court, we now know, is not going to do that. But for the reasons given above, enlightened educators should embrace transparency voluntarily.

Why have they never done so? A major reason has been the fear that has grown over four decades that honesty about the size and scale of preferences, or about the reality of mismatch effects, would only provide ammunition for a broad Supreme Court attack on all affirmative-action programs.

This fear has led otherwise thoughtful people to disregard or deny strong evidence that mismatch is a serious problem, and to obstruct access to the data that could shed light on the actual effects of admissions preferences on intended beneficiaries.

But with the Supreme Court’s move in Fisher to broad tolerance for policies promoting racial diversity, this fear of a judicial attack has now been largely laid to rest.

University leaders, scholars, civil rights groups, and others should work together to make sure that when preference policies are used, they are used openly; that they are designed to benefit promising disadvantaged students of all races; and that academically vulnerable minority students are no longer misled about their prospects by colleges seeking to raise their diversity numbers.

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Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)

It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.

Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vot

Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.

If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.

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In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.”

You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

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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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MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

The post Why Did The Supreme Court Uphold The Health Law’s Subsidies? appeared first on Stuart Taylor, Jr..

MARY AGNES CAREY: Welcome. I’m Mary Agnes Carey.

By a vote of 5 to 4, the Supreme Court has ruled that family-owned, closely held corporations do not have to comply with the health law’s contraception coverage requirements if they violate the owner’s religious views. Legal analyst Stuart Taylor Jr. joins us now to discuss the decision. Thanks for being with us.

STUART TAYLOR: Nice to be with you.

MARY AGNES CAREY: Why did the court rule this way?

STUART TAYLOR: Well, the court held that under an act of Congress passed in 1993, the Religious Freedom Restoration Act, the right is conferred on all religious groups, including, the court said in this case for the first time, for-profit corporations as well as churches and, say, nonprofit religious groups — they all get broad protection of their religious freedoms. And in a very detailed analysis of the various steps you go through under this law, first, can you invoke protection at all if you’re a for-profit corporation. The court said yes. Then, does it substantially burden your religious exercise. The court said yes, because these companies have objections to providing contraception coverage, and then they go on and say is this the government’s least restrictive means they could use to serve the need of the women who want the contraceptives, in this case. And the court said no; they have other ways they could to it. The government could pay for it or they could use an accommodation they are already using for nonprofit religious employers.

MARY AGNES CAREY: These companies, Hobby Lobby, which is a very well-known craft store, and Conestoga Wood Specialties, which is a cabinet maker, what were their arguments against the contraception mandate?

STUART TAYLOR: Unlike the Catholic groups that are also challenging the mandate, these groups have a religious objection only to what they call abortifacients—the morning after pill, certain kinds of IUDs that they think operate to induce abortion.

Now, it doesn’t induce abortion as the government describes abortifacient, but it does in the beliefs of these companies. And the government says they are entitled to their beliefs. So [companies] say: For us to help someone get that kind of contraception, violates our religious beliefs. We cannot do it without violating our religious beliefs. The government is trying to force us to do it against our religious beliefs, and that puts us in a terrible position, because the fines are enormous for not complying with this provision of the Affordable Care Act.

Anti-abortion advocates cheer in front of the Supreme Court after the decision in Burwell v. Hobby Lobby Stores (Photo by Chip Somodevilla/Getty Images).

For Hobby Lobby, which is a pretty [good-sized] company, it would be fines of $1.3 million a day, or $475 million a year, if it refuses to provide all federally approved contraceptive coverage, including these so-called abortifacients, and they say that’s an intolerable burden: We shouldn’t be put to that choice and the Religious Freedom Restoration Act exempts us from that choice.

MARY AGNES CAREY: What does this ruling mean for female employees of Hobby Lobby and similar companies that have objections to some forms of contraception coverage?

STUART TAYLOR Jr.: In this case, it’s not going to have much effect. In fact, the majority opinion says the effect of this on the women employed by Hobby Lobby and other companies involved in these cases would be precisely zero. And the reason is that the court says if the administration extends the same so-called accommodation to these religious employers who are for-profit companies then it’s already extended to nonprofit Catholic hospitals, nonprofit religious schools, nonprofit religious colleges, and nonprofits – if it extends the same so-called “accommodation” to these for-profit companies, that it has already created for the nonprofit companies, then the women will get the coverage anyway through the same insurance companies that cover everything else.

MARY AGNES CAREY: So these accommodations, the justices suggested, for example, number one, the government can pay for it. Or, they could put into play some accommodations that are already there for religiously affiliated employers, which is having the insurers cover it.

STUART TAYLOR Jr.: Yes, and that’s a tricky little thing that would apply in this case and not many others. And what makes it work is that the cost of providing the contraceptive coverage is really about zero, whether it’s the employers paying for it or whether it’s the insurance company that’s paying for it because they save money on the other end, because they don’t have the child birth expenses, which are larger than contraceptive coverage. So nobody’s really paying out much money. It’s a matter of who’s got the symbolic function of providing the coverage.

This accommodation that’s already been given to nonprofit employers basically says: OK, all you have to do is certify that you have a religious objection to providing this coverage and then the government will require that your insurance company provide the coverage at no cost to you. And that’s what’s being done already in some cases — and what the court now says they can do in the cases of company, for-profit companies like Hobby Lobby.

MARY AGNES CAREY:  There are many other non-profit employers like Catholic hospitals that have said even these accommodations, these other arrangements, are going to violate their religious beliefs. So what does this mean for them?

STUART TAYLOR:  That’s right, and the reason they say it violates their religious beliefs is that they are required, at least by the regulation to certify to the insurance companies that they have this religious objection, then that triggers the insurance companies obligation to provide it. So these companies are saying, yeah, but if we have to certify and then it gets provided that means we are doing what we object to doing, which is providing a link in the chain of causation that leads to women using contraceptives.

BURWELL V. HOBBY LOBBY STORES

• SUPREME COURT LIMITS CONTRACEPTIVE MANDATE FOR CERTAIN EMPLOYERS
• WHAT THE HOBBY LOBBY DECISION MEANS FOR EMPLOYERS
• FAQ: HIGH COURT’S HOBBY LOBBY RULING CUTS INTO CONTRACEPTIVE MANDATE
• COURT RULING GEARED TO ‘CLOSELY HELD’ FIRMS, BUT WHAT IS THAT?
• HOBBY LOBBY DECISION MAY NOT BE THE LAST WORD ON BIRTH CONTROL COVERAGE

So it’s a little peculiar because the court has said that Hobby Lobby and its co-plaintiffs who do not object to the certification can be covered by this, but at least technically the possibility remains that the court would eventually decide that you cannot require, say, Catholic organizations that object to providing the coverage to object to certifying that they won’t provide the coverage to do so.

MARY AGNES CAREY:  Does this ruling mean that privately held for for-profit corporations can ignore other requirements of the health law if they find those requirements objectionable on religious grounds?

STUART TAYLOR:  Justice Ginsburg’s long and eloquent dissent implied that, but the majority and more specifically Justice Kennedy who provided a concurring opinion say that no that wouldn’t really do that, it’s not nearly as broad as Justice Ginsburg says it is. The quote is Justice Kennedy says: The Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent of Justice Ginsburg’s. So you have a disagreement between the dissent and at least some of the majority of whether this is going to be a far reaching decision or whether it’s going to be one that covers this case and not too many other cases.

MARY AGNES CAREY:  What did Justice Ginsburg mean in her dissent when she called the ruling a decision of startling breadth?

STUART TAYLOR:  She meant that, she went on to say, that it says: The court holds that commercial enterprises, including corporations, can opt out of any law, except tax laws, they judge incompatible with their sincerely held religious beliefs.

It would be a decision of startling breadth if the court had said that. But as the majority and Justice Kennedy’s concurrence both say: No, no, no, Justice Ginsburg. It isn’t nearly as broad as you’re saying it is.

And, by the way, this kind of dialogue is fairly common when dissenters, in order to emphasize what terrible things could happen as the result of a decision they don’t like, they tend to read it as broadly as possible to make it sound worse, and then the majority tends to say: Oh, no, it’s not that broad. And you never really find out how broad it is until the next case comes along.

MARY AGNES CAREY:  What does today’s decision mean for other litigants who are challenging the contraception mandate because they say it violates their religious freedom?

STUART TAYLOR:  I think most of them are going to win their cases if they can make it clear that their religious objections are sincere. I think most of them can, or they don’t file lawsuits.

It should be clear: A public company, certainly a big public company, would not be able to pull off a sincere religious objection of this kind, because the bigger a company gets, the less likely it is that all of the people who have an ownership or management interest in it are of the same religion and share the same objections. So this is, by its nature, this sort of logic is confined to family-owned companies, or maybe companies owned by a small group of like-minded religious people who say their religion is very important to the way they operate their businesses.

Hobby Lobby is quite a big company, for example, but still we’re not talking about General Motors or Ford or McDonald’s or any companies like that.

MARY AGNES CAREY:  That you so much legal analyst Stuart Taylor.

STUART TAYLOR:  Thank you.

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