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From Vox
Our understanding — and treatment — of headaches has evolved -
Vox; Getty Images
Despite big changes to the migraine playbook, many sufferers aren’t getting adequate treatment.
Back when I was in medical training, I saw patients in a primary care clinic twice a week. Many mentioned they had headaches, and the first question I asked each of them, as I was trained to do, was “Are you a headache person?”
I always opened with that because while everybody gets a headache now and then, people who get recurrent headaches for years on end are, more often than not, having migraine attacks, which most people refer to as migraines. While migraines cause an astonishing amount of suffering and lost productivity globally — they’re the second-largest cause of disability worldwide — people who have them often suffer in silence.
Many people who get migraines never seek care for them, and even when they do seek care, people with frequent migraines often go undertreated: Only about 40 percent of Americans who’d benefit from migraine treatment actually receive it.
Migraine headaches have different causes than other types of headaches, and for that reason, they respond to different treatments. That’s often been a cause of despair for migraine sufferers who get little relief from over-the-counter medications and have found the side effects of prescription treatments too much to bear.
There’s new cause for hope, though. In the last few years, scientists have built on a growing body of knowledge about migraines’ causes to develop new strategies for preventing and treating them. For headache people, there’s a lot to be optimistic about.
Where migraines come from
Several characteristics make migraines different from other types of headaches, and one of the most obvious ones is severity, says Emily Schlitz Fortenberry, a neurologist who specializes in headaches at the University of Alabama at Birmingham. People with nonmigraine headaches are “not vomiting, having to go into a dark, quiet room and lie down,” she explains. “The disability is significantly different.”
People are likely to have migraines if they have had more than five lifetime episodes of headache attacks lasting anywhere from four hours to three days and characterized by any two of these four features: The headache is localized to one side of the head, it throbs or pulsates, it’s moderately to severely painful, or it’s worse with physical activity. These attacks also usually involve nausea and vomiting or sensitivity to light or sound.
There are multiple phases to a migraine headache. About four out of every five people with migraines have a preheadache phase that starts hours or even days before the pain starts, according to David Dodick, a neurologist and headache specialist who currently co-leads the health care nonprofit Atria Academy of Science and Medicine. This phase can involve a range of symptoms, including hypersensitivity to light or sound, neck pain, yawning, fatigue — and quirkier symptoms like the urge to urinate more frequently and cravings for certain foods. “All of those symptoms reflect an area in the brain that’s becoming active,” says Dodick.
In addition to these symptoms, about a third of people experience what’s called an aura before the actual headache starts, during which people may have neurological symptoms like seeing stars or blind spots, feeling numbness in their face or hand, or temporary paralysis. Next comes the headache itself, which is often severe and sometimes accompanied by nausea and vomiting or pain with exposure to light, sound, or smells. During the postheadache phase, people often experience mental slowing, low mood, fatigue, and difficulty concentrating. All together, these symptoms can last for hours to days, and a typical sufferer will go through the full cycle two to four times a month.
Women are much more likely than men to get migraines, likely due to fluctuations in estrogen levels, and younger adults are also more susceptible. The risk is also hereditary. “I always tell my patients, you can thank your family for this,” says Niushen Zhang, a neurologist and headache specialist at Stanford Medicine. People of low socioeconomic status and those who’ve had head trauma are more likely to get migraines, too.
Experts used to think migraines were solely caused by the abnormal expansion of blood vessels in the brain, according to Zhang. Over the past couple of decades, that thinking has evolved: Scientists now believe the brains of people with migraines are exquisitely sensitive to the effects of certain neurotransmitters, in particular calcitonin gene-related peptide, or CGRP.
“The CGRP molecule is essentially a pain molecule,” says Zhang. Headache researchers have found that people with migraines had higher blood CGRP levels during headaches than people without migraines, and that giving migraine-prone people infusions of the molecule triggered headaches. These discoveries made the molecule a target for a flurry of drug discovery, and since 2018, the FDA has approved eight new migraine drugs.
Migraine triggers are real, but be cautious about overidentifying them
Among the migraine prone, there’s some variety when it comes to which triggers kick off the cascade that leads to a headache. But one of the most common ones, across all genders and age groups, is stress.
“It’s actually relaxation after stress that is probably the most important trigger,” says Richard Lipton, a neurologist who leads the headache center at Montefiore Medical Center in the Bronx. He says “letdown” headaches on weekends or following particularly anxiety-producing events are a common event for migraine sufferers. This suggests changes in the stress hormone cortisol may play a role in the pathway that leads to migraine. It also explains why stress management techniques are so effective for prevention (more on that later).
Anticipatory anxiety, the worry about something bad to come, is one of the types of stress that can trigger migraines. That can make it challenging to disentangle actual migraine triggers from beliefs about triggers. Lipton remembers a patient who blamed his migraines on changes in barometric pressure, which his smartwatch pinged him about in real time. “I took away his watch, and his headaches got a lot better,” he says. “Beliefs about triggers cause anticipatory anxiety, which increases the probability of headache.”
Other common triggers include inadequate sleep, alcohol, overconsumption of or withdrawal from caffeine, and, paradoxically, overuse of some headache medicines, both over-the-counter and prescription: If used too often, some (but not all!) can lead to headaches.
When it comes to some suspected triggers, it can be complicated to tease out the difference between migraine cause and effect. “Let’s say somebody notices that when they eat chocolate, they have a high probability of subsequent headache,” says Lipton. “One possibility is that chocolate triggers the headache. Another possibility is that chocolate craving is a premonitory feature of migraine,” he explains — that is, that a craving is part of the preheadache phase of a migraine already in motion.
Lots of ink has been spilled trying to help migraine sufferers identify and avoid their dietary triggers, but Lipton’s not a fan of that approach. He’s seen too many people who come to his clinic “with 20 pounds of weight loss because they’re afraid to eat anything.” It’s helpful to identify real triggers, he says, “but if you get it wrong, you needlessly restrict their lives, exacerbate anticipatory anxiety, and make their headaches worse.”
Are you a headache person? Here’s where to start.
Consider some lifestyle changes
One of the most important things you can do if you think you have migraines is prioritize managing stress, says Lipton. Many approaches are proven to work, from mindfulness-based techniques to progressive muscle relaxation to biofeedback and beyond. One of Lipton’s psychologist colleagues maintains a website that links to a range of resources aimed at reducing stress as a migraine trigger.
Although you don’t want to be too restrictive when it comes to solving for other triggers, Lipton suggests people review a list of common ones when they do get headaches to see if any exposures stand out. He notes that migraine triggers are often cumulative: For example, many women can drink alcohol without getting a migraine at most times of the month, but a glass of wine during their menstrual cycle can lead to a headache. Lipton also recommends focusing on sleep hygiene, avoiding medication overuse, keeping caffeine intake moderate and consistent, and practicing some kind of physical activity.
Some research shows that certain supplements can also reduce headache, although the data supports some more than others. There’s good evidence that riboflavin, otherwise known as vitamin B2, prevents migraines in some people and has few side effects; magnesium may also be helpful, although it can cause unpleasant gastrointestinal symptoms at higher doses; and Coenzyme Q10 has shown promise in several studies.
In most cases, it’ll be up to the patient to get their headaches onto the provider’s agenda. “Go in to the doctor and say, ‘I’m here for my physical, but it’s also important to me to talk about my migraine’ or ‘my headaches,’” or schedule a visit specifically to talk about the issue, says Lipton.
A health care provider can help ensure you’re maximizing the lifestyle and behavioral changes likeliest to reduce your headache frequency, evaluate and treat you for important causes of headache, and connect you with the prescription medications and other interventions that can help avoid or stop migraines.
Telehealth platforms are increasingly including migraines among the conditions their clinicians treat, and some even prescribe newer medications when appropriate. If you’re having trouble getting in to see a provider in person about your headaches, it’s worth checking out telehealth options with your insurance company or your health care provider.
Access old and new tools for preventing and treating migraines
Drugs originally developed decades ago to treat epilepsy (like topiramate), high blood pressure (like propranolol), and depression (like amitriptyline) have been used to prevent migraines for years. Triptans are a group of drugs long prescribed to stop migraines once they’ve started. And injectable botulinum toxin — like Botox — isn’t just for your forehead furrows: It’s also approved for treating migraines.
All of these drugs can be prescribed by a primary care doctor (and yes, some primary care providers do Botox injections in their offices). While these options have helped many people manage their migraine symptoms, they can have nasty side effects — or, in the case of triptans, cause headaches to worsen if they’re used too often. For these reasons, some people discontinue using them and assume there are no better options.
But there are! In more recent years, as CGRP has been more clearly identified as an important part of the migraine cascade, a new group of migraine-specific drugs targeting this molecule has emerged, explains Dodick, who has been involved with trials of some of these newer medicines. These drugs come in a variety of forms: Some are long-acting monoclonal antibodies that are either injected or given intravenously every few weeks or months as a preventive therapy. Others, called gepants and ditans (brand names include Nurtec ODT, Ubrelvy, and Reyvow), are oral medicines mostly given to stop a migraine once it’s started, although Nurtec ODT can also be used preventively. There’s even one administered via nasal spray (Zavzpret).
These drugs have some significant advantages over the old-school drugs: They have few side effects, and they’re not associated with medication overuse headaches. Their one important disadvantage: Because they’re newer on the scene, insurance generally only covers them for people who’ve tried and failed two other migraine drugs, and they’re typically only prescribed by headache specialists.
It’s not only pharmaceuticals that are showing fresh promise in reducing migraine frequency and severity. Several devices have recently been approved by the Food and Drug Administration to treat migraines. These include nerve stimulators mounted on the arm, the crown of the head, or the forehead, or held in the hand. Although they sound fake, these have indeed been proven effective in studies, and none of them will make you look like Bane.
These devices are all safe unless you have a pacemaker, said Lipton, although they’re not cheap and are generally not covered by insurance.
Do we really live in an “age of inequality”? -
These rich people are in the UK but this article is about inequality in the US. | In Pictures Ltd./Corbis via Getty Images
Why economists are reconsidering the scale of the rise in US inequality.
In recent weeks, a major debate has gripped the field of economics, one with significant policy stakes. In one sense, the debate is about the nature and extent of inequality in the US: are the rich really taking more of the pie than ever before? Has their share of income been growing very fast, or gradually? Is inequality the defining challenge of our time, or simply one among many?
In another, perhaps more accurate, sense, the debate is about how to interpret IRS audit studies and assign retirement income across time.
Lots of disputes in the social sciences are like this: touching on big, societally important questions, but ultimately turning on disagreements over highly technical issues. And so it is with the great inequality battle of 2023.
On one side are Thomas Piketty, Emmanuel Saez, and Gabriel Zucman, three French-born economists who’ve pioneered the use of tax data in the US and elsewhere to track how the income of rich individuals has grown over time. They are among the most famous and successful people in their field; Piketty’s 2013 book Capital in the Twenty-First Century was a surprise worldwide bestseller, and Saez and Zucman eachwon the John Bates Clark Medal, an honor that rivals the Nobel in its prestige within the profession.
On the other side are Gerald Auten and David Splinter. Both are well-respected if less publicly known government economists, the former at the Treasury Department and the latter at the Joint Committee on Taxation. The two camps have been arguing over inequality for at least half a decade now, but with the Journal of Political Economy, one of the field’s most prestigious journals, agreeing to publish Auten and Splinter’s latest paper, the debate has come to a head.
The backstory: Piketty, Saez, and Zucman have, in a series of papers going back to 2003, documented a large and ongoing increase in the share of income in the US going to the top 1 percent, and even larger increases in the share going to the top 0.1 or 0.01 or even 0.001 percent. Inequality, according to their data, is rising, and it’s rising faster the higher up the income scale you go. Their data helped popularize the notion that the 1 percent is pulling away from the 99 percent beneath them; it’s hard for me to imagine the phrase “we are the 99 percent” becoming a mainstream political slogan without this research preceding it.
Importantly, Auten and Splinter agree that inequality has increased. But they are less certain that the top 1 percent’s share, or that of the top 10 or 0.1 percent, has increased. (Notably, this is a different question from whether inequality overall has grown, because income gaps can also show up within the bottom 90 percent.) The different perspectives are summed up in the latter chart, comparing how the two groups estimate the top 1 percent’s share of income as increasing over time:
Piketty, Saez, and Zucman estimate that the top 1 percent earned 9.1 percent of national income in 1960, rising dramatically to 15.1 percent by 2019. Auten and Splinter, by contrast, show a very small increase: 8.1 percent in 1960 to 8.8 in 2019. The share is now actually lower, they find, than it was in the mid-1960s.
Auten and Splinter reach similar conclusions about the top 10 and top 0.1 percent: per their estimates, the latter grew from 29.2 to 29.7 percent from 1960 to 2019, the latter from 2.5 to 3 percent.
How can two research teams, both looking directly at US tax data, reach such different conclusions? It’s not that one group are craven “inequality deniers,” to borrow an ugly term that Piketty has slurred Auten and Splinter with, or that the other group is “thoroughly discredited,” as billionaire libertarian economist Cliff Asness has described Piketty, Saez, and Zucman. The disagreement is, at root, about how to deal with the limitations of tax data, by far the best source of information on who earns what in America.
Neither side has a monopoly on truth. On some issues, Auten and Splinter made judgment calls that seem more reasonable to me; on others, Piketty, Saez, and Zucman do; on still more, it’s wildly unclear which assumptions are most appropriate to make.
At the same time, it’s clear — including in Auten and Splinter’s data — that inequality has increased in the US in the past half-century, despite some headlines suggesting they’ve explained away the increase in inequality altogether. The question, instead, is how big a problem that increase is — and the answer to that has less to do with economic models than it does with politics.
A long, romantic story of IRS tax data
To understand the current debate, you have to first go back to 2003. Beyoncé had just gone solo, we all were learning what “yellowcake” uranium was, and Piketty and Saez — then two relatively junior scholars — published their first dataset on top incomes in the US in the Quarterly Journal of Economics.
This was a big deal. While various researchers in the 1990s, such as Larry Katz, Kevin Murphy, and David Autor, had used survey evidence to show that inequality was increasing, Piketty and Saez used IRS information on hundreds of millions of taxpayers — a data set that was both far wider and more reliable than survey responses.
For all its advances, the IRS data had limitations, many of which Piketty and Saez acknowledged in their first paper. Some forms of income are not taxed: the average employer spends over $15,000 per year on each employee they offer health insurance, and none of that money is subject to personal income taxes. Nor are most government benefits, like food stamps or Medicaid, or retirement income from a Roth account, which is untaxed. None of that will show up as income on a tax return, but it’s still very real income that people enjoy.
These limitations led to two decades of efforts from Piketty, Saez, and collaborators like their protégé Zucman to develop more comprehensive datasets that could give a full picture of income inequality in the US (and around the world). This culminated in what the team calls “distributional national accounts,” an attempt to break down countries’ full GDP and determine where each dollar of it goes: how much to the rich, the poor, the top 1 or 0.1 percent, etc. This way, nothing gets left out: every dollar of national income, from health benefits to government programs to money retained by corporations, gets accounted for and assigned to an actual person.
But how, exactly, to assign all that income is not obvious. It’s reasonably clear who gets income from reported wages or health benefits (the worker getting them!) but in 2019 there was also some $604.3 billion in “underreported” income in the US which showed up in GDP, but not in tax returns. The figures are similar for other years. To whom should we assign that (often illegally) unreported income?
Or take government spending. Food stamps are income to the person receiving them. But how do you assign the benefits of, say, Yellowstone National Park? Of a fighter jet? What about government deficits? They’re part of GDP, and represent a loss of income to someone in the future, either through higher taxes or spending cuts; how do you include that?
These kinds of questions, about how to assign income whose beneficiary is not clear in the data, are the ones around which the Piketty/Saez/Zucman (PSZ) versus Auten/Splinter (AS) debate revolves.
Death by a thousand imputations
The difference between the PSZ and AS data is not explainable by just one disagreement. Several different adjustments play a role, as summarized by this table:
Auten and Splinter find that the rise in the top 1 percent’s share of income from 1962 to 2019 was 4.3 points smaller than the rise in Piketty/Saez/Zucman. No one factor explains more than 1.6 points of this disagreement, and even those are offset by a couple of areas (like dealing with owner-occupied housing and Social Security) where Auten and Splinter make decisions that show a larger increase in the top 1 percent’s share than PSZ.
You can read Auten and Splinter’s latest paper for a rundown on all these differences, but for now I’ll focus on the two largest: their treatment of income underreporting, and their treatment of retirement income.
Underreporting
Piketty, Saez, and Zucman assume that each type of unreported income is distributed identically to that type of reported income; in practice, business income is the type that accounts for the bulk of underreporting, as it’s much easier to fudge than, say, wages or dividends. On the surface, the PSZ approach seems reasonable: if the top 1 percent gets 15 percent of reported business income, say, they also get 15 percent of unreported business income.
Auten and Splinter counter that we’re defining the top 1 percent here as the group reporting the most income to the IRS. Does it really make sense that rich people who are squirreling away tons of money and not paying taxes on it are at the same time reporting tons of other income to the IRS, such that they show up as rich in these numbers?
Or are we looking for people who might report very little income to the IRS, and shielding the vast majority of it? This latter group isn’t, in IRS-reported terms, the “top 1 percent.” It could even be the bottom 20 percent. Donald Trump, for instance, reported negative income for several years in the 2010s due to business losses. He would not show up as in the top 1 percent in the tax data — is it reasonable to assume that because he’s at the bottom of the income distribution, he’s not hiding much money? (It is not.)
So Auten and Splinter’s approach is to rely on the results of random IRS audits, which can estimate the level of tax avoidance discovered by auditors by taxpayers with different levels of reported income. They then use this audit data to estimate underreporting rates across the income scale, and allocate unreported income to taxpayers accordingly. This leads to less of the underreported income going to people with the highest reported incomes than the method that Piketty, Saez, and Zucman use.
Saez and Zucman, in a response paper, argue that Auten and Splinter are not using the audit data appropriately, and assign less unreported income to the rich than the audit data suggests; in a reply to that reply, Splinter argues that he and Auten use the data perfectly well and that their ultimate conclusions match the audit results. Still another argument, from Brookings Institution researchers William Gale, John Sabelhaus, and Samuel Thorpe, is that the inability of the IRS to detect sophisticated tax evasion should lead audit studies to underestimate how much the rich are evading their taxes, which would be a point in Piketty/Saez/Zucman’s favor. (Splinter, naturally, has a reply to this as well.)
No approach here is perfect, but to the best of my understanding, Auten and Splinter’s approach makes more sense than assuming that people who report the most income also evade the most. But this is an area where subsequent research, especially from an IRS that just got a burst of new funding and can better tackle trickier tax evasion situations, could be very productive.
Roll over, 401k!
The second biggest contributor to the gap between the teams is their treatment of untaxed retirement income. Auten and Splinter estimate that the top 1 percent gets about 6 percent of income from retirement accounts; PSZ’s estimate is more than twice that. This disparity is mostly because the latter group includes nontaxable money coming out of retirement accounts in their calculations. In some cases, that makes sense: if you have a Roth IRA, then the money you take out once you’ve reached the minimum age will be tax-free, as you’ve already paid taxes when you contributed the money.
But Auten and Splinter argue that the vast majority of untaxed retirement account distributions are just rollovers: money being transferred from one retirement account to another. When I left the Washington Post for Vox, I moved my 401(k) money from the Post into an IRA account. This shows up in the data as income earned the year of that transfer, but it wasn’t income at all; it was just wealth being shuffled from one account to another. It should be excluded from income data.
To their credit, Saez and Zucman have conceded this point and adopted an adjustment where they treat, at most, 10 percent of retirement income in any given year as non-taxable. Splinter has replied that this adjustment doesn’t go nearly far enough, and the share should be much lower than 10 percent, which would imply less retirement money going to the top 1 percent.
Inequality has grown — the question is how much
The inequality dispute has not bubbled up to the general public because the public has strong views on the proper treatment of 401(k) rollovers in academic economics studies. It’s become hotly disputed because of the perceived stakes for our society: Is inequality growing or not? Is it growing a lot or not?
I would submit, without denigrating in any way the tremendous intellectual effort each team has put into this project, that the gap between the two, in terms of the “big picture” they paint about American society, is not too large.
Both teams show that income inequality has increased in the US in the past half-century. While Auten and Splinter show at most modest increases in the top 1 percent’s share of income after taxes, they do find substantial increases before taxes. Moreover, that’s only one way to measure inequality. The most comprehensive measure is something called the Gini coefficient, which attempts to summarize the whole scale of inequality across the income spectrum, not just at the very top. An increase in the coefficient means that inequality has risen.
Before taxes and government safety net programs, Auten and Splinter estimate that the Gini coefficient for the US grew 25 percent since 1962 and 23 percent since 1979. After taxes and transfer programs, the increases are 10 percent since 1962 and 16 percent since 1979. More progressive tax and spending policy reversed some of the increase, but the increase is real and significant.
To give a sense of the scale here, the after-tax/transfer figure grew from 0.355 in 1979 to 0.417 in 2019, a 0.062 increase. If that number means nothing to you (it means nothing to me!) then consider that this increase is akin to the gap between the US and countries like Australia, Spain, and Switzerland today. That is, if this increase in inequality hadn’t happened, the US would be close to many other rich countries as opposed to the rather unequal outlier it is today.
You can also see signs of a general increase in inequality across some other measures. Take wealth, for instance. A recent rigorous attempt by economists Matt Smith, Owen Zidar, and Eric Zwick to track wealth inequality (that is, the gap in net worth, rather than income, between rich and power) in the US over recent decades shows a pronounced increase:
So it’s not reasonable to conclude that Auten and Splinter are engaged in “inequality denial.” They are quite literally documenting that it has increased, if not to the degree that Piketty and company claim.
What, then, are the stakes? One is how social science is conducted — while at times the disputants have accepted critiques from the other side, too often the debate has degraded into namecalling and impugning of motives. But another, more substantive stake is about where inequality ranks among society’s ills. There’s no disputing that inequality across a number of dimensions has increased in recent decades. But that’s a different claim from saying that this is a New Gilded Age, an “age of inequality” where inequality is the “defining challenge of our time.”
What Auten and Splinter’s data suggests is that inequality is one challenge among many, which may have important implications for policy, often in surprising ways. It may suggest, for instance, that a policy that makes fossil fuel-powered electricity more expensive, worsening inequality by increasing energy costs more for low-income people, is more worthwhile: inequality is not at such a crisis point where we need to avoid undertaking policies that fight global warming out of concern about inequality.
Insofar as I come out of the debate with any firm conviction, it is that holding firm convictions about the state of inequality is probably a mistake. Measuring this stuff is hard, much harder than it appears at first glance. Simple approaches, like just looking at reported taxable income, can be misleading, as can focusing on how much Jeff Bezos or Elon Musk made in the stock market. It’s easy to make errors or leave aspects of the work incomplete. We have to exist in a state of frustrated uncertainty.
A new Supreme Court case about flooding has weirdly high stakes for Donald Trump -
Aerial photo taken on September 1, 2017, shows flooded houses after Hurricane Harvey hit Houston, Texas. | Yin Bogu/Xinhua News Agency via Getty Images
A core issue raised in the Colorado case seeking to disqualify Trump from the presidency is also present in a much more obscure case being argued next week.
Dig just an inch below the surface, however, and the Devillier case, which will be argued next Tuesday before the justices, raises strikingly similar questions to some of the core issues in Trump v. Anderson, the Supreme Court case asking whether Trump should be removed from the 2024 presidential ballot.
So anyone seeking a preview of how the Court might rule in Trump, which won’t be argued until next month, would be wise to pay close attention to the argument in Devillier.
One of the core questions in Trump is whether Section 3 of the 14th Amendment, a provision that disqualifies former high-ranking public officials from holding office in the future if they “have engaged in insurrection or rebellion” against the Constitution, is “self-executing” — meaning that it takes effect automatically, regardless of whether Congress has enacted legislation laying out what procedures should be used to determine if Trump did, in fact, engage in an insurrection.
If Section 3 is self-executing, that means that the Constitution imposes an independent duty on state officials to prevent Trump from obtaining office again. If it is not, then the question of whether Trump is disqualified from the presidency because of his attempt to overthrow the 2020 presidential election is, at least, much more complicated — and Trump is much more likely to prevail in his effort to appear on the 2024 ballot.
Devillier, meanwhile, asks whether a separate provision of the Constitution — the Fifth Amendment’s “takings clause,” which provides that the government may not take someone’s private property for public use “without just compensation” — is also self-executing.
The landowner plaintiffs in Devillier argue that the takings clause is, in fact, self-executing. They also argue that, if it is, then they may sue to demand compensation because the state of Texas allegedly caused their lands to be flooded, regardless of whether any federal or state law authorizes such a lawsuit. Texas, meanwhile, argues that such suits may only proceed according to a state or federal law — even though the takings clause itself already requires Texas to compensate certain landowners, regardless of what Texas state law has to say about the matter.
Still, the parallels between the two cases are difficult to ignore.
Who is allowed to sue in order to enforce the Constitution?
To a non-lawyer, the idea that the Constitution might announce a nationwide rule that cannot be enforced through lawsuits is likely to be counterintuitive. The Supreme Court, after all, has maintained for more than two centuries that “it is emphatically the duty of the Judicial Department to say what the law is.” So why isn’t it the judiciary’s duty to say whether the Constitution, which is the highest law in the United States, requires certain landowners to be compensated — or if it requires Trump to be removed from the 2024 presidential ballot?
But the current Supreme Court — or, at least, its Republican appointees — is quite hostile to the idea that private parties can sue to enforce the Constitution, absent a statute that authorizes them to do so. In Hernández v. Mesa (2020), for example, the Court’s Republican majority held that the parents of a 15-year-old Mexican boy may not bring a constitutional lawsuit against a US Border Patrol officer who fatally shot their son in the face.
The Court’s opinion in Hernández spoke in expansive terms about the limits on such lawsuits. “A federal court’s authority to recognize a damages remedy” against a federal official, a majority of the justices reasoned, “must rest at bottom on a statute enacted by Congress” — even if the official’s actions were already forbidden by the Constitution.
There is a logic underlying this counterintuitive conclusion that something can simultaneously violate the Constitution, but also that the Constitution may not be enforceable in court. As Texas argues in its Devillier brief, judges have to know a whole lot more than what a state’s obligations are under the Constitution before they can hear a lawsuit alleging that those obligations were violated.
In a takings case, for example, the judge hearing that case must know “how long the limitations period should be” (that is, at what point should a case be dismissed because a plaintiff waited too long to bring it), “what pleading rules apply,” and whether a state may assert a defense such as sovereign immunity. These sorts of questions are typically answered by state or federal statutes.
Moreover, while cases like Hernández take an especially narrow view of who can sue to enforce the Constitution, Texas’s concern that courts need to rely on an act of the legislature to tell them how to conduct constitutional litigation is not a new concern. Indeed, it is one of the central concerns raised by In re Griffin (1869), one of the few federal court decisions interpreting Section 3 of the 14th Amendment.
Griffin involved a Virginia judge who, while serving in the state legislature, voted to provide “men, money and supplies to support Virginia and the Confederate States, in the war then flagrant with the United States.” The question was whether he was disqualified from serving as a judge under Section 3, because he previously engaged in insurrection or rebellion against the United States.
But Chief Justice Salmon Chase, who authored Griffin, dodged the question of whether this judge should be removed from office. Though the judge may be guilty of rebellion, Chase reasoned, his “guilt can only be ascertained, the identity of the individual can only be made certain, the penalty applied to that particular individual, only by due process of law—i. e., trial, conviction and judgment.”
And, much as Texas now argues that an act of the legislature is required to tell courts how to conduct takings trials, Chase also argued that “legislation by congress is necessary” to determine what sort of process should be used to determine whether a particular individual violated Section 3 of the 14th Amendment. Thus, in the absence of such legislation, Section 3 may become unenforceable.
Griffin, it should be noted, was not a Supreme Court decision. In the mid-19th century, justices often heard ordinary cases as if they were lower court judges. So the decision is not binding on modern-day justices hearing the Devillier and Trump cases. But, again, the parallels between the due process arguments raised by Chase in Griffin and the arguments raised by Texas in Devillier are fairly obvious.
And it’s worth reiterating that the idea that a provision of the Constitution may go unenforced because no one has passed a statute enabling its enforcement is controversial within the judiciary. Four justices, after all, dissented in Hernández.
But the Hernández majority’s skepticism toward allowing constitutional lawsuits, absent some kind of enabling statute, is also not new. As Griffin shows, judges have long worried that, absent a statute telling them how to conduct a particular proceeding, they may not be able to hear many constitutional challenges — even if that means that some constitutional violations may go unsanctioned.
Can a state statute render an unenforceable constitutional provision enforceable?
One question that also arises in the Trump and Devillier cases is whether a state legislature can pass a law laying out how a constitutional challenge should proceed in court, or whether, as Chase suggested in Griffin, a law permitting constitutional provisions to be enforced through lawsuits must come from Congress.
Texas, for what it is worth, does not contest that a state statute can authorize takings lawsuits. As it notes in its brief, the Texas Constitution also prohibits takings “without adequate compensation being made.” And state law allows takings lawsuits to proceed using a process known as “inverse condemnation.”
At multiple points in its brief, Texas seems to suggest that states are required to provide some sort of process to ensure that victims of governmental takings are duly compensated — the brief argues that “in the event of a taking, the Constitution requires compensation.”
But, while Texas appears to concede that its state law must provide some sort of process to resolve takings lawsuits, the specific nature of that process can matter a great deal. As Bob McNamara, a lawyer with the libertarian Institute for Justice who represents the Devillier plaintiffs, told me over email, Texas law is less favorable to takings plaintiffs than the rule that federal courts are likely to apply if his clients can sue directly under the takings clause.
The Devillier plaintiffs claim they are entitled to be compensated by the state after Texas built a highway barrier that acts as a “three-foot-high, impenetrable concrete dam,” which caused their land to flood during major storms. According to McNamara, “Texas says that for something to be a ‘taking’ under state law, state officials must have specifically intended to take particular property — they must have looked at a map and said, ‘Ah, yes, let’s flood Mr. DeVillier’s property.’”
By contrast, McNamara says, “the federal takings rule uses intent in the more ordinary sense— government officials are presumed to have intended the inevitable results of their actions.”
This question over just how much leeway states have to modify the process — and potentially even the substantive rules — used to determine whether a constitutional violation occurred also arises in the Trump case.
Recall that Chief Justice Chase argued in Griffin that “legislation by congress is necessary” to determine how Section 3 of the 14th Amendment should be enforced. Ordinarily, however, state legislatures are also permitted to enact laws permitting private lawsuits to enforce the federal Constitution, much as Texas enacted laws permitting takings plaintiffs to bring suits.
This distinction between acts of Congress and acts of a state legislature matter because, while Congress has not enacted a comprehensive statute laying out what qualifies as an “insurrection” and what process courts should use in Section 3 cases, Colorado does have a statute that allows private citizens to sue to remove ineligible candidates from the state ballot.
That said, this statute calls for a fairly truncated process, which, in the words of one of the dissenting justices in the Colorado Supreme Court, lacks “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” For this reason, Trump’s strongest argument against the Colorado Supreme Court decision removing him from the ballot is that he was denied due process — or, to put it another way, that the truncated process Colorado used to determine that he is disqualified was not adequate for such a monumental constitutional decision.
But, if Texas is allowed to pass a law that effectively waters down the rights of takings plaintiffs — permitting them to bring takings lawsuits, but only if they can show that state officials acted with a particular intent — then why doesn’t Colorado have similar leeway to decide how ballot disqualification lawsuits should proceed?
All of which is a long way of saying that, while the Devillier and Trump appear to be unrelated at first glance, the former case raises many of the same difficult questions raised by the later one. So if you are hoping to get a preview of how the Court may approach Trump, next week’s Devillier arguments are likely to, at the very least, offer a clue about how the justices will approach the former president’s disqualification case.
From The Hindu: Sports
Vihari steps down as Andhra captain -
Shane Bond: Siraj is awesome; good to see emergence of Afridi, Madushanka, Coetzee - Shane Bond’s association with the IPL goes back to 2010, when he played for Kolkata Knight Riders
Rohit-Jaiswal combination to continue at opening slot: Rahul Dravid - However, that will leave the question on how to find a place for Shubman Gill, who either opens or comes at No. 3 in T20Is
Morning Digest | Under new R-Day deal, each State can field tableau once in 3 years; Maldives signs 20 agreements with China amid diplomatic row with India, and more - Here is a select list of stories to start the day
Djokovic and Swiatek get No. 1 seedings ahead of Australian Open - Playing true to their rankings, Novak Djokovic and Iga Swiatek have been given the respective No. 1 seedings at the Australian Open in the first Grand Slam tournament of the year which begins Sunday at Melbourne Park
From The Hindu: National News
Here are the big stories from Karnataka today - Welcome to the Karnataka Today newsletter, your guide from The Hindu on the major news stories to follow today. Curated and written by Nalme Nachiyar.
Two local body heads get invite to attend R-Day parade in Delhi - Cheruthana grama panchayat in Alappuzha won the award for best child-friendly panchayat in the country, while Veeyapuram came first under the theme self-sufficient infrastructure in panchayat
‘Abraham Ozler’ movie review: A serial killer pursuit that fizzles out soon - The Jayaram-starrer is marred by generic treatment to the serial killer genre, with a cameo from superstar Mammootty offering only a temporary relief
TMC adamant on conceding only two LS seats to Congress in West Bengal; says no more seat-sharing talks needed - Congress says offer is “humiliating”; TMC says it must “acknowledge the reality” of its “limitations” in the State; Congress vote share less than 5% in the last poll; Mamata Banerjee to take call on one more seat
‘Ramayana spiritual forest’ to come up on Sarayu river bank in Ayodhya, tell tale of Ram’s exile period - The ecological forest, which will resemble an open-air museum that showcases the rich tapestry of the Ramayana, is part of the Ayodhya Master Plan.
From BBC: Europe
Swedish alarm after defence chiefs’ war warning - A warning to Swedes to prepare for war from two top defence officials prompts accusations of alarmism.
Ukraine war: Russian missiles wreck Kharkiv hotel - governor - Turkish journalists are among 11 reported injured in a Russian air strike on Ukraine’s second-largest city.
Eurovision: Finnish artists want Israel barred from contest over Gaza war - More than 1,400 music professionals demand action from public broadcaster Yle.
Austrian heiress Marlene Engelhorn announces plan for €25m giveaway - Marlene Engelhorn, 31, inherited millions and wants to recruit 50 people to hand most of it out.
Swedish £6,000 dine and dash investigation reopened - A group of 35 people allegedly left a Malmö restaurant without paying on Christmas Day.
From Ars Technica
VMware customers face uncertain future as Broadcom ends VMware partner programs - Only Broadcom’s favorites will be able to sell VMware-related offerings. - link
US verges on vaccination tipping point, faces thousands of needless deaths: FDA - Top regulatory officials call for clinicians to speak up and drown out misinformation. - link
Diesel enginemaker agrees to nearly $2 billion in fines with feds and California - More than 600,000 Ram trucks have Cummins engines with software defeat devices. - link
Actively exploited 0-days in Ivanti VPN are letting hackers backdoor networks - Organizations using Ivanti Connect Secure should take action at once. - link
Detachable Lenovo laptop is two separate computers, runs Windows and Android - The Lenovo ThinkBook Plus Gen 5 Hybrid combines the best (?) of both worlds. - link
From Jokes Subreddit
Salesman of the Year -
A young man went to the new MegaMall looking for a job. The manager asked “Do you have any sales experience?”
The young man answered “Yeah, I was a salesman back home in Dallas.” The manager liked the young man so he gave him the job.
His first day was challenging and busy, but he got through it.
After the store was locked up, the manager came down and asked, “OK, so how many sales did you make today?”
The salesman said “One!”
The manager groaned and continued, “Just one? Our sales people average 20 or 30 sales a day. How much was the sale for?”
“$124,237.64”
The manager choked and exclaimed $124,237.64!! What the hell did you sell him?"
“Well, first I sold him a small fish hook, then a medium fish hook, and a fishing rod with reel. Then I asked him where he was going fishing and he said down at the coast, so I told him he would need a boat, so we went down to the boat department and I sold him that twin-engine Yellowfin. Then he said he didn’t think his Kia Soul would pull it, so I took him over to car sales and I sold him the 4x4.”
The manager, incredulous, said, “You mean to tell me…a guy came in here to buy a fish hook and you sold him a boat and a 4x4?”
“No, actually he came in here to buy a box of tampons for his girlfriend and I told him since his weekend is pretty well screwed, he might as well go fishing.”
A mathematician, a physicist, and an engineer were each handed a red rubber ball and asked to determine the volume. -
Each ball had a diameter of 2 inches. The mathematician plugged the radius of 1 inch into the equation for the volume of a sphere. The physicist put a known volume of water into a calibrated container, submerged the ball, and with a simple subtraction determined the volume. The engineer said he couldn’t answer the question. His handbooks had a blue rubber ball table and a green rubber ball table, but no red rubber ball table.
Guy sees a convertible pull up to a traffic light… -
…and the guy driving the car has got 6 penguins in there with him. The pedestrian says, “What?! Uh… What?!”
Driver says, “I know! I was stopped at the last light, and they all just jumped in! What am I gonna do with em?!”
Pedestrian says, “Take them to the zoo.”
Driver says, “That’s a great idea!” and he zooms away.
A week later the same pedestrian sees the same car, same guy driving, same 6 penguins, but this time they’re all wearing sunglasses and sunblock and they’ve got beach balls and blankets.
Once again the pedestrian says, “What?! Uh… What?!”
The driver says, “Hey, buddy! That was a great suggestion! We all had a great time at the zoo! Today we’re going to the beach!”
