New in National Review: “How the States Can Help Trump Make Federalism Great Again”

Almost immediately after the election, progressive states that have cheerfully supported every manner of Barrack Obama’s incursions into federalism, flipped on dime. Now, California wants to become the new Texas–like orange is the new black–and rely on the principles of federalism to protect their sanctuary cities. What is Texas, and other likeminded states to do? Sit on the sidelines and laugh? Fall in line behind the Trump Administration? I argue they should help the cause of federalism, wherever it appeals, and hope to lock in precedents for a future administration that will be hostile to the states.

My latest piece in National Review is titled (with just the right degree of click-bait): “How the States Can Help Trump Make Federalism Great Again

Here is the introduction:

Over the last eight years, more than two dozen state attorneys general have mustered a veritable legal army to thwart the unconstitutional overreach of the Obama presidency. With the change in administrations, however, these elite forces should not disband, but rather must retool. If the Trump White House is to succeed in restoring constitutional governance, it will need the support, cooperation, and sometimes pressure from the states.

In the short term, state attorneys general can coordinate with the incoming Justice Department to identify the cases and appeals that should be dismissed or settled. Further, these legal officers should roadmap how Congress and the president can rescind unlawful executive actions. Going forward, when progressive states seek to resist federal incursions, conservative states should consider supporting the principles underlying those cases: state capitols, and not the central government, should decide local matters. Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.

And the conclusion:

I am not Pollyannaish. It is easy enough for a law professor to extoll the value of federalism, but on the ground, elected attorneys general may face a backlash if they actively challenge the Trump administration in court. Three important values should guide this important decision. First, Donald Trump will only be president for the next four to eight years. Sooner, rather than later, a progressive will be in the White House. The precedents that are established now will serve as a check on the havoc a President Elizabeth Warren cold unleash on the states. Second, there is a powerful value to gaining buy-in from the liberal justices — especially those who will serve for decades to come — for the principles of federalism. True, Justices Kagan or Sotomayor may be able to distinguish California’s present challenges with Texas’s future challenges — but the feebleness of those flip-flops will be visible to all.

Finally, and most importantly, state officials take an oath to the Constitution, not to the Republican party. They bear the unique responsibility for enforcing the Tenth Amendment, in all of its dimensions: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The mission of reining in the federal government’s powers, and restoring the Constitution’s separation of powers, should continue for the next four years, eight years, and beyond.

I hope this generates food for thought. The elite legal teams built up by Republican Attorneys General still have an important mission to help restore constitutional governance, even if the Trump Administration is not willing.

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Interview on Fault Lines – “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

On this blog I go out of my way not to write about myself. I don’t think my personal story is particularly interesting, nor do I think it is relevant to understand my perspective on the law. Yet, for reasons only he knows, Scott Greenfield asked me to sit down for a (virtual) cross-examination on the Mimesis Fault Lines blog. The questions are fairly involved, and inquire about my path from college to law school to clerking to teaching. For readers who would like to learn more about me, please go through the cross, with the provocative title, “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

Even worse is Scott’s tweet:

Perhaps most relevant to this blog’s usual audience is the penultimate question, which touches on concerns of academic freedom:

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).


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ConLaw Class 2- Why is the Constitution Supreme?

Class 2 – 1/17/17

Why is the Constitution Supreme?

  • The Federalist Papers (25)
  • Federalist No. 51
  • Federalist No. 78 (32-35)
  • Evidence of the Meaning of Judicial Power (93-97)
  • Foundational Cases on Constitutional Structure: The Marshall Court (83)
  • The Judicial Power (84-86)
  • No Advisory Opinions (672 -674)
  • Marbury v. Madison (86-93)
  • Ex Parte Merryman (512 – 518)
  • Cooper v. Aaron (to be discussed in class)

The lecture notes are here.

Today’s class will focus on these clauses of the Constitution:

Article II, Section 2: He shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United State, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Article II, Section 3: He  . . . shall Commission all the Officers of the United States

Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution .

Ex Parte Merryman was authored by Chief Justice Roger Taney, though in his capacity as Circuit Justice for Maryland.

This is the most famous portrait of Taney.

Here is Taney later in life:

This bust of Taney appears in the Supreme Court’s Great Hall.

As we will discuss later, Taney is a controversial Justice. Recently, the city of Frederick, Maryland agreed to remove his bust from public grounds. It was previously vandalized.

Please take a moment to look at this slideshow of the Little Rock Nine.

The Little Rock 9:




06 Sep 1957, Little Rock, Arkansas, USA --- Elizabeth Eckford ignores the hostile screams and stares of fellow students on her first day of school. She was one of the nine negro students whose integration into Little Rock's Central High School was ordered by a Federal Court following legal action by NAACP. --- Image by © Bettmann/CORBIS

Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”


A very worthwhile trip if you ever make it to Little Rock.

During my recent trip to Little Rock, I visited the Little Rock Central High School. This is the locus of Cooper v. Aaron, and the school where the famous Little Rock 9 were escorted into the desegregated school by federal troops. What makes this national park site remarkable is that it is *still* an active high school.

Across the street from the school, they refurbished a gas station to appear as it did during the 1950s. It was at this gas station that the media filed their reports.


Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.


As I approached the school, and climbed those famous steps, I was overcome by a very powerful feeling. Constitutional history was made right here. Looking across the street, I imagined the lynch mobs tormenting those poor students. As I came to the front door of the school, I peered inside, and imagined what those students felt when they entered. (I understand they were rushed to the Principal’s office so they were not intercepted). As chance would have it, classes were in session, so I could not enter the school.


The school is huge. It takes up an entire block, and has many sections.






Across the street from the High School was a visitor center that had some interesting exhibits.

Alas, this sign states an inaccuracy–We the People , as written in in 1787, “included only white male landowners.” I understand the point they were trying to make, but the Constitution itself was not so limited. In fact, it spoke in broad terms of people, and not men. It didn’t even use the word “slave,” but reverted to other euphemisms (other persons, etc.). At the time of the framing, in New Jersey at least, women had the right to vote. They may have even participated in the Constitutional ratification conventions. It would be more accurate for the Museum to have explained how the Constitution was interpreted. But it is not accurate–and somewhat misleading–to state it like this.


One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.


Here is a PDF of the original, courtesy of the National Archives:

When I became President, I took an oath to support and defend the Constitution of the United States. The only assurance I can give you is that the Federal Constitution will be upheld by me and by every legal means at my command.


Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.



This was the original docket sheet for Cooper v. Aaron.



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Prop1 Class 2 – Efficiency and Fairness

Class 2 – 1/17/17

Efficiency and Fairness

  • Ghen v. Rich, 26-29
  • Notes and Questions, 29-30
  • Keeble v. Hickeringill, 30-32
  • Externalities: 46-50
  • The Coase Theorem
  • Notes and Questions 50-56 (Skim)

Today in class we will be talking about Ghen v. Rich and Keeble v. Hickeringill, through the lens of economic efficiency and fairness.

Today’s lecture notes are here.

Ghen v. Rich.

Here is the harvesting of a finback whale.


Fin whales are on average about 90 feet long, and can weigh over 70 tons. By point of comparison, an African elephant weighs roughly 8 tons.


Fin Whale

This is a bomb lance harpoon.


And a patent diagram of an 1878 bomb lance:


Another patent diagram from 1879.



More pics of bomb lances. It was basically a harpoon with a rocket attached to it.



This is a bomb lance gun.


Here is a drawing from 1897 showing the firing of a bomb lance (Frank T. Bullen, The Cruise of the Cachalot (1897)


This is what a captured whale looks like:


Keeble v. Hickeringill

Here is Edmund Hickeringill (courtesy of the British Musuem)–doesn’t he just look like a jerk!?


This is Lord Chief Justice John Holt who was the Lord Chief Justice of England, the author of the opinion in Keeble v. Hickeringill.


Here is a plan for the duck decoy.


The ducks get caught in these nets over the pipes.




Here is a dutch video showing the ducks getting cut (fast forward to about 1:05)

I suspect many of you have tried this kind of duck hunting.




Coase Theorem

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.



Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.


And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?



This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.


And they follow the sun’s path through the year.



Images courtesy of, Wikipedia, and Professor Frank Buckley.

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Indiana Court of Appeals Rules that State RFRA Does Not Provide Defense To Tax Evasion

One of the most frustrating aspects of the debate over RFRA, and religious liberty more broadly, is the unqualified response that such laws are anti-LGBT. Without any further discussion, supporters of RFRA are labelled bigots. This instant dismissal obviates an important discussion of how RFRA operates, and how courts have interpreted them at the state and federal level over the past two decades. To this day, the media and scholars alike, without any actual analysis, dub Indiana’s RFRA (signed into law by Mike Pence) as hateful towards gays and lesbians. At the time of its enactment, I wrote a piece in National Review (that was among my most shared ever) explaining why these charges are simply (and deliberately) misleading:

Last week, Governor Mike Pence of Indiana signed into law the Indiana Religious Freedom Restoration Act (RFRA). Almost immediately, an uproar ensued, claiming that the law was discriminatory — that it provided a license for businesses to discriminate against gay and lesbian customers. Entirely lost in this kerfuffle has been the simple fact that the Indiana law is modeled on the 1993 federal law of the same name, and that counterparts have been adopted in 19 other states. Further, four federal courts of appeals and the Obama Justice Department have all taken the position that RFRA can be used as a defense in private suits involving the enforcement of laws that substantially burden free exercise of religion. Important debates over the intersection of faith and equality are impaired when they are overtaken by misguided rhetoric, rather than being informed by the history and context of how our legal system has treated this issue.

To my knowledge, there still has not been a single federal or state case where a court dismissed a discrimination claim filed by a gay or lesbian customers after a business raised RFRA as a defense. (Please correct me if I am wrong). In the noteworthy Elane Photography case, for example, the New Mexico Supreme Court ruled that the state RFRA offered no defense.

Now that the dust has settled, somewhat, let’s carefully study how Indiana courts have actually interpreted their own law. Tyms-Bey v. State of Indiana, (IN App., Jan. 13, 2017) presents the question of whether a person charged with tax fraud can raise RFRA as a defense (separate from the question of whether it was a valid defense). A divided panel of the Court of Appeals of Indiana held that the defense could not even be raised.

The majority opinion by Judge Baker explains the issue in the introduction:

Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order granting the State’s motion to strike his notice of defense under Indiana’s Religious Freedom Restoration Act (RFRA).1 Our legislature has carved out a statutory exception to RFRA protections when the government’s imposition of a burden furthers a compelling interest and is the least restrictive means of furthering that interest. We find as a matter of law that the State’s compelling interest in a uniform and mandatory taxation system falls into the statutory exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm and remand for further proceedings.

The defendant was a self-professed “sovereign citizen,” who did not pay his taxes.

On July 1, 2015, the date Indiana’s RFRA statute took effect, Tyms-Bey filed a notice of defense of religious freedom. The State moved to strike the defense. On January 6, 2016, the trial court held a hearing on the motion to strike. At the hearing, Tyms-Bey refused to identify what religious practice or belief was burdened by the State’s actions and stated that he believed he was entitled to present his defense to a jury and would provide all evidence at trial. The State argued that a defense of religious freedom is unavailable as a defense to failure to pay taxes.

The analysis for the state RFRA, like its federal cousin, has three key elements: (1) has the applicant’s free exercise been substantially burdened; (2) does the government have a compelling interest; (3) has the government used the least restrictive means to accomplish that compelling interest. In Tyms-Bey, the Court assumed the first element (it’s awfully hard to dispute), so focused on the latter two:

We will assume solely for argument’s sake that Tyms-Bey pleaded a RFRA defense properly and met his burden of showing that this prosecution substantially burdens his exercise of religion. Having made those assumptions, we need decide only whether—as a matter of law—the State’s enforcement of its income tax laws is in furtherance of a compelling interest and is the least restrictive means of furthering that compelling interest. In other words, we must determine whether, viewing the situation in a light most favorable to a defendant facing criminal income tax penalties, that defendant could ever raise a successful RFRA defense. We hold that he could not.

Specifically, citing the Supreme Court’s decision in U.S. v. Lee, the court of appeals concluded that the state has a “compelling interest in the collection of taxes and the absolute necessity of uniform and mandatory participation in the tax system.”

We find that the uniform and mandatory tax system as a whole, which incorporates the criminal penalties at issue here, is the least restrictive means of furthering the government’s compelling interest in collecting revenue.

We adopt the analysis of the Lee Court and hold as a matter of law that, in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system.

Judge Najam dissented from the controlling opinion, and draws the important distinction between having the ability to raise a defense, and whether that defense would actually succeed:

Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from our judiciary, the right to declare categorical exemptions from RFRA’s application. The majority’s holding disregards that command and categorically removes tax-based actions from RFRA’s application.

The dissent proceeds to discuss that RFRA was designed to go beyond Smith, and that relying on the pre-Smith case of Lee is problematic.

Rather than following Burwell, the majority instead concludes that Lee, a pre- Smith case, and its progeny more accurately reflect our legislature’s intent when it enacted RFRA. I cannot agree and must conclude that the majority’s assessment that Indiana’s RFRA adds nothing to pre-Smith jurisprudence is contrary to RFRA. As the Burwell Court recognized, Lee is “a free exercise, not a RFRA, case.”  . . . . Moreover, Indiana’s RFRA contains the exact same language that the Court in Burwell, considering the federal RFRA, held to provide broader protection to the exercise of religion than Lee and its progeny, and Indiana’s RFRA expressly codifies and expands upon the holding in Burwell.

Yes, never forget, Indiana’s RFRA was framed identically to the federal RFRA.

Accordingly, I would hold that Burwell, not Lee, best reflects the intent of our legislature in enacting RFRA. And this is significant here because, as Burwell explains, RFRA demands a fact-sensitive, “particularized” assessment of the claimed religious exemption, while Lee does not. . . . In other words, the General Assembly expressly reserved to itself the right to exempt statutes from RFRA’s application and expressly commanded the judiciary to not “construe[]” statutes “to be exempt from th[at] application.” Id. Those commands are consistent with the case-by-case, particularized adjudications the Burwell Court described as fundamental to RFRA. See 134 S. Ct. at 2779-80. And there is no state statute that expressly exempts tax evasion prosecutions from the application of RFRA.

In short, the dissent contends that the court was premature to dismiss the RFRA defense:

Indeed, in its motion to strike Tyms-Bey’s RFRA defense, the State acknowledged that he “has not yet identified what religion he belongs to, how the tenets of that religion relate to Indiana’s income tax regime[,] or how that tax negatively impacts the practice of his religion.” Id. at 36.

The dissents conclusion speaks to the Hobby Lobby parade of horribles that simply has never arrived:

Without question, the majority is concerned, as were the dissenters in Burwell, that RFRA will wreck “havoc” on judicial proceedings and be a “radical” departure from the status quo. Burwell, 134 S. Ct. at 2787, 2805 (Ginsburg, J., dissenting). But “[t]he wisdom of [our legislature’s] judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes . . . .” Id. at 2785 (majority opinion). And it is certainly not the judiciary’s role to construe actions as exempt from RFRA when our legislature has expressly reserved that right to itself. See I.C. § 34-13-9-2.

And even if he can raise the defense, it may not succeed:

At the end of the day, Tyms-Bey’s exercise-of-religion defense may not prevail. But we cannot say as a matter of law that Tyms-Bey can prove no set of facts in support of his RFRA defense that would entitle him to relief. The issue is not whether a RFRA claimant will ultimately prevail but whether he is entitled to offer evidence to support his claim. In other words, Tyms-Bey is entitled to his day in court and to the same due process as any other criminal defendant, including his right to present his affirmative defense to a jury. Otherwise, RFRA is for naught and offers no more protection to the exercise of religion than does the First Amendment.

This paragraph is a crystalline explication of why the fuss about state RFRAs are so misleading.


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Following Zubik Punt, Labor Department Says “No Feasible Approach” To Resolve Religious Objections

As I discuss in Unraveled, the Supreme Court’s remand in Zubik was a delusional punt: there was no compromise to be had over self-insured plans, yet the Court pretend the parties were close to a deal. After the remand, the Obama administration issued a Request for Information about possible arrangements that would satisfy all objections. None were to be found.

In a new FAQ from the Labor Department (which has jurisdiction over ERISA), the Obama Administration acknowledged that “no feasible approach” could be identified.


No. As described in more detail below, the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage. The comments demonstrate that a process like the one described in the Court’s supplemental briefing order would not be acceptable to those with religious objections to the contraceptive-coverage requirement. Further, a number of comments illustrate that the administrative and operational challenges to a process like the one described in the Court’s order are more significant than the Departments had previously understood and would potentially undermine women’s access to full and equal coverage. For these reasons, the Departments are not modifying the accommodation regulations at this time.

Specifically, the FAQ states that adopting the Court’s proposed solution does not address the religious objections:

In light of the comments received, the Departments have determined not to amend the regulations at this time. On the one hand, comments from parties before the Supreme Court (and other objecting employers) do not suggest that the change identified by the Supreme Court would resolve their concerns. On the other hand, the Departments received comments stating that eliminating written notification would create significant administrative problems and potential legal liabilities for issuers, and would hinder women’s access to care. As described in greater detail below, these comments have shown that the elimination of the written notification requirement would raise complications that would undermine the statute’s goal of ensuring full and equal health coverage for women, the extent of which were not known to the Departments at the time the government filed its supplemental briefs in Zubik.

I could have predicted this impasse based on the supplemental briefings in Zubik. The parties acknowledged there was a huge gap between their positions that could not be reconciled. The Supreme Court pretended that problem didn’t exist. In all likelihood, the Eight Justices thought that by punting, the case would come back up with a ninth Justice. But to everyone’s surprise, Trump won! And now, through executive action, he can resolve this dispute. As I noted during a panel on reproductive justice at AALS, the Obama administration’s decision to define “preventive care” in a blog post (seriously), and not through the notice-and-comment process, means that the new administration can simply modify the sorts of products that insurers are required to provide. With a small tweak, any insured entity with a bona fide religious objection can simply request that birth control be excluded from their plans. For affected employees, the government can offer contraceptive coverage through different means that do not impose a substantial burden on religious exercise. (That coverage could be provided through alternate means suggests that the accommodation was never the “least restrictive means.”).

As an aside, the Labor Department actually cites SCOTUSBlog for links to their briefs!

Stay tuned.

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SCOTUS Calls for Response in West Virginia v. HHS (Administrative Fix Case)

The never-ending Obamacare litigation chugs along. Back in July 2014, West Virginia challenged the legality of the so-called administrative fix, which allowed insurers to continue offering plans that were otherwise void under the Affordable Care Act’s mandates. Both the district court and the D.C. Circuit dismissed the case on standing grounds. In November, West Virginia filed a petition for a writ of certiorari. Yesterday, the Court called for a response.

Unless Acting SG Gershengorn decides to scramble a BIO in eight days (I’ve seen crazier pleadings), responding to this petition will fall to President Trump’s Justice Department. I’ve written at length that the new government should repudiate the various illegal delays, modifications, and suspensions of the Affordable Care Act. This brief in opposition offers an opportunity to do so. For institutional reasons, the SG is unlikely to agree that the state has standing, but this brief can be used to assert that the policy has been (hopefully) repudiated  because, “on further reflection,” the government has decided it is unlawful.

Even if the government does not take this step, there may be questions about mootness. West Virginia addresses this issue on the final two pages of their cert petition:

Even if the new Administration were to rescind the Administrative Fix or if the Affordable Care Act were to be repealed in whole or in part, the D.C. Circuit’s decision cannot be permitted to stand. As a threshold matter, the underlying issue would arguably fall within an exception to mootness. The practice of claiming enforcement discretion to entirely suspend federal laws for temporary periods of time is likely to recur and continue to escape review. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016). Moreover, the voluntary cessation of challenged conduct “does not ordinarily render a case moot.” Knox v. Serv. Employees Int’l Union, Local 1000, 132 S. Ct. 2277.

But more importantly, even if this Court were to determine that the matter has become moot or that mootness should be evaluated in the first instance by the D.C. Circuit, this Court should still grant certiorari and vacate the decision below before remanding for further consideration. The clear conflicts between the D.C. Circuit’s decision and several of this Court’s precedents, together with the decision’s potentially significant impact on federal- state relations, require that this Court take at least those steps to ensure consistency and protect our system of dual sovereignty.

Stay tuned.

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Video: AALS “Hot Topic” Panel on New Frontiers in Reproductive Rights and Justice

On January 6, I presented on a AALS “Hot Topic” panel on titled “New Frontiers in Reproductive Rights and Justice.” The slated roster was:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Khiara M. Bridges, Boston University School of Law
Speaker: Melissa E. Murray, University of California, Berkeley School of Law
Moderator: Kate Shaw, Benjamin N. Cardozo School of Law
Speaker: Neil S. Siegel, Duke University School of Law
Speaker: Reva B. Siegel, Yale Law School

However, Neil and Reva Siegel were unable to attend.

As originally designed, I had planned to discuss how the lower courts would handle Zubik in a Clinton administration, but in light of the election, the talk took on a different tenor. Here is the video.

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