Jul 6, 2015

Attorney General Holder on Solicitor General Verrilli

In his interview with Tony Mauro, Eric Holder offers this praise for Solicitor General Donald Verrilli in response to a question about the government’s brief in the same-sex marriage case:

Did you have a significant role writing the government’s brief in that case?

No. I certainly talked to [Solicitor General] Don Verrilli, and we would meet every week and then more frequently when it came to particular positions in cases, and I saw the briefs before they got submitted. Solicitors general are extremely guarded in their independence within the department, but he’s not necessarily that guy. He’s a very collaborative person and he’d say, ‘This is the way I think we want to go with this argument.’ He kind of just bounces things off of people, and he and I have a good relationship. I think he is going to be seen as an extremely consequential SG, I think one of our greatest SGs.

Holder made a similar comment about Verrilli during the ACS Convention in June.

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Jul 6, 2015

Obamacare’s Biggest Challenge Is Still Obamacare

The first act of the Affordable Care Act from 2009-2012 was dominated by the enactment of the law, and the Supreme Court’s decision in NFIB v. Sebelius, upholding the mandate My first book, Unprecedented, told the story of Act 1. The second act stretched from 2013 till about last week, including the Presidential election and King v. Burwell. The ACA survived both of these hurdles.Unraveled, what will be my second book, tells the story of Act 2.  The third act is what happens now that the law is left to stand on its own two feet. What the legal challenges to Obamacare have always obscured is how unstable the law is all by itself.

The benefits of the ACA, which the President is fond of touting, are frontloaded. People can no longer be denied treatment for pre-existing conditions. (Although this only affected roughly 1.5 million Americans, a fairly small share compared to the 150 million number the Administration campaigned on). Twenty-six year olds can remain on their parents’ policies. Thanks to the payment of subsidies, which the Supreme Court blessed, nearly 13 million people have signed up for a qualified health plan. However, the number of Americans who benefit from this law is quite limited.

In a detailed analysis by Robert Laszewski (WonkBlog called him the “pundit of the year”) we see why the future of the ACA is far from “settled.” Consider this graphic.



For those eligible for Obamacare, an impressive 76% of those earning between 100% and 150% of the federal poverty level have signed up. [Note: the eligible up to 400% of the federal poverty level includes only those eligible for Obamacare’s insurance subsidies and does not include those in or eligible for employer-based plans.] But after that income level the percentage of those eligible who have signed up drops like a rock. The proportion of the population that is signing up for Obamacare is concentrated in the very lowest income categories while Obamacare is obviously unattractive to everyone else. It’s no secret that wealthier consumers who make more than 400% of the federal poverty level, and therefore don’t get an Obamacare subsidy, have seen their individual health insurance rates increase substantially because of the new law and haven’t been happy about it. So, this picture tells the story. Obamacare is unpopular because only the poorest have literally embraced it by buying it.

Obamacare remains unpopular among people who don’t stand to benefit. And this has had a serious impact on the cost of insurance.

After all of this and two complete open enrollments, only 40% of those who are eligible for Obamacare have signed up—far below the proportion of the market insurers have historically needed to assure a sustainable risk pool. ….  Apparently, many of these families have concluded that they are better off staying uninsured and paying for their health care costs out-of-pocket. … Of course if someone in the family is really sick even premiums and deductibles this high can be a great deal.

As a result, while short of a death spiral, the markets are much older than sicker than planned.

Because, the very poor aside, the people who most often see value from Obamacare’s high priced policies and big deductibles are those who know they will use it and take more money out of the system then they will put into it.

That the Obamacare exchange population is a lot sicker than the off-exchange population has been clearly demonstrated by a recent research brief,“Understanding the Exchange Population: A Statistical Snapshot,” from Truven Health Analytics.

And thus not sustainable in its current form.

To be financially sustainable Obamacare is going to have to attract a lot more people. This program, with its high after subsidy premiums and huge deductibles, simply isn’t attractive to most consumers—unless a person is really sick. So, far the only people attracted to Obamacare are the poorest—whose premiums and out-of-pocket costs are very attractive.

What will exacerbate the skewing of the markets is that premiums continue to climb, resulting in more people foregoing insurance. The New York Times reports that insurers are seeking increases of 20-40%.

Health insurance companies around the country are seeking rate increases of 20 percent to 40 percent or more, saying their new customers under the Affordable Care Act turned out to be sicker than expected. Federal officials say they are determined to see that the requests are scaled back.

Blue Cross and Blue Shield plans — market leaders in many states — are seeking rate increases that average 23 percent in Illinois, 25 percent in North Carolina, 31 percent in Oklahoma, 36 percent in Tennessee and 54 percent in Minnesota, according to documents posted online by the federal government and state insurance commissioners and interviews with insurance executives.

The Oregon insurance commissioner, Laura N. Cali, has just approved 2016 rate increases for companies that cover more than 220,000 people. Moda Health Plan, which has the largest enrollment in the state, received a 25 percent increase, and the second-largest plan, LifeWise, received a 33 percent increase.

Jesse Ellis O’Brien, a health advocate at the Oregon State Public Interest Research Group, said: “Rate increases will be bigger in 2016 than they have been for years and years and will have a profound effect on consumers here. Some may start wondering if insurance is affordable or if it’s worth the money.”

(This story was buried on July 3, along with some other important news about the President’s new abdication of immigration law).

People who switch plans will see higher premiums, and smaller networks.

A study of 11 cities in different states by the Kaiser Family Foundationfound that consumers would see relatively modest increases in premiums if they were willing to switch plans. But if they switch plans, consumers would have no guarantee that they can keep their doctors. And to get low premiums, they sometimes need to accept a more limited choice of doctors and hospitals.

Yes, an increase in 20-40% will result in more Americans deciding to simply pay the individual mandate. What is the government doing about it? The President wants to put pressure on insurers to lower prices.

President Obama, on a trip to Tennessee this week, said that consumers should put pressure on state insurance regulators to scrutinize the proposed rate increases. If commissioners do their job and actively review rates, he said, “my expectation is that they’ll come in significantly lower than what’s being requested.”

Yeah, this doesn’t work. The insurers are already seeing the law is more expected than they planned.

Insurers with decades of experience and brand-new plans underestimated claims costs.

“Our enrollees generated 24 percent more claims than we thought they would when we set our 2014 rates,” said Nathan T. Johns, the chief financial officer of Arches Health Plan, which covers about one-fourth of the people who bought insurance through the federal exchange in Utah. As a result, the company said, it collected premiums of $39.7 million and had claims of $56.3 million in 2014. It has requested rate increases averaging 45 percent for 2016.

What about the President’s promise that insurers will spend 80% of premiums on medical care? It hasn’t been enough.

Federal officials have often highlighted a provision of the Affordable Care Act that caps insurers’ profits and requires them to spend at least 80 percent of premiums on medical care and related activities. “Because of the Affordable Care Act,” Mr. Obama told supporters in 2013, “insurance companies have to spend at least 80 percent of every dollar that you pay in premiums on your health care — not on overhead, not on profits, but on you.”

In financial statements filed with the government in the last two months, some insurers said that their claims payments totaled not just 80 percent, but more than 100 percent of premiums. And that, they said, is unsustainable.

The insurers simply underestimated the costs of Obamacare.

At Blue Cross and Blue Shield of Minnesota, for example, the ratio of claims paid to premium revenues was more than 115 percent, and the company said it lost more than $135 million on its individual insurance business in 2014. “Based on first-quarter results,” it said, “the year-end deficit for 2015 individual business is expected to be significantly higher.”

BlueCross BlueShield of Tennessee, the largest insurer in the state’s individual market, said its proposed increase of 36 percent could affect more than 209,000 consumers.

“There’s not a lot of mystery to it,” said Roy Vaughn, a vice president of the Tennessee Blue Cross plan. “We lost a significant amount of money in the marketplace, $141 million, because we were not very accurate in predicting the utilization of health care.”

And make no mistake. The Administration’s decision to exempt millions from the mandates due to the so-called “hardship” exemption further skewed these risk pools. All of the executive action that saved the law in 2013 has set it on a shaky trajectory going forward.

Things do not get better for insurers anytime soon.

Reinsurance subsidies disappear after 2016, causing premiums to go even higher.

How much support does it provide? If you use the data from the2016 draft actuarial value calculator produced by CMS, you can compute that the subsidy will still be about 3% of premiums for 2016.  It was higher in 2014 and 2015. How will the ACA continue when prices increase at least 3% more just due to the elimination of this single subsidy.  The naive might think that 3% is not all that much.  And, without taking adverse selection into account, I would expect the market to shrink only by about an equal percentage.  But if history and economics tells us anything — and it does — because of adverse selection, the actual price increase will be greater and the resulting decline in enrollment will be greater.

And the risk corridors also end after 2016.

Insurers may not have to wait until 2017 for Risk Corridors to disappear.  They are already in grave trouble.  Congress also never appropriated any money for Risk Corridors. And this wasn’t an accident. The statute, as written, depends on assessments on insurers based on a formula to magically equal payments out to insurers based on a formula over the 3-year span of the program.  We are already seeing, as many predicted, however that such an assumption was unwarranted.  Due perhaps to loss leader pricing and the predictable propensity of consumers to pick precisely those plans that were charging too little relative to actuarial risk, it appears that, on balance, at least after what I would hope would be clever but lawful accounting, that few insurers are making enough money under Obamacare policies to provide any funding to the many insurers who gained volume at the expense of profitability.

This week, Aetna acquired Humana. Expect to see more and more insurers consolidate, creating an oligopoly of providers that can weather the ACA storm.

For most Americans, the cost of Obamacare has and will continue to exceed the benefits of the law. And those costs will continue to kick in. The Cadillac Tax–a 40% excise tax on generous policies people law (including my own)–will go into effect in 2018. This will result in two-thirds of businesses taking steps to avoid the tax, and nearly 90% of employer-sponsored plans being cancelled, and employees being put onto the Obamacare exchanges.

The President has prematurely taken a victory lap and spiked the football. The real challenges begin as his term winds down.

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Jul 5, 2015

When Rand Paul Met Eric Holder

In Tony Mauro’s interview of Eric Holder, the former Attorney General relays a meeting with Senator Rand Paul. According to Holder, Paul told Holder about his NSA lawsuit as the meeting concluded.

It has been interesting to see [Republican Sen.] Rand Paul at the forefront.

Yeah. He and I had lunch. It was breathtaking to see the amount of agreement that we had on this subject. As he left he said, ‘But I’m suing you.’ I said, ‘OK, fine.’ I don’t know what he’s suing me for, but he was suing me for something else.

Rand Paul has a very different account of the meeting in his memoir Taking a Stand.  According to Paul, it was Holder who brought up the topic at the outset of the meeting.

The attorney general greeted me in a conference room decorated with elaborate murals and included a portrait of Bobby Kennedy. He laughed as we shook hands. “I understand you’re suing me,” he said.

Paul also relayed this anecdote from Holder that the Administration’s view towards the NSA was not “monolithic.”

Again, I was struck by the irony, and as I left I continued to express my disbelief to Holder. “How could our first African American president condone pervasive spying on Americans?” I asked.

“Let’s just say the administration’s position on the NSA is not monolithic,” he said.

He left it at that, which only left me with more questions. Did the attorney general mean he was against the spying? If so, why was his voice falling on deaf ears? As I walked away, I had an uneasy feeling and less faith than ever in the way the administration and the NSA were carrying out their surveillance program.

Holder said Paul brought it up as the meeting was concluding. Paul said Holder brought it up as the meeting began.

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Jul 3, 2015

No “Motor Vehicle Campers” in the Park

A West Jefferson, Ohio law provides:

It shall be unlawful for any person … to park … upon any street … in the Village, any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle for a continued period of twenty-four hours.

Andrew Cammeleri was given a citation for parking her pickup truck for longer than 24 hours. Does a pickup truck fall within this statute? No she argued. A pickup truck is not a “motor vehicle camper,” a “farm implement,” or a “non-motorized vehicle.” The trial court found that the legislature omitted the comma, and thought the intent clearly captured the pickup truck.

{¶5} The trial court held that when reading the ordinance in context, it unambiguously applied to motor vehicles and “anybody reading [the ordinance] would understand that it is just missing a comma.” The trial court then found Cammelleri guilty of violating West Jefferson Codified Ordinances 351.16(a) and ordered her to pay court costs. …

Judge Hendrickson of the Court of Appeals for the Twelfth Appellate District of Ohio reversed. As drafted, the defendant did not have a “motor vehicle camper.”

{¶ 15} In this instance, the intent of the ordinance is plain from the grammar andlanguage used in West Jefferson Codified Ordinances 351.16(a). According to ordinary grammar rules, items in a series are normally separated by commas. Chicago Manual of Style 312 (16th Ed.2010). The items included in the series of motor vehicle camper, trailer, and farm implement are separated by commas. In order to interpret the ordinance in the way the village suggests, prohibiting parking either a motor vehicle or a camper upon a street in the village for over 24 hours, a comma must be inserted between the phrase “motor vehicle” and the word “camper.” However, no such comma exists. According to the rules of grammar, “motor vehicle camper” is one item. See Karder Mach. Co. v. Liberty Mut. Ins. Co., 9th Dist. Summit No. 14486, 1990 WL 177199, *3 (Nov. 7, 1990).

{¶ 18} By utilizing rules of grammar and employing the common meaning of terms, “motor vehicle camper” has a clear definition that does not produce an absurd result. If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase “motor vehicle” and the word “camper.” As written, however, legislative intent is clear from looking at the language used in the ordinance itself.

Chief Justice Roberts was unavailable to add a comma to rewrite the statute as the legislature obviously wanted it to read.

H/T Joe H.


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Jul 3, 2015

Stunning WaPo Report on Immigration – DHS “taken steps to ensure that the majority of the United States’ 11.3 million undocumented immigrants can stay in this country”

Throughout the entire litigation over DAPA, the Administration has insisted over and over and over again that this administration is deporting more Americans than ever, and Texas can’t possibly claim an abdication of authority because DHS is deporting more people than ever. Now, The Washington Post reports that new DHS policies will decrease the number of deportations for aliens that are not “convicted criminals, terrorism threats or those who recently crossed the border,” and instead focus on “integrating” these preferred aliens.

The Obama administration has begun a profound shift in its enforcement of the nation’s immigration laws, aiming to hasten the integration of long-term illegal immigrants into society rather than targeting them for deportation, according to documents and federal officials.

In recent months, the Department of Homeland Security has taken steps to ensure that the majority of the United States’ 11.3 million undocumented immigrants can stay in this country, with agents narrowing enforcement efforts to three groups of illegal migrants: convicted criminals, terrorism threats or those who recently crossed the border.

While public attention has been focused on the court fight over President Obama’s highly publicized executive action on immigration, DHS has with little fanfare been training thousands of immigration agents nationwide to carry out new policies on everyday enforcement.

While this policy lacks the hallmark of DAPA and DACA–providing work authorization–it is a much wider ranging abdication of enforcement of the immigration laws. Only aliens who fit into the class of dangerous aliens are not presumptively deportable.

But the shift in DHS’s enforcement priorities, which are separate from the DAPA program and have not been challenged in court, could prove even more far-reaching.

The new policies direct agents to focus on the three priority groups and leave virtually everyone else alone. Demographic data shows that the typical undocumented immigrant has lived in the United States for a decade or more and has established strong community ties.

Although the new measures do not grant illegal immigrants a path to citizenship, their day-to-day lives could be changed in countless ways. Now, for instance, undocumented migrants say they are so afraid to interact with police, for fear of being deported, that they won’t report crimes and often limit their driving to avoid possible traffic stops. The new policies, if carried out on the ground, could dispel such fears, advocates for immigrants say.

This is remarkable. It goes far beyond the argument that DHS lacks the resources to deport everyone here illegally. But now, they are moving the goal posts even further, so that removal isn’t even a priority at all!

In describing the initiatives, Homeland Security Secretary Jeh Johnson has echoed the language often used by advocates of comprehensive immigration reform, which remains stalled on Capitol Hill.

“We are making it clear that we should not expend our limited resources on deporting those who have been here for years, have committed no serious crimes, and have, in effect, become integrated members of our society,” Johnson said in a recent speech in Houston. He added, “These people are here, they live among us, and they are not going away.”

In other words, even if we had the resources, we wouldn’t deport them. This is a very, very different argument than the government has made in the past.

Since the new policies took effect in January, Johnson’s instructions have been conveyed to agents throughout the department. “We decided we’re going to draw a clear line between individuals who now have significant equities in the country versus those who are recent entrants,” said one department official, who spoke on the condition of anonymity to describe internal deliberations.

“If people are not an enforcement priority,” the official said, “. . . bottom line, the secretary has said don’t go after them.”

An unnamed administration official has said, very clearly, that DHS will not pursue certain aliens. This is an even more unequivocal abdication than DAPA, which clung to the pretense that DAPA status could be revoke–even though there was a roughly 99% renewal rate.

As a result, deportations are plummeting:

Deportations, for example, are dropping. The Obama administration is on pace to remove 229,000 people from the country this year, a 27 percent fall from last year and nearly 50 percent less than the all-time high in 2012.

Fewer people are also in the pipeline for deportation. The number of occupied beds at immigration detention facilities, which house people arrested for immigration violations, has dropped nearly 20 percent this year.

And on Johnson’s orders, officials are reviewing the entire immigrant detainee population — and each of the 400,000 cases in the nation’s clogged immigration courts — to weed out those who don’t meet the new priorities. About 3,000 people have been released from custody or had their immigration cases dropped, DHS officials said.

There is little pretense for executive discretion anymore when a class of 11 million is systematically exempted from the immigration laws.

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Jul 3, 2015

#SCOTUS Book Royalties

The Justices recently released their financial disclosures. Last year Justice Breyer made $60,000 and Justice Scalia made $30,000 on book royalties.

How did the Justices with books make out with royalties?

  • Justice Scalia made $33,798 from West Services.
  • Justice Breyer made $7,214 from Random House and $126 from Kopf.
  • Like in 2013, Justice Sotomayor received “no ‘noninvestment income’ in 2014″ from her book. But she wrote that the “Knopf Double Day Group, publisher of my memoir “My Beloved World,” disbursed $25,990.00 during 2014 to promote the sale of the memoir.” In 2012, she disclosed a $1,000,000 advance and a separate $925,000 advance. As I speculated last year, she is still paying off the advance, and has not earned any royalties beyond the $2,000,000 paid up front.
  • Justice Thomas did not list any royalties for “My Grandfather’s Son.”

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Jul 2, 2015

Supplemental Briefing in Texas v. U.S. on standing post Arizona Legislature

After reading the Court’s decision in the Arizona Legislature case (I still haven’t made up my mind on the merits, but I’m inclined to agree with the Chief’s dissent), I noted that Justice Ginsburg’s standing analysis was very good news for the House of Representative’s challenge to Obamacare, and Texas’s challenge to executive action on immigration. On cue, Jonathan Turley, representing the House, filed notices of supplemental authority discussing the Arizona case. In response to a call for briefing from the 5th Circuit, the Texas SG has also filed a supplemental notice.

Perhaps most significantly, the Court distinguished Mass. v. Mellon, which the government has relied on extensively.

Arizona State Legislature bolstered Plaintiffs’ independent parens patriae standing theory by distinguishing Massachusetts v. Mellon, 262 U.S. 447 (1923), a case Defendants have cited in attacking that theory. See Appellants’ (DOJ) Br. 32; DOJ Reply Br. 11.

The Supreme Court emphasized that States’ standing to sue the federal government as parens patriae depends on “the kind of claim that the state advances.” Ariz. State Leg., 2015 WL 2473452, at *10 n.10. In illustrating this point, the Supreme Court approvingly cited its decision finding standing in Massachusetts v. EPA, 549 U.S. 497 (2007). And, as Plaintiffs have explained, Massachusetts distinguishes between States suing to enforce federal law and suing to block federal law. See id. at 520 n.17 (explaining that a State can sue the federal government under a parens patriae theory when it is asserting “rights under federal law” rather than seeking to “protect her citizens from the operation of federal statutes”).

In Mellon, the Court found no standing where Massachusetts sued the federal government to block the operation of federal statutes. Ariz. State Leg., 2015 WL 2473452, at *10 n.10; Massachusetts v. EPA, 549 U.S. at 520 n.17. Here, in contrast, Plaintiffs seek to enforce federal statutes. In other words, this lawsuit is analogous to Massachusetts’s later suit against the EPA, where the Supreme Court found standing.

And reaffirms Mass. v. EPA’s discussion of “special solicitude,” in the context of the “institutional injury.”

Arizona State Legislature confirms that States are “entitled to special solicitude in [a court’s] standing analysis.” Ariz. State Leg., 2015 WL 2473452, at *10 n.10 (quoting Massachusetts, 549 U.S. at 520). In Arizona State Legislature, standing was premised on the fact that the Arizona Legislature’s redistricting powers were “strip[ped]” and “nullif[ied].” 2015 WL 2473452, at *8, *10. The Court recognized that was an “institutional injury.” Id. at *10.

Similarly, the States suffer institutional injuries when federal agencies fail to abide by congressional enactments that preempt state prerogatives. “When a State enters the Union, it surrenders certain sovereign prerogatives” that become “lodged in the Federal Government.” Massachusetts, 549 U.S. at 519. A State’s agreement to have its authority preempted on such sovereign matters—for instance, determining the lawful presence of individuals within its borders—is premised on the understanding that Congress’s enactments serve to “protect” the States. Id.

When the Executive Branch “has abdicated its responsibility under [federal statutes],” Massachusetts, 549 U.S. at 505, it negates the basis on which the States agreed to allow federal preemption of their sovereign prerogatives. See ROA.4432-43 (district court’s opinion); Amicus Br. of Prof. Ernest A. Young 15-20. For this reason, States are accorded “special solicitude” in demonstrating their standing to sue the federal Executive. Ariz. State Leg., 2015 WL 2473452, at *10 n.10 (quoting Massachusetts, 549 U.S. at 520).

Texas also distinguishes Justice Scalia’s remarks as inapplicable here:

Justice Scalia’s dissent in Arizona State Legislature suggested that plaintiffs should not have standing when they ask courts to “resolve direct disputes between two political branches of the same government.” 2015 WL 2473452, at *40 (emphasis added). Of course, the majority of the Court did not adopt this view. Regardless, Justice Scalia’s reasoning is inapplicable here. Plaintiffs are not suing other branches within their own governments; they are suing another government. Such lawsuits pose no difficulty, as exemplified by the scores of original cases in the Supreme Court involving one State suing another. See, e.g., States Br. 32 (citing Wyoming v. Oklahoma, 502 U.S. 437, 447-48 (1992), and Maryland v. Louisiana, 451 U.S. 725, 736-37 (1981)).

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Jul 2, 2015

POTUS Takes “Victory Lap” after King v. Burwell

The Hill Reports:

President Obama is taking a victory lap on his landmark healthcare legislation less than a week after the Supreme Court delivered a key decision in favor of the administration.

“I’m feeling pretty good about how healthcare’s going,” Obama said to applause from an audience in Nashville, Tenn.

In his first public remarks devoted to healthcare since the court’s 6-3 decision, Obama vowed to make the law “even better.”

“I think it’s important to remember that everybody who has health insurance benefited and continues to benefit from this law even though a lot of folks don’t know it,” Obama said during the town hall meeting.

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Jul 2, 2015

Robot Grabs, Crushes Man. “Prosecutors Were Considering Whether to Bring Charges, and if so, Against Whom.”

In a bizarre story from Germany, a robot at a VW plan, that was programmed to grab and manipulate auto parts, grabbed a human and crushed him.

A robot has killed a contractor at one of Volkswagen’s production plants inGermany, the automaker said Wednesday.

The man died Monday at the plant in Baunatal, about 100 kilometers (62 miles) north of Frankfurt, VW spokesman Heiko Hillwig said.

The 22-year-old was part of a team that was setting up the stationary robot when it grabbed and crushed him against a metal plate, Hillwig said.

He said initial conclusions indicate that human error was to blame, rather than a problem with the robot, which can be programmed to perform various tasks in the assembly process. He said it normally operates within a confined area at the plant, grabbing auto parts and manipulating them.

Obviously this robot didn’t get past the first rule. In a reference to the questions of liability for torts committed by robots, the article closes:

German news agency dpa reported that prosecutors were considering whether to bring charges, and if so, against whom.

Against whom, or what?

This reminds me of an Onion story last year about Ohio replacing the lethal injection with the “humane new head-ripping-off-machine” that will automatically rip off the head of anyone that sits in the chair.

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Jul 1, 2015

Highlights from Ted Cruz’s New Book About Harvard Law School, #SCOTUS, and the Texas SG

Earlier this week I blogged about Ted Cruz’s experience watching porn with Chief Justice Rehnquist and Justice O’Connor. I’ve now bought a copy of his book, and will highlight some stories salient to legal circles–mostly about his time at HLS and SCOTUS. Long post after the jump.

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Jul 1, 2015

My Comments on the #SCOTUS Term that was on Houston Public Radio

I was on “Houston Matters” to discuss the Supreme Court term that was. I talk about King v. Burwell at 6:40, Obergefell at 9:50, the Texas Attorney General’s opinion on same-sex marriage licenses at 12:15, Glossip v. Goss at 15:50, King v. Burwell again at 18:52, the Confederate Flag license plate case at 21:03, the Texas Fair Housing case at 24:30, the stay on the Texas abortion law at 26:42, and my closing thoughts on the term at 29:00.

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Jul 1, 2015

I am on Houston Public Radio today discussing #SCOTUS

The show starts at 1 ET/12 CT. You can listen here.

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Jun 30, 2015

Alignment of 5-4 Decisions

From Kedar Bhatia’s ever-useful StatPack, we see that this year, there were eight 5-4 decisions where AMK voted with the liberals, and only five where AMK voted with the conservatives. In Walker, Justice Thomas voted with the four liberals. In Williams-Yulee, CJ Roberts joined Ginsburg, Breyer, Sotomayor, and Kagan. So there were 10 cases where four liberals were joined by one conservative. But the only case where four conservatives were joined by one liberal was Breyer joining in Armstrong. But even there, Breyer only concurred in judgment with Justice Scalia’s opinion, which fractured significantly. Adam Liptak discusses the “discipline” of the liberals in his insightful end-of-year piece.



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Jun 30, 2015

Question Presented in Fisher v. Texas II Does Not Involve Overturning Grutter

Here is the question presented by the Court in Fisher v. Texas II:

Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

This is precisely how the issue was framed in Fisher’s cert petition:

Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

This is also similar to how the question presented was framed by the Court in 2011 for Fisher I:

Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

Note that neither QP asks to overturn Grutter.

Recall that during arguments, Bert Rein told Justice Breyer that they were not trying to overturn Grutter.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

MR. REIN: Justice Breyer, we have said very carefully we were not trying to change the Court’s disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving — in using race to establish a diverse class. What — the problem that we’ve encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass-

JUSTICE BREYER: Well, how do you want to argue it right now in the next ten minutes? I’m interested because I have a very short time to get my question out, and I need to know how you are going to argue it.

MR. REIN: Well, Justice Breyer, our argument is we can satisfy Grutter if it’s properly read.

So, once again, Fisher II can only pick around the margins of the Michigan cases. And we only have 8 Justices, with Justice Kagan recused.

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Jun 30, 2015

Did anyone else notice that Justice Thomas cited his NFIB dissent in Johnson?

Johnson v. U.S. (which I am only now getting a chance to read) finds the “residual” clause of the Armed Career Criminal Act was void for vagueness, and violated the Due Process Clause of the 5th Amendment. Justice Thomas dissented, and argued that the void for vagueness doctrine was akin to substantive due process, and needs to be reconsidered as a matter of original meaning. It is well worth reading.

But buried in a footnote was a citation to his join dissent in NFIB v. Sebelius.

By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures . . . [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (2011) (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See Keyishian, 385 U. S., at 597– 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26).

The Chief cited the joint dissent in King v. Burwell as well, in case you missed that too:

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

In any event, Thomas views the void for vagueness doctrine as a species of substantive due process, which he abjured in McDonald v. Chicago.

That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450–452 (1857) (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.

In what also may be a first, Justice Thomas notes that the first draft in Roe was premised on a vagueness, not privacy rationale:

In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U. S. 113 (1973), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U. S., at 164.



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Jun 30, 2015

Justice Sotomayor Changes “Approbation” to “Opprobrium” In Horne Dissent

In Justice Sotomayor’s Horne dissent, she used what seemed to be the wrong word:


Approbation (approval) is the exact opposite of what she meant. I thought she meant disapprobation (disapproval).  Kevin Walsh made the same observation.

On June 23, the day after the opinion was published, SupremeCourt.gov quietly uploaded a new PDF. The word was changed to “opprobrium.” (According to SCOTUSServo).


Confusing approbation with opprobrium should be viewed with disapprobation.


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Jun 30, 2015

Fisher Redux: SCOTUS “Is Going To Clean Up The Mess”

The Houston Chronicle quoted me on my reaction to the Supreme Court taking Fisher another time.

The court’s decision to take up Fisher’s case again could signal that it doesn’t believe the 5th Circuit met this standard and might be poised to reverse the appeals court’s ruling, said Josh Blackman, an assistant law professor at Houston’s South Texas College of Law.

“The key point is, the fact that they took it means the 5th Circuit probably didn’t do what they were supposed to and the Supreme Court is going to clean up the mess,” Blackman said.

I suspect the 5th Circuit will be reversed. But here, as with all affirmative action cases, the question is how the 5th Circuit gets reversed. Justice Kennedy’s decision in the Fair Housing case reaffirms his level of comfort with some use of race, as he cited a few times his concurring opinion in Parents Involved. But no matter how you slice it, the 5th Circuit did not apply the level of scrutiny that Justice Kennedy urged last time. In Fisher I, Justice Sotomayor was (apparently) able to keep the Court from ruling on the merits. Let’s see what happens this time.

Totally apart from the merits, in recent years, the Court has taken several cases twice–what Richard Re called “SCOTUS repeaters“–and went on to reverse. Bond II, Zivotofsky II, Horne II.

Also, sooo many amicus briefs are going to be recycled from last time.


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Jun 30, 2015

SCOTUS Citations for Scalia & Garner’s “Reading Law”

Justice Scalia and Bryan Garner’s magisterial “Reading Law” has been cited by the Supreme Court eight times since its publication in 2012: three times with Justice Scalia joining the opinion, and six times where Justice Scalia was not in the opinion. Justice Sotomayor has three citations, Justice Kennedy has two, and one each for the Chief, and Justices Alito and Kagan. None by Justices Scalia, Thomas, Ginsburg, or Breyer.

Opinions joined by Justice Scalia

Yates v. U.S. (2015) (Kagan, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012). Context thus again confirms what text indicates.

T-Mobile South v. City of Roswell (2015) (Sotomayor, J.).

By relying on other parts of Title 47 of the U.S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 172–173 (2012).

Heien v. North Carolina (2014) (Roberts, J.).

A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by.

Opinions not joined by Justice Scalia

Texas Dept. of Housing (2015) (Kennedy, J.)

“If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Johnson v. U.S. (2015) (Alito, J., dissenting)

As one treatise puts it, “[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 38, p. 247 (2012). This canon applies fully when considering vagueness challenges.

(Here, Scalia wrote the majority opinion, so Alito is jabbing Nino).

Department of Homeland Security v. MacLean (2015) (Sotomayor, J., dissenting).

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) (“[W]hen the word shall can reasonably read as mandatory, it ought to be so read”).

Scialabba v. Cuella de Osorio (2014) (Sotomayor, J., dissenting).

In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory interpretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not between two different statutes or even two separate provisions within a single statute, but between two clauses in the same sentence. See ibid. (“[I]t is invariably true that intelligent drafters do not contradict themselves”).

Maracich v. Spears (2013) (Kennedy, J.).

That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B.Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory…. [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”).

At one point during oral argument in King v. Burwell, Solicitor General Donald Verrilli referred to a “learned treatise.”

Your Honor raised this point about the need for clarity in ­­ in a tax deduction and IRS in the  statutory reading of tax deductions, there is a learned treatise that describes that as a false notion.

It was Scalia and Garner’s Reading Law.

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Jun 30, 2015

“De jure residential segregation by race was declared unconstitutional almost a century ago” in Buchanan v. Warley

I was struck by this sentence in the Texas Fair Housing case (which I am only now getting a chance to read, thank you very much King v. Burwell):

De jure residential segregation by race was declared unconstitutional almost a century ago, Buchanan v. Warley, 245 U. S. 60 (1917), but its vestiges remain today, intertwined with the country’s economic and social life.

That is an important odd way of characterizing the holding in Buchanan v. Warley. Recall that this case was decided while Plessy v. Fergusson was still good law. It was most certainly not an equal protection decision. Rather it was a (gasp) economic liberty decision, based on similar doctrine applied in (gasp) Lochner. Consider the penultimate paragraph which discusses the holding:

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.

In class, echoing David Bernstein, I often explain that liberty of contract in Buchanan v. Warley was used as a method of fighting segregation. And now, the Supreme Court has endorsed that reading of this (gasp) Lochner-era case.

I did a (brief) search through the Supreme Court database to see how Buchanan has been cited in the past (43 times), but there was nothing nearly this sweeping.

The closest I found was CJ Burger in Palmore v. Sidoti:

This is by no means the first time that acknowledged racial prejudice has been invoked to justify racial classifications. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), for example, *434 this Court invalidated a Kentucky law forbidding Negroes to buy homes in white neighborhoods.

Justice Douglas also limited the scope of the decision in Village of Belle Terre v. Boraas:

If the ordinance segregated one area only for one race, it would immediately be suspect under the reasoning of Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 where the Court invalidated a city ordinance barring a black from acquiring real property in a white residential area by reason of an 1866 Act of Congress, 14 Stat. 27, now 42 U.S.C. s 1982, and an 1870 Act, s 17, 16 Stat. 144, now 42 U.S.C. s 1981, both enforcing the Fourteenth Amendment. 245 U.S., at 78—82, 38 S.Ct. at 19—21. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189.


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Jun 30, 2015

Maybe The White House Is Content for Texas v. United States To Become A Political Issue Before the Supreme Court in 2016?

The government’s strategy since Texas v. United States was filed back in January has befuddled me. After Judge Hanen ruled against them (as expected), they dithered over seeking a stay, and ultimately did several weeks later. By seeking a stay, rather than just seeking an expedited appeal, the process was drawn out several months. After the 5th Circuit denied a stay, they again dithered over whether to seek a stay from the Supreme Court, and ultimately decided not to. Based on my calculations, this delay means that the issue will almost certainly not be decided by the Court until June of 2016 at the earliest (assuming the government can get a cert petition in by October, and it is argued around March). I couldn’t quite figure out why the White House was content to let this issue sit for another year before being resolved, effectively running the clock out on the Obama Presidency. The White House Domestic Policy Advisor explained the administration did not want to seek a stay, as that would only be a temporary remedy, and aliens would be afraid to sign up if the Court may ultimately find on the merits that the policy is unlawful. That answer made some sense, but I think there may be an another, far more cynical rationale.

Politico reports:

David Leopold, a veteran immigration attorney and former president of the American Immigration Lawyers Association, said the presence of both Elrod and Smith on the appeals panel indicates that the Fifth Circuit is likely to rule against the administration again — raising the chances that this case would get pushed to the Supreme Court, perhaps during the heat of the 2016 presidential race.

“The merits are broader, but we know exactly where this court is going. Smith’s and Elrod’s opinion pretty much mirrors what Judge Andrew Hanen did, absent the political diatribes,” Leopold said Monday. “Unfortunately for the GOP, if this case goes to the Supreme Court, the Court will have to fix it and the GOP will be facing yet another national loss which will be bad for them politically and further tarnish their brand with Latinos.”

A few months ago, a lawyer friend suggested that the Administration was content to drag this process out because it gives the Democrats political gain, and forces the Republicans to take tough positions on immigration. Think of how King v. Burwell put many Republicans under pressure concerning Obamacare. The immigration case doesn’t quite fit that bill, but it’s close. If this case does indeed stretch to June 2016 term, it becomes an important political issue for the 2016 Presidential election. If the Court rules for the President, the democrat President can assure immigrants that she will continue the policy, but the Republican President could lose those voters by pledging to halt it. If the Court rules against the President, the Democrat nominee will insist on an immigration bill that accomplishes what DAPA would have. Either way, the Democrats can gain–as Leopold explained, this case will be another “national loss.” for the GOP. I haven’t seen anyone make the election argument as clear as Leopold did, so I think this may be a new talking point to assuage those angry that the government did not seek a stay–especially after learning about the merits panel.

I don’t pretend to understand the political machinations of the Justice Department, but when the decisions had so much public infighting, I have to imagine this political calculus weighed in, somehow.


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