May 22, 2015

The Pottery Barn Rule For King v. Burwell

Today and yesterday, Jeff Toobin and the WSJ Editorial Board have articulated a similar message concerning King v. Burwell. Contrary to the conventional wisdom, it may be that the President, and not the Republicans take the blame if subsidies are not restored following the Court’s decision.

Toobin writes:

So that’s the theory: millions will suddenly be uninsured, and will blame Republicans. As Harry Reid, the Democratic leader in the Senate, put it recently, “I don’t think they will [win the case]. If they do, that’s a problem that the Republicans have.”

No, it’s not. If the Obama Administration loses in the Supreme Court, the political pain will fall almost exclusively on the President and his Party. To paraphrase Colin Powell and the Pottery Barn rule, President Obama will have broken health care, so he owns it. To the vast mass of Americans who follow politics casually or not at all, Obamacare and the American system of health care have become virtually synonymous. This may not be exactly right or fair, but it’s a reasonable perception on the part of most people. The scope of the Affordable Care Act is so vast, and its effects so pervasive, that there is scarcely a corner of health care, especially with regard to insurance, that is unaffected by it. So if millions lose insurance, they will hold it against Obamacare, and against Obama. Blaming the President in these circumstances may be unfair, but it’s the way American politics works. …

For many people, the President of the United States is the government of the United States. It’s why he gets the credit and blame for so many things, like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him.

The WSJ adds on a similar note:

We often ask Congressional Republicans how they prefer the Supreme Court to rule in the ObamaCare subsidies case—as a matter of politics, putting aside the law. The smarter ones usually demur, because they know the risks are real, the damage is potentially large, and many of their colleagues are complacent even at this late hour.

With a ruling in King v. Burwell approaching in June, there are troubling signs that Republicans in Congress are headed for another friendly-fire massacre that ends in a victory for President Obama. To borrow the novel idea of Wisconsin Senator Ron Johnson, this time Republicans would be smarter to try to win the inevitable debate with a unified and politically defensible strategy.

If the High Court upholds the plain text of the Affordable Care Act and vacates the insurance subsidies in the 37 states that did not establish their own exchanges, the White House will try to turn the disruption to its advantage. Some 7.7 million people are now part of the entitlement in those states, and their largely Republican Governors will come under intense industry and constituent pressure to restore the subsidies by joining ObamaCare.

In private, the Governors are petrified that dysfunction in Congress will force them into a lose-lose trench. If they set up a state exchange, they’ll be pilloried by their GOP base. If they don’t, they’ll be blamed for cutting people off medical care.

Yet a view has taken hold among some conservatives in Congress that the danger from King is overblown. The conceit is that the GOP can blame the White House for any disruption, and the public will agree. So do nothing for now and wait two years for a Republican President, who will repeal ObamaCare, sign a replacement and usher in a glorious future.

Interesting confluence of thought.

Read More
May 21, 2015

Texas Files Response to Government’s “Advisory” in Immigration Challenge

The battle in Brownsville rages on. Texas filed a response to the government’s advisory, wherein it admitted to granting even more expanded DACA applicants not only before the court’s injunction, but after it.

Texas asserts the government’s truthfulness is in doubt, and urges the court to allow further discover to reveal what DHS is up to:

Defendants’ May 7 Advisory (ECF No. 247) and supplemental declarations (ECF Nos. 256-1, 256-2) further confirm the unwieldiness of the DAPA/DACA bu- reaucracy—so large and complex that not even Defendants have a full grasp of what their machinery is doing. That, in turn, creates serious questions about the reliability of Defendants’ representations concerning the enjoined Directive’s implementation. Indeed, Defendants have now admitted to violating the preliminary injunction by is- suing what they currently quantify as approximately 2,000 three-year terms of de- ferred action. ECF No. 247.

The facts regarding Defendants’ compliance seem to be constantly evolving, from injunction compliance (March 3 advisory), to 55 recipients of three-year terms after the injunction (disclosed at the March 19 hearing), and now 72 recipients of such terms after the injunction plus “approximately” 2,000 more—with Defendants still “refin[ing]” their understanding through “ongoing” efforts (May 7 advisory and supplemental declarations). And this is in addition to more than 108,000 pre-injunction beneficiaries of the Directive. Defendants’ recent discovery production involves such broad assertions of priv- ileges that Plaintiffs know little more about the circumstances behind the inaccurate information furnished by Defendants and their newly revealed violation of the pre- liminary injunction. Because this Court or its appointed designee may review the allegedly privileged materials, however, Plaintiffs in this Response suggest a path forward and a range of options available to the Court based on what those materials show. Plaintiffs suggest that, at a minimum, a compliance-assurance mechanism would be prudent—with exploration of the need for sanctions being a separate matter depending on what the withheld materials reflect about who knew the truth and for how long. Plaintiffs also suggest certain areas of further discovery that may help shed light on appropriate next steps.

Curiously, the government raises a “presidential-communication privilege”:

Presidential-communications privilege. So too, the presidential-commu- nications privilege, the question of its propriety aside, is at most a qualified privilege for which courts must “balance the public interests at stake in determining whether the privilege should yield in a particular case.” In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997).

Since discovery was granted, I had a lurking suspicion the White House’s communications would come out. Here it is.

Read More
May 18, 2015

Justice Thomas on the Value of the Founding

In his dissent in Comptroller of Treasury of Md. v. Wynne, Justice Thomas offers this concise string cite for the importance of founding-era traditions for originalism:

In other areas of constitutional analysis, we would have considered these laws to be powerful evidence of the origi- nal understanding of the Constitution. We have, for example, relied on the practices of the First Congress to guide our interpretation of provisions defining congres- sional power. See, e.g., Golan v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 16) (Copyright Clause); McCulloch v. Maryland, 4 Wheat. 316, 401–402 (1819) (Necessary and Proper Clause). We have likewise treated “actions taken by the First Congress a[s] presumptively consistent with the Bill of Rights,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (ALITO, J., concurring) (slip op., at 12). See, e.g., id., at ___ – ___ (majority opinion) (slip op., at 7– 8); Carroll v. United States, 267 U. S. 132, 150–152 (1925). And we have looked to founding-era state laws to guide our understanding of the Constitution’s meaning. See, e.g., District of Columbia v. Heller, 554 U. S. 570, 600–602 (2008) (Second Amendment); Atwater v. Lago Vista, 532 U. S. 318, 337–340 (2001) (Fourth Amendment); Roth v. United States, 354 U.S. 476, 482–483 (1957) (First Amendment); Kilbourn v. Thompson, 103 U. S. 168, 202– 203 (1881) (Speech and Debate Clause); see also Calder v. Bull, 3 Dall. 386, 396–397 (1798) (opinion of Paterson, J.) (Ex Post Facto Clause).  … As was well said in another area of constitu- tional law: “[I]f there is any inconsistency between [our] tests and the historic practice . . . , the inconsistency calls into question the validity of the test, not the historic prac- tice.” Town of Greece, supra, at ___ (ALITO, J., concurring) (slip op., at 12).

I think that last citation was a gratuitous jab at Justice Alito, who authored the majority opinion in Wynne.

Read More
May 18, 2015

Kagan: Possession is “one of the proverbial sticks in the bundle of property rights”

Justice Kagan’s unanimous decision in Henderson v. United States offers this chestnut for Property professors:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an- other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Usually, the Court focuses on  the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. U.S. (1979). But here, the focus is on “ownership.” Her use of the “thick” stick is an apt image. I will use that in class rather than the bland “essential.”

Kagan is really giving Scalia and Roberts a run for their money. Her writing is so short and crisp. She handles a somewhat-complicated statutory interpretation issue in only 8 pages. There is very little verbiage, and it cuts right to the chase. Every sentence accomplishes what it aims to accomplish. And this property reference is directly on point. Plus the case was argued on 2/24/15. Less than two months to decision. Sharp.

Read More
May 18, 2015

Justice Scalia and Kagan Fault San Francisco’s “Bait-and-Switch” and “Snookering” Cert Inducement

In City and County of San Francisco v. Sheehan, the Court per Justice Alito dismissed the first question presented as improvidently granted.

We granted certiorari to consider two questions relating to the manner in which San Francisco police officers arrested a woman who was suffering from a mental illness and had become violent. After reviewing the parties’ submissions, we dismiss the first question as improvidently granted.

The majority opinion chides the petitioner for switching their argument once cert was granted.

Having persuaded us to grant certiorari, San Francisco chose to rely on a different argument than what it pressed below. … The argument that San Francisco now advances is predicated on the proposition that the ADA governs the manner in which a qualified individual with a disability is arrested.

In the absence of “adversarial briefing,” the Court cannot resolve this issue.

Whether the statutory language quoted above applies to arrests is an important question that would benefit from briefing and an adversary presentation. But San Fran- cisco, the United States as amicus curiae, and Sheehan all argue (or at least accept) that §12132 applies to arrests. No one argues the contrary view. As a result, we do not think that it would be prudent to decide the question in this case.

Let’s see. The plaintiffs, San Francisco, and the Obama Administration all agree–sounds like Sue and Settle, SCOTUS edition! A Professor friend on Facebook noted that disability advocates pressured the San Francisco City Attorney’s office to change their ADA argument. (Update: See this letter from Disability Rights California urging San Francisco to withdraw the appeal).

As a result, the Court DIGs the first question:

Because certiorari jurisdiction exists to clarify the law, its exercise “is not a matter of right, but of judicial discre tion.” Supreme Court Rule 10. Exercising that discretion, we dismiss the first question presented as improvidently granted. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 360, n. 1 (2001) (partial dismissal); Parker v. Dugger, 498 U. S. 308, 323 (1991) (same).

Justice Scalia, joined by Justice Kagan, was no so kind to the Golden Gate City. They would have dismissed both questions.

Imagine our surprise, then, when the petitioners’ prin- cipal brief, reply brief, and oral argument had nary a word to say about that subject. Instead, petitioners bluntly announced in their principal brief that they “do not assert that the actions of individual police officers [in arresting violent and armed disabled persons] are never subject to scrutiny under Title II,” and proclaimed that “[t]he only ADA issue here is what Title II requires of individual officers who are facing an armed and dangerous suspect.” Brief for Petitioners 34 (emphasis added). In other words, the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon. We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA ques- tion that has relevance only if we assume the Ninth Cir- cuit correctly resolved the antecedent, unargued question on which we granted certiorari. The Court is correct to dismiss the first QP as improvidently granted.

Justice Scalia made similar points during oral arguments. Why did San Francisco do it? To induce certiorari.

Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners in- cluded that issue to induce us to grant certiorari. … It is unlikely that we would have granted certiorari on that question alone.

Because this was a “bait and switch,” Justice Scalia would not reward the petitioners with review of the related non-“certworthy” fact-based questions.

But (and here is what lies beneath the present case) when we do grant certiorari on a question for which there is a “compelling reason” for our review, we often also grant certiorari on attendant questions that are not independently “certworthy,” but that are sufficiently connected to the ultimate disposition of the case that the efficient administration of justice supports their consideration. In other words, by promising argument on the Circuit conflict that their first question presented, petitioners got us to grant certiorari not only on the first question but also on the second.

I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the signifi- cant expense of defending the suit, and satisfying any judgment, against the individual petitioners.* I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.

Scalia reiterates that this is not a Court of error correction:

Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction. The fair course—the just course—is to treat this now-nakedly uncertworthy question the way we treat all others: by declining to decide it. In fact, there is in this case an even greater reason to decline: to avoid being snookered, and to deter future snookering.

Justice Alito, in a footnote, explains why San Francisco should not be “punish[ed]” for their chicanery.

Not satisfied with dismissing question one, which concerns San Francisco’s liability, our dissenting colleagues would further punish San Francisco by dismissing question two as well. See post, at 3 (opinion of SCALIA, J.) (arguing that deciding the second question would “reward” San Francisco and “spar[e it] the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners”). But question two concerns the liability of the individual officers. Whatever contractual obligations San Francisco may (or may not) have to represent and indemnify the officers are not our concern. At a minimum, these officers have a personal interest in the correctness of the judgment below, which holds that they may have violated the Constitution. Moreover, when we granted the petition, we determined that both questions independently merited review. Because of the importance of qualified immunity “to society as a whole,” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982), the Court often corrects lower courts when they wrongly subject individual officers to liability. See, e.g., Carroll v. Carman, 574 U. S. ___ (2014) (per curiam); Wood v. Moss, 572 U. S. ___ (2014); Plumhoff v. Rickard, 572 U. S. ___ (2014); Stanton v. Sims, 571 U. S. ___ (2013) (per curiam); Reichle v. Howards, 566 U. S. ___ (2012).

BTW, Justice Scalia refers to the “Question Presented” as “QP.”

The first question presented (QP) in the petition for certiorari was …

The Court is correct to dismiss the first QP as improvidently granted …

The second QP implicates, at most, the latter.

Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term.

A quick search of the “Supreme Court” database on Westlaw reveals that this was the first time the abbreviation “QP” was used. The phrase “uncertworthy” has been used twice before, in Justice White’s dissental in Davis v. Kemp (1985) and Justice Blackmun’s dissental Mellon Bank v. Southland Mobile Homes of South Carolina (1978). This seems to be the first time it was used in a merits case.

Update: Mark Joseph Stern has more on Slate on the rationale behind SF’s decision to abandon the first question presented.

As ThinkProgress’s Ian Millhiser pointed out, this is a strangely naïve accusation from the (usually worldly) Scalia and Kagan. As soon as San Francisco appealed this case to the Supreme Court, civil rights groups implored Mayor Ed Lee and City Attorney Dennis Herrera to give it up. …

We can’t know for sure whether San Francisco’s city attorney modified his appeal following pleas from the civil rights community or intervention by the mayor. But the city really had no other reason to give up its tactical advantage so suddenly. And, presuming it did drop its claim in the interest of justice, San Francisco certainly wouldn’t be alone. Over the past several years, for instance, fair-housing advocates have twice convinced litigants to settle rather than push their claims to the Supreme Court. (The court finally got ahold of the fair-housing issue this term, and eager conservative justices licked their chops during arguments.) In 2012 the disability rights community also convinced Washington Gov. Christine Gregoire to abandon a case that would give the Supreme Court the opportunity to overrule a vital ADA decision from 1999. The 1999 case was decided with Justice Sandra Day O’Connor in the majority. Now O’Connor is gone, replaced by Justice Samuel Alito. And no progressive wants Alito anywhere near a civil rights case.

Anybody who cares about disability rights, then, should be grateful for San Francisco’s dodge. It may have been inglorious and, legally speaking, a little unseemly. But it reflected a pragmatism that has been conspicuously absent from recent progressive litigation. San Francisco’s city attorney won’t win many laurels for his last-minute evasion. But his maneuvering saved the rest of the country from a ruling that may have given cops free rein to treat mentally disabled people like typical violent offenders—and pull the trigger accordingly.

Read More
May 18, 2015

New Zealand Think Tank Recommends Re-Examining Whether Religious Institutions Should Qualify for Charitable Status

Lest anyone think my post yesterday about religious groups exiting the body politic was hyperbole, the New Zealand Initiative, “an independent public policy think tank supported by chief executives of major New Zealand businesses,” has suggested that religious organizations need not qualify for charitable (tax-exempt status).

The current definition of the Charitable Act provides, in part:

In this Act, unless the context otherwise requires, charitable purpose includes every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.

The report offers this recommendation (p. 10):

The first much needed change is a review of the Charities Act. This should not be limited to a review of the definition of charitable purpose, although such a review would allow policymakers to assess whether the current definition is appropriate. In addition, the review might usefully examine whether religious and cultural institutions should continue to qualify for charitable status simply because they pursue the goal of promoting religion and culture. This is not to say that such institutions should not be considered, but the assessment criteria should be the same for all organisations seeking the status of registered charities.

The recommendation does not have any revisions to scrutinizing a program that “relates to the relief of poverty” or the “advancement of education.” (Neither topic is mentioned after the introduction). Just “religious or cultural institutions.” Because “cultural” is not mentioned in the Act, I presume this is a species of religion, but I’m not sure. In other words, the government would be in a position to determine whether the beliefs of a specific religious group are for the benefit of the public, and worthy of tax-exempt status.

If applied in the United States, picking and choosing which religions can receive tax-exempt status would likely run afoul of the Free Exercise clause. A blunter approach would simply be to deny tax-exempt status to any group found guilty of violating non-discrimination ordinances. Like Bob Jones.

I find that ideas like this often germinate abroad, and come to the United States within a few years, usually starting in small progressive enclaves. There was a reason why in my post I suggested that the decision to deny tax-exempt status comes from local governments through the forms of sales and property tax-exemption. The federal code will likely be resistant to change for some time. But cities and counties will not be so bound.

Stay tuned.

H/T Religion Clause

Read More
May 17, 2015

“They Should Leave”

Last week, I blogged about a Harvard Crimson report about an event at the Petrie-Flom Center on Hobby Lobby and religious liberty. The story quoted Harvard Law School Dean Martha Minow as suggesting that if religious people cannot “live with” the “values of this country,” then “they should leave.” The Crimson subsequently issued a retraction, and explained the remarks were taken out of context. After the Crimson issued the retraction, I took down my post (something I have only done a handful of times in the 5+ years I’ve been blogging).

The video of the event has now been posted, and you can see Dean Minow’s remarks. They start at 1:39:10. The relevant portion the Crimson reported on begins at 1:41:10.


At 1:41:10, her initial point is that “law is really a bad tool for dealing with these issues, particularly adversarial litigation,” because of its all-or-nothing approach. For many people of faith, “and I count myself in that category, if the choice is adhere to your faith or leave the country, they’ll leave the country, it’s just that simple. When a group of Amish families were engaged in Wisconsin v. Yoder, if the United States Supreme Court had not found a way to create an exemption for otherwise fining the parents for sending their children to the public high school, they would have left the country, we are clear about that, that is what they told their lawyers, that is what they planned. That would be sad, since this country actually had been a haven for religious freedom really since even before its founding.”

But then at 1:42:07, she continues. “On the other hand, there will be some issues where the values of this country will run into conflict with some people’s religious views, and if they can’t live with it they should leave. The problem is, if law is answering the question it may make it more all-or-nothing than it needs to be, because many times there can be accommodations that can be worked out on a much more nuanced level than win-or-lose when there are two parties, particularly when dealing with a variety and diversity of religions in America where there are third parties, fourth parties, and fifth parties affected by the resolution between two parties.”

She returns to the topic towards the end at 1:43:10. “The risk of demonizing people with whom you disagree is escalating. I think that is the more serious than any particular competing view on the resolutions of issues posed now they we deal with the fallout of Hobby Lobby. I have a plea for tolerance and listening and trying to understand, which resonates with every religious tradition with which I am familiar with. I also want to acknowledge that there is not going to be a neutral resolution. People are going to disagree. Some people may leave the country, or otherwise divest or become less involved in American politics, which would be unfortunate. We’ve seen it happen before depending on who wins or loses in the religious skirmishes.

The first remark concerning the Amish people had the nuance that she was reporting how the Yoder family would have reacted to an adverse judgment. But the second remark did not have the nuance, and read literally, suggested those people whose beliefs clashes with the “values of this country” should leave. On the whole, when read charitably, Dean Minow wasn’t saying anyone should leave, but that people may decide to leave, or withdraw from the body politic if their faith clashes with the “values of society.”

Dean Minow was kind enough to provide comments about her remarks by email, making clear that the nuance from her first remark applied to her second comment:

Thanks for being in touch. As the context of my remarks makes clear, I was speaking about the Amish in Yoder and had them, not other examples, in mind. When I said, ‘they should leave’, the phrase was in the context of the Amish community’s dilemma I had just described a minute earlier.

The general topic raises complex matters. That recognition is the basis for my general point that adversarial legal disputes generating judicial opinions may not advance the kind of workable accommodations that have been so important in this nation’s great tradition of religious inclusion and pluralism. That tradition is meaningful for anyone who values freedom and anyone who is religious, and also for anyone who values the respect and accommodation that enable diverse people to live together. It is also vital to cultivating the ethical attitudes that help instill regard for the secular law and aspiration to good behavior. A government is not likely to elicit obedience simply through fear of punishment. The secular law, in turn, may pursue rules that do not support particular religious views or practices. The tensions are complex and real, but as my comments indicate, I believe that religious freedom is important for everyone.

I appreciate that Dean Minow took the time to reply, and I feel guilty about jumping the gun, and publishing the Crimson report before the video was posted. With blogging, there is often a question of what sources am I willing to rely on. I usually try to limit my reliance to primary sources, unless I think I can trust a report. As my good friend Garrett Epps–who was a former editor of the Crimson–reminded me, you can’t always rely on student reporting. Although in fairness to the Crimson, their initial report was a reasonable interpretation of what was said–especially since the video was not post till several days later.

I admit there may have been a bit of motivated reasoning on my part, as the comments the Crimson reported on were consistent with a theme that has been germinating well before Hobby Lobby, and now in the lead-up to the same-sex marriage cases. (I develop these ideas in my article, Collective Liberty). The argument usually takes a less extreme form–not that religious people should “leave” if their beliefs conflict with the values of the nation, but they should “exit” from the state, or in Dean Minow’s words “become less involved in American politics.” This isn’t a hypothetical. For example, Catholic charities who refuse to place children for adoption with same-sex couples have closed their adoption units in Massachusetts and the District of ColumbiaReligious universities have declined federal funding rather than comply with various mandates that could impose on their beliefs. This makes it impossible for any student to receive financial aid, and renders the finances of such an institution precarious. This is all a prelude to the “Bob Jones” question Justice Alito posed to the Solicitor General during oral arguments, and to which the SG basically conceded the question.

It isn’t the case that religious organizations will be literally forced to do something that goes against their conscience, but that the failure to act in accordance with the state’s dictates will result in the deprivation of certain state benefits, such as tax-exempt status. (Let’s put aside for the moment the HHS originally crafted the contraception mandate to apply to religious non-profits like the Little Sisters of the Poor). Justice Scalia’s question about whether the state could force a priest to perform a same-sex wedding was the wrong question. The freedom of speech would probably prohibit a priest from being required to officiate at any wedding. (A Couer d’Alene City Attorney initially determined that a for-profit chapel must perform a same sex wedding, but after some outrage, reversed his position for the for-profit “religious corporation” based on the state RFRA).

The more precise question should have been whether a state or city could take away a church’s property or sales tax-exempt status, or deny a priest the license to be an officiant at any marriage ceremonies, or not recognize a ceremony performed by this officiant. (Update: A New Zealand think tank has already suggested religious group should be scrutinized before receiving a tax-exempt status). Mike Dorf has a thoughtful post addressing this question head-on–much deeper than Justice Kagan’s unsatisfactory retort about Jewish rabbis not marrying non-Jews–and explaining it isn’t entirely clear that the state would have to recognize such a wedding:

The religious ceremonies themselves would undoubtedly be permitted to occur without interference from the state. At most it might be said that if the state denies legal recognition to weddings performed by clergy who refuse to perform same-sex (or interfaith) ceremonies, the state in effect penalizes practitioners of the corresponding denominations. An opposite-sex couple wishing to be married in a faith that does not recognize same-sex marriage would need to have two ceremonies—one religious and one civic—whereas members of more egalitarian sects would only need to have the religious ceremony. But it is not obvious that this subtle pressure should be sufficient to trigger the Free Exercise Clause.

I take it that Dean Minow’s point is that it would be sad for the Amish to have to leave, if the state (or the Court) is not willing to provide an accommodation for their religious beliefs. I think she would also agree that it would be sad for the state to no longer recognize weddings officiated at by an Orthodox Jewish Rabbi if the Rabbi refuses to preside at gay weddings. I think she would also agree that it is sad for Catholic charities to shut down adoption units due to state regulations concerning placements with same-sex couples. (I had a conversation with two law professors recently who were incensed that their state was trying to pass a law to prevent religious charities from having to place children with same sex couples, so I’m not sure everyone would be sad about this).

“Sad,” sure, but what to do about it? Wasn’t this Justice Frankfurter’s point in Gobitis? If the state legislature is not interested in providing accommodations–I’m waiting for states to start repealing RFRAs–and the courts offer no additional protections for free exercise, the situation will get a lot more sad.

What makes this even more troubling, is not everyone would agree on what is sad. This past semester in constitutional law, I had a couple of students who said unequivocally that religions that treat gays and lesbians differently should not be tolerated because they are intolerant. (Think about that one for a second). I suspect, and fear, that today’s generation of trigger-warned delicate snowflakes–inculcated that millennia-old faiths that haven’t evolved with the zeitgeist over the last two decades are bigoted–will perpetuate this mentality as they become tomorrow’s leaders. A recent Pew Report suggested that in the last 7 years, the percentage of Americans who describe themselves as Christians dropped by 78.4% to 70.6%. By 2050, the percentage of Americans who will claim to be secular will increase from 16% to 25%. And unlike in the past, this generation shows no signs of becoming more religious as it ages. If the government acts to eliminate a Church’s tax-exempt status and not recognize their marriage ceremonies–further stigmatizing faith itself–this perception of religion will most likely hasten.

I recently had a discussion with several Orthodox Rabbis, and I asked them what they would do if the state threatened to revoke their power to officiate at weddings if they refused to officiate at same-sex marriages. They all agreed–they would stop exercising the power of the state to officiate at any civil weddings, and would not sign marriage licenses. They would only perform the religious ceremony.  This wasn’t even a close call for them. When I asked what would happen if a city or county tried to eliminate their tax-exempt status, the conversation took on a much more dire tone, as the Temple would be severely injured by it. In states with a RFRA, such a law would impose a substantial burden. But in states without a RFRA, I don’t see how Smith would provide any protection under the Free Exercise Clause. If anything, wouldn’t the later-in-time 14th Amendment’s heightened scrutiny for discrimination against gays and lesbians–which the Court is on the cusp of constitutionalizing–trump the First Amendment’s right of free exercise? The churches wouldn’t be required to admit, or marry gays and lesbians–that would violate the freedom of association–they would only lose their tax-exempt status. This was the crux of Bob Jones, as the Court found that the eradication of racial discrimination was so compelling that it easily allowed an infringement of the university’s beliefs.

As this trend continues, what choice will be left for religious people to practice their faith? Leave–not from America, but withdraw from the American body politic itself. This separation of church from state would indeed be very, very sad.

Read More
May 16, 2015

2015 Harlan Institute-ConSource Virtual Supreme Court Competition: Round 1

Check your brackets! The 2015 Harlan Institute-ConSource Virtual Supreme Court Competition is underway. This year our students have submitted briefs and made oral arguments concerning Zivotofsky v. Kerry. We are currently judging Round 1, featuring the top 16 teams in the country–8 Petitioner teams and 8 Respondent teams. The top 8 teams from this round will advance to the next round, and get one step closer to winning the entire tournament.The Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2015

Check out the videos and briefs from the students below, and tell us what you think!

Brackets-5-16

1st Circuit

Petitioner #1: Diana O & Mitchell M (OR) 

Respondent #1:  Emily D. & Camryn C. (MD)

Petitioner #2: Jered J. & Taylor H. (TX)

Respondent #2:  Katie B. & Jung O. (MD) 

2nd Circuit

Petitioner #3: Victoria M. & Hayley B. (MD)

Respondent #3: Emily K. & Evan M. (OR)

Petitioner #4: David E. & Nick P. (MD)

Respondent #4: Jacob S. & Danielle T. (TX)

3rd Circuit

Petitioner #5: Azhar A. & Blake V. (TX)

Respondent #5: Briana B. & Apeksha G. (MD)

Petitioner #6: Zohar H. & Sarah T. (OR)

Respondent #6: Rachel B. & Steve L. (MD)

4th Circuit

Petitioner #7: Kole H. & Matt W. (WV)

Respondent #7: Connor R. & Brandon J. (TX)

Petitioner #8: Brendan O. & Dominique P. (TX)

Respondent #8: Ammas T. & Max G. (OR)

 

Read More
May 15, 2015

Declarations from Director of USCIS and Associate Director Service Center Operations filed in Texas v. United States

Late Friday night (2 hours before the government’s self-imposed deadline of 5/15/15), DOJ filed two affidavits supplementing their advisory. First, a declaration of Leon Rodriguez, the director of United States Citizenship and Immigration Services, and Donald Neufeld, Associate Director for Service Center Operations. These declarations explain how and why expanded DACA applications continued to be issued even after Judge Hanen’s injunction issued.

The most interesting document is the Neufeld Declaration, which explains how DACA applications are granted.

7. In order to understand where the process of identification and tracking broke down, it is necessary to understand the steps involved in the approving of deferred action and employment authorization and in the production and issuance of EADs to DACA recipients. The review and consideration of a request for deferred action and application for employment authorization under DACA is a multi-step, case-specific process. As described more fully below, that process involves three principal, consecutive steps for approved cases: (1) consideration of the request for deferred action; (2) consideration of the application for employment authorization; and (3) production of the EAD. Each of these steps results in USCIS issuing a separate document to the requestor. Approval of the request for deferred action triggers the issuance of an approval notice to the requestor. Approval of the application for employment authorization similarly triggers a separate approval notice. Finally, after approval, USCIS prints and then mails the EAD to the requestor. This typically takes approximately two to five business days after approval of the application for employment authorization.

8. The process begins when an individual requestor submits a request for deferred action under DACA (Form I-821D), an application for employment authorization (Form I-765), an accompanying worksheet showing economic necessity for employment (Form I-765WS), and related filing fees and supporting documentation to one of three USCIS “lockbox” facilities based on the location of the requestor’s residence in the United States. The lockbox facility logs each filing and reviews each DACA package for compliance with applicable intake requirements. If the lockbox facility determines that a package fails to comply with the intake requirements, it rejects the package and mails it back to the requestor with an explanation of the reason for the rejection. If the package is complete, the lockbox facility considers the package appropriately filed and sends a receipt to the requestor. Appropriately filed packages are then forwarded to one of four USCIS Service Centers for further substantive processing and consideration.

9. DACA packages forwarded to the Service Centers are assigned to USCIS adjudicators. After reviewing the paper file and conducting the decision-making process, the adjudicator may approve the request, deny the request, or seek additional information from the requestor if additional evidence is necessary to make a decision. If the DACA request is approved, the adjudicator then considers the application for employment authorization and makes a determination whether the individual has demonstrated an economic need for employment. If so, the application for employment authorization is approved. If not, the adjudicator may deny the application, or may request additional evidence, thereby delaying the decision on the application for employment authorization until a response is received. If the DACA request is denied due to a finding that the requestor has not satisfied the DACA guidelines or does not otherwise merit an exercise of prosecutorial discretion in the form of deferred action, the associated application for employment authorization is also denied.

Read More
May 14, 2015

2/3 of Businesses Will Take Steps to Avoid Obamacare Cadillac Tax in 2018

The ACA was designed to front-load the benefits, and back-load the costs. The subsidies for exchanges, the Medicaid expansion, and other provisions were designed to make the feel-good aspects of the law kick in right away. The one exception to this was the massive cancellation of the plans, which the Obama Administration effectively disregarded through the so-called “administrative fix.” But the painful parts of the law will not be felt till later. Specifically 2018, when the Cadillac tax kicks in. This provision will impose a 40% tax on plans that offer benefits above $10,200 for individuals, and $27,500 plans for family members. (My plan will be covered by this).

The Hill reports that nearly 2/3 of businesses will take steps to avoid paying this tax:

Nearly two-thirds of companies facing a new ObamaCare tax say they are changing their coverage to avoid the extra costs, according to a new survey.

The so-called Cadillac tax, which applies to healthcare plans above a certain expense threshold, is one of the most pressing changes still to come under ObamaCare, according to a survey of about 600 members of the International Foundation of Employee Benefit Plans.

Only 2.5 percent of companies that would be hit by the Cadillac tax starting in 2018 said they plan to pay the tax. A total of 62 percent of companies said they have already taken action or plan to take action to avoid it.

Most say they are shifting toward higher deductible plans, while others said they are reducing benefits, shifting more costs to employees or dropping high-cost plans altogether.

Invariably, more employers will dump employees onto the Obamacare exchanges, because it will be much cheaper–and this was done by design. Obamacare was structured to place as many people onto government exchanges, and to get them off those profligate and generous plans provided by employers.

Zeke Emanuel, brother to Rahm, and Obamacare architect, predicted by by 2020, 90% of Americans who previously received health insurance through their employers will be shifted onto the exchanges.

By 2020, about 90 percent of American workers who now receive health insurance through their employers will be shifted to government exchanges created by the health law, according to a projection by S&P Capital IQ, a research firm serving the financial industry.

It’s not an outlandish notion. Ezekiel Emanuel, an architect of the Affordable Care Act, has long predicted a similar shift.

But the scope and speed of the shift is surprising. So is the amount of money that companies could save. The S&P researchers tried to estimate what it would save the biggest American companies. Their answer: $700 billion between 2016 and 2025, or about 4 percent of the total value of those companies. The total could reach $3.25 trillion for all companies with more than 50 employees.

The “if you like your plan, you can keep your plan,” lie hasn’t even really kicked in yet. This massive disruption in 2018 will make the cancellations in the fall of 2013 pale in comparison. And by then President Obama will be long gone. This will be someone else’s mess to clean up.

By the way, this provision was added to the law to ensure it was CBO Budget Neutral. Any effort to eliminate the Cadillac Tax will impose a severe deficit to the law. But then again, the CBO gave up trying to score the impact of Obamacare in June 2014.

“Isolating the incremental effects of those provisions on previously existing programs and revenues four years after enactment of the Affordable Care Act is not possible.”

And as Steven Brill noted in his excellent book, Bitter Pill:

With that change, and others, I now counted nearly $ 100 billion in negative changes by executive fiat since the CBO had scored the law as being deficit neutral.

So whenever the President takes a victory lap as another million sign up, keep in mind what lies ahead for the rest of Americans who were happy with their health insurance plans, and the ACA’s inevitable impact on our massive debt. Success is not only measured in terms of how many people gained coverage, in light of the President’s broken promises.

 

 

Read More
May 14, 2015

Pelosi: Will SCOTUS “Take Subsidies Away”? “No I don’t think so.”

AP reports on an interview with Nancy Pelosi concerning King v. Burwell:

House Democratic leader Nancy Pelosi predicted Wednesday that Republicans will “rue the day” if the Supreme Court buys their arguments and invalidates tax subsidies for millions of people under President Barack Obama’s health care law. …

“They’re now going to then go out and say we’re going to take subsidies away from people who have health care?” Pelosi said in an interview with The Associated Press in her office overlooking the Supreme Court. “No, I don’t think so.”

“I don’t think it’s going to happen so it’s no use speculating on what I don’t think is going to happen. But it would be bad news for them, it would be really bad news for them,” she said of Republicans. …

Pelosi said she knew the law well and that opponents were relying on a phrase taken “out of context” in pressing their case before the court.

In case you are curious, here is Pelosi’s prediction before NFIB v. Sebelius was decided:

Nancy Pelosi was optimistic. “We believe that this bill constitutionally is ironclad. I expect a 6– 3 ‘aye’ verdict from the Supreme Court.”

Read More
May 13, 2015

Thanks to Court-Appointed Amici

In 2012, I listed all of the ways the Chief Justice has thanked Court-Appointed Amici (going back to 1995). Here is an update through the end of this term

 

Mata v. Lynch (2015) – Will Peterson

CHIEF JUSTICE ROBERTS: Thank you. Mr. Peterson, this Court appointed you to brief and argue this case as an amicus curiae in support of the judgment below. You have ably discharged that responsibility, for which we are grateful.

Here is coverage for Will’s argument at NLJ. This is also the first case before the Court with Lynch as AG.

 

United States v. Windsor (2013) – Vicki C. Jackson

CHIEF JUSTICE ROBERTS: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.

MS. JACKSON: Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you.

I think this is the first time an advocate said “Thank you” back to the Chief, and the Chief replied “Thank you.”

 

Sebelius v. Auburn Regional Medical Center (2012) – John C. Manning

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Manning, you argued and briefed this case as an amicus curiae at the invitation of the Court, and you have ably discharged your responsibility, for which the Court is grateful.
The case is submitted.

 

NFIB v. Sebllius (2012) – H. Bartow Farr, III

CHIEF JUSTICE ROBERTS:  Mr. Farr, you were invited by this Court to brief and argue in these cases in support of the decision below on severability. You have ably carried out responsibility for which we are grateful.

 

Dorsey v. United States (2012) – Miguel A. Estrada

CHIEF JUSTICE ROBERTS: Mr. Estrada, at the invitation of the Court, you have briefed and argued this case as an amicus curiae in support of the judgment below. You’ve ably discharged that responsibility, for which the Court is grateful.
The case is submitted.

 

Florida v. HHS (2012)  – Robert Long

CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement. And thank you, General Verrilli, Mr. Kneedler, Mr. Carvin, Mr. Katsas, and in particular, of course, Mr. Long and Mr. Farr.

Long spoke on a panel about his argument.

 

HHS v. Florida (Anti-Injunction) (2012)- Mr. Robert Long

CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.

 

And in his opinion, CJ Roberts thanked amici (among other things):

Because no party supports the Elev- enth Circuit’s holding that the individual mandate can be completely severed from the remainder of the Affordable Care Act, we appointed an amicus curiae to defend that aspect of the judgment below. And because there is a reasonable argument that the Anti-Injunction Act de- prives us of jurisdiction to hear challenges to the individ- ual mandate, but no party supports that proposition, we appointed an amicus curiae to advance it.2

2 We appointed H. Bartow Farr III to brief and argue in support of the Eleventh Circuit’s judgment with respect to severability, and Robert A. Long to brief and argue the proposition that the Anti-Injunction Act bars the current challenges to the individual mandate. 565 U. S. ___ (2011). Both amici have ably discharged their assigned responsibilities.

 

Tapia v. United States (2011) – Stephanos Bibas

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Bibas, you were appointed by this Court to brief and argue this case. You have ably carried out that responsibility, for which the Court is grateful.

 

Bond v. United States (2011) – Stephen R.  McAlliser:

Mr. McAllister, this Court appointed you to brief and argue the case in support of the judgment below, you have ably discharged that responsibility for which we are grateful.

 

Setser v. United States (2011) – Evan A. Young:

No Thank You offered.

The Texas Lawyer has a profile on Young.

 

Pepper v. United States (2010) – Adam G. Ciongoli

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Ciongoli, you have briefed and argued this case as amicus curiae in support of the judgment belowat the invitation of the court and have ably discharged your responsibility.

 

Kucana v. Holder (2009) – Amanda C. Leiter

CHIEF JUSTICE ROBERTS: Ms. Leiter, you briefed and argued this case in support of the judgment below, at the invitation of the Court, and have ably discharged that responsibility, for which we are grateful.

 

Reed Elsevier v. Muchnick (2009)- Deborah Jones Merritt:

Ms. Merritt, you were appointed by this Court as an amicus to defend the judgment below, and you have ably discharged that responsibility.

 

Irizarry v. United States (2008) – Peter B. Rutledge

CHIEF JUSTICE ROBERTS: Mr. Rutledge, you briefed and argued the case as amicus curiaein support of the judgment below upon appointment by this Court, and we thank you for undertaking and discharging that assignment.

 

Greenlaw v. United States (2008) – Jay T. Jorgensen:

Mr. Jorgensen, you have briefed and argued this case as an amicus curiae in support of thejudgment below on appointment by the Court. We thank you for undertaking and discharging that assignment.

 

Clay v. United States (2002) – David W. De Bruin

No love from CJ Rehnquist!

 

Great-West Life & Annuity v. Kundson (2001) – Richard G. Taranto:

Again, no thanks from CJ Rehnquist

 

Ornelas v. United States (1996) – Peter Isakoff

No thanks from the Chief!

 

Gutierrez De Martinez v. Lamagno (1995) – Michael E. Kellogg

No thanks from the Chief.

Read More
May 13, 2015

Bullets Over The Constitution in the WSJ?

Take a look at the stock clipart in the WSJ editorial by Justice O’Connor and John Glenn about the importance of civic education. Look very closely at the graphic. Does anything jump out at you? I’ll give you a hint. Those aren’t gold pens. (Update: A friend tells me these are .223 Remington, the most common round for the AR-15).

wsj-sdo

 

Here is the Corbis Page, with keywords like “ammunition,” “bullet” and “Weapon.”

Read More
May 13, 2015

Did Senator John Glenn’s 1998 Space Flight for NASA Violate the Incompatibility Clause?

The Incompatibility Clause (not to be confused with the Ineligibility Clause) provides:

…no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The purpose of this provision of the Constitution is to prevent Officers of the United States  from serving as members of the House of Representatives or the Senate. Curiously, it does not prohibit simultaneous service between the Executive Branch and the Judiciary. (That is how John Marshall served as both Secretary of State and Chief Justice at the same time).

After reading an editorial in the WSJ by Justice O’Connor and John Glenn on the importance of civic education (btw, is that a graphic of the Constitution with bullets?), a thought occurred to me: John Glenn served as a United States Senator until 1999; in 1998 he returned to space on a NASA flight as a “payload specialist” while he was still a Senator.

Here is how NASA defines the “Payload Specialist.”

Payload specialists are persons other than NASA astronauts (including foreign nationals) who have specialized onboard duties; they may be added to shuttle crews if activities that have unique requirements are involved and more than the minimum crew size of five is needed.

First consideration for additional crew members is given to qualified NASA mission specialists. When payload specialists are required they are nominated by NASA, the foreign sponsor, or the designated payload sponsor. In the case of NASA or NASA-related payloads, the nominations are based on the recommendations of the appropriate Investigator Working Group (IWG).

Although payload specialists are not part of the Astronaut Candidate Program, they must have the appropriate education and training related to the payload or experiment. All applicants must meet certain physical requirements and must pass NASA space physical examinations with varying standards depending on classification.

Is a “Payload Specialist” an “Office under the United States”? If so, John Glenn violated the incompatibility clause.

I could not find how “Payload Specialists” are usually nominated by the “Investigator Working Group,” but this case seems special. It has been reported that President Clinton allowed Glenn to travel with NASA as a favor.

The Washington Post reported:

This became clear last January, when NASA announced that it had approved Glenn’s persistent requests for another space flight. The few criticisms suggesting that the move was a payoff for Glenn’s support of President Clinton and that NASA’s scientific rationale for sending him was hollow got drowned out.

Same from the New York Times:

For the political groundlings the Senator will leave down here, undoubtedly there will be a guessing game as to precisely how Mr. Glenn mastered the politics at NASA and won his heart’s delight. Some are already noting, for example, that the Senator has been the chief Democratic defender of President Clinton in the Republican Senate’s inquiry into campaign finances.

Clinton alludes to the role he played in the mission in his memoir, My Life:

At around that time, I also flew to the Johnson Space Center in Houston to discuss our newest shuttle mission to conduct twenty-six experiments on the impact of space on the human body, including how the brain adapts and what happens to the inner ear and the human balance system. One of the crew was in the audience, seventy-seven-year-old senator John Glenn. After flying 149 combat missions in World War II and Korea, John had been one of America’s first astronauts more than thirty-five years earlier. He was retiring from the Senate and was itching to go into space once more. NASA’s director, Dan Goldin, and I were strongly in favor of Glenn’s participation because our space agency wanted to study the effects of space on aging. I had always been a strong supporter of the space program, including the International Space Station and the upcoming mission to Mars; John Glenn’s last hurrah gave us a chance to show the practical benefits of space exploration.

This is precisely the sort of risk the incompatibility clause was aimed at eliminating.

To dig into this question further, I asked Seth Barrett Tillman, a Lecturer at the Maynooth University Department of Law for his thoughts. Seth generously offered these comments, which I found really insightful:

The proscription of the Incompatibility Clause includes both principal and inferior officers. If Glenn was an inferior officer while a Senator, then that was a constitutional violation. The difficult question is what constitutes an “office under the United States” as used in the Incompatibility Clause. It has been argued that an officer is a policy-making position exercising some part of the sovereign or law-making/law-interpreting/law-enforcing authority of the federal government. If this is correct, a mere “employee” (even if a full-time federal civil servant) might be outside the ambit of the clause. Certainly there is a rich tradition suggesting that ad hoc positions and contractors are outside the ambit of the clause. United States v. Maurice (Marshall, C.J., C.C.D. Va. 1823).
As I remember, the United States Court of Appeals for the Armed Forces, in US v Lane (2006) (Gierke, C.J.), citing the Incompatibility Clause, held that a military court is improperly constituted if it includes a sitting US Senator. As such Lane’s conviction was overturned on appeal. In Lane, Senator Graham had acted as a military judge in the trial court proceedings. A judge is clearly an “officer” for Appointments Clause and Incompatibility Clause purposes. But what if a member of Congress were also an enlisted person, i.e., a non-officer for the purposes of military rank? Is an enlisted person in the military (like a non-policy making civil servant) an “officer” for Incompatibility Clause purposes? The question is not obvious. Arguments can be made both ways.
Argument: An Enlisted Person is an “officer” for Incompatibility Clause purposes. Such a person is under the thumb of the President. He is subject to presidential orders, and as such the President can demand his service and keep him from attending the session of Congress. The clash of loyalties between the two branches imposes on the member’s independence. The chance of promotion makes him a placemen of the President. In other words, the primary purpose of the clause is furthered by treating enlisted military persons (and, perhaps, federal civil servants) as under the scope of the clause.
Argument: An Enlisted Person is not an “officer” for Incompatibility Clause purposes. Like a civil servant, an enlisted person is not an officer for Appointments Clause purposes — such a person is not appointed by the President with Senate advice and consent, by the President acting alone, by a head of department, or by a court of law. Thus the person is not an “officer” under the Appointments Clause or under the Incompatibility Clause. Such a person is not an “officer” because he does not exercise any sovereign authority of the United States nor any discretionary policy-making authority. This position would be supported by the Supreme Court’s decision in United States v. Hartwell (1867). Also early U.S. Executive Branch documents apparently distinguished “officers under the United States” from “employees under the United States.” I would embrace this position, notwithstanding that a member of Congress-federal enlisted person, and that a member of Congress-federal civil servant would face conflicts akin to those which the Incompatibility Clause was designed to prevent. Why? At the end of the day, the phrase “office under the United States” as used in the Incompatibility Clause carries a world of (original public) meaning that limits the scope of the clause.
FWIW: I have argued that “office under the United States” as used in the Incompatibility Clause does not reach the presidency or vice presidency. Not all agree. See, e.g., Akhil Reed Amar, The Law of the Land: A Grand Tour of our Constitutional Republic 332 n.8 (2015) (stating, without any equivocation or acknowledgment of contrary views, that: “[t]he presidency is an ‘Office under the United States,’ and thus no sitting House or Senate member may serve as president” (emphasis added)), available at http://tinyurl.com/mgdemov; Saikrishna Bangalore Prakash, Imperial From The Beginning: The Constitution of the Original Executive 48 (2015) (“[W]hile a president may not simultaneously sit in Congress, the Constitution left open the possibility that a president also could serve as state governor or as a Supreme Court justice.”), available at http://tinyurl.com/kv5w7yeSteven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, inSeth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 143 (2008) (stating that “the President is most certainly an officer under the United States” (emphasis added)).
I have also argued that the “office under the United States” in the Incompatibility Clause includes Congress’ internal “officers” such as the Secretary of the Senate and Clerk of the House, whereas most modern commentators have taken the position that “office under the United States” extends only to positions in the Executive Branch and Judicial Branch.

 

More likely than not, Glenn’s position as a “payload specialist” was not an “office under the United States,” so there are no incompatibility clause problems. But under the circumstances, President Clinton seems to have been directly involved in Senator Glenn’s selection for the position, which raises the specter of influence the clause was aimed at eradicating.

 

Read More
May 12, 2015

Motion for Preliminary Injunction Filed in 3D-Printed Gun Case

This week our legal team filed a motion for a preliminary injunction in Defense Distributed v. U.S. Department of State. Brian Doherty has a writeup at Reason.

You can find all of our pleadings on this page:

Read More
May 12, 2015

Texas v. United States Amicus Brief Filed On Behalf of Cato Institute

On November 20, 2014, President Obama unveiled DAPA, an executive policy that would defer the deportation of up to four millions illegal aliens and afford them work authorization. One week later, Texas, joined by 25 other states, filed a lawsuit against this unprecedented expansion of executive power.

In January, I joined an amicus brief on behalf of the Cato Institute and law professors Josh Blackman, Jeremy Rabkin, and Peter Margulies supporting the challenge. While we broadly support comprehensive immigration reform, we argued that DAPA violated the president’s constitutional duty to take care that the laws were faithfully executed because this action went far beyond merely setting priorities on who will be pursued and deported given finite enforcement resources. It was highly unusual for Cato to file in a district court—amicus briefs of any kind are rare at this level—but this was a highly unusual situation.

On February 16, 2015, Judge Andrew Hanen blocked DAPA from going into effect, finding that the executive branch did not follow the proper administrative procedures—such as seeking comments from the public—before implementing what is effectively a substantive change in established immigration law.

The federal government appealed this judgment to the U.S. Court of Appeals for the Fifth Circuit (my old stomping grounds). It also filed for an “emergency stay,” arguing that Judge Hanen’s ruling causes irreparable damage to the United State and asking the appellate court to put it on hold. This was a cheeky maneuver given that Hanen’s ruling was itself a “temporary injunction” justified by the irreparable damage to the states that the judge determined would flow from DAPA’s operation. In effect, the government was asking for an “emergency” reversal of the district court, to which the Fifth Circuit panel didn’t seem particularly sympathetic at a hearing last month.

In any event, Cato and I, along with Professors Margulies and Rabkin, have now filed a brief on the underlying appeal that again supports the 26 states and argues that President Obama’s action amounts to an illegal expansion of executive authority. While the lower court did not reach this constitutional issue, the president’s duty to faithfully execute the laws is a cornerstone of our separation of powers and provides the background architecture upon which the administrative state has been constructed.

Our message is simple: the implausible defense of the president’s unilateral executive action requires a level of legal sophistry that puts Humpty Dumpty to shame. As Justice Robert H. Jackson recognized six decades ago in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”), presidential lawmaking that lacks congressional support “must be scrutinized with caution.”

Such scrutiny will reveal that, even though Congress has previously authorized deportation deferrals and accompanying work permits, DAPA amounts to a deliberate effort to bypass Congress and conflicts with five decades of congressional immigration policy. The government implores the judiciary to believe that DAPA is a humdrum exercise of prosecutorial discretion based on modest new policy guidance that enable the Department of Homeland Security to prioritize resources. Don’t believe it.

Read More
May 12, 2015

The Uniform Bar Exam and Its Impact on Federalism

I was largely agnostic about New York’s decision to adopt the Uniform Bar Exam until I read Erwin Chemerinsky’s editorial urging California to do the same. A single sentence drew my attention:

But the truth is that basic principles of law do not vary from state to state.

From a substantive perspective, this statement is wrong. Certain areas are largely standardized nationwide (criminal procedure, constitutional law, or contracts). These are subjects where the Supreme Court has intervened to federalize the law, or uniform codes were adopted in nearly all states. However, other areas of law are extremely localized, such property, family law, or trusts and estates. (These are probably the classes Chemerinsky refers to as “dull.”).

On a deeper level, this comment I think reflects an subtle disregard for the values of federalism. States have and continue to handle a wide array of legal issues differently. And this is something that should be celebrated, not swept aside. If law students are trained to believe that there is no difference between laws of different states, then an entire generation of lawyers will have even less regard for the values of federalism, wherein the states can serve as laboratories of democracy. There is an importance in State A and State B being able to approach the same principle of law in different ways. Prioritizing a uniform bar exam will diminish respect for that value.

Perhaps it is true, as the Dean notes, that “lawyers can learn the quirky specifics as they go.” But we should at least acknowledge there are important difference between the law, and this is a good thing. This is not to say the Uniform Bar Exam is a good or bad idea–frankly I haven’t considered all the costs and benefits. But it is wrong to chuck aside the fact that states do handle questions of law differently.

Read More
May 11, 2015

Gridlock Reduces Rent-Seeking in Washington, Increases it in State Governments

The Washington Post reports that due to the gridlock, Washington can accomplish less, and lobbying has shifted to the states.

Lobbyists aren’t having much luck on a gridlocked Capitol Hill — so more and more, they’re opening their wallets in state capitols around the country. Not keeping pace with the surge, say watchdog groups: the disclosure laws that are supposed to keep the influence industry in check.

Battles in legislatures between rival energy companies; powerful medical interests like doctors, hospitals and insurers; and even environmentalists and plastic bag manufacturers have fueled huge growth in lobbying spending at the state level, even as spending has plateaued — and even waned — at the federal level.

A Washington Post review of lobbying spending in states shows professional advocates reported spending at least $2.2 billion on activity aimed at influencing state legislators in 28 states where data was available during the 2013-2014 biennium — with virtually every state seeing dramatic growth over the last decade.

At the same time, total spending on federal lobbying activities has fallen. After hitting a peak in 2010, when advocacy groups reported spending $3.52 billion on lobbying, that number dropped to $3.24 billion in 2014, according to data maintained by the Center for Responsive Politics.

My reaction? Good! I would much rather have lobbyists try to seek rents in all 50 state capitals. The transaction costs are much higher, and it will be harder to impose systematic, blanket rules across the country.

“When nothing’s happening in Washington, D.C., it’s happening in the states,” said Frank McNulty, a former Republican speaker of the Colorado House of Representatives who retired from office earlier this year. “You tend to see all these public policy issues work their way down to the state level because, whether it’s an environmental organization or a Fortune 500 company, they’re still going to try to move their agenda.”

Last year the Times reported that the Republican Governors Association explained,”With Congress producing so little legislation, governors’ offices have become attractive targets.” Isn’t this federalism unleashed. 50 states serving as the laboratories of democracy? Why is this a bad thing. The article cites a lack of disclosure laws but seems to miss the broader picture that gridlock is hobbling the power of D.C.

The theme of our government from 2009-2016 has been Gridlock. (That is likely to be the title of a soon-to-be announced book project). One of the major benefits of gridlock is that the federal government spends less money. When Congress can spend less money, interest groups have less of an incentive to lobby politicians in Washington. In essence, gridlock reduces rent-seeking. More generally, the less government can do, the less incentives there are for rent-seeking. Short of enforcing the separation of powers, gridlock actually works to shrink the power of the federal government. (Taking the opposite position is Rick Hasen, who argues that limited government would not do away with these problems).

Doesn’t this bring us back to the 17th Amendment, which required the direct election of Senators. David Schleicher has argued that one of the advantages of the 17th Amendment is that state governments are no longer subject to intense lobbying, making them less susceptible  to corruption. But the flipside to that is that all of the lobbying takes place in D.C., which results in much more wealth being distributed by the national government.

I address this balance “The Burden of Judging” in the NYU Journal of Law & Liberty.

When the federal government assumes various aspects of the police power once reserved for the states—thereby diminishing our vertical federalism—rent seeking becomes much easier. It takes much less time, effort, and money to lobby and petition a single government in Washington that can easily impose nationwide rules, than to lobby in 50 state capitols to achieve rules that can have an impact within one state’s borders. In this way federalism increases the cost of rent-seeking. It makes capture more difficult, and diminishes the impact of special interest legislation.[1] Federalism also permits states to engage as laboratories of democracy, to experiment in different forms of government.[2]

[1] Professor Todd Zywicki has made similar arguments about the 17th Amendment. By taking the state legislatures out of the public choice equation, special interests will find it more worthwhile to petition Senators in Washington who can impose one-size-fits-all rules nationwide. See Todd Zywicki, Repeal the Seventeenth Amendment, National Review Online (Nov. 15, 2010), http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki. In contrast, Professor David Schleicher argues that the 17th Amendment improved public choice politics, as it removed the state legislatures from the corrupting influences of rent seeking.

Read More
May 8, 2015

Judge Hanen Issues Supplemental Order On Abdication

Even as the 5th Circuit Court of Appeals considers whether to grant a stay, Judge Hanen continues to move the case along down in Brownsville. The latest order, issued today, offers supplemental authority for its previous denial of a stay.

First, it cites congressional testimony by Director of Immigration and Customs Enforcement, Sarah Saldaña, who confirmed the President’s remarks that any officers who try to exercise discretion, and do not follow the dictates of the 2014 DAPA memorandum will be disciplined.

The Court supplements its Order solely to acknowledge the existence of congressional testimony that confirms the President’s statements. The Director of Immigration and Customs Enforcement, Sarah Saldaña, testified before the House Judiciary Committee on April 14, 2015. Her testimony reiterated that any officer or agent who did not follow the dictates of the 2014 DHS Directive would face the entire gamut of possible employee sanctions, including termination.1 While this Court had no reason to doubt President Obama’s statements, and while the Government has assured the Court that it can rely on what the President says, the Court issues this Supplemental Order to denote that the President’s statements have now been reaffirmed under oath by the very person in charge of immigration enforcement.

The court notes in a footnote that this further suggests officers have no discretion:

This testimony is also relevant to other issues in this case, including the fact that it confirms the evidence, already found by this Court to be probative, that DHS employees have no real discretion to exercise in this area.

Further, the court augments its abdication analysis, drawing a tighter link between DAPA and the facts in Adams v. Richardson, the D.C. Circuit case relied on by the Court in Heckler v. Cheney:

Just like HEW giving federal funds to those violating the civil rights laws in Adams, the DHS in this case is giving a variety of rewards to individuals violating the country’s immigration laws. This general policy of affirmatively awarding benefits is not merely an exercise of prosecutorial discretion. The Government has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance (with the INA), and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions―which could include the loss of his or her job.3 If the solicitation of voluntary compliance (questioned by taxpayers who are rarely accorded standing) equates to abdication, certainly mandatory non-compliance by the Government (questioned by twenty-six states) does as well.

 

Read More
May 8, 2015

Video: Magna Carta and the Constitution

On Thursday, May 7, I had the honor of speaking to the Galveston County Bar on their Law Day Celebration of Magna Carta. I spoke about the influence of Magna Carta on our Constitution, through the lens of the Supreme Court. Specifically, I focused on 8 provisions of Magna Carta that have been cited by SCOTUS. Below the video, I include some rough notes I took, listing all of the cases that cite the Great Charter. Enjoy.

IMG959929

IMG959928

IMG959925

Read More