Jul 23, 2016

Downgraded back to Economy

I had a new travel experience today on United. For my flight this morning, I received a complimentary upgrade to business class, so I relinquished my Economy Plus seat. After I was seated, enjoying my pre-takeoff orange juice, the gate agent told me I had to go back to coach. Why? I had to give up my seat to someone else, whose business class seat was broken. I asked “Am I the lowest-status person in business class”? She replied, “Yeah.” I got sent back to 18B, a regular economy seat–not even economy plus. I was actually worse off because of the upgrade followed by the downgrade. Though, on the bright side, I received a $250 travel voucher. Always something new in the friendly skies.

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Jul 22, 2016

Looking for volunteers to crowdsource edits for Unraveled

Unraveled will be published on September 27. The final proofs will be going through the editing process between July 25 and August 8. I am looking for volunteers to help crowdsource the proofs. To make this feasible, each volunteer will receive one chapter to review (about 20 pages), with a fairly short window to review it (2 days or so). At this late stage, I am only looking to fix typos, grammatical errors, or factual mistakes. No disagreements about usage and style.

As a reward, in addition to my eternal thanks, you’ll get a PDF of the book–though I hope you can also buy a copy when it’s released. There are 32 chapters, so I only need a limited number of volunteers. If you’re interested, and able to turn a chapter around on a fairly short basis, please drop me a line: josh at josh blackman dot com. Thanks!


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Jul 21, 2016

90 Second Recess with Bloomberg BNA

Last month I filmed a 90-second rapid fire Q&A session with Kimberly Robinson of Bloomberg BNA. (I assure you, she is real, and not just a Twitter bot). Kimberly asked me about everything from frozen yogurt at SCOTUS to my favorite case that I worked on, followed by a bonus trivia question. At the time I filmed it, my answer was correct, but as of this week, no longer.


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Jul 19, 2016

Talk tomorrow in Nashville on 1st Amendment, 2nd Amendment, and 3D-Printed Guns

On Wednesday, I am speaking to the Nashville Federalist Society Chapter about our ongoing case involving 3D Printed Guns, the 1st Amendment, and the 2nd Amendment. You can find the details here.

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Jul 18, 2016

Thoughts on DOJ’s Petition for Rehearing in U.S. v. Texas #SCOTUS

Today, the Justice Department petitioned the Court “for re-hearing of this case before a full nine-Member Court.” Success is unlikely here. If five Justices wanted to hold the case until there was a ninth Justice, rather than deciding the case by a 4-4 margin, they could have simply held it over, like they did with Citizens United. That didn’t happen, which tells me that they could not broker a compromise internally. Instead, they made the somewhat striking decision to affirm by an equally divided margin. Nudging from OSG is unlikely to change the equation.

The immediate effect of this petition is that it puts on hold the return of the mandate to the 5th Circuit. The Court does not need to wait until the long conference to deny a petition for rehearing. To give you a sense for timing, last year a petition for rehearing was filed in Davis v. Ayala on 7/13/15. It was distribued three days later on 7/16/15. The petition was then denied less than one month later on 8/10/15. The mandate issued the next day. If the Court follows a similar sequencing, the petition would be ruled by the third summer order list.

Judge Hanen currently has a hearing scheduled for 8/22/16. It’s possible DOJ will petition Judge Hanen will put the proceeding on hold. If the Court denies the rehearing right away on the third summer orders list, then this delay will not be meaningful. But if the petition is rescheduled many times, that delay may become indefinite. The DOJ’s hope is that the case will simply be held in SCOTUS limbo, with a series of reschedulings, until a ninth Justices is confirmed. This could take a while.

In their best case scenario, Judge Garland is confirmed during the lame-duck session. In that case, the petition will have to be rescheduled dozens of times.

If Garland is not nominated in the lameduck session, the outcome of this case hinges on the outcome of the election. If it is a President Trump, the case goes away, as DAPA will be rescinded. (We noted in our Cato brief that not deciding the case now would allow the case to go away through the political process). If it is Clinton, her nominee would receive a vote–at the earliest–in March of April. Only then could the case be reheard, with a possible special May sitting. Meanwhile, the petition for rehearing would set (what must be) a record for ten months or rescheduling!!

All of this seems very, very unlikely. The more likely route is to expedite the case through the lower court. Based on the 5th Circuit’s precedent, the outcome is certain. The case will likely come back up to the Supreme Court on certiorari around the same time the next Justice is confirmed.

It doesn’t make sense to grant this petition in light of the above timeline. But then again, absolutely nothing about this case has made any sense.

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Jul 17, 2016

Justice Jackson and Donald Trump on the Constitution as a Suicide Pact

Terminiello v. Chicago (Jackson, J., dissenting):

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Donald J. Trump on his immigration ban from predominantly-Muslim nations:

“So you call it territories. OK? We’re going to do territories. We’re going to not let people come in from Syria that nobody knows who they are,” Trump said. “The Constitution — there’s nothing like it. But it doesn’t necessarily give us the right to commit suicide, as a country, OK? And I’ll tell you this: Call it whatever you want, change territories, but there are territories and terror states and terror nations that we’re not going to allow the people to come into our country. And we’re going to have a thing called ‘extreme vetting.’ And if people want to come in, there’s going to be extreme vetting.”

I genuinely wonder if someone gave him Jackson’s quote, and he was trying to reference it. Or maybe I’m giving him too much credit.


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Jul 15, 2016

Motivated Reasoning

The human mind has a tendency to understand things in a way that conforms to what we already believe in order to avoid cognitive dissonance. This phenomenon is referred to as motivated reasoning. (For a fascinating discussion, read Daniel Kahneman’s Thinking Fast & Slow). The reaction to the Inglorious RBG’s comments over the past week illustrates how motivated reasoning operates.

Ginsburg’s statements given to AP on Thursday, NYT on Friday, and CNN on Monday were absolutely inappropriate, by any standard. (It is remarkable that she didn’t have enough sense to stop talking to the media on Monday, after the outrage over the weekend!).

Yet many–who were inclined to agree with RBG’s comments–felt compelled to provide reasons to defend her. The arguments fell along a scale of sophistication. Some said that its better to know what judges think, so the comments were actually welcome.  Some said she has no fucks to give, and that’s awesome because Notorious. Others said that the rules of judicial ethics (even if they applied to SCOTUS) are constrained by the First Amendment. Others took a historical approach, and explained there is a long history of the Justices openly being involved with politics (note all the examples predate Abe Fortas–with good reason). Others tried to explain this was no different than Justice O’Connor telling friends at a private party who she supported for President, or Justice Scalia going on a hunting trip with VP Cheney (if you haven’t already, read Nino’s 20-page memorandum on recusal standards). Others explained that this was a momentous time like 1936, and it warranted a change in judicial norms. Others said Ginsburg was willing to risk the reputation of the Court to stop the calamity of Donald Trump. Others, invoking Godwin’s law, asked what did judges in Weimar Germany do to halt the rise of Hitler? I’m sure I’m missing some, because I frankly stopped reading all of these rationalizations after the first two days.

Were any of these Ginsburg’s motivations? Did she have the loftiest aspirations of preserving the Republic? Of course not. She screwed up. She wasn’t try to stop the next Hitler. She wasn’t carefully risking the legitimacy of the Court to save the Republic. She was repeating DNC talking points about Trump’s tax returns. And she admitted it.

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

As I told the WSJ Law Blog, expressing regret (there was no apology) conceded that her statements were inappropriate.

In a follow-up interview with Nina Totenberg, Ginsburg repeated that she erred:

RUTH BADER GINSBURG: Because it was incautious. I said something I should not have said, and I made a statement that reads, on reflection, my recent remarks and response to press inquiries were ill-advised. I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect.

TOTENBERG: I ask Ginsburg if she had just goofed.

GINSBURG: I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.

She goofed.

Over the past few years, Ginsburg has been showered in such sycophantic adoration, she hubristically thought she could do no wrong. As I wrote following Hobby Lobby, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” But with her most recent remarks, she crossed the line–and she admitted it.

This entire exercise teaches an important lesson about motivated reasoning. Sometimes, the real explanation is the most obvious one.

For easy reference, please see a post I wrote last year, “The Seven Stages of Criticizing Justice Ginsburg’s Extrajudicial Statements.” I think I captured all the various criticisms I get when discussing the extrajudicial statements of RBG.

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Jul 12, 2016

Inglorious RBG: Trump is a “faker” who has to release his tax returns

RBG continues to humiliate herself, and inject the Court into partisan politics. This time, Joan Biskupic got the scoop:

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president… ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”

And lest there be any doubt, she said Clinton will be the next President:

It was evident in our interview on Monday that when Ginsburg imagines who would succeed President Obama, she does not expect Trump to prevail over Clinton.
Acknowledging her own age and that Justices Anthony Kennedy and Stephen Breyer will turn 80 and 78, respectively, Ginsburg said of the possible next president: “She is bound to have a few appointments (to the Supreme Court) in her term.”

Would anyone think RBG could give Donald Trump a fair shake in Court? For all of Trump’s charges that Judge Curiel is rigged, RBG has played right into his hand. She would be rigged against him.

At this point, Ginsburg is literally parroting Democratic talking points. In her last interview in the New York Times, she said “That’s their job,” with respect to considering Garland. This is literally the DNC hashtag. #DoYourJob. Now she is scolding him for not releasing his tax returns. Hey RBG, the Justices don’t release their tax returns either. Maybe start a bit closer to home if you want to focus on transparency, huh?

I repeat my call that the Court should hold a William-O-Douglas-style intervention for RBG. Be quiet or step down. Or maybe the Chief can assign her only ERISA opinions until she behaves. We know how much she loves those.

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Jul 12, 2016

Who did SG Verrilli Recommend to Justice Sotomayor for #SCOTUS Clerkship Via Email?

Vice News filed a FOIA lawsuit against the Office of the Solicitor General, seeking any correspondences with the Justices. They found two.

The first was a 2013 email from SG Verrilli to Justice Sotomayor about a (redacted) law clerk applicant.

What’s curious about this is that Verrilli thanked the Justice for “reaching out to us.” It’s unclear if this was done by email. At first glance, the fact that the subject is “RE: Law Clerk applicants,” suggests Verrilli would be replying to an email from Sotomayor. But OSG only found these two correspondences. Unclear the sequencing here. But in any event, having a recommendation from the SG is pretty cool.

I attempted to work backwards to see if I could figure out if Sotomayor hired whomever Verrilli recommended. We have a few clues:

  • Male (pronoun “he”)
  • If he was being interviewed in the fall of 2013, that would mean he would have been hired during for OT 2014. According to David Lat’s November 2013 Hiring Watch post, Sotomayor only had one spot filled for OT 2014.
  • For Verrilli to go to bat for him, the applicant must have some connection to OSG, or perhaps the White House, or maybe from Jenner & Block.

Sotomayor’s three male clerks from OT 2014 were

1. Luke McCloud (Harvard 2011 / Niemeyer / Kavanaugh) –> No obvious connection to Verrilli.

2.  James Sigel (Harvard 2011 / Reinhardt / Liu (Cal.) / Tatel) –> No obvious connection to Verrilli.

3. Michael Pollack (NYU 2011 / J.R. Brown) –> Summer Intern at DOJ Appellate (2010), Summer Associate at Jenner & Block (2010), Summer Intern at OSG (2011), Trial Attorney at DOJ Federal Programs (2012-2014).

If Sotomayor did hire whomever Verilli recommended, I think the odds are pretty solid that it was Pollack. Indeed, it is difficult to imagine Sotomayor hiring someone who worked at both OSG and Jenner without seeking a recommendation from Verrilli.

Not my best legal SCOTUS Holmes exercise, but it’s up there.

Pollack is currently a Bigelow Fellow at Chicago.


The other email–far less interesting–is from Acting SG Katyal to Justice Kagan about where to hang her portrait in the OSG office.


Nothing earth-shattering here, but the first proof the Justices do send and receive emails with the outside world. It’s unclear if Justices Kagan and Sotomayor will now set up their own homebrew email server to evade FOIA.

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Jul 11, 2016

Obama and Clinton back Public Option for Obamacare

President Obama authored a “special communication” in the Journal of the American Medical Association titled “United States Health Care Reform Progress to Date and Next Steps.” (I chuckled because his bio line says “Barack Obama, J.D.” as if his law degree matters at this point).

The only newsworthy element of the communication is that Obama has officially endorsed amending the ACA to include a  public option–which was blocked by moderate Democrats back in 2009.

Third, more can and should be done to enhance competition in the Marketplaces. For most Americans in most places, the Marketplaces are working. The ACA supports competition and has encouraged the entry of hospital-based plans, Medicaid managed care plans, and other plans into new areas. As a result, the majority of the country has benefited from competition in the Marketplaces, with 88% of enrollees living in counties with at least 3 issuers in 2016, which helps keep costs in these areas low.57,58 However, the remaining 12% of enrollees live in areas with only 1 or 2 issuers. Some parts of the country have struggled with limited insurance market competition for many years, which is one reason that, in the original debate over health reform, Congress considered and I supported including a Medicare-like public plan. Public programs like Medicare often deliver care more cost-effectively by curtailing administrative overhead and securing better prices from providers.59,60 The public plan did not make it into the final legislation. Now, based on experience with the ACA, I think Congress should revisit a public plan to compete alongside private insurers in areas of the country where competition is limited. Adding a public plan in such areas would strengthen the Marketplace approach, giving consumers more affordable options while also creating savings for the federal government.61

Last week, Hillary Clinton’s campaign website also endorsed the public option.

Continue to support a “public option”—and work to build on the Affordable Care Act to make it possible. As she did in her 2008 campaign health plan, and consistently since then, Hillary supports a “public option” to reduce costs and broaden the choices of insurance coverage for every American. To make immediate progress toward that goal, Hillary will work with interested governors, using current flexibility under the Affordable Care Act, to empower states to establish a public option choice.

When I finished writing Unprecedented in May 2013, I fully expected the ACA’s marketplaces to be unsustainable in the long term. From the Epilogue:

If the ACA continues to result in higher premiums and the consequent price controls aimed at controlling these rates nudge insurers to exit the market (insurers are already opting out of California’s exchanges), the mandate may serve as a mere pit stop on the road to single-payer health care (what progressives wanted but did not get in 2009).

I could not have anticipated this would take less than three three years! The marketplaces opened up on January 1, 2014!  And we are already seeing so many insurers exit the markets, that its supporters are backing a public option. The faustian pact the insurers made to support the ACA will become clear as the ACA unravels.

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Jul 11, 2016

No, the Supremacy Clause does not give Courts the power “strike down state laws that violate the Constitution or conflict with federal statutes

One of my biggest pet peeves in constitutional law is the conclusory statement that the Supremacy Clause, standing on its own, gives courts the power of judicial review, and the authority to invalidate state laws that conflict with the federal constitution. Justice Alito made this assertion in his dissent in Whole Women’s Health (which I only got to today):

Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, Art. VI, cl. 2, but in exercising this power, federal courts must take great care.

No, it doesn’t. The Supremacy Clause provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Last time I checked, the word “court” appears nowhere in the Supremacy Clause. I drill my students on this point whenever someone says the Supremacy Clause gives courts this power. The text is silent about how it ought to be enforced.

This power, if it exists at all, comes from case law, not the Supremacy Clause. Ware v. Hylton (as far as I know) was the first time the Court set aside a state law, citing the Supremacy Clause. In this 1796 decision, the Court found that a Virginia statute that conflict with the Treaty of Paris could not be enforced. Granted the court didn’t actually strike down the law, but (another pet peeve), the entire notion of striking down laws is a myth. A declaration of unconstitutionality only means that the law cannot be enforced between the parties before the court. The Court doesn’t literally cut a page out of the state’s statute books.

The decision in Ware was seriatim, with separate opinions by Justices Chase, Patterson, Iredell (actually it was a reprint of his Circuit Court decision for the case), Wilson, and Cushing. (February 1796 was after the death of Chief Justice Rutledge and before the appointment of Chief Justice Ellsworth).

Justice Chase’s decision lays out the application of the supremacy clause to set aside a local law.

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides ‘That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwithstanding.‘ There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act *237 of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.

Justice Cushing made a similar observation:

And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United States, as the supreme law of the land. Then arises the great question, upon the import of the fourth article of the treaty: And to me, the plain and obvious meaning of it, goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair, or impede, the creditor’s right, or remedy, against his original debtor. …

A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree.


The Court has made other supremacy clause errors recently in Montgomery v. Louisiana and DirecTV v. Imburgia,

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Jul 11, 2016

New from the Green Bag: SOX-Safe Fish Backpack

A wonderful take on Yates v. United States.


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Jul 10, 2016

RBG Breaks Down Votes in U.S. v. Texas

Among the the other things the Inglorious RBG said in her interview with the New York Times, she offered a breakdown of the votes in the four-to-four affirmance in U.S. v. Texas.

A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.

“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.

Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.

She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writingssuggested that he might have found the argument attractive.

“That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.

I find unbecoming her phrasing about “what would have happened had Justice Scalia remained with us.” Some friend, huh.

But more importantly, we get an insight into the votes. It was widely assumed (by me) that the Court split 4-4 on standing. But maybe the Justices who were in the majority in Massachusetts v. EPA–Breyer and Ginsburg–were okay with states challenging the federal government. Eliminating the power of states to sue would do “damage,” RBG said. Maybe (as I’ve long speculated), liberals want states to have this power in the event of a Republican presidency. In any event, as she noted this case isn’t over. It’s coming back up. And she has already tipped her hand that she thinks there is standing. Texas’s case for standing was far, far stronger than Massachusetts’s.

RBG also praised the 4-4 affirmance in Freidrichs.

One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedentthat allowed public unions to charge nonmembers fees to pay for collective bargaining.

Who said this gridlock was all bad for RBG?

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Jul 10, 2016

Inglorious RBG

Ruth Bader Ginsburg has lost it. Her recent comments are absolutely beyond the pale–even for her outrageous self. The other justices should hold an intervention, and tell her to be quiet or step down. This isn’t funny anymore. She is making overtly political statements about the presidential election that are absolutely unbecoming of a Justice of the Supreme Court. She is expressly dragging the Court into a political arena they would rather stay out of. Her comments also call into question her ability to adjudicate any case involving the Trump Administration. I say this as someone who largely agrees with her prognostications of what a Trump presidency would mean. She needs to stop. But she wont, because RBG loves the limelight, and reporters are happy to write down the insane things she says.

On Thursday, she told Mark Sherman she didn’t want to think of what a Trump presidency would mean, and used the female pronoun “she” to refer to the next President (obviously referring to Jill Stein, right?).

In an interview Thursday in her court office, the 83-year-old justice and leader of the court’s liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

That includes the future of the high court itself, on which she is the oldest justice. Two justices, Anthony Kennedy and Stephen Breyer, are in their late 70s.

“It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg said, smiling.

On Friday, she told Adam Liptak that she couldn’t think of what the country would be like with a Trump presidency, and said she would consider retiring to New Zealand.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Retirement to New Zealand, or anywhere else, would be a good idea for the Inglorious RBG.

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Jul 5, 2016

The Social Security Administration Shouldn’t Be Deciding Who’s Too “Mentally Defective” to Own a Gun

Unable to legislate new restrictions on what kind of arms can be sold, the government has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).

The Social Security Administration (SSA) has proposed a new regulation that would create a process for transferring the records of those who seek a “representative payee” (legal proxy) under Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights. The proposed SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional.

Accordingly, for the first time ever, Cato’s Center for Constitutional Studies, with the help of Ilya Shapiro, Gregory Wallace, and me, has filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction.

Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague.

Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.

On a more practical level, the SSA is not the agency that should be making this sweeping policy. Determining whether someone satisfies the criteria for obtaining a representative payee is perfectly within SSA’s expertise, but determining who among its recipients is capable of responsible firearm ownership is far, far afield of the SSA’s area of expertise. The SSA’s job is to administer social-insurance benefits, not to implement gun-safety regulations. The agency is simply not staffed with the medical and gun-policy experts necessary to make such determinations on a regular basis.

Finally, the proposed rule treats the entire category of people who express a misgiving about their mental abilities as per se deprived of their right to armed self-defense. Surely the landmark case District of Columbia v. Heller (2008), which confirmed the individual right to keep and bear arms, did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) into the federal mental-health gun-prohibition.

The SSA should abandon this ill-devised rule.

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Jul 4, 2016

Declaring Independence from Unraveled

It is fitting that on July 4, I finished writing the final chapter–the Epilogue–of Unraveled: Obamacare, Religious Liberty, and Executive Power. The book–all 226,256 words of it–will be released on September 27, 2016. Now that I’ve finished writing it, I can focus on writing about it, and scheduling events for the book tour in the fall. It will be fun.

Also, I have one YUGE publication to announce next week. Stay tuned.


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Jul 3, 2016

The Guardian’s Sober Take on Mass Shootings and Gun Violence

Since I published The Shooting Cycle in 2014, I have told anyone who would listen that mass shootings and so-called “assault weapons” make up only a tiny fraction of gun violence in the United States, and should not form the basis of our gun control policy. Rather, handgun violence in inner-city, mostly minority neighborhoods, makes up the overwhelming majority of gun deaths.

The Guardian (UK) offers a strikingly sober take on these two critical issues.

First, mass shootings constitute an extremely, extremely small sliver of gun deaths. Each year, on average, about 33,500 people are killed by a firearm. That is roughly the same rate as death by car accidents.

The CDC categorizes 4% as “unintentional,” “legal intervention” (shot by a cop), or some other undetermined cause.


The over-whelming majority–over 60%–are death-by-suicide.


The remainder, about 11,000 per year, are homicides.


Of those, only a small sliver could count as mass shootings. The Guardian relies on Mothers Jones’s database, which uses a broader definition of mass shooting than the federal government does; I won’t quibble here, because even using a broad definition, the number of mass shootings as compared to the total number of other gun deaths is still extremely tiny. On the graph, you can barely even make out the yellow slivers at the bottom.


The Guardian concludes:

But next to the thousands of lives lost each year to suicide and more commonplace acts of violence, it becomes clear that mass shootings are only a tiny part of America’s gun problem. The US could end all mass shootings today and its rates of gun violence would still be many times higher than other rich countries.

This is exactly right.

Second, mass shootings attract a disproportionate share of attention, even as the disproportionate share of violence falls on minority, inner-city communities. Compare the reactions to 49 deaths in Orlando last month to the 71 people who were murdered in Chicago during the month of June (6o of whom were black). Elites tend only to react to gun deaths when they think it can affect them: who cares about inner cities, but if it is a gay night club or a kindergarten, we must take action!

The Guardian observes:

African Americans, who represent 13% of the total population, make up more than half of overall gun murder victims. Roughly 15 of the 30 Americans murdered with guns each day are black men. . . .

Because everyday gun violence is concentrated in racially segregated neighborhoods, it’s easy for millions of Americans to think they won’t be affected.

“As soon as it’s anybody’s kindergartener that can be at risk, we’re a hell of a lot more terrified, because there is no social class or geographic address that makes one exempt,” Zimring said.

A debate conducted in the aftermath of mass shootings has also prompted a huge public investment in guarding and fortifying public schools against shootings, even though the typical school can expect to see a student homicide only once every 6,000 years, according to safety expert Dewey Cornell.

Since the 1999 school shooting at Columbine high school in Colorado, the justice department has invested nearly $1bn to help put police officers in schools, though Cornell notes there is still little evidence that school security measures reduce crime.

Third, the focus on the AR-15 and so-called “assault weapons” is completely misplaced. The overwhelming amount of gun violence is caused by simple handguns. Rifles constitute less than a 4% share of murders. Shotguns–the weapon Joe Biden recommended Americans use to defend themselves–are involved in more murders.


The New York Times in September 2014 (before their front page editorial) also recognized the myths about assault weapons.

But in the 10 years since the previous ban lapsed, even gun control advocates acknowledge a larger truth: The law that barred the sale of assault weapons from 1994 to 2004 made little difference.

It turns out that big, scary military rifles don’t kill the vast majority of the 11,000 Americans murdered with guns each year. Little handguns do.

In 2012, only 322 people were murdered with any kind of rifle, F.B.I. data shows.

Not too long ago, gun controllers were quite open about their goal of banning all handguns. Nelson “Pete” Shields III, a founder of Handgun Control, Inc.—the aptly named progenitor of the Brady Center to Prevent Gun Violence—openly advocated for the elimination of all handguns:

‘We’re going to have to take this one step at a time. . . . Our ultimate goal—total control of all guns—is going to take time.’ The ‘final problem,’ he insisted, ‘is to make the possession of all handguns and all handgun ammunition’ for ordinary civilians ‘totally illegal.’

John Hechinger, a sponsor of the Washington, D.C., handgun ban and a board member of Handgun Control, Inc., put it simply: “We have to do away with the guns.” The same can be said for Michael Bloomberg’s group, Mayor Against Illegal Guns, which has as its ultimate goal confiscation of handguns.

Realizing that this is not a viable option they have instead focused on eliminating scary-looking guns (AR-15), with a scary sounding titles (“assault weapon”),  which have a strikingly small impact on actual gun deaths. Why? To stigmatize firearms altogether, and make it easier to confiscate handguns later.

Conservative columnist Charles  Krauthammer accurately summarized the reasoning for these measures in 1996. He argued that the assault weapons ban would not result in a decrease in violence, but would serve as an important symbolic step down the path to banning all guns by desensitizing Americans to gun control laws. Krauthammer stated:

Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically. It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.

Passing a law like the assault weapons ban is a symbolic— purely symbolic—move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.

De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades.

My conclusion from The Shooting Cycle still holds:

The way to accomplish this cultural shift of reversing the trend line is not through flaming fears following mass shootings, and trying to pass through the backdoor proposals that people did not want before. This makes gun owners not trust gun controllers—with good reason. As Professor Winkler noted, “Many gun owners might have supported background checks had they not been distracted by the assault weapons issue, which caused them to distrust gun control proponents even more than before.” Why should they? Every time there is a tragedy and support for background checks is strong, gun controllers aim high and try to reintroduce failed gun-control bills. Professor Winkler reminds us that the ultimate aim of “disarmament is an unrealistic goal.” The fact that “[g]uns are permanent in America” is “perhaps the most important” fact that the “gun ban supporters failed to grasp.” As long as this fear persists, and remains the obvious end-goal of these groups, the NRA’s fanning the flames of confiscation remains viable.


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Jul 1, 2016

Judge Posner Apologizes For Statements He Made Many Times Before About Constitution

Last week, Judge Posner caused quite an uproar with his Slate column suggesting that studying the Constitution was a pointless exercise.

And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21stcentury. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about. In short, let’s not let the dead bury the living.

In a follow-up column, Posner offers this apology:

Some of my contributions this year have drawn an unusual number of criticisms, focused on language I used that could be read as suggesting that I don’t think the Constitution has any role to play in interpreting the law—that it should be forgotten; that constitutional law is and must and maybe should be entirely a judicial creation, like fields of common law.

That was not my intention, and I apologize if carelessness resulted in my misleading readers.

I would be inclined to chalk this up to a misunderstanding, but Posner–who is one of the most effective legal writers on planet earth–said in his Slate column what he had previously said many times before.

During his remarks at the Loyola Constitutional Law Colloquium, he said the text of the Constitution has no relevance:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century . . . . I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.

(Judge Posner verified that my transcription of his remarks were accurate).


He made a similar same point last year in the Yale Law Journal:

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense. . . . I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.

There is no doubt what Judge Posner thinks of the actual text and history of the Constitution–it is “nonsense.”

In his apology, he resorted to the old saw that there are vague and specific provisions of the Constitution, and judges should enforce the specific provisions of the Constitution–such as the thirty-five year old requirement for the Presidency:

What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague.

Yet last year at Loyola, he specifically said that the Supreme Court should allow a 21-year old elected as President to serve!

There are also provisions that are not regarded as justiciable. If a candidate for President happened to be 25, or 21 (like Napoleon) and was elected, and suit was brought to say he is too young, I would think a sensible court for the Supreme Court to say this is not not justiciable. If people want the young president, fine. There is no legal analysis to be performed. Not everything in any document, statute or Constitution, is necessarily justiciable.

He also rejected another one of the bright-line rules in the Constitution–the $20 amount-in-controversy requirement, which he called “absurd.”

There are things that are in the text of the Constitution that are absurd. One is the idea that if the matter in controversy is at least $20, you have the right to a jury trial. That is absurd. $20 in the 18th century meant something very different than in the 21st century. What the Supreme Court should say when people bring jury cases for $20 is that provision is archaic and will not be enforced.

He also dismissed the relevance of the oath which gives him the authority to decided cases:

It’s funny to talk about the oath judges take to uphold the constitution since the Supreme Court has transformed the Constitution in its decisions. The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

I’ll repeat what I wrote last November:

I could go on and on, but you get the point. I admire Judge Posner’s candor about rejecting the Constitution as a binding document. As an academic theory, his pragmatism offers a powerful rejoinder to other formalistic theories. But he isn’t just writing as a scholar. He practices what he preaches, and strikes down laws on that basis. If he truly believes what he believes, then he ought not to use that same nonsensical Constitution as his license to invalidate democratically enacted laws. You can’t have your Constitution, and eat it too.

Ironically, as much as Posner loved to ridicule Scalia, here Nino is having the last laugh. Posner came clean with his absolute disregard for the text and history of the Constitution, and now after a complete repudiation, he is forced to backtrack–unconvincingly. As Will Baude would say, “Originalism is our law.”

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Jul 1, 2016

National Review Symposium on Justice Thomas’s Quarter-Century on #SCOTUS

National Review hosted a symposium on Justice Thomas’s twenty-fifth anniversary on the Court, with contributions from Randy Barnett, Richard Epstein, John Yoo, and many others. My submission focused on Justice Thomas’s aspiration to revisit old precedents that conflict with original meaning in “an appropriate case.”

Justice Clarence Thomas’s quarter century on the Supreme Court has been defined by a principled devotion to understanding the Constitution’s original meaning and applying it to modern-day cases. His fidelity to text and history is embodied in a phrase he has used in 16 concurring or dissenting opinions: In “an appropriate case,” he would be willing to reconsider the Court’s longstanding precedents that cannot be reconciled with originalism. An example from his very first week on the bench illustrates his steadfast commitment to the Constitution.

After a bruising confirmation battle, Justice Thomas was sworn in to the Court on October 23, 1991. By that point, he had already missed all of the October cases and had to scramble to prepare for the next batch, which would be heard ten days later. On November 5, Thomas’s second day on the bench, the Court heard arguments in White v. Illinois. The facts were unsavory. A four-year-old told her babysitter that Randall White, who had just fled her bedroom, “touch[ed] her in the wrong places.” During White’s trial, the toddler was unable to testify due to “emotional difficulty,” so the state introduced as evidence the babysitter’s out-of-court statement. The trial court overruled the defendant’s objection that, under the Sixth Amendment, he had the right to confront his accuser. With the babysitter’s statement as evidence, White was convicted.

A few days after White was argued, Justice Thomas attended his first conference. The majority of the Court voted against White. Under settled precedent, the babysitter’s statement was admissible because it was “reliable.” Only a few days into the job, it would have been easy enough for Thomas to simply go along to get along. But from the very beginning, Thomas pursued the original meaning of the Constitution, even if that history conflicted with the Court’s settled precedents. This was true regardless of his personal preferences. Even though the law-and-order justice likely had little sympathy for a child molester, the procedural protections of the Sixth Amendment prevailed on him.

In an eight-page dissenting opinion, joined by Justice Scalia, Justice Thomas wrote that his colleagues’ “Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself.” Realizing that he was only in dissent, Thomas wrote that he would reconsider this doctrine “in an appropriate case.” In the meantime, lawyers, scholars, and judges can study and consider the persuasive arguments from Thomas and Scalia. Thirteen years later, that “appropriate case” would arrive. In Crawford v. Washington, the Court voted to restore the Confrontation Clause’s original meaning and jettison the postmodern “reliability” framework.

From his first week on the bench, Justice Thomas understood that a single opinion cannot right the law right away. But given reason, logic, and time, “in an appropriate case” the Constitution will ultimately prevail. Thomas’s fidelity to the rule of law and the power of courts should inspire us all, and hopefully several more of his colleagues, for another quarter century to come.

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Jun 30, 2016

Supreme Court of Texas Rules on “Ferae Naturae” Doctrine

The Supreme Court of Texas, per Chief Justice Hecht, issued a fascinating opinion applying the “Ferae Naturae” doctrine to the question of whether an employer is liable under the FELA when an employee contracts West Nile Virus from a mosquito. For those of you who don’t remember, or weren’t paying attention in Property, ferrae naturae refers to a wild animal–as opposed to a domesticated animal. This distinction at common law was critical with respect to the rule of capture.

Here is the canonical holding from the majority opinion in Pierson v. Post:

We are the more readily inclined to confine possession or occupancy of beasts feræ naturæ, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

The ferrae naturae doctrine also extended to tort law. A property owner was not liable for injuries caused by wild animals on his property, because these animals could not be controlled. It was on this basis that the Supreme Court of Texas ruled that that Union Pacific Railroad was not liable under the Federal Employers’ Liability Act when a mosquito bit a worker, who contracted the West Nile virus.

Here is the beginning of the analysis section:

Human dominion over animals28 entails, under the common law, responsibility for their actions in some circumstances but not in others. The common law divides animals into two groups: animals domitae naturae or mansuetae naturae—that is, tame or tamed, domestic animals—and animals ferae naturae—that is, wild, usually found at liberty.29 Insects are treated as wild animals.30 Broadly speaking, and with various exceptions, the owner of a domestic animal is liable, and sometimes strictly liable, for dangerous propensities of which the owner knows, but usually not for its unexpected actions,31 while a person who owns, possesses, or harbors a wild animal is strictly liable for its actions.32 The rule of strict liability is old, dating at least to the 1846 English decision in May v. Burdett.33 “[I]t is important to observe, that the gist of the action is the keeping of the animal after knowledge of its mischievous propensities.”34

Thus, as a rule, under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee.38

Even better is Footnote 28, which cites (what else) the Book of Genesis.

28 See Genesis 1:28 (English Standard Version) (“And God said to them [i.e. man and woman], ‘Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.’”).

God bless the state of Texas.

Here is the holding of the case:

On the facts before us, the ferae naturae doctrine applies, and thus Union Pacific owed Nami no duty to prevent his infection with mosquito-borne West Nile virus. Following carefully the analysis prescribed by the United States Supreme Court in Gottshall, we are bound to conclude that as a matter of law, Union Pacific could not be negligent and liable to Nami under FELA.

Somewhere, the property professors of Chief Justice Hecth’s law clerks are smiling. I always tell my students that understanding the common law rules about capturing animals is important. They never believe me. Now, I have proof.

H/T Jason Steed.

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