Oct 30, 2014

Sotomayor: “the Court as an institution was much more important than I was an individual Justice.”

In a famous interview with Jeff Rossen, Chief Justice Roberts explained his view of the Supreme Court as an “institution.” That is, the Court should not only be focused on deciding individual cases, but also view how it fits into the broader scheme of the separation of powers.

“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

It is perhaps this desire to think of the Court as an institution that led the Chief to voting the way he did in NFIB v. Sebelius, and his desire to promote a faux-unanimity in several cases last term.

In particular, Roberts declared, he would make it his priority, as Marshall did, to discourage his colleagues from issuing separate opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

The Chief is not alone with this feeling. In recent remarks at Yale Law School, Justice Sotomayor explained that her greatest surprise upon joining the Court was her recognition of the importance of this institution, as a force greater than herself.

I was surprised by all of this as well. But for me, the tradition had one positive effect. It taught me that the Court as an institution was much more important than I was an individual Justice. That is a really important lesson for Justices to learn and live by. Sometimes the tradition is a little silly.

Although, Justice Sotomayor seems to draw a different conclusion, and is quite more likely than the Chief to issue separate opinions.




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Oct 29, 2014

With State Ebola Quarantines, White House Suddenly Discovers States’ Rights and James Madison

I had to do a serious double-take when I saw White House Press Secretary Josh Earnest (an apt name for a press secretary if there ever was one!) cited James Madison and states rights in response to a question about state ebola quarantines:

“You could take that up with James Madison,” White House press secretary Josh Earnest told reporters inquiring about why there isn’t a sole national standard for isolating people who might have Ebola. “We have a federal system in this country in which states are given significant authority for governing their constituents. That is certainly true when it comes to public safety and public health.”

Huh?????? Surely he can’t mean this. Surely he doesn’t think that matters of health law should remain the provence of the states? Obamacare? Surely this isn’t the same administration that argued in Arizona v. United States that states have no role in ensuring that immigration laws are enforced? Being earnest is important but this is ridiculous.

As the Weekly Standard noted, “Even the Associated Press couldn’t help but point out the hypocrisy. Directly after the Earnest quotation, reporter Josh Lederman wrote:”

That’s ironic, perhaps, coming from an administration that Republicans typically accuse of exceeding its legal authority on issues like immigration, health care and foreign policy.

I look forward to future mentions of James Madison from the White House press room.


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Oct 29, 2014

Talks in Bloomington and Indianapolis

On Thursday 10/30 at noon I will be speaking to the Indiana University at Bloomington Federalist Society Chapter about Hobby Lobby. Professor Dan Conkle will be providing commentary. Later that day at 4:30 I will be speaking about executive power at the Indiana University at Indianapolis Federalist Society Chapter. On Friday at noon, I will be speaking to the Indianapolis Federalist Society Lawyers Chapter about executive power. I hope to see you there!

Bloomington-Flyer IU-Indy

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Oct 29, 2014

Houston Mayor Withdraws Subpoenas to Pastors

This was a wise move.  Here is the Mayor’s statement.

With local pastors standing with her, Mayor Annise Parker has told the City Legal Department to withdraw the subpoenas filed against five local pastors who have identified themselves as the leaders of the petition drive to repeal the Houston Equal Rights Ordinance (HERO).

“This is an issue that has weighed heavily on my mind for the last two weeks,” said Mayor Parker. “Protecting the HERO from being repealed is important to Houston, but I also understand the concerns of the religious community regarding the subpoenas. After two meetings yesterday, I decided that withdrawing the subpoenas is the right thing to do. It addresses the concerns of ministers across the country who viewed the move as overreaching. It is also the right move for our city.

In a breakfast meeting yesterday, Mayor Parker met with local Pastors Rudy Rasmus, Jim Herrington and Chris Seay. She had a second meeting later in the day with National Clergy Council President Rob Schenck, Reverend Pat Mahoney of the Reformed Presbyterian Church, Pastor Myle Crowder from Utah, Pastor David Anderson from Florida, Pastor Sean Sloan from Arkansas and two others.

“These pastors came to me for civil discussions about the issues,” said Parker. They came without political agendas, without hate in their hearts and without any desire to debate the merits of the HERO. They simply wanted to express their passionate and very sincere concerns about the subpoenas. The second meeting group wasn’t from Houston, but they took the Houston approach of civil discourse in presenting their case. We gained an understanding of each other’s positions.”


ADF will probably get attorney’s fees though.

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Oct 29, 2014

Justice Jackson on the “Cult of Libertarian Judicial Activists”

In 1969, four lectures were published in honor of Mr. Justice Jackson by Charles Desmond, Paul Freund, Potter Stewart, and Lord Shawcross. Towards the end of Stewart’s lecture, he quotes Justice Jackson’s remarks from the “last of the Godkin Lectures.” Jackson died in 1954 before he was able to deliver these lectures, but they were published in his book, “The Supreme Court in the American System of Government.” Justice Jackson wrote of a “cult of libertarian judicial activists,” who:

believe that the Court can find in a 4,000-word eighteenth-century document or its nineteenth-century Amendments, or can plausibly supply, some clear bulwark against all dangers and evils that today best us internally. This assumes that the Court will be the dominant factor in shaping the constitutional practice of the future and can and will maintain, not only equality with the elective branches, but a large measure of supremacy and control over them. I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I am one, at the time of the Roosevelt proposal to reorganize the judiciary. But it seems to be a doctrine wholly incompatible with faith in democracy, and in so far as it encourages a belief that the judges may be left to correct the result of public indifference to issues of liberty in choosing Presidents, Senators, and Representatives, it is a vicious teaching.

Stewart adds in closing:

That is forceful language. But the key word, I think, is “faith.” Justice Jackson knew that the Framers had put their ultimate faith in the people, and there, for better or worse, he put his faiht too. He firmly believed that only so long as we remain a free and responsible people can there endure a society to be truly served by the profession he loved so much and the Court he served so well.


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Oct 29, 2014

After She Retires, Justice Sotomayor Will Return to the District Court

Once (and only once) Chief Justice Rehnquist sat by designation on a federal district court. The Fourth Circuit unanimously reversed him. And that was the end of that failed experiment.

One of the greatest attributes Justice Sotomayor brings to the bench is her time at the District Court. During her remarks at Yale Law School, she explained that when retires, she will not ride Circuit, but go back to the District Court. She relayed a conversation she had while at lunch with Chief Justice Roberts and Justice Kagan.

Last year I was having lunch with the Chief and Justice Kagan, and we started talking about how hard our senior justices work in the federal circuits [JB: She couldn't possibly be talking about Justice Stevens who has not heard a single case since he stepped down]. Without thinking about it, when and if I retire, I want to go back to the district court. When asked why, I said why would I go and do what I was doing for however many years it has been. I want to go back to my first love. The district court is a very different and exciting place. For me, it was the formative experience for preparing me for the court.

I spent two years clerking in the district court, and one year on the court of appeals. I can’t stress how valuable my two years in the district court were. In addition to preparing me to handle an appellate court docket, I had a feel for how all aspects of the lower court worked. For reviewing a sentencing appeal, I had sat in on countless sentencings. For dealing with an appeal over an evidentiary issue, I was in court countless times when objections were made and resolved in a manner of seconds. For reviewing a complicated case, I was sure to limit my review to the record, and nothing more–even if the lawyers were not so constrained. This is a skill that some fresh law clerks aren’t so diligent about.

Then, Justice Sotomayor explained why a wise district court judge with the richness of her experiences would more often than not, reach a better conclusion than a circuit judge, or something like that.

I still look at cases a lot like district court judges do. I look at the facts and try to apply the facts to the law. And my colleagues only look at the law, and that is all they–sometimes they are looking at. it is a very different perspective. It is one I will never disavow because it has value. For me, my greatest time was on the district court in terms of preparing me for the Court.

I will note that while Sotomayor said this, both Alito and Thomas were nodding their head in agreement. There is no doubt Sotomayor pays more attention to the facts. I’ve heard that she asks her clerks to read the *entire* record, and this preparation shows during oral arguments, and in her opinions, which are very factually-intensive.

Though, as Paul Clement noted, the Justices really don’t care about the client.

“At the end of the day, they really don’t care about your case or your client,” he said. “They are really using your case as a vehicle to develop a broader rule on an issue of importance, and I think that is something that one always has to keep in mind.”

You are just a vehicle.

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Oct 29, 2014

Prop1 Class 19 – Martial Property III – Community Property

The lecture notes are here. The live chat is here.

This is the section of the Texas code that governs equitable distribution of community property after a divorce:

Sec. 7.001.  GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.

Sec. 7.002.  DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1)  property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2)  property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

(b)  In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:

(1)  property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or

(2)  property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.

(c)  In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

(1)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or

(2)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.

Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:

Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.

When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.

O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.

Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.

Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.

“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.

McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.

“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.

George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.

“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”

The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.

The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.

“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.

In related news, Donald Sterling’s mistress, v. Stiviano, was sued by Shelly Sterling for return of gifts:

He added Stiviano has no defense to Shelly Sterling’s lawsuit because the items Stiviano received from Donald Sterling were community property, and he had no right to give them away.

“We look forward to our March 9th trial before a Los Angeles jury where Shelly is confident that she will be prevail.”

Shelly Sterling’s lawsuit seeks the return of gifts that include a $1.8 million duplex, a Ferrari, two Bentleys and a Range Rover worth more than $500,000.


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Oct 29, 2014

Prop2 Class 19 – Zoning IV

The lecture notes are here. The live chat is here.

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Section 5 of the 14th Amendment provides:

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Here are some photographs of the St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.


Here is a map of the Village of Belle Terre in Long (not Staten) Island. Today, roughly 800 people live in Belle Terre. It is close by to the State University of New York (SUNY) Stony Brook (named because there is a brook with stones on campus). I’ve been there.

View Larger Map

And here is a photograph of a sign welcoming you (as long as you don’t have a roommate  to the Village of Belle Terre (courtesy of Ron Talmo):

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Oct 28, 2014

When Calling Balls And Strikes, Umpires Are Reluctant to Make Calls That Invite Criticism

Forget how Judges–who just call balls and strikes–view criticism of their decisions. An interesting new study, profiled in this NPR piece, shows that baseball umpires are “really reluctant to make calls that invite criticism.”

If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo. Well, if you want to avoid the – say, the public criticism that is associated with making a pivotal call an error, then you may err on the side of preserving the status quo.

What does it mean to preserve the status quo?

Well, so basically umpires are reluctant to make calls that can flip the outcome of the game, change the status quo and have them be responsible for whether the game tips one way or the other. So if calling a strike can tip the game one way, they’re more likely to call a ball. If calling a ball can reverse the momentum in the game, they’re more likely to call a strike.

So if the bases are loaded and there are three balls, an ump is more likely to call a strike than call a ball, and walk in a run.

And this fear of criticism is even greater in high-profile games.

Green and Daniels also find, interestingly, that the higher the profile of the game – the larger the TV audience – the greater the bias because the umpires are thinking – maybe consciously, maybe unconsciously – millions of people are watching me, I hope to God I don’t blow it.

When MLB selects umpires, they focus not on the most accurate umps, but on the most consistent umps.

Well, it turns out that Major League Baseball seems to have its own biases. When Green and Daniels analyzed which umpires get selected to officiate big games, it turns out the league tends to pick umpires who are not the most accurate, but umpires who tend to be the most consistent in their calls. …

It can be hard to figure out, but I think what’s happening here is that Major League Baseball is using consistency presumably as a proxy for accuracy because if the umpire makes the same call over and over again, it could be because Major League Baseball thinks the umpire is being accurate. At the very minimum, of course, being consistent is at least being fair. So if you make the same calls the same way for all teams, presumably you’re being fair.

The article cites as an instance where an ump opened himself up for criticism–the Umpire who called a runner safe–when hew as clearly out–denying Armanda Galarraga of a perfect game in 2010. I blogged about game, and whether the last out means more, here, here, here, here, and here.

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Oct 28, 2014

The Most Academic Supreme Court of All Time. Are we at a “Dangerous Tipping Point”?

During her excellent interview of Justices Thomas, Alito, and Sotomayor, Professor Kate Stith inquired about what she called “the most academic court of all time.”

There are four former professors on the Court–Scalia, Ginsburg, Breyer, and Kagan. By that measure, this is the most academic court of all time. But none of the former professors are Yalies. Are there too many former professors? Are Too many former appeals court juges? Not enough of something else.

Justice Alito deftly dodged the question.

As far as academics go, we are at a dangerous tipping point. They are almost in the majority. Who knows what they will do to us when they are in control. Being a court of appeals judge is perfect preparation for being a Supreme Court Justice.

Justice Thomas payed homage to at least one of the SCOTUS academics:

As far as the makeup of the Court, I don’t feel I am in a better position to say who is qualified. Our colleagues who are academics, who would we replace? I like them all. You don’t have to agree with Justice Ginsburg to know she does fantastic work. When you disagree with her, you know she will force you do to better.


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Oct 27, 2014

Unified Federal Ebola Policy Trumps State Policy

The federal government is (at last) releasing a unified policy to handle ebola infections.  These policies were driven by the goal to not “harm the effort to recruit badly needed medical workers to West Africa.”

The new policy by the Centers for Disease Control and Prevention, worked out by President Obama, top C.D.C. officials and others during a two-hour meeting at the White House on Sunday, requires people who have been in contact with Ebola patients to submit to an in-person checkup and a phone call from a local public health authority.

But unlike in New York and New Jersey, people would not be automatically confined to their homes, a requirement that public health experts had sharply criticized as too onerous.

Although both Governors of New York and New Jersey do not agree with these policies–citing their need to protect their own citizens–they complied.

On Monday evening Mr. Christie accused the C.D.C. of “being behind on this” and said that demands from the public to protect citizens prompted the tougher action in his state.

“What people of this country want is for us to protect, first and foremost, the public safety and public health of our citizens,” Mr. Christie said. But he agreed to release a nurse who had been quarantined in a tent at a hospital so she could travel to Maine, where she lives.

Mr. Cuomo was already criticizing the new guidelines ahead of their formal announcement. “I work with the federal government, but I disagree with the C.D.C.,” the governor told reporters on Monday afternoon. “My No. 1 job is to protect the people of the state of New York, and do what I think is prudent to protect the people of the state of New York.”

Recently other states, including Florida, Illinois, and Georgia have announced policies tougher than the federal standard.

The long-awaited federal guidelines were an effort to bring uniformity to a messy patchwork of responses by states, including Florida, Illinois and, most recently, Georgia, which have all announced tougher policies. But the Centers for Disease Control do not have the power to police internal public health matters, so it is up to the states to carry out the policy, and it is far from clear that they will fall in line.


The CDC seems to accept that states can impose more stringent policies.

Dr. Thomas R. Frieden, the director of the C.D.C., said his agency was talking with states, but he did not say which ones.

“We found that health departments generally do follow C.D.C. guidelines,” he said. “If they wish them to be more stringent, that is within their authority.”

Bloomberg also reports that the White House acknowledged states can’t be forced to comply:

The Obama administration said it can’t compel state and local officials to follow federal guidelines in dealing with Ebola, leading to a patchwork of responses on the return of health-care workers from Africa.

White House press secretary Josh Earnest refused today to say whether New York and New Jersey officials notified federal authorities before mandating 21-day quarantines on doctors and nurses who return after treating patients in the outbreak region. He also declined to say whether President Barack Obama’s new Ebola coordinator, Ron Klain, was involved in discussions with state officials.

“States are given significant authority for governing their constituents,” Earnest said. Even with new guidelines set to be issued by the Centers for Disease Control and Prevention later today, governors and mayors can still “exercise the authority they have.”


While it is absolutely true that the federal government cannot commandeer state employees to implement federal policies–as Justice Stevens pointed out in his Printz dissent–they can institute a unified federal policy that trumps state law. Even if it is only a policy–that was what guided the Obama Administration’s opposition to SB 1070–there is preemption.

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Oct 27, 2014

Talks in Little Rock and Memphis on 3D Printed Guns

On Tuesday, October 28, I will be giving two talks on my paper, “The 1st Amendment, 2nd Amendment, and 3D Printed Guns.” The first will be at noon at the University of Arkansas at Little Rock in the Student Lounge. Professor John DiPippa will provide commentary. The second will be at 5:30 p.m. at the University of Memphis Law School in the Wade Auditorium. If you are in the area, please stop by!3-D Guns Memphis-Flyer

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Oct 27, 2014

ACLU Supports Jacobson v. Massachusetts for Obamacare, but not Ebola

It looks like litigation has been averted over New Jersey’s efforts to quarantine a nurse who was potentially exposed to Ebola. But yesterday, the ACLU was posturing to file a civil rights lawsuit on her behalf. Had a suit been filed, one of the leading precedents the ACLU would have had to challenge was Jacobson v. Massachusetts, a 1905 decision that upheld the state’s power to forcefully inoculate people. (Whenever I teach this case, I stress that we were not dealing with Jenny McCarthy anti-vaxxers, but a different time when vaccines were often lethal). Eugene Kontorovich does a good job explaining why Jacobson is a strong precedent standing in the way of any due process challenge.

While the ACLU would no doubt try to distinguish away Jacobson, and explain why it does not control here, the organization’s own briefs make that a difficult pill to swallow (shot in the arm?).

As my good friend Adam White points out in this post, it was not too long ago that the ACLU was favorably citing Jacobson to support the government’s power to impose on individual liberty. In their Amicus Brief to the Court in the Obamacare case, the ACLU,  joined by the NAACP Legal Defense Fund, found that the individual mandate “imposes minimal burdens on liberty.” In support of this argument, the brief favorably cites Jacobson in a footnote, without any criticism:

9 Notably, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court repudiated the assertion that a compulsory smallpox vaccination was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Id. at 26. Observing “the fundamental principle that persons and property are subjected to all kinds of re- straints and burdens in order to secure the general comfort, health, and prosperity of the state,” id. (internal quotation marks omitted), the Court upheld the law on the grounds that it promoted public health and safety, id. at 31.

It is really, really difficult to imagine why the ACLU would favorably cite this case. It’s other citations to Cruzan and Glucksberg suffice. Why mention it at all? Perhaps this footnote was added in as an afterthought?

Consider these sweeping renunciation of liberty in Jacobson.

But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox.

As Adam observes, the “temporary quarantines fall far short of mandatory vaccinations that the ACLU endorsed in its argument in defending Obamacare.” In their efforts to defend the Affordable Care Act, they perhaps inadvertently endorsed the very precedent that would justify the types of invasive quarantines being conducted in New Jersey.

Adam’s closing completes the circle, and ties together the ACLU’s recent meandering on other issues of individual liberty, including the First Amendment and religious liberty.

This seems to be something of a trend at the ACLU, where defense of civil liberties has been replaced by defense of Democratic Party policy preferences, in major cases. We see this in a variety of contexts. On free speech, the ACLU now endorses heavy campaign finance regulations — a stark reversal highlighted by former ACLU executive director Ira Glasser and legendary First Amendment Floyd Abrams, and by professors Ron Collins and David Skover in a recent ebook.

On religious liberty, the ACLU filed a brief in the Hobby Lobby case, arguing that religious liberty should be trumped by laws entitling women to employer-funded contraception. More recently, the ACLU has sided with same-sex-marriage activists who demand that individual citizens waive their religious liberties when operating businesses related to weddings: just last week, the ACLU’s blog argued that Las Vegas wedding chapel owners should not be allowed to invoke religious liberty as a basis for refusing to perform wedding services for same-sex couples.

While I’m on the topic, let’s not forget Roe v. Wade’s citation to Buck v. Bell, along with Jacobson v. Massachusetts for the proposition that the state has a paramount concern over rights of individual liberty.

As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200(1927) ( sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.



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Oct 27, 2014

Yalies Don’t Know About Clerking

According to Yale Law School statistics, 41.5% of the Class of 2013 reported a clerkship as a first job after graduation. That numebr increases to 49% for those who clerked at any time. They even have to separate out their non-clerkship employment because “so many of our graduates clerk after graduation.”

Yet, when Justices Thomas and Sotomayor attended YLS in the 1970s, neither was even aware of clerking. During their recent remarks at YLS, Justice Sotomayor explained that “Until my third year of clerking, I hadn’t heard of clerking, I had’t thought of clerking.” Then-Professor Jose Cabranes first told her about it.

In her memoir, Sotomayor explained:

José Cabranes had advised me to keep my sights on a major law firm in the long term, saying it was a good platform from which to launch into government or any other direction, but that first of all I should clerk. I had heard classmates mention clerking and I knew it was prestigious, but José had to explain to me that it meant working, essentially as a researcher, for a judge. Though I knew he wanted the best for me, clerking sounded tediously academic. How much longer could I live in the library? If I was wary of going to a big firm, I still felt the need to get out in the real world and earn some money. Much later I would realize my naïveté. Especially working with my own clerks, I’ve come to appreciate how clerking for a judge can be the most vital mentoring relationship open to a young lawyer. It has become even more prestigious over the years since I left law school and the most direct stepping-stone to higher levels of legal practice. Many minority students and others who struggle under financial pressure sacrifice the long-term benefits of clerking for better pay in the near term. I advise them to resist that temptation and aim for the necessary grades, journal experience, and mentoring relationships with professors that can open the door to a clerkship. Part of me still regrets not having taken José’s advice at face value.

Justice Thomas had a similar experience, “I think you made a good point. I found out about the clerkship about 2 years after I was gone.”

As I note in my note, From Being One L to Teaching One L, I had no idea what clerking was when I started law school. I had in my mind something similar to Sotomayor–a ministerial, clerical job where I file papers for a judge. It wasn’t until my second year of law school, when a friend told me about his upcoming clerkship, did I begin to realize what it was. Then in my third year, I set the record for applying to the most federal judges–a record that will remain due to the abandonment of the hiring plan, and limits on OSCAR.

The Justices also explain how smart their colleagues were at YLS, and how it humbled them.

SS: I’m not going to repeat what’s in my book. In High School I was near the top of my class, in College, you may have heard, I graduated with Honors. I got to Yale. I learned a deep sense of humility.

CT: Oh yeah

SS: Sitting next to my classmates, listening to them in class, taught me how much smarter so many other people were, and how smart has different faces

CT: By the time I left, I had a sense of confidence of where I needed to be. Sonia is right. There is a lot we didn’t know.

I had a very similar experience the first time I visited YLS. It can very humbling. I still feel like I’m entering Hogwarts whenever I arrive.

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Oct 27, 2014

New Jersey Withdraws Quarantine Plan After “Federal Officials Signed Off on the Plan.”

Pre-empting a civil rights lawsuit filed by the quarantined nurse, New Jersey has backed off a plan to quarantine all people arriving from West African nations who may have had contact with the ebola virus. Buried in the lede of the New York Times report is this key phrase:

Gov. Chris Christie of New Jersey, in a brief interview, said that he expected her to be transferred Monday morning after doctors and federal officials signed off on the plan.

Why, you may ask, would federal officials have to “sign off” on the plan. The answer, as I’ve discussed in previous posts, is that the Obama Administration has no doubt taken the position that New Jersey’s quarantine are frustrating federal policy. Therefore, under its reading of the Supremacy Clause in Arizona v. United States, state efforts to tighten enforcement by the federal government is unconstitutional.

Here, the Governor backed off in the face of federal pressure, though I had a feeling the federal government may have sued Christie to stop it, if he declined.

This episode, which is not over as other states are considering similar measures, puts into stark contrast the tension between the state police power, and the federal authority to constrain states by setting its own policy.

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Oct 27, 2014

Clement: Justices “Really Don’t Care About Your Case or your Client”

Paul Clement stated it clearly:

“At the end of the day, they really don’t care about your case or your client,” he said. “They are really using your case as a vehicle to develop a broader rule on an issue of importance, and I think that is something that one always has to keep in mind.”

You are just a vehicle.

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Oct 26, 2014

ACLU To File Suit To Release Quarantined Nurse

As I anticipated earlier, the litigation will soon commence. The ACLU is filing a suit on behalf of a nurse, being quarantined by New Jersey, though she is showing no symptoms of ebola.

Lawyers for a nurse quarantined in a New Jersey hospital say they’ll sue to have her released and file a constitutional challenge to state restrictions for health care workers returning to New York and New Jersey after treating Ebola patients in West Africa. Civil liberties attorney Norman Siegel said Kaci Hickox, who was quarantined after arriving Friday at the Newark airport, shows no symptoms and should be released immediately. He and attorney Steven Hyman said the state attorney general’s office had cooperated in getting them access to Hickox.

The Executive Director of the NYCLU is making a frontal assault to Christie’s authority:

“The current order is sweeping in individuals who are asymptomatic and who may never develop symptoms,” Ms. Lieberman said. “I think there is a serious question as to whether the governor has the authority to impose the broad quarantine that he has imposed,” she added.


The judge in this case will have a very interesting decision to make. I have this sinking feeling the DOJ may intervene, and this case may go high up.

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Oct 26, 2014

CRS Report on Employer Mandate

Si Lazarus and Elisabeth Stein link to a CRS report concerning the lawfulness of the Administration’s decision to twice delay the employer mandate. They concluded that there is “no legal basis” to a challenge to the delay. I think the report says a lot less. The first 13 pages of the report, titled “A Primer on the Reviewability of Agency Delay and Enforcement Discretion,” are background about the Court’s precedents concerning delays of agencies meeting statutory deadlines. The actual analysis of the ACA takes up three paragraphs.

First, it finds that the IRS’s 2013 notice would be considered a “guidance document.”

For example, on July 3, 2013, the Internal Revenue Service (IRS) issued Notice 2013-45 (Notice), stating that the IRS would not enforce the “employer mandate” of the ACA during 2014 in order to allow for “additional time for input from employers” on how the law can be effectively implemented.76 The Notice further encourages employers to “voluntarily comply with the information reporting provisions.”77 The IRS promulgated the Notice without undergoing notice and comment rulemaking procedures. However, the IRS does not appear to impose a new legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not enforce these provisions against employers during 2014.78 A court would likely find that such a statement is a guidance document, because it merely notifies the public on how the agency plans to perform a discretionary function—enforcement discretion.79

All that tells is that the Court would not invalidate it because it failed to go through the notice and comment process. The gravamen of the complaint is not limited to the APA, but goes to the heart of the Take Care clause.

However, in other circumstances, an agency’s declaration of a delay or enforcement policy could require notice and comment procedures. In February 2014, the IRS announced final regulations implementing the employer mandate from the Affordable Care Act.80 In those regulations, the IRS provided for “transition relief” from the employer mandate tax for certain employers—that is, qualifying employers would not have to pay the tax.81 In order to be eligible for transition relief, employers must certify that they have met certain requirements established by the agency.82 Here, because the IRS is requiring employers to conduct a specific activity in order to be eligible for the transition relief—that is, provide certification—the transition relief is imposing a legal obligation on a party in order to qualify for a specific form of tax treatment. It would appear that an agency taking this approach to delaying a statutory provision would have to use informal rulemaking procedures because the agency would impose a legal obligation on a party, who wanted to benefit from the delay.83

Again, this only speaks to whether the notice and comment process was followed. This is a small aspect of the legal challenge to the delay.

Under the other form of agency delay—that is, where an agency fails to take a discrete action by a statutory deadline—no rulemaking is required. Often the agency has simply not been able to accomplish the required action within the time provided by Congress. In this type of situation, the agency has not taken any action; therefore, no rulemaking procedures are required. However, as mentioned above, an agency may be subject to a suit by a party seeking to compel the agency to take action.84

Same as before. The entire report focuses on the notice-and-comment process. Constitutional violations, if any, would trump the APA.

I should stress that I am not addressing the issue of standing. I am only talking about the merits. In fact the CRS alludes to this:

The dearth of case law relating to agency non-enforcement may be due to the difficulty of finding a plaintiff who has been sufficiently injured by agency inaction to obtain standing. See, e.g., CRS Legal Sidebar, Obama Administration Delays Implementation of ACA’s Employer Responsibility Requirements: A Brief Legal Overview.

While I’m here, another CRS report concerning the legality of the Individual Mandate delay is referenced in Footnote 5. Does anyone know where I can find it?

For example, although a provision in the ACA requiring that health plans meet certain minimum coverage requirements became effective in January 2014, the Center for Medicaid Services has announced that it will not enforce these requirements for certain plans for at least one year.5

5 For a discussion of this delay see, CRS Report WSLG724, Obama Administration’s “Fix” for Insurance Cancellations: A Legal Overview, by Jennifer A. Staman, Todd Garvey, and Daniel T. Shedd.

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Oct 26, 2014

Audio: Gridlock and Executive Power at Sacramento Federalist Society Chapter

On Friday, October 24, I spoke to the Sacramento Federalist Society about the interplay between Gridlock and Executive Power. I was warmly introduced by Paul Beard of the Pacific Legal Foundation. Thank you to everyone in Sacramento, including chapter President Ashlee Titus, for making the event a great one.


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Oct 26, 2014

Following The Beat at One First Street

One of the themes that Joan Biskupic’s book highlights well is how the more senior Justices perceive the newest two members–Justices Sotomayor and Kagan. In lighthearted remarks at Yale Law School that veered into insight, Justices Thomas, Alito, and Sotomayor shed some light on how the Justices perceive the latter.

First, Justice Sotomayor explained that she was unable to keep a beat and dance, and started taking salsa lessons when she was 50. You may recall that at the end of her first term, she asked all of the Justices to dance salsa with her. This didn’t go over so well. But at the end of her remarks she had a very witty quip.

“I can’t keep a beat to save my life. I totally cannot keep a beat to save my life. But I have a facility that some of my colleagues find very strange. I can follow.”

Justice Thomas interjected, with his booming laughter, “That’s good.”

Justice Alito, with perhaps the best line of the night, said, “It’s a revelation to know that Sonia likes to follow. I think we are going to start dancing in the conference room.”

Second, Justice Alito was asked to describe traits he admires about Justice Sotomayor. Again, his answer in a whimsical fashion veered back to her strong views.

SA: These are traits i admire. Sonia is very independent. She is very, very, very thorough in her preparation, not only on the merits cases, but on the hundreds of cert petitions that we discuss every term. She is very strong in her views. She doesn’t give up on the rest of us. [CT is chuckling] Even when she sees we are going off, the majority is going off in the wrong direction, she throws up her hands up and says, “what can I do.” She has hope that she can convince us. She makes good arguments. Sometimes she succeeds.

Justice Sotomayor remarked, “I’ve been called incessantly optimistic.”

Again, with his booming laughter, Justice Thomas pipes up: “Goodness she never gives up.” Mimicking Sotomayor, he says, “Just relist that, I’m sure I can get one of you.” I can imagine that is a common occurrence at conference–and could be a contributing factor to the new relist policy.

Third, all of the Justices were asked what their greatest strengths and weaknesses were. Justice Sotomayor admitted that her greatest weakness was that she gets “oblivious” to the world around her during arguments. Though, she suggested that she is trying to get better.

When I’m involved in an argument I become oblivious to the world around me. And I’m just trained in on the person who I am engaging with. I am seeking an answer. To some it seems I am being combative when I really just searching for an answer. And that has held me in bad stead. And I think it still does. And I try harder as each year passes to correct some of that.

I’m working on a project that counts the number of times a Justice interrupts another Justice from 2010-2014. I may be able to provide metrics to the progress.

Finally, as a way to remind us that “race matters” (in case we didn’t get the picture from reading her Schuette dissent), Justice Sotomayor provides a hierarchy of Latin American dance skills.

SS: Among Hispanic men, the best dancers in terms of keeping a beat are Dominicans. The worst are Cubans because they take little steps.

CT: That’s profiling

SS: It is. But it proves itself right a lot. Cubans have these very tight little steps. I can never dance with a cubans. Puerto Ricans I can dance with too.

CT: You are going to be in trouble with the Cubans.

SS: I know.

You see, race does matter! Though any effort to rearrange dance cards in the middle of a party may run afoul of the political process theory.

(All of these are my own transcriptions–there was no transcript I could find–so all errors are my own).

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