Jul 23, 2014

Obamacare Deja Vu: Frivolous Arguments Now On The Wall, and Parade of Horribles

There is an odd sense of deja vu with the current Obamacare litigation.

In the early days of the individual mandate debate, a common ploy was to label arguments about the individual mandate’s constitutionality as “frivolous.” Then, when courts began to invalidate the mandate, the arguments, in the words of Jack Balkin went from “off the wall” to “on the wall.” Then, supporters of the ACA had to develop sophisticated legal arguments as to why these arguments were wrong. At this point, there was a serious legal debate. But, this effort was augmented by the standard parade of horribles, which I document at some length in my book.  If the Court strikes down the President’s signature piece of legislation of a 5-4 vote in an election year it will delegitimize the Court. If the Court strikes down the mandate, millions will lose their health insurance. The supporters of the law were playing games with people’s lives. And so on.

Let’s review the Halbig litigation, which has followed an eerily similar pattern. For nearly two years, virtually all scholars argued that the argument advanced by Jon Adler and Mike Cannon was “frivolous.” Yet, by my count, 5 out of 6 Judges (including 3 Democratic-appointed Judges) agreed that the government can’t win at Chevron Step 1. 5 out of 6!  Only one judge, Judge Davis, found that this case was open and shut at Chevron step 1.

I should remind you that Judge Davis was on the 4th Circuit panel in Liberty v. Geithner, and was the only judge who reached the commerce clause issue–the other two judges on the panel resolved it at the taxing power. He basically reached the issue, even though he agreed with the taxing power analysis. So much for judicial restraint.

Only by applying the uber-deferential Chevron Step two did 4 out of the 6 judges find that the IRS’s position was reasonable. The government being forced to win by the graces of Chevron Step 2 means this position is not frivolous. This is even less impressive than beating the rational basis test. Now, as Rick Hasen noted, this argument is now “on the wall.”

There is another parallel with Obamacare. I could not find a *single* person who argued in 2009 and 2010 that the Affordable Care Act imposed a tax on those who do not have insurance. No one. One government lawyer I interviewed for Unprecedented assured me this was how the Administration viewed it. But I could not find any contemporaneous evidence to substantiate this. Ditto for the legislative history of the issue in Halbig. As Adler and Cannon note in their WSJ Op-Ed:

If that were Congress’s intent, certainly one should be able to find some statutory language to that effect. Or contemporaneous quotes from the law’s authors explaining that they intended the Affordable Care Act to authorize subsidies in federal exchanges. The president’s supporters have had three years to find such evidence supporting their theory of congressional intent. They have come up empty.

Again, 5 out of 6 Justices agreed on this point. I suppose this is what happens when you ram a 3,000 page law through the process without any meaningful reconciliation or conferences. This was necessary because of Scott Brown’s election, as Megan McCardle recalls. They passed the law. And now, we found out what is in it.

Now that the argument is on the wall, debates are raging between textualism, purposivism, contextualism, and so many other -isms. The canons of construction are firing away at full blast. All this argumentation is evidence that the argument is not, nor has ever been “frivolous.”

And, following the pattern we saw with Obamacare I, the parade of horribles has commenced. For those of you on the ConLaw Prof list-serve, the barbs were charged at a very high level yesterday, with accusations of mean-spiritedness being thrown around vividly. Andy Koppelman, in a post titled “Halbig and hurting the innocent as a political tactic,” asks:

Q. What’s the difference between a Ukrainian rebel with a rocket launcher and a lawyer challenging the Obamacare subsidies?

A. The Ukrainian doesn’t intend to hurt innocent people.

Too soon? Koppelman piles on in a piece in TNR titled “Obamacare Opponents Are Hurting 4.5 Million Workers to Win a Political War.” Beyond the legal merits of the case, people will lose their insurance if the challengers win.

But merits aside, the case raises important questions about the ethics of political warfare. When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point? The point here is to discredit Obamacare; the casualties are simply a means to that end….

If the argument is ultimately accepted by the Supreme Court, then about 4.5 million low- and middle-income workers in those states who are already receiving assistance from Obamacare will abruptly lose their benefits—not because they did anything wrong, but because this destruction furthers the political war. Their personal disasters are not unintended side effects of the litigation, but the very goal that the challengers are seeking.

The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive. This was on display in the Supreme Court argument in March 2012. The government argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”

Echoing that charge is Tim Jost, who in the early days called both the mandate argument, as well as the Halbig frivolous.

Should the plaintiffs ultimately win, millions of Americans will lose their premium assistance and probably their health insurance. The individual health insurance markets may collapse in several states. This is mean-spirited litigation, intended to deny health insurance to those who Congress intended to help. It is to be hoped that in the end the courts will interpret the law as it was meant to be interpreted, and uphold the IRS rule.

Soon enough, the full-court press on Chief Justice Roberts will commence. As I said, deja vu.

Before this week, I was weighing against writing another book on the Affordable Care Act. Now, I am leaning towards continuing my work on “Unraveled,” focusing more broadly on executive power in the age of Obama. Hobby Lobby, Boehner, Halbig, Immigration, Libya, Bergdahl, etc. There’s more than enough important facts to chronicle for the ages. My article, “Congressional Intransigence and Executive Power” provides the basis of my theories.


Read More
Jul 23, 2014

The 4 NFIB Dissenters, and Not the En Banc D.C. Circuit, Will Decide What Happens Next

Yesterday I wrote two posts concerning the timing of the appeals in Halbig (CADC) and King (CA4). I then engaged with an extended twitter dialogue with Steve Vladeck and Ian Millhiser (that cost me way too much cruise wifi money). Here, let me add some additional thoughts.

The plaintiffs in both Halbig and King are represented by Mike Carvin at Jones Day (who represented NFIB in NFIB v. Sebelius). It would behoove Carvin to file, as soon as possible, a cert petition. The United States will be filing, not quite as soon, a petition for rehearing en banc in the D.C. Circuit. The United States will certainly oppose the cert petition, and ask the Court to let the Circuit split ripen. (Translation, let the nuclear panel eliminate the Circuit split).

Under normal circumstances, this would be the prudent course of action. Let the full En Banc D.C. Circuit take a stab at it, and then review that cert petition.

But we aren’t in normal circumstances. This is Obamacare. Four justices were very, very bitter that the Chief upheld the mandate in NFIB. Four justices now have the opportunity to strike down–effectively–the mandate in 36 states. Four votes are all you need for certiorari. Plus, even if the United States requests a extension, this case would still be argued during OT 14. If en banc goes forward, the decision would come OT 15, right before another presidential election.

In fact, I had this odd premonition that if the Court grants cert on King before Halbig en banc proceedings, there may even be a dissent from the grant of certiorari (Sotomayor), arguing that this case should be allowed to ripen. (Remember Justice Breyer did something like that two years ago in a campaign finance case from Montana).

Gerard Magliocca offers similar thoughts at Balkin:

First, I think that there are four Justices who will be waiting on the front steps of the Court for the certiorari petition from the Fourth Circuit (which ruled in favor of the Administration on the same issue yesterday).  Thus, the question of whether the DC Circuit will go en banc in Halbig is, to my mind, largely beside the point.  In an ordinary case, one would expect the Justices to wait and see if a circuit split could be healed before acting, but this is not an ordinary case.  The Justices who lost in 2012 on the individual mandate challenge would love to get another at-bat.

All this talk about the nuclear option is besides the point. The 4 NFIB dissenters will hold the key to when this case reaches the Supreme Court.

Read More
Jul 23, 2014

Explaining Halbig at Sea

Obamacare has become a burden, even of vacation. While on a snorkeling trip, I mentioned to my parents something about the Halbig decision yesterday, and said Affordable Care Act. Someone on the boat works at CMS, and asked what happened. While bathing in the warm, coral waters of Bermuda, I gave a brief discussion of Halbig and King. No, I didn’t pitch my book. For what its worth, she was glad Secretary Burwell was easily confirmed.

Read More
Jul 23, 2014

Neighbor Stops Construction of Neighbors “Modern” House In Historic District

Under modern land-use law, cities effectively have approval over all designs to build houses, based on aesthetics. This is often an arbitrary, and daunting process, as it is very difficult to know in advance which designs will, and will not comply with the government’s tastes (unless you hire one of their preferred architects). There are serious First Amendment, Takings, and Due Process issues with these vague and nebulous standards, but they have been upheld by courts, except in some really egregious cases.

The Times has a lengthy feature about neighborly spat to stop the construction of a modern house in a historic district. Even though a design made its way through the gauntlet of the approval process, a neighbor and other concerned citizens have now held it up in court.

historic-houseIN September, Louis Cherry, an architect here, received a building permit and the necessary approvals to begin constructing a house for himself and his wife, Marsha Gordon, on an empty lot in Oakwood, a historic district in Raleigh. The neighborhood features a variety of architectural styles, from postwar bungalows to Greek Revivals, shotguns to Queen Annes. Construction began in October and the home, modern but modestly so, is nearly complete.

But it is also at risk of demolition. Not because of a tornado or termites or some other natural disaster, but because one of his neighbors doesn’t want it there.

Through a series of protracted appeals, the neighbor has been successful in getting the city to reverse its approval of Mr. Cherry’s permit. The house passed its building inspections and is 85 percent complete, yet sits empty, its future dependent on who finally wins a legal battle that never should have been allowed to happen.

Gail Wiesner, who lives across the street from Mr. Cherry — not incidentally, in a house built in 2008 — doesn’t like it in her neighborhood. In her appeal, she complained not only that the house was too modern for the area’s historical character, but also that the impact of its completion posed a threat to the community. Testifying to the Raleigh City Council, Ms. Wiesner argued that past attempts to engage in similar stylistic treachery had been made by architects who had been “churned out from a very modernist school,” and like to “show off their abilities.”

For the most part, these rebels have been prevented from building homes like this one, she continued in her public comments, but thanks only to “scrupulous, agonizing” processes.

Over a period of about four months Ms. Wiesner filed a series of appeals to the Board of Adjustment to reverse the ruling with the intent of halting construction.

A small group of Oakwood neighbors, who call themselves the Oak City Preservation Alliance, rallied to the cause. The actions of Ms. Wiesner and her allies have created “such a weird hysteria in the neighborhood,” Mr. Cherry told me. “Words like ‘holocaust’ have been used in reference to the idea that our house could inspire a rash of tear-downs which could then be replaced with modern homes. I designed my house specifically within the design guidelines of this historic district and to be compatible, a good neighbor. But the term ‘modernism’ just clicks a switch in people’s brain and they can’t see the house for what it is.”

Does this construction decrease property values?

Ms. Wiesner, who works in real estate, has also argued that having a modern house on the block will adversely affect the resale value of her own home. Here, too, Mr. Howard begs to differ: “The Cherry house doesn’t bring her property value down; in fact, it probably has a more positive affect on the neighborhood than Wiesner’s. Her house is two-thirds bungalow and one-third Victorian cottage. This is like putting strawberries and broccoli in the blender together. I love strawberries and I love broccoli, but not together.”

Those who support the construction of the house are those dastardly “libertarians.”

Some of the staunchest supporters of the Cherry-Gordon house are, says Mr. Cherry, “people who believe in property rights and are sort of libertarian.” However, those live-and-let-live types feel as if they’re in a minority. Increasingly, it seems, building a house that doesn’t fit in with your neighbor’s vision of home has become grounds for legal action, often in places emblematic of the American dream, like historic districts and gated communities.

Read More
Jul 22, 2014

Standing to Challenge The Rewriting of Obamacare: Senator Ron Johnson edition

It wasn’t bad enough that BOTH the D.C. and Fourth Circuit decided to drop a total of 120+ pages of opinions in the tax credit case while I drifted at sea from Bayonne to Bermuda. In addition, our courts gave us a third Obamacare decision. (The Bermuda triangle? I’m sure Sissel will drop later this week).

The District Court for the District of Wisconsin dismissed Senator Ron Johnson’s complaint, filed by the Badger State’s native son Paul Clement, for lack of jurisdiction. Though the opinion is (thankfully) is only 20 pages, but there is a lot of significant discussion about standing.

First, a brief background. When Obamacare was being debated in the Senate, Senators made it abundantly clear that members of Congress, and their staff, should be subject to the same Obamacare exchanges as their constituents. They would not be able to receive the cushy plans of other federal employees. Unlike Halbig, there was fairly clear legislative history on this, as the Senate considered proposal to allow staff to participate in the exchanges, and it was rejected. Anyway, as it is wont to do, when people started complaining that the Congressional staffers would be put on the Obamacare exchanges—without any tax credits—OPM did its thing. They wrote a regulation saying that members of Congress could designate employees who would not have to go onto the exchanges.

Needless to say, OPM totally lacked the authority to do so. Zero. Zilch. Not even the pretense of statutory authority. Unlike Halbig, where at least there is a colorable argument that the IRS was acting within the scope of the statute, this is a case where the Executive clearly rewrote the statute. Remarkably, in a lengthy discussion, the District Court effectively acknowledged this fact.

Indeed, the allegations of the complaint here, which must be accepted as true at this stage of the proceedings, Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013), are that the executive branch has rewritten a key provision of the ACA so as to render it essentially meaningless in order to save members of Congress and their staffs from the consequences of a controversial law that will affect millions of citizens. If proven, this would be a violation of Article I of the Constitution, which reposes the lawmaking power in the legislative branch.

Believe it or not, this may be the clearest judicial statement of the Obama administration’s modus operandi—rewrite statutes to save people from the unpopular ramifications of laws it enforces. And the court did not find this “tweak” was within the President’s Article II discretions. If the allegations are “true,” it would be a “violation of Article I” and an assumption of the “lawmaking power.” This is big.

The decision continues, with references to Madison about the dangers of the executive assuming the legislative powers.

The violation alleged is not a mere technicality. It strikes at one of the most important safeguards against tyranny that the framers erected—the separation of powers. As James Madison explained in response to the objection that the proposed Constitution disproportionally distributed the powers of government:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47.

Tweaks to reduce the harms caused by Obamacare are not a “mere technicality.” It is an affront to the separation of powers itself. This should provide some confidence to those planning the Boehner lawsuit on the merits. Rewriting the law, outside the scope of executive discretion, is a per se violation of Article II.

But that cannot be the holding of this case, as Sen. Johnson lacks standing.

Nevertheless, absent a concrete injury to the party bringing the lawsuit, there is no “case” or “controversy” over which the courts have jurisdiction. For the judiciary to intervene under these circumstances would violate the same principle Plaintiffs seek to vindicate in their own lawsuit with far less opportunity for correction by either the other branches or the people. For all of these reasons, the dispute must be left to the “Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). “It is not our job to protect the people from the consequences of their political choices.” Id.

The rest of the decision addresses numerous arguments concerning Article III standing. Here I’ll highlight a few of the most salient discussions.

First, Johnson and his staffer argue that he suffers an injury because he is participating in an “unlawful” scheme. Even though the court acknowledged that, if the allegations are true (and they are) the scheme is unconstitutional, he is not willing to assert that the violation to the Constitution, in and of itself, is an injury for purposes of Article II.

Plaintiffs also argue that they experience injury even if there is no actual administrative burden because the very act of classifying employees forces them to participate in a scheme they view as unlawful. This argument is unpersuasive for at least two reasons. First, it puts the cart before the horse. The question of the legality of the regulation has not been determined yet; although Plaintiffs believe the regulation is unlawful, such a belief cannot be enough to create standing because that would open the door to any uninjured party who had a generalized grievance with a government regulation. Under such an approach, there would be no principled limit on standing because a plaintiff need only allege a belief that the challenged regulation is illegal. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485 (1982) (“Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.”) In short, one’s personal belief that a regulation is unlawful is not itself an “injury” sufficient to confer standing.

This argument strikes me as problematically circular. If you read Coleman v. Miller in light of Raines v. Byrd, a violation of the separation of powers that results in a “nullification” of the legislative vote can be, by itself, an injury for purposes of Article III. (More on that later, as I’m working on something on point). With the right case, this theory would offer a grounds for standing based on an injury to the separation of powers. Though, this is not that case.

The Court also addresses an argument raised by amici—if the court doesn’t fix this case, no one will, and the President can continue to act unlawfully.

Finally, it is necessary to address an argument advanced primarily by the amici curiae. In short, they argue that if these Plaintiffs do not have standing, then there will be no recourse to stop the Obama Administration from ignoring the laws Congress passes and from exceeding its authority in other ways. They portray the OPM rule as just one more example of an administration that has on multiple occasions usurped the powers entrusted to Congress by rewriting or amending laws the Congress has passed or simply refusing to enforce them. If the courts—a co-equal branch of government—do not step in, amici argue, then there will be no check on executive authority.
First, there is nothing in the Constitution stipulating that all wrongs must have remedies, much less that the remedy must lie in federal court….
Second, as the above quotation also makes clear, it is not true that the courts are the only remedy for the Administration’s alleged unlawfulness. The Congress itself is surely not helpless to rein in the executive: it has spending authority, investigative powers, and it even wields the blunt instrument of impeachment; it has the power to pass, delay, or kill initiatives the executive branch might propose; and it may delay or thwart consideration of executive branch nominees .… In sum, the fact that the allegations advanced in this action might be difficult or even impossible to pursue in federal court for any other plaintiffs does not mean that these Plaintiffs have suffered the kind of injury that could give rise to standing.

This discussion raises the important issue of proportionality, that was addressed at some length by Elizabeth Price Foley during her testimony last week before the House. What is a proportional response by Congress for a violation of Article II. Let’s consider each item identified by the court. With respect to the “spending authority,” Congress made a deliberate decision in 2009 not to spend money for staffers to receive federal health benefits. The President’s rewriting, and suspension of the law, disregarded that authority. So much for that. The “investigative powers” would reveal that OPM issued this regulation, without even the pretense of authority, and is damn proud of it. Not much help there, with such an open, flagrant violation of the law. Impeachment is certainly a “blunt” instrument, that is totally out of whack to this significant, but fairly minor scale violation of the Constitution.

Repeated efforts to “pass, delay, or kill” executive branch initiatives have only emboldened President Obama to take further unilateral executive action. This is the Catch 22 of congressional intransigence and executive power. The more Congress thwarts the President, the more he exercises “self help” and takes matters into his own hand. In sum, the issue of proportionality, with respect to the various remedies Congress has at its disposal, renders the suspension and rewriting of the law a unique type of constitutional injury.


Read More
Jul 22, 2014

Video: Harlan Institute’s FantasySCOTUS Featured in USA Today

Check it out here:

FantasySCOTUS is a fantasy supreme court league that allows users to submit their own briefs in the form of blog posts. These briefs are then judged by members of the Harlan Institute, a non-profit dedicated to expanding citizens’ knowledge of our nation’s most fundamental laws. A select group of players moves to the next round where teams present oral arguments on Google+ Hangout. This is judged by members of the Harlan Institute and ConSource, an online library featuring constitutional history.


Read More
Jul 22, 2014

Counting Votes in Halbig and King

While the D.C. Circuit invalidated the rule by a 2-1 vote, a unanimous 4th Circuit panel upheld the rule, the votes were more complicated.

Judges Edwards (CADC) and Davis (CA4)  found the tax credits unambiguously apply to the federal exchange.
Judges Gregory and Thacker (CA4) found the statute ambiguous, and through Chevron step 2, deferred to the IRS.
Judges Griffith and Randolph (CADC) found that the statute unambiguously blocks the tax credits for the federal exchanges.
In a bit of a flashback, Judge Davis was on the CA4 panel that decided Liberty University v. Geithner. He was the only judge who reached the commerce clause issue and found the ACA’s mandate. constitutional on those grounds. Likewise, Judge Edwards was on the D.C. Circuit panel that unanimously upheld the ACA’s mandate.
This is going to be fun with competing cert petitions an en banc petitions. Even if the SG files a petition for rehearing en banc, and opposes the 4th Circuit cert petition, I suspect there are 4 votes on the Court (the NFIB dissenters) who would want to grant cert, before this issue fully percolates.

Update: On a closer read, even Judge Edwards thought the statute was ambiguous, so he should be lumped in with Judges Gregory and Thacker. So 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.

Read More
Jul 22, 2014

Halbig, “Legislative Supremacy,” and the Boehner Law Suit

The gravamen of the complaint in Halbig, and the imminent Boehner lawsuit, is that the Administration unilaterally rewrote provisions of the Affordable Care Act that are clear, because they would generate results the Administration did not like, and Congress was in no position to fix the law.

The Court in Halbig rejected that, citing a presumption of “legislative supremacy.”

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges. Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacate the IRS Rule.

Tea leaves.

Read More
Jul 22, 2014

Halbig Appeal Timing

As I noted in an earlier post, the United States will go for en banc review on the nuclear panel. The 4th Circuit plaintiffs will almost certainly go for certiorari. This presents an interesting timing issue, and a race for the Court house.

I suspect the plaintiffs will file for certiorari first. If the government files a petition for en banc, I suspect the plaintiffs to ask the D.C. Circuit to put en banc on hold while the certiorari petition is pending. That would have the result of preventing the D.C. Circuit from vacating the panel opinion–which would have the result of killing the Circuit split.

In any event, the Court should have a cert petition on its docket this fall. Then, the government could oppose cert, by asking the Court to delay its resolution pending the D.C. Circuit’s en banc proceedings. Thus, the Court can deny certiorari on King (4th Circuit case) and wait for Halbig. Oh what fun!

It’s so rare that a Circuit split forms in one day.

Update: Let’s think about the timing this way. Let’s assume that the plaintiffs file a cert petition in the next week or so. The following week the United States files a petition for rehearing en banc. The plaintiffs will reply that a cert petition is pending, and the en banc proceedings should be put on hold pending resolution of the cert petition. The government will certainly raise the en banc petition in their opposition to cert. But, the plaintiffs can say, if the Court denies certiorari from the 4th Circuit, then the en banc proceedings can continue in the D.C. Circuit. If the Court grants certiorari, then there is no point in the D.C. Circuit granting en banc review bc the Justices will go for it. Really, there is no point in the D.C. Circuit considering en banc, or even vacating the panel decision, if the Court takes it. That is, unless the D.C. CIrcuit sua sponte grants en banc–without the need for briefing–and vacates the opinion. I think that outcome is unlikely.

Read More
Jul 22, 2014

To Save the ACA, the Supreme Court Will Have to Rewrite It. Again.

Judge Griffith’s opinion for the D.C. Circuit boiled down to one point–he was not willing to rewrite the ACA to save it.

The point is that we don’t know, and in asking us to ignore the best evidence of Congress’s intent—the text of section 36B—in favor of assumptions about the risks that Congress would or would not tolerate—assumptions doubtlessly influenced by hindsight—the government and dissent in effect urge us to substitute our judgment for Congress’s. We refuse. As the Supreme Court explained just this term, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” UARG, 134 S. Ct. at 2446. And neither may we. “The role of th[e] [c]ourt is to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy.’” Burrage v. United States, 134 S. Ct. 881, 892 (2014) (quoting Comm’r v. Lundy, 516 U.S. 235, 252 (1996)) (third alteration in original); see also Lewis v. City of Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to assess the consequences of each approach [to interpreting a statute] and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.”); United States v. Locke, 471 U.S. 84, 95 (1985) (“[T]he fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.”).

This has to be a not-too-veiled note to the other Court down Constitution Ave. Then again, rewrite the statute is exactly what Chief Justice Roberts did, twice. First, to treat the mandate as a tax, and second to totally rework the Medicaid expansion. Only time will tell if the Court is willing to rewrite the ACA one more time. Ditto for the other lingering bomb, Sissell, and the origination clause challenge.

A related issue–will the Court (Roberts) be willing to “gut” the ACA with adverse consequences to millions. As I noted many times during my talk: John Roberts wasn’t willing to kill Obamacare in 2012 when no one was relying on it. Why would he do so in 2015 when millions are relying on it: For this, perhaps Judge Griffith will be right, or wrong:

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges. Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacate the IRS Rule.


Read More
Jul 22, 2014

In case you weren’t busy enough, a District Court threw our Sen. Ron Johnson’s Obamacare Suit

The opinion is here.

Read More
Jul 22, 2014

With A Circuit Split, Halbig Will Go to the Supreme Court

The D.C. Circuit found that the IRS’s tax credit rule was invalid. On the same day (seemingly a few hours later), the 4th Circuit upheld the rule. While the government has every interest to bring this case before the nuclear en banc D.C Circuit, the plaintiffs in the 4th Circuit have every incentive to file a cert petition with haste. (Mike Carvin of Jones Day filed and argued both cases). And I’m fairly certain the cert petition is ready to roll. And it should be filed in time for a conference this fall.

At the moment, I am on a cruise somewhere between Bayonne and Bermuda, and internet access is quite costly at $.41 per minute. I will read the opinion offline and upload some thoughts later. Stay tuned.

Read More
Jul 22, 2014

Highlights from the Clinton Archives for the RBG Nomination

There are some gems here. It seems RBG was steadfast in not backing away from her record, and she spoke critically of Justice Souter’s circuitous answer,s which she said “demeaned” himself.

First, she offers a “stalwart defense of the ACLU”:

When asked about her support for ACLU policies to legalize prostitution, decriminalize the distribution of pornography to minors, decriminalize marijuana, and ban the death penalty, Judge Ginsburg has a strong tendency to defend the ACLU position. She has an instinct for defending some rather extreme liberal views on these questions. She also relishes defending the ACLU as an institution, and its importance in American society.

Second, she rejects the “Souter approach” and prefers the Bork answers!

When shown videotapes of confirmation hearing answers by Judges Souter and Bork to similar questions, Judge Ginsburg’s reaction has been that JUdge Souter “demeaned” himself in giving “political” answers, while Judge Bork was “unjustly crucified” for his “candid” responses. Her answering style is more akin to Bork than Souter: her answers tend to be legalistic and doctrinal — even when dealing with crucial issues -~ rather than conveying core values.

Third, she has a “disdain for confirmation process:

At the same time, Judge Ginsburg believes that Judge Souter answered “too many” questions of the Committee about specific legal issues — like religious freedom and free speech and intends to be less responsive than he was in an effort to “restore dignity•i to the confirmation process. Her hostility to the process — to the Committee’s “victimizing” of Judge Bork (on the one hand) and Anita Hill and Lani Guinier (on the other) — is evident. She believes (and may publicly state) that the current process should be replaced by the one used for Chief Justice Burger: a one-hour hearing with no substantive questioning.

Fourth, RBG is too direct in discussing her opinions, and doesn’t speak to “core values.”

When asked a specific question about a prior decision G,.r writing,· Judge Ginsburg seems unable (or unwilling) to reassure that questioner’s underlying concerns, and instead, seems set on answering the specific charge (or, more often, nitpicking some aspect of the question’s premise). As noted above, the Judge has trouble addressing larger issues and speaking to core values.

Fifth, they doubt RBG’s “style.”

And finally, Judge Ginsburg’s technique — her failure to make eye contact, her halting speech, her “laconic” nature (to use Jim Hamilton’s phrase) -~ is not helpful.

There is no way a President would nominate RBG today. She wants to be “independent.”

You should be cautious in dealing with her on these and other points. Judge.Ginsburg views the White House’s interest and her interests as being.at odds with each other: she sees us as having a stake in presenting.her as a moderate and in getting along well with the Senate; she s.ees her interests as “being herself,” preserving her “digniti’,” and promoting her “independence.”

Also, Marty Ginsburg (RBG’s husband), recommended potential witnesses for her confirmation hearing. Gunther, and not Tribe, is the top ConLaw scholar in America.

Gerald Gunther — Professor of Law at Stanford and probably the leading constitutional law scholar in America (some would say Larry Tribe but I would not).

Read More
Jul 22, 2014

Acquisition by Find: Ring Lost 60 Years Ago Turns Up In Dry Texas Lake

In Property, one of the first topics we cover is acquisition by finding stuff. A number of the cases tease out the vagaries of what happens if an object is mislaid, abandoned, buried in the ground, and then discovered. One case is South Staffordshire Water Co v. Sharman (Queen’s Bench 1896). In short, the owner of property asked someone to clean out a pool of water. The cleaner found two rings stuck in the mud at the bottom of the pool. So who owns it? The person who finds it, or the person who owns the land? The court found that the owner of the land in question (“locus in quo”) gets the rings. “The possession of land entitles possession of everything attached to land, in absence of better title.” This is true if the land owner isn’t even aware of the items existence.

Now, we have an almost perfect analog to this case. An 84-year old woman, who lost her 1953 university class ring, six decades ago. And remarkably, it wound up in a dry lack in Lubbock!

Elizabeth Clark lost her Howard Payne University class ring in 1954 in Lake Nasworthy near San Angelo when she and her future husband went for a picnic and to wade into the water.

After years of drought, the ring revealed itself in the bed of the lake and was found by a Texas woman in March.

Clark’s daughter says the ring means the world to her mother because she worked so hard to become the lone child out of 16 to finish college.

The ring will be returned to Clark at a family reunion Friday near Lubbock.

Now, in this case, the true owner was ascertained, so it could be returned to her. But otherwise, the finder, or the property owner, could also assert title.


Read More
Jul 22, 2014

Justice Kennedy’s “Historical Defense” Heller and the 2nd Amendment

During his remarks at the 9th Circuit Judicial Conference, Justice Kennedy apparently spoke about D.C. v. Heller, for which he provided the key 5th Vote. Correct me if I’m wrong, but I can’t recall him ever speaking about the 2nd Amendment before. Anyway, here is a writeup by Bob Egelko:

He then proceeded to a brief, historical defense of Scalia’s 2008 ruling that overturned a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual’s right to possess at least certain firearms at home.

The Second Amendment, ratified along with the rest of the Bill of Rights in 1791, had been interpreted by the court as late as 1939 to protect only the right to bear arms in a “well-regulated militia.” But Kennedy observed that constitutional understanding can change over time — for example, the 1896 ruling in Plessy vs. Ferguson, which upheld segregation in public transportation as “separate but equal,” wasn’t overturned by the court until the 1954 Brown vs. Board of Education decision, which outlawed school segregation and mandated equal treatment of the races under the Fourteenth Amendment.

By the same token, he said, some critics have claimed that the decades, or the centuries, it took the court to declare an individual right to keep and bear arms “means that it doesn’t exist.”

“I’m not so sure,” said Kennedy, who was part of Scalia’s 5-4 majority in the 2008 ruling.

Huzzah. Now, grant certiorari on a Second Amendment case already.

Read More
Jul 21, 2014

Questions President Clinton should NOT ask Judge Breyer?

Ron Klain provided a memo to Bernie Nussbaum, listing questions that President Clinton should *not* ask Judge Breyer:

What is your view on the constitutionality of the death penalty?

Do you agree with Bakke v. Regents of California, or Roe v. Wade?

What test would you use to determine when an Establishment Clause violation has occurred?

How do you define the “right to privacy?”

When can race-conscious remedies be used under the civil rights laws?

Here are the questions the President *should* ask:

What guides your overall constitutional philosophy? Breyer will likely speak of “human dignity” and a need to take a non-literal view of the Constitution’s phrases.

How do you define the scope of liberty in the Constitution? Breyer will talk about the need to balance the text’s language with an expansive view of liberty.

Why have you devoted your career to the dry subject of economic regulation? Breyer will discuss how these regulatory issues touch people’s lives.

Some say that your writings suggest an over-emphasis on economics: putting a cost on lives, for example. Breyer will talk about the limits of economic analysis, and the need to make hard choices among safety options.

How does he respond to the criticism that his opinions are “bloodless”? Breyer will discuss he admiration for John Minor Wisdom, who had a similar writing style.

How do you deal with your Republican colleagues on the bench? Breyer will talk about how he goes about persuading them to join him in cases~ • You are the architect of the Sentencing Guidelines.

How do you defend them from criticism? Breyer will speak of how he “did good” by fighting “worse” versions of the Guidelines.

What are the most significant Supreme Court decisions in your lifetime? Breyer will cite a variety of cases involving civil rights and personal liberties.

Who are the great Justices in history? Breyer will cite a variety of Justices, past and present.

Read More
Jul 21, 2014

New York Court of Appeals: Local Governments Can Ban Fracking Through Zoning Ordinances

The New York Court of Appeals issued a significant opinion finding that local governments can regulate–ban–fracking through their zoning authority. This continues a trend of governments turning to the common law to accomplish many environmental ends that traditional were beyond the scope of local governments–such as efforts to regulate climate change to nuisance law. There are other similar cases pending in Pennsylvania. Stay tuned.

Prof John Nolson has a summary:

In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking  under their authority to enact zoning ordinances.  Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions.  The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law.  The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments. ….

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date.http://www.nycourts.gov/ctapps/Decisions/2014/Jun14/Jun14.htm.

More from Inverse Condemnation Blog:

A not entirely convincing rationale in our view, but given the prior decision’s interpretation of the same statutory language, the result couldn’t have come as much of a surprise. The court acknowleged the zoning laws “will undeniably have an impact on oil and gas enterprises” (ya think?) but this is merely “incidental control” that is a byproduct of a municipality’s power to zone land. Again, not very convincing, since a total ban on a practice — even if accomplished pursuant to a municipality’s zoning power — sure looks to this non-New Yorker like an “ordiannce relating to” oil and gas.  Even that argument, adopted by the dissent, was rejected the court:

As a fallback position, Norse and CHC suggest that, even if the OGSML’s supersession clause does not preempt alllocal zoning laws, it should be interpreted as preempting zoning ordinances, like the two here, that completely prohibit hydrofracking. In their view, supported by the dissent, it may be valid to restrict oil and gas operations from certain residential areas of a town — much like the zoning law in Frew Run – but an outright ban goes too far and cannot be seen as anything but a local law that regulates the oil and gas industry, thereby running afoul of the supersession clause. But this contention is foreclosed by Matter of Gernatt Asphalt Prods. vTown of Sardinia (87 NY2d 668 [1996]), our decision following Frew Run.

- See more at: http://www.inversecondemnation.com/inversecondemnation/2014/06/new-york-municipal-ban-on-fracking-is-zoning-is-not-preempted-by-state-law.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+inversecondemnationcom+%28inversecondemnation%29#sthash.Z31etslc.dpuf

Read More
Jul 20, 2014

Decision in Gascho v. Global Fitness Holdings, LLC (S.D. Ohio)

I previously blogged about a class action objection I filed in Gascho v. Global Fitness Holdings, LLC (S.D. Ohio) (see herehere, and here). The District Judge adopted the Magistrate’s Report and Recommendation, and ruled against our claim. You can view the Final Judgment, the Final Opinion approving the Settlement, and the Final Approval Order.

Read More
Jul 19, 2014

What is the cause of action for a violation of a nondiscrimination executive order?

MetroWeekly reports that the President will amend Executive Order 11478 to prohibit discrimination against transgender federal employees. The Executive Order basically sets out goals and guidances, and urges heads of departments to allocate resources to prevent discrimination. But what would the cause of action be if a federal employee was discriminated on this basis? I think the answer has to be none. As a practical matter, if a federal agency discriminates based on any of the protected bases, with the exception of gender identity, a suit could be brought under Title VII. But, for these two cases, no litigation could commence. Unless the President decides to create a federal cause of action through an executive order.

Read More
Jul 18, 2014

Lessons from the Supreme Court’s Stay of the Utah SSM Recognition Appeal

Twice, the 10th Circuit declined to stay rulings concerning Utah’s same-sex marriage law. Twice the state was forced to take emergency appeals to the Supreme Court. And twice all nine Justices agreed that the judgment should be stayed pending the complete resolution of the appeals process. If the lessons to be learned wasn’t obvious after the Court’s January 6 order, it should be really obvious after today’s order. Circumstances have not changed in this respect. Lower courts should continue to stay all rulings, and maintain the status quo ex ante.

Also, it should be clear that the Court’s refusal to stay the ruling in the Pennsylvania and Oregon cases was due to the odd procedural postures involved, as the government declined to appeal, and third parties attempted unsuccessfully to intervene. Utah, twice, has attempted to appeal to defend its law, and twice the Supreme Court has instructed the lower courts to stand by.

Read More