Mar 2, 2015

The New York Times on the Origin of King v. Burwell

Adam Liptak generously quotes me on the origin of King v. Burwell:

Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.

“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.

“When you have such a large bill, that changes so many aspects of our society, that no one bothered to read, discerning a single legislative intent is elusive,” he continued. “To this, the challengers reply that the text provides the best indication of what Congress meant — the majority voted on it.”

One point that has been weighing on my mind of late, is how sophisticated the arguments have become over the last two years. When the IRS rule was initially proposed, Treasury did almost no research. They declared federal exchanges to be equivalent to state exchanges, ipse dixit. Over the past two years, academics and government lawyers have put together a compelling case about why the government wins. But absolutely none of this was part of the “reasoned decisionmaking” when the rule was proposed, or adopted.

This reminds me (tragically) of the individual mandate. When it was crafted, it was framed as a regulation of commerce, and all the constitutional findings about the mandate cited the commerce clause. None cited the taxing power. However, as soon as the challenges were filed, the government quickly pivoted to the taxing power. And the rest is history.

There is something perverse about the government relying on rationales that were totally absent when the original action was taken. It is akin to the rational basis test, where the state can fabricate rationales after the fact to justify a regulation, even if that regulation was unknown. When the IRS regulation was issued, the explanation proffered amounted to lawlessness. Now, they have a legitimate textualist argument. This history is why, I argue in my brief with Cato, that the normal presumption of deference should not be applicable.

Anyway, that’s it for me for now. I’ll have a lot more to say after attending oral arguments.

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Mar 2, 2015

Talks Today in Tucson and Tempe

Today at noon I will be speaking to the University of Arizona Federalist Society Chapter about the constitutionality of bans on 3D-Printed guns, with respect to the 1st and 2nd Amendments. Professors Jane Bambauer and Hank Shea will be providing comments. The event will be in room 418.

At 4:30, I will be speaking to the Phoenix Federalist Society Lawyers Chapter for an event on the same topic at the University of Advancing Technology. The event, which is free, will be followed by a demonstration of a 3D-printer. You can register here.

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Mar 1, 2015

Are the Justices “Perfectly Entitled” to Discuss Wisdom of Law “In Lectures” and “Law Review Articles”?

At the very end of Justice Kagan’s otherwise enjoyable opinion in Yates, the Junior Justice added an ill-advised dicta about dicta. She began by making a fair (and I think correct) point–the plurality’s decision is driven by a (reasonable) concern about over-criminalization. There’s no reason a person who throws away some fish should go to jail for the statutory maximum of 20 years. Kagan concedes that point, but reminds us that here, the Florida Man–whose mens rea was “knowingly” impeding a federal investigation–only got 30 days. This isn’t the poster child of over-criminalization we read about in the Wall Street Journal.

However, after gutting the plurality’s argument, like the grouper, Justice Kagan goes overboard.

Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

Why are these statements necessary, at all? What difference does it make if the Justices think it is “bad law?” Why, after voting to uphold Yates’s conviction, need the Court weigh in on this “deeper pathology in the federal code”?

In the final paragraph, Kagan climbs for the high-board to make an even bigger splash.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design.

I’ll forgive the uncharacteristically poor sentence construction (beginning two sentences in a paragraph with “But”–yuck), but her point seems entirely wrong. Why are judges “perfectly entitled” to say so, anywhere? And even if they are entitled to say so, how is it that dicta–where judge arguably have some room to opine on such matters–is equated to lectures and law reviews? These extra-judicial statements are not the proper place for the Justices to weigh in on the “folly.” Imagine if Justice Scalia ripped the effectiveness of the ACA, or if Justice Ginsburg critiqued the desirability of bans on gay marriage? (Never mind).

Justice Ginsburg’s indiscretions of late, and more recently those of Justice Stevens, should tell us that the Justices should not be talking about these matters in lectures or law review articles, or interviews, or anywhere. I’ll grumble at dicta, but they are part of the written opinion. Lectures and law reviews are not.

How about judges decline to opine on these matters outside their opinions, period. Wouldn’t that be something? We would be no worse off for it.

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Mar 1, 2015

Justice Kagan is the Master of the Parenthetical Aside to Break #SCOTUS Fourth Wall

I remain enamored by Justice Kagan’s writing style, and in particular her colloquial manner. One of her best tools is the parenthetical aside–as if she is breaking the Supreme Court’s proverbial “fourth wall.” Instead of speaking to the U.S. Reports, she is speaking directly to us. Consider a few parentheticals, speaking directly to the audience, in her dissent in Yates v. United States.

So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).

From Alabama and Alaska through Wisconsin and Wyoming (and trust me—in all that come between), States similarly use the terms “tangible objects” and “tangible things” in statutes and rules of all sorts.

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.

Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.”

This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible object”) to which the law refers.

These parentheticals serve no purpose, other than to connect with the reader–and connect they do. When I read a Kagan opinion, I feel like she is having a personal conversation with me. It’s almost like when Zak Morris called a time-out on Saved By The Bell and spoke directly to the camera.

Pound for pound, the Chief is still the best technical writer, and Scalia is the most witty, but I enjoy reading Kagan’s decisions the most. With sentences like these, who wouldn’t:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Not a one has limited the phrase’s scope to objects that record or preserve information.

And legislative history, for those who care about it, puts extra icing on a cake already frosted.

In any event, score this as another victory for Florida Man.

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Mar 1, 2015

En Banc For A Stay in the 5th Circuit

In an earlier post about the timing of the appeals from Judge Hanen’s order, I noted that even if the panel rule for the administration and granted a stay, it was very likely that at least one judge on the panel would sua sponte call for en banc. Josh Gerstein of Politico tweeted that the 5th Circuit’s Practitioner’s Guide (p. 85) provides that stays are not subject to en banc.

Reconsideration of denials of relief in administrative motions is by a three-judge panel only. Procedural and interim matters, such as stay orders, injunctions pending appeal, appointment of counsel, leave to appeal in forma pauperis, denial of permission for an abusive litigant to file pleadings, denials of more time to file briefs, etc., are not matters subject to en banc consideration.

However, FRAP 35(a) provides that any “proceeding” can be rehearing en banc. That would seem to include en banc proceedings.

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.

There is nothing in the 5th Circuit’s local rules suggesting that stay orders are not subject to an en banc vote. While the practitioner’s guide is certainly helpful, it does not trump the FRAP, or the local rules, which expressly provide for an en banc vote for any “proceeding,” of which a stay vote counts. The local rules make no specification that stays are excluded from en banc polls:

REQUESTING A POLL ON COURT’S OWN MOTION – ANY ACTIVE MEMBER OF THE COURT OR ANY MEMBER OF THE PANEL RENDERING THE DECISION MAY REQUEST A POLL OF THE ACTIVE MEMBERS OF THE COURT WHETHER REHEARING EN BANC SHOULD BE GRANTED, WHETHER OR NOT A PARTY FILED A PETITION FOR REHEARING EN BANC. A REQUESTING JUDGE ORDINARILY SENDS A LETTER TO THE CHIEF JUDGE WITH COPIES TO THE OTHER ACTIVE JUDGES OF THE COURT AND ANY OTHER PANEL MEMBER.

It’s possible this was put into the guide to discourage pro se plaintiffs from seeking frivolous stays. The Internal Operating Procedures make this point implicitly on p. 35:

THE MOST ABUSED PREROGATIVE – PETITIONS FOR REHEARING EN BANC ARE THE MOST ABUSED PREROGATIVE OF APPELLATE ADVOCATES IN THE FIFTH CIRCUIT. FEWER THAN 1% OF THE CASES DECIDED BY THE COURT ON THE MERITS ARE REHEARD EN BANC; AND FREQUENTLY THOSE REHEARINGS GRANTED RESULT FROM A REQUEST FOR EN BANC RECONSIDERATION BY A JUDGE OF THE COURT RATHER THAN A PETITION BY THE PARTIES.

But in any event, this guide will not serve as a barrier if one judge seeks to call for en banc.

H/T to Cato’s inestimable local counsel, Leif Olson, for explaining 5th Circuit procedures to me.

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Mar 1, 2015

President Bypasses Senate on Iran Agreement, Threatens to Veto Bill Requiring Notice to Congress Before Deal Reached

During his testimony before the Senate Foreign Relations Committee last week, Secretary of State John Kerry made clear that Congress would have “no other role or feedback” with respect to negotiations with Iran. He explained that Congress’s authority would be limited to voting to lift congressionally-mandated sanctions, but that’s it. Why? Because Article II.

“No, I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy. And he [the President] is executing thoroughly all his responsibilities of consultation, but in the end this is the president’s prerogative,” he continued. “You can always decide to oppose it one way or the other, as you might. Our hope is that we will consult, work together, not set up predetermined barriers that make it difficult to get to an agreement.”

In response, Sen. Bob Corker, Chairman of the Committee, has introduced the Iran Nuclear Negotiations Act (here is a version from the last Congress). The bill would require the President to submit the administration to submit any nuclear deal concerning Iran to Congress within three days of entering into the agreement. Corker explains:

In the event of any agreement with Iran, he said, “I do think it’s important that it is submitted, that we have the opportunity to approve it prior to the sanctions being lifted.”

Now, the President has threatened to veto a bill that would give Congress the opportunity to weigh in on the agreement.

President Barack Obama would veto a bill recently introduced in the U.S. Senate allowing Congress to weigh in on any deal the United States and other negotiating countries reach with Iran on its nuclear capabilities, the White House said on Saturday.

“The president has been clear that now is not the time for Congress to pass additional legislation on Iran.  If this bill is sent to the president, he will veto it,” said Bernadette Meehan, a spokeswoman for the White House’s National Security Council.

The United States and five other major powers are seeking to negotiate an agreement with Iran to curb its nuclear program in exchange for relief from economic sanctions.

The Iran Nuclear Agreement Review Act would require to submit to Congress the text of any agreement within five days of concluding a final deal with Iran. The bill would also prohibit Obama from suspending or waiving sanctions on Iran passed by Congress for 60 days after a deal.

Meehan said United States “should give our negotiators the best chance of success, rather than complicating their efforts.”

 

Like the National Defense Authorization Act, which required that POTUS give 30 days notice before releasing high-value detainees from Guantanamo, this bill would only require notice–not approval. The idea is that the President would not be able to quietly enter into a bad deal, without public scrutiny. But, the President will still veto this effort by Congress to limit his power. No doubt, if the veto was overturn by the Congress, the President would disregard it as an unconstitutional limit on his foreign powers–even though, in effect, it would approximate the level of support needed for ratification of a treaty (2/3 of the Senate!). (Update: Senator Graham suggests that a veto-proof majority may exist for an Iran bill).

One aspect of modern-day constitutional law that always irked me is the so-called “executive agreement.” By calling it an executive agreement, rather than a treaty, the President can avoid the requirement of advice and consent by the Senate. Of course, these agreements cannot bind domestically, in the absence of any implementing legislation, so Congress would have to be involved, but the agreement itself can be reached without input from the Senate. Once the agreement has been reached, and the Executive makes a deal with a foreign country, there are a whole host of other pressures that inhibit Congress from opposing the implementation of the executive agreement. This is why, I think, the framers put the ratification requirement for treaties as one of the few restrictions on the President’s powers over foreign affairs. The United States should not get entangled in foreign agreements unless the Senate concurs.

Here, as has become the pattern, the President openly flouts the Constitution’s structural provisions, meant to check his foreign policy powers (here the treaty ratification requirement), and then openly flouts Congress’s efforts to reassert their constitutional prerogatives (checking his ability to enter into foreign agreements) through the veto threat. This is an exact replay of DAPA, where the President bypassed his duty of faithful execution under a specious argument about prosecutorial discretion, an then threatens to veto a bill that would defund his unconstitutional actions. He did the same with a bipartisan bill in 2013 to allow people to keep their bills cancelled by Obamacare–he threatened to veto it, and then did it himself through executive power. This is a very, very disquieting pattern.

As a footnote, let me reiterate that I do not write about foreign affairs unless they implicate domestic constitutional separation of powers issues. Also, I do not have an informed opinion about how and what a deal with Iran should look like. My interests only concern how foreign policy interacts with the Constitution.

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Feb 28, 2015

President Weighs In On King v. Burwell and “Republican Party … suing us constantly” on Obamacare

During an interview on immigration, the President tried to draw a comparison between Judge Hanen’s ruling and the various challenges to Obamacare, which he described as (drumroll) “unprecedented.”

THE PRESIDENT:  Well, José, we’ve got one judge who made this decision.  We appeal it to a higher court.  We believe that the law is clearly on our side.  This is true in everything that we do.

Look at the Affordable Care Act.  We’ve signed up 11 million people to get coverage through the Affordable Care Act.  Over 2.5 million of them are Latino.  (Applause.)  Because of what we’ve done, we’ve seen the percentage of uninsured Latinos drop by almost 7 percent.  It’s unprecedented.  So we know it can work.

Now, that hasn’t stopped the Republican Party from suing us constantly, to try to find a judge who may think that what we’re doing is in appropriate, despite the fact that it passed through Congress.  We’ve got a Supreme Court that is still ruling on these cases.  But that hasn’t stopped us from moving forward.

Indeed, the administration hasn’t stopped, failing to prepare any backup plan if the Court invalidates the IRS rule in King v. Burwell. Oh, and while the ACA passed Congress, DAPA did not.

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Feb 28, 2015

President Explains 5th Circuit Appeal To Take “A Couple of Months” And Threatens to Sever Power of Purse With Veto

During a wide-ranging interview in Miami on Wednesday, the President commented on DAPA, DACA, and Judge Hanen’s order.

First, in response to a question about DAPA, the President alluded to forum shopping, by explaining “Republican governors . . . found a district court judge.”

Now, unfortunately, a number of Republican governors chose to sue.  They found a district court judge who has enjoined — meaning stopped — us going forward with this program.  But that’s just the first part of the process.  This is just one federal judge.  We have appealed it very aggressively.  We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side.’

But has this appeal been aggressive? Despite their empty threat they DOJ will appeal to the 5th Circuit if Judge Hanen didn’t rule by Wednesday, as of today, no papers have been filed in New Orleans. Is this aggressive?

In response to a question about how long the appeal will take, the President explained it will take “a couple of months.”

MR. DIAZ-BALART:  How long will it take?  Because a lot of people are asking.  They said, we were 24 hours away from registering for the expanded DACA and just months from DAPA.  This happens 12 hours before.  What’s going to happen now? How long is it going to take?  And, again, a lot of the questions are, was the President caught by surprise?  And why is it taking so long?  This is what we’re getting, Mr. President.

THE PRESIDENT:  What I’m saying is, is that of course we weren’t surprised.  I’ve got a bunch of lawyers, we saw the judge who was rendering the opinion.  The fact that we weren’t surprised doesn’t mean we can stop the judge from rendering an opinion.  It means that we then go forward in the appeal process. That’s how the legal system works.

And we have asked –- first and foremost, we have asked for a stay.  What a stay means, by the way, for the non-lawyers, is simply that whatever the judge thinks, it shouldn’t stop us from going ahead and implementing.  The first step is to go before that same judge and say, judge, what you said is wrong, rethink it.  He may not agree with that.

The next step is to go to a higher court, the Fifth Circuit. That will take a couple of months for us to file that and argue that before the Fifth Circuit.  We expect to win in the Fifth Circuit, and if we don’t, then we’ll take it up from there.

So at each stage, we are confident that we’ve got the better argument.  As I said before, what I’ve done is no different than what previous Presidents have done.  In the meantime, what I can do is make sure –-

He later repeated, again, that the process would take “months.”

So we’re going to be in a position I think of going through the legal process over the next several months.

Based on this comment, it doesn’t look like DOJ will file for an emergency stay with the 5th Circuit. A process that takes “a couple of months” will likely be an expedited appeal. But the panel opinion could take 6 months from start to finish. Then, en banc if it goes against the Administration. Then a year for certiorari. As I noted in National Review, the courts can effectively run out the clock on the Obama Administration.

One of the President’s most striking remarks concern the efforts of the House of Representatives to use the power of the purse to stop his executive action on immigration. While I am entirely ambivalent about the politicking around the funding of DHS and government shutdowns, the President explained that he would veto any effort by Congress to cabin his executive powers through the appropriations clause.

So in the short term, if Mr. McConnell, the leader of the Senate, and the Speaker of the House, John Boehner, want to have a vote on whether what I’m doing is legal or not, they can have that vote.  I will veto that vote, because I’m absolutely confident that what we’re doing is the right thing to do.  (Applause.)  And in the meantime, we’re going to continue to pursue all legal avenues to make sure that we have a country in which we are respecting not only the law, because we’re a nation of laws, but we’re also respecting the fact that we’re a nation of immigrants.

In Part II of my series, I spin a counterfactual where President Truman vetoed the “Steel Mill Restoration Act of 1952,” which defunded the President’s efforts to seize any steel mills. I use this as a scary example of how a President could use the veto power to fight back against Congress attempting to reclaim its legislative authority. Yet, this actually happened. In the past, the President threatened to veto a bill that would have grandfathered plans cancelled under Obamacare–then accomplished through executive action the exact goal. We are living in a surreal time, where the President describes such behavior as fitting a “nation of laws.”

The host asked the President in several different manners why he didn’t go further with DAPA. The President replied, as he did before DACA, and before DAPA, that he was already stretching his powers to their furthest extent. (Apparently, after each new program, the powers expanded).

The bottom line is, José, that I’m using all of the legal power vested in me in order to solve this problem.  And one of the things about living in a democracy is that we have separation of powers — we have Congress, we have the judicial branch — and right now, we’ve got some disagreements with some members of Congress and some members of the judiciary in terms of what should be done.

The President considers the current constitutional crisis a mere “disagreement” between Congress and the judiciary.

Once again, he says he expanded his powers “as far as we can” (He said that many times before).

What we’ve done is we’ve expanded my authorities under executive action and prosecutorial discretion as far as we can legally under the existing statute, the existing law.  And so now the question is, how can we get a law passed.

He adds that what makes him confident is “prosecutorial discretion.”

THE PRESIDENT:  Here’s the thing.  I was always very clear about this, even when I made the first announcement about the executive actions.  The reason I’m confident about our legal position in what we did with DACA, which was already in place since 2012, what we’re now proposing in terms of expanding DACA, and also for the parents of those who qualified for DACA — the reason I’m confident is that we could take those steps under my powers of prosecutorial discretion. 

If, in fact, we were completely just rewriting the immigration laws, then actually the other side would have a case, because we can’t violate statutes.  We can’t violate laws that are already in place.  What we can do is make choices to implement those laws.  That’s what we’ve done with DACA and that’s what we’ve proposed with the expansion of DACA and DAPA.

In order for us to do most of the work that Boris refers to in terms of expanding opportunities, for example, to say to any young person who has got an advanced degree in math and science and engineering, which we know we’re going to need, even as we try to get more and more young Americans to go into those fields –- in order for us to do that, we’re going to need a congressional law to be passed.  I don’t have all the authorities that are necessary in order to get some of those things done.

In a fascinating colloquy, the host explains why George H.W. Bush’s 1990 Family Fairness program differed from DAPA. Putting aside the fact that only 50,000 people applied (not the 1.5 million estimated), the key difference is that it served as a temporary bridge during the 9 months between when the Senate and House passed versions of the bill.

MR. DIAZ-BALART:  The numbers are unprecedented.

THE PRESIDENT:  Well, the numbers are unprecedented only relatively speaking.  I mean, if you look at what George H.W. Bush did, he, proportionally to what was then the immigrant population, was very aggressive in expanding.  The difference is, is that Democrats didn’t challenge what he did for largely political reasons.

MR. DIAZ-BALART:  And there was a bill already underway.

Focus very carefully on the President’s response. He quickly acknowledges that there was a bill pending– a fact his OLC neglected to discuss.

THE PRESIDENT:  Well, there was a bill underway…

The rest of the sentence seems to be a riff on his theme–when Congress doesn’t solve a problem, then I will.

… but in some ways, you could make an argument that since a bill had passed that didn’t solve that problem, Congress had been very direct in saying we don’t want to solve that problem.

His next sentence is confusing. Is “He” referring to George H.W. Bush? That’s what I thought till we got to the last part about DHS which didn’t exist in 1990. Is he speaking about his Secretary?

And he went ahead and did it anyway, because it’s in his authority to implement, using prosecutorial discretion, the limited resources of Department of Homeland Security.

It doesn’t really make sense. But I think there is a semblance of an idea there.

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Feb 27, 2015

Supreme Court on Jeopardy!

Today’s episode of Jeopardy had a category about the Supreme Court. I was only able to get a picture of the final three clues. One of the earlier ones involved Justice O’Connor asking what precedent Planned Parenthood v. Casey upheld. The question was “What is Roe v. Wade?” Of course, Casey did no such thing. I’m glad the fact checkers are on it. Alas, for the question of what day the Supreme Court’s term begins, one person said May 1, and another said October 1. Sigh. I would’ve cleaned up this category.

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Feb 27, 2015

Calabresi on the Inside Dirt Behind the Appointments of Justices O’Connor, Kennedy, and Souter, and Non-Appointments of Starr, Posner, and Wilkinson

In his response to Bruce Allen Murphy’s book about Justice Scalia, Steven Calabresi (with his co-author Justin Braga) offers some inside scoops (which I hadn’t seen) about the nominations of Justices O’Connor, Kennedy, and Souter, and the non-appointments of Starr, Posner, and Wilkinson. The details are, well, salacious.

As a member of the Reagan Administration for two years and as a close friend of leading Reagan Administration and George H. W. Bush Administration legal officials, I know a lot about how Justices O’Connor, Kennedy, and Souter got to be appointed to the U.S. Supreme Court.

First, Kenn Starr picked SOC. Calabresi calls Starr’s conservatism “squishy.”

Given the tiny number of women who attended law school in the 1950’s, it is very unlikely that any such conservative woman existed who had attended the nearly all male law schools of the 1950’s. Justice O’Connor was hand-picked by former Judge Ken Starr who served as Attorney General William French Smith’s Councilor and Chief of Staff in the early 1980’s. Starr was at the time a very moderate Republican with squishy views that were indistinguishable from those Justice O’Connor later displayed on the Supreme Court.

Calabresi blames Starr for this nomination.

In hand-picking Justice O’Connor for appointment to the U.S. Supreme Court, Ken Starr picked someone very much like himself: a mediocre, squishy, centrist with slight conservative leanings. Justice Scalia did not drive Justice O’Connor to the left. She was already there when President Reagan appointed her. The person to blame for the fiasco of the O’Connor appointment is not Justice Scalia but Ken Starr.

Calabresi also thinks Starr would have been a terrible nominee:

I think Starr would have joined O’Connor and Kennedy in refusing to overrule Roe v. Wade, and he would have been a constant thorn in William Rehnquist’s and Antonin Scalia’s side as he was when he was on the D.C. Circuit. He craved the approval of the Georgetown dinner party circle and of the elite law schools. He was also prone to make mistakes and furiously stubborn about not backing down from them in a way that has always reminded me of Justice Harry Blackmun who devoted his life to the defense of his mistake in Roe v. Wade. It was a serious error of judgment ever to have considered Ken Starr for appointment to the Supreme Court. His disastrous handling of his appointment as an independent council to investigate Bill Clinton proved to the nation all of his many flaws in judgment.

Second, we learn that Bill Bennett was key in stoning Doug Ginsburg’s nomination (come one, that pun was better than “going up in smoke.”)

After Judge Bork’s defeat, the Justice Department, led by conservative Attorney General Edwin Meese III, offered up a libertarian, former Harvard law professor Douglas Ginsburg as the second nominee. Ginsburg’s nomination went down in flames after it was discovered that he had attended a party at Harvard Law School in which students and faculty were openly smoking marijuana to which he did not object. Education Secretary Bill Bennett and his key aide William Kristol idiotically led a crusade to get Ginsburg to withdraw his nomination because he was soft on marijuana. That campaign succeeded paving the way for Justice Anthony M. Kennedy’s appointment. Ironically, Bennett and Kristol would have more likely agreed with Ginsburg than they have with Kennedy.

Third, the blame for Anthony Kennedy goes to “liberal Republican” Howard Baker and the “squishy” A.B. Culvahouse (who 20 years later helped vet Sarah Palin as VP):

The nomination of Anthony M. Kennedy after the Bork and Ginsburg fiascos fell to liberal Republican Howard Baker, who was the White House Chief of Staff trying to stave off Ronald Reagan’s threatened impeachment over Iran-Contra, and to his squishy White House Council, A. B. Culvahouse, because conservative Attorney General Edwin Meese had lost his control over the Supreme Court nomination process after the Bork and Ginsburg fiascos. General Meese’s candidate for the third nomination was J. Clifford Wallace, a mediocre candidate but a very devout Mormon who was an ardent conservative. The White House rejected Wallace out of hand preferring either Judge Bork’s conservative friend from his days at Yale, Ralph K. Winter, or Judge Anthony M. Kennedy. Winter’s candidacy was tubed because of the implacable opposition to him from Senator Joseph Biden, the Chairman of the Judiciary Committee, who quite wrongly thought Winter was just another Bork. Conservatives advising A.B. Culvahouse then rallied around Judge Kennedy who was seen as being more conservative than Judge Patrick Higginbotham who was another possible nominee. Kennedy was known to the White House to have had the strong support of Harvard Law Professor Laurence Tribe, a leading liberal, which made him confirmable in the heated politics following the Bork and Ginsburg fiascos.

Fourth, we learn that Calabresi interviewed David Souter for a possible 1st Circuit vacancy, and did not like him.

Justice David Souter was always a centrist in his jurisprudential leanings, as I learned first hand when I interviewed him for one hour on behalf of Attorney General Edwin Meese, when Souter was considered for appointment to the U.S. Court of Appeals for the First Circuit. I was asked to interview Souter under highly unusual circumstances. The most liberal judge on the First Circuit had told liberal Republican Senator Warren Rudman that he would be willing to take senior status thus creating a vacancy if he could be assured that New Hampshire Supreme Court Justice David Souter would be appointed to fill his seat. My job in interviewing Souter was not to assess him as a Supreme Court nominee but to figure out if he was significantly more conservative than the left wing judge who was offering to take senior status.

I came away from my interview with Souter with the view that he was a centrist justice in the mold of former Justices Potter Stewart, Byron White, Lewis Powell, and John Paul Stevens. I specifically came away from the interview with the belief that Souter would not vote to overrule Roe v. Wade but would follow it for stare decisis reasons. I recommended appointing Souter to the First Circuit since he was significantly more conservative than was the Warren Court liberal who was offering to resign.

Calabresi was “horrified” when he learned Souter was placed on the short list, and criticizes William Bradford Renyolds as “not especially bright”:

I was horrified why Attorney General Meese’s top advisor on Supreme Court appointments, William Bradford Reynolds, put Souter on a list of fifteen possible Reagan Supreme Court nominees, which seemed to me at the time to be utter folly. Reynolds did this for the same reason he evinced some warmth for Anthony M. Kennedy. He wrongly thought that Souter, unlike Kennedy, shared Reynold’s ardent opposition to affirmative action. My reading of Brad Reynolds on judicial appointments was the he was a single issue voter whose issue was opposition to affirmative action and who did not really care about the abortion issue or religious liberty. In any event, Reynolds proved to have been spectacularly wrong on Souter and affirmative action, which did not surprise me since I thought Reynolds was not especially bright nor was he a good reader of other people.

Calabresi recounts the familiar facts of how Souter was selected:

The next Supreme Court vacancy after the one filled by Justice Kennedy occurred during the administration of George H.W. Bush. Bush’s White House Chief of Staff, John Sununu; White Council, Boyden Gray; Bush’s Attorney General, Dick Thornburg; Bush’s Solicitor General, Ken Starr; and Bush’s future Attorney General William Barr all came together to get Bush to make the fateful mistake of nominating David Souter to the Supreme Court.

He faults Boyden Grays for wanting to appoint another Potter Stewart to the Court:

Prior to Bush’s 1988 presidential campaign, Boyden Grey, who was Bush’s chief legal advisor gave a speech to the Washington, D.C. lawyers’ chapter of the Federalist Society in which he said that if elected President Bush would strive to appoint Supreme Court justices like Potter Stewart. This speech greatly upset judicial conservatives and libertarians at the time since Potter Stewart had concurred in Roe v. Wade and was a centrist member of the Burger Court who was well to the left of Justice Scalia and Chief Justice Rehnquist. Once in office, as White House Council, Boyden Gray became enamored of moderate Republican Ken Starr as a Supreme Court nominee, who as we explained above had a bad voting record as a judge on the D.C. Circuit.

And revealed inside dirt about Ken Starr not voting to overturn Roe:

Gray decided Starr should be Bush’s first choice for the Supreme Court and ensconced him in the office of Solicitor General – a post that can lead to a Supreme Court appointment. Congressional Democrats conveyed their strong approval of Starr to the Bush Administration, and I heard at least one report, claiming that Starr had assured liberal Yale Law Professor Burke Marshall that he would never vote to overrule Roe v. Wade. (I had and still have a back channel to goings on at Yale Law School since my Uncle was the Dean there).

AG Thornburg told Gray that Starr was too liberal! So they turned to Souter.

Unbeknownst to Boyden Gray, Starr’s liberalism, stubbornness, and huge ego as Solicitor General was quietly infuriating Attorney General Thornburg and future Attorney General William Barr. When Justice Brennan unexpectedly retired creating a critically important vacancy on the Supreme Court, Boyden Grey met with Attorney General Thornburg to discuss filling the vacancy with Grey’s top choice, Ken Starr. To Grey’s astonishment, Attorney General Thornburg told Grey that Ken Starr was too liberal to be suitable for appointment to the Supreme Court, and that he Thornburg would resign in protest if Starr was nominated. The Bush Administration was already in hot water with Reaganite Republicans because Bush had fired 90% of the Reagan political appointees in the executive branch to replace them with moderate or liberal Republicans. A Thornburg resignation over an allegedly liberal Supreme Court pick was too costly to contemplate. A Ken Starr appointment to the Supreme Court was now out of the question.

And the process to replace Brennan was rushed:

Unfortunately, neither Boyden Grey nor Attorney General Thornburgh had given any thought to who else they might appoint to the Supreme Court other than Ken Starr, and they never conducted an exhaustive review of fifteen candidates as the Meese Justice Department had done. They were also determined to come up with a nominee very quickly. Bush’s very powerful White House Chief of Staff John Sununu and liberal Republican Senator Warren Rudman pushed hard for the appointment of Judge David Souter who was by then on the First Circuit. Souter derived added legitimacy from William Bradford Reynolds having placed him on Ronald Reagan’s list of fifteen possible Supreme Court nominees. Souter quickly emerged as Boyden Grey’s second choice, which is not altogether surprising because Gray had described Potter Stewart as being the ideal justice he was looking for and was hoping to appoint and Souter is only slightly to the left of Potter Stewart.

Calabresi recounts this story of Souter’s swearing-in:

I went to Souter’s swearing in at the White House and waited in line to shake his hand. When I got to do so I reintroduced myself to him, and he immediately recalled his interview with me at the Justice Department. The smile vanished from his face, and he dryly said he was happy I had survived into the Bush Administration to witness the moment of his swearing in. He was openly unfriendly.

And, for good measure, Calabresi has this to say about Posner:

Up until now I have purported to take Posner’s argument with Scalia on its own terms, but I do not feel I can in all honesty leave matters there. The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law. I think Posner blames Scalia for steeling his seat on the Supreme Court, and he quite personally and pettily resents and is envious about Scalia’s very visible presence on the High Court as one of its leading members. When Judge Robert H. Bork was nominated to the Supreme Court in 1987, Judge Posner joined Senator Ted Kennedy in trying to squash Bork’s nomination by writing an article in the New Republic entitled “What am I? A Potted Plant?” The point of the article was to argue for more judicial law-making than Scalia, Bork, or Ed Meese thought proper. Posner’s attack on Heller is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.

Calabresi explains that NO ONE wanted to appoint Posner to the Court:

The reality is that in all the extensive work I have done both in government and out of government for President Ronald Reagan, President George H.W. Bush, and President George W. Bush I have never, ever once heard ANYONE say that they thought we should consider Richard Posner for appointment to the U.S. Supreme Court. When the Meese Justice Department compiled detailed files on its fifteen most promising candidates for appointment to the Supreme Court, Richard Posner’s name was not on the list. When George H.W. Bush and George W. Bush kicked around names of possible Supreme Court nominees, Richard Posner’s name was again never on the list. When Posner’s name did come up, which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke. If Scalia had not been appointed to the Supreme Court in 1986, the seat would have gone instead to Robert Bork, or Doug Ginsburg, or Ralph Winter, or Anthony Kennedy, or Patrick Higginbotham, or J. Clifford Wallace, or Larry Silberman, or Jim Buckley, or Stephen Williams, but certainly not to Richard Posner. It was not Justice Scalia who kept Richard Posner off the Supreme Court. Justice Scalia has had nothing but nice things to say about Posner over the last 28 years. The thing that kept Posner off every single Supreme Court list I have ever seen is his baby selling proposal, his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics rather than originalism. Posner has no-one to blame but himself for the fact he was not appointed to the Supreme Court.

And Judge Wilkinson:

Judge J. Harvie Wilkinson is yet another inferior federal court judge who is a Supreme Court wannabe and who is envious of Justice Scalia and angry to have been passed over, at least in my opinion. … Unlike Judge Posner, who has never ever been considered for appointment to the Supreme Court, Judge Wilkinson was seriously considered by the Administration of George W. Bush for appointment to the High Court. He was interviewed by the President and was passed over in favor of brighter, younger, and more originalist judges like John Roberts and Sam Alito. Once again, Justice Scalia, on whom Judge Wilkinson vents his wrath, has never said a negative word to me about Judge Wilkinson. Judge Wilkinson has only himself to blameforthefacthewasnotappointedtotheSupremeCourt. HiscampaignagainstJustice Scalia is nothing more than sour grapes and is unfair to Scalia who is not responsible for the fact that Judge Wilkinson talked himself out of a job when he was interviewed by President George W. Bush.

Wow.

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Feb 27, 2015

FiveThirtyEight Priors and Precedent Feature: FantasySCOTUS Predictions for EEOC v. Abercrombie and Fitch

The very-cool FiveThirtyEight will be using FantasySCOTUS predictions for pending cases. The first feature by Oliver Roeder looks at EEOC v. Abercrombie and Fitch.

Here I’ll turn to two sources: the {Marshall}+ algorithm — a computer program designed specifically to predict court cases — and the wisdom of the crowd at FantasySCOTUS — fantasy baseball’s even nerdier little brother. This is how likely those predictors view a Supreme Court reversal vote from each justice — a reversal would be a win for the EEOC and Elauf.

The predictions are all over the place, and most are made with little confidence — the likelihood of many justices voting to reverse the 10th Circuit decision hovers near the middle.

roeder-datalab-eeoc-1

The computer algorithm foresees a 7-2 reversal, with Justices Antonin Scalia and Clarence Thomas dissenting. The crowd predicts the opposite — a 9-0 affirm as of Tuesday morning, but with a few justices more or less on the fence. And not everyone in the crowd agrees. “As it stands now, some of our best players are across the map on this case,” Josh Blackman, FantasySCOTUS’s creator, told me.

The crowd predictions may well improve. Some predictors will pore over the oral argument transcript looking for clues in the justices’ questions. But there’s only one way to find out what’ll happen for sure — wait. The court will likely issue its decision in this case in June.

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Feb 26, 2015

WSJ Op-Ed on King v. Burwell by Ilya Shapiro and Me: “A Litmus Test for ObamaCare and the Rule of Law”

The Wall Street Journal published an Op-Ed co-authored by Ilya Shapiro and me on our amicus brief in King v. Burwell. In honor of the 800th anniversary of Magna Carta, and the fact that the lead Plaintiff is named “King,” we struck a fitting rule of law theme. It is titled, “A Litmus Test for ObamaCare and the Rule of Law.” The Op-Ed discusses the many ways that the ACA has been modified, delayed, and suspended, at a whim.

Here is the opening:

This spring will mark the 800th anniversary of the signing of the Magna Carta, the landmark agreement by King John of England at Runnymede ceding certain rights to rebel barons. Liberty will have another chance to shine on Wednesday when the Supreme Court hears a case with momentous implications about another sort of executive power. In this instance, though, it is the rebels who have the royal name: King v. Burwell raises questions about how President Obama has enforced the ObamaCare law—or, more precisely, modified, delayed and suspended it.

This case isn’t about statutory interpretation, but the rule of law itself:

Executive lawmaking of this sort poses a severe threat to the separation-of-powers principles enumerated in the Constitution. The president has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.

King, which the Supreme Court is expected to decide in June, is thus about much more than interpreting statutory language or evaluating the “deference” that judges owe bureaucrats. It isn’t a technical debate over the finer points of administrative law; it is an existential one about the rule of law itself.

And the conclusion:

Chief Justice John Roberts was correct in 2012 when he wrote in the NFIB v. Sebelius decision that it isn’t the court’s role to “express any opinion on the wisdom of the Affordable Care Act.”

But he also correctly noted “the Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.” The court’s duty is to be a bulwark against arbitrary rule.

This is especially true in disputes between the political branches; the judiciary thus provides the ultimate safeguard of the separation of powers. Or, as Justice Robert Jackson put it in the famousYoungstown case of 1952 that rebuked President Truman ’s unilateral seizure of steel mills: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

The president has shown deliberate indifference toward the plain text of the law. The Supreme Court must strike down the IRS rule and confirm the principle that, like King John at Runnymede, all political leaders are bound by the rule of law.

 

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Feb 26, 2015

ConLaw Class 13 – NFIB v. Sebelius (“Obamacare”)

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

National Federation of Independent Business v. Sebelius (“Obamacare”)

  • Enumerated Powers and Federalism (597-598).
  • NFIB v. Sebelius (683-711).
  • NFIB Notes (711-715).

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Feb 25, 2015

Video: My Testimony Before The House Judiciary Committee on the Constitutionality of DAPA

Today I testified before the House Judiciary Committee on the Constitutionality of DAPA. You can download my testimony here or on Scribd. During the hearing, I was given five minutes for opening remarks. Afterwards, over the next 3 hours, members of both parties peppered the panel with questions. Most of the questions were focused on Professor Stephen Legomsky, the minority witness. It was a very rewarding, and enjoyable experience, and I’m very proud that I could discuss the Constitution, and cite Federalist No. 51 before the House of Representatives.  I’ll have some more thoughts on the merits in a subsequent post.

C-SPAN has video of the entire hearing here. I have clipped a few highlights.

Here is my five-minute opening statement. My parents, who travelled from New York for the hearing, got a special shout-out.

Second, I explain that many law professors who support DAPA argue that the DOJ did not go far enough, and they should have offered deferred action to the parents of the Dreamers.

Third, I reiterate the point made in Noel Canning that gridlock does not license the President to transcend the executive powers. I also discuss the Arizona v. United States decision, and stress that Justice Kennedy’s opinion turns on “individualized” discretion.

Fourth, I explain how the Heckler v. Cheney standard closely tracks the Take Care Clause Analysis, and that Judge Hanen showed his hand on how he would rule.

Fifth, my longest exchange of the day was with Rep. Poe (R-TX), who first gave very nice praise to the South Texas College of Law, and Dean Gerald Treece. Then, he asked me what would happen if future Presidents declined to enforce the law. I explained that this is already happening, as the President has delayed Obamacare’s mandates severla times. Poe replied, “When I ask you what time it was, you built me a watch.” I’ll take the compliment, sir.

Sixth, I explained that the *only* examples of DACA denials the DOJ could cite, outside of categorical denials, involved those who were engaged in gang activity, or fraud in previous applications. (You can see my mom sitting behind Prof. Legomsky).

Seventh, I discuss how Congress has acquiesced to much narrower versions of deferred action.

Eighth, my final colloquy with Rep. De Santis focuses on how the Congress can check the Presidency with the power of the purse.

Here are some photos:

 

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Feb 25, 2015

Testimony Before House Judiciary Committee

Today at 10:15 I will be testifying before the House Judiciary Committee on the constitutionality of DAPA. You can download my testimony here. The event will be on C-SPAN.org.

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Feb 24, 2015

Scalia: ALI Restatements of “Questionable Value, and Must be Used with Caution.”

After Justice Scalia’s dissent in Kansas v. Nebraska, the ALI may deem fit to convert his Ex-Offico Membership into just Ex.

I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Sec- ond): Its Misleading Quality and a Proposal for Its Amelio- ration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTICE THOMAS notes, post, at 8 (opinion concurring in part and dissenting in part), it constitutes a “‘novel extension’” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, with- out further inquiry, that a Restatement provision describes rather than revises current law.

Here is the section from Justice Thomas’s dissent about the Restatement:

This Court, however, has never before relied on §39 nor adopted its proposed theory of disgorgement. And for good reason: It lacks support in the law. One reviewer of §39 has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008). And few courts have ever relied on §39. The sheer novelty of this proposed remedy counsels against applying it here.

Your turn ALI.

Will Baude previously commented on the value of even more Restatements.

 

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Feb 24, 2015

ConLaw Class 12 – Scope of Federal Powers III

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

Scope of Federal Powers III

  • Taxing Power (637-643).
  • The Spending “Power” (643-645).
  • United States v. Butler (645-648).
  • South Dakota v. Dole (648-656).
  • New York v. United States (657-670).
  • Printz v. United States (670-683)

 

Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.

Drexel

 

The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.

 

Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.

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I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.

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Here is their modern-day image.

Steward Machine   Steward  Steward Machine  Steward machine Company  Steward Machine Co.  Steward machine Co.  Inc.  Earle  Earle Gear  Earle Gear Co.  Earle Gear Reducer  Earle Gear Reducers  Earle Speed Reducer  Earle Speed Reducers  Ear

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.

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And some cartoons.

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South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.

Dole

Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

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Sheriff Richard Mack at the Utah Capitol.

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Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

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More pictures of Sheriff Printz

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Feb 23, 2015

“ISIS, Immigration, and Obamacare” at Loyola Law School Federalist Society

On Wednesday, February 18, the Loyola Law School Federalist Society Chapter kindly hosted me for a discussion on executive power. Here is the audio:

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Feb 23, 2015

Frank Underwolf Blows Down #SCOTUS on Sesame Street House of Bricks

In a hilarious parody of House of Cards, Sesame Street brings you Frank Underwolf on House of Bricks. I won’t spoil the ending, but Frank blows down a pig-inhabited Congress (made of straw), a pig-inhabited Supreme Court (made of sticks), and sets his eye on the pig-inhabited White House (made of bricks). As he notes, there is way “too much pork.”

Here are the highlights:wind about-to-blow blow blow-scotus underwolf justices-pigs scotus-sesame-1 scotus-sesame-2

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Feb 23, 2015

71 Minutes Later, Texas Files Letter Opposing Motion To Stay

Say what you will about DOJ’s dithering, but within 71 minutes of DOJ filing its motion for a stay at 10:28 a.m., Texas filed a letter opposing it.

It’s short, so here it is in its entirety:

The Plaintiff States write to oppose Defendants’ request for expedited consideration of their motion filed today to stay the Court’s preliminary injunction pending appeal. See Dkt. No. 150 at 7. As this Court found, Defendants have no emergency need to take applications for benefits under the new program. Mem. Op. & Order (Dkt. No. 145) at 118-21. Defendants have implicitly recognized as much, by waiting a full week from the preliminary injunction to file this stay motion. Indeed, if Defendants had any compelling claim of a looming, irreversible harm from temporary injunctive relief, they would have featured it previously. They had ample time to do so: Plaintiffs requested a preliminary injunction on December 4, some six weeks before this Court’s January 15 motion hearing.

Defendants are not enjoined from setting enforcement priorities and marshaling their assets. Id. at 123. Rather, Defendants simply take issue with this Court’s conclusions, such as:

  • the Plaintiff States “have clearly proven a likelihood of success on the merits”;
  • “there will be no effective way of putting the toothpaste back in the tube” if Defendants’ program is not enjoined until a final resolution of its lawfulness;
  • “any injury to Defendants, even if DAPA is ultimately found lawful, will be insubstantial in comparison to Plaintiffs’ injuries” should the program take effect;
  • temporarily enjoining Defendants’ program will “merely preserve the status quo that has always existed”; and
  • “[i]f the circumstances underlying this case do not qualify for preliminary relief to preserve the status quo, this Court finds it hard to imagine what case would.”

Id. at 112, 116, 117, 120, 121. Defendants’ desire to relitigate these issues does not justify a deviation from the Court’s normal briefing schedule, which would allow Plaintiffs 20 days to respond. Court Civ. Proc. 6(C). At the very least, Plaintiffs should be allowed to respond within the same seven days that Defendants enjoyed to prepare their motion after the preliminary injunction issued. It is unreasonable to demand that Plaintiffs respond, and the Court rule on the motion, in under three days.

Texas calls DOJ’s bluff, and asks for 7 days, not less than 3 days to reply.

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