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.

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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.

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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.

 

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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.

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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.

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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).

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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.

ring

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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.

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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.

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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

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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.

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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.

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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.

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Jul 18, 2014

Administration, Citing “States’ Rights,” Opposes Amendment To Restrict Marijuana Legalization in District of Columbia

The Administration’s policy statement, opposing an Amendment that would block funding for marijuana legalization in the District of Columbia, cites states’ rights:

 The Administration strongly opposes language in the bill that restricts D.C. from using its local funds for abortion services, undermining the principle of States’ rights and of District home rule. Longstanding Federal policy already prohibits Federal funds from being used for abortions, except in cases of rape or incest, or when the life of the woman would be endangered. Similarly, the Administration strongly opposes the language in the bill preventing the District from using its own local funds to carry out locally- passed marijuana policies, which again undermines the principles of States’ rights and of District home rule. Furthermore, the language poses legal challenges to the Metropolitan Police Department’s enforcement of all marijuana laws currently in force in the District.

Citing federalism to allow a federal enclave to enact local laws that are preempted by federal criminal laws. How John C. Calhoun! And yes, marijuana is still an illegal controlled substance, regardless of whether people think it should or should not be.

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Jul 17, 2014

Regulation by Blog Post: HHS Determines that Puerto Rico Not “State” For Purposes of Obamacare

Under the Public Health Service Act, the word “state” is meant to include U.S. territories, such as Puerto Rico and the U.S. Virgin Islands. HHS has long deemed the territories to be subject to the same requirements as the states. But no longer. In a letter from our good friend Marilyn Tavenner at HHS, we learn that after a “careful review” the territories will no longer be deemed a state, and will not be subject to Obamacare requirements that will “underminin[e] the stability of the territories’ health insurance markets.”

Currently, the Department uses the existing Public Health Service Act (PHS Act) definition of “state” for new PHS Act requirements and funding opportunities included in title I of the Affordable Care Act. Under this definition, the new market reforms in the PHS Act apply to the territories. We have been informed by representatives oft he territories that this interpretation is undermining the stability o f the territories’ health insurance markets. After a careful review of this situation and the relevant statutory language, HHS has determined that the new provisions of the PHS Act enacted in title I are appropriately governed by the definition of “state” set forth in that title, and therefore that these new provisions do not apply to the territories. This means that the following Affordable Care Act requirements will not apply to 1 individual or group health insurance issuers in the U.S. territories:

What justified this “careful review”? Absolutely no reasoning, whatsoever. Stay tuned Marilyn tells us:

The Centers for Medicare & Medicaid Services (CMS) intends to issue regulations to affirm this interpretation and eliminate any text in the existing rules that is inconsistent with this interpretation (e.g., the definition of”state” that includes territories set forth in the rate review regulations at 45 CFR 154.102). Pending the completion of such rulemaking, CMS will apply this interpretation and will not subject health insurance issuers in the territories to the Affordable Care Act requirements at issue.

I’m sure the rulemaking will go something like this. Because applying these rules to the territories will disrupt the market, we interpret states, not to mean territories, regardless of what the statute says. An HHS spokesperson just announced the statute would be rewritten.

But don’t worry. This redefinition of a territory will *only* apply to this provision of the ACA, and nothing else.

Our analysis applies only to health insurance that is governed by the PHS Act. It does not affect the PHS Act requirements that were enacted in the Affordable Care Act and were incorporated into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) and apply to group health plans (whether insured or self-insured), because such applicability does not hinge on, or rely upon the term “state” as it is defined in either the PHS Act or in the Affordable Care Act. Similarly,it also does not affect the PHS Act requirements that were enacted in the Affordable Care Act and apply to non-federal governmental plans. As a practical matter, therefore, PHS Act, ERISA, and Code requirements applicable to group health plans continue to apply to such coverage and issuers selling policies to both private sector and public sector employers in the territories will want to make certain that their products comply with the relevant Affordable Care Act amendments to the PHS Act applicable to group health plans since their customers- the group health plans- are still subject to those provisions. Group health plans remain subject to those provisions of the PHS Act that were enacted in the Affordable Care Act, including, inter alia, the prohibition on lifetime and annual limits (PHS Act section 2711), the prohibition on rescissions (PHS Act section 2712), coverage of preventive health services (PHS Act section 2713), and the revised internal and external appeals process (PHS Act section 27 I9)

So in other words, HHS is only rewriting the statute where it causes inconveniences.

Also, territories that do not comply are not required to return any funds conditioned on complying! They just can’t get any more money

Because this interpretation applies prospectively, territories will not have to pay back to the federal government any grants that have been spent by the territories as of the date of this letter, such as those provided for rate review (section 2794 of the PHS Act) and for consumer assistance (section 2793 of the PHS Act). However, all unspent grant funding must be returned to CMS, because the interpretation of the law making the territories eligible to expend such funds is no longer in place.

There you have it. Regulation by letter, blog post, or whatever.

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Jul 17, 2014

Regulation by Blog Post: Department of Labor Announces Requirement That Hobby Lobby Must Disclose To Employees That Contraceptions Are Not Covered

In the latest regulation by blog post, titled Part XX of the Department of Labor’s FAQs about the ACA Implementation, we learn that all “closely held for-profit corporations” that do not provide certain contraceptions must provide notice to their employees. Here is the new law.

Disclosure with respect to Preventive Services

Q: My closely held for-profit corporation’s health plan will cease providing coverage for some or all contraceptive services mid-plan year. Does this reduction in coverage trigger any notice requirements to plan participants and beneficiaries?

Yes. For plans subject to the Employee Retirement Income Security Act (ERISA), ERISA requires disclosure of information relevant to coverage of preventive services, including contraceptive coverage. Specifically, the Department of Labor’s longstanding regulations at 29 CFR 2520.102-3(j)(3) provide that, the summary plan description (SPD) shall include a description of the extent to which preventive services (which includes contraceptive services) are covered under the plan. Accordingly, if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan’s SPD must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply. See ERISA section 104(b)(1) and 29 CFR 2520.104b-3(d)(1), which generally require disclosure not later than 60 days after the date of adoption of a modification or change to the plan that is a material reduction in covered services or benefits. Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

I don’t think “Accordingly” means what the government thinks it means. It’s unclear what shape this notice must take, and what this notice must say. Hobby Lobby. Go figure this out! More from WSJ.

Update: It seems that Senate Democrats have introduced a bill that would require corporations to give such notice.

The Preventive Care Coverage Notification Act, sponsored by Sens. Dick Durbin (D-Ill.) and Mark Begich (D-Alaska), would require the government to develop standards that would require businesses to tell workers whether they offer contraception coverage in their health plans.

“This bill ensures that employees have the information they need to make smart decisions,” said the lawmakers. “At the very least, we cannot stand by and allow young women or single moms to take a job expecting to get the basic insurance coverage that the law requires, only to find out too late that the corporation is denying her that coverage.”

The legislation specifically says companies should disclose what services guaranteed under the law they won’t cover, including contraception. It does not apply, however, to religious employers and other nonprofit religious organizations that have received an exemption or accommodation for their coverage limitations.

But who needs laws when you have executive power. Really, one hand of the Leviathan should talk to the other hand.

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Jul 17, 2014

An Update on the #AspenGate and Dukeminier & Krier (8th Edition)

After I declared a partial victory in #AspenGate, I decided to stay with the 7th edition of the excellent property book, Dukeminier & Krier. My plan was to stick with the old edition for a semester, see how things go with the 8th edition, and maybe update it next year. That turned out not to be possible. My campus book store informed me that it was impossible to obtain any new copies of the 7th edition, and he could only obtain 50 used copies (I have 125 students in my two sections). My Aspen rep confirmed this. The market for used books will soon dry up. Rather than leaving my students to the mercy of buying used books on Amazon, I reluctantly agreed to move up to the 8th edition.

To make things fair, I asked my book store to stock *both* the traditional print version that you can keep ($223 with the ISBN of 9781454851363) and the “casebook connect” version that you rent ($182 with the ISBN of 9781454837602). At least students will have the option of how they wish to proceed. I encourage adopters of this book to ask their book stores to do the same.

I also asked the book store to add a sign with this note in front of the books, which I will also add to my syllabus.
Please note that if you purchase the Casebook Connect version (the print version and the digital version), you are not buying the book to keep, but only renting it. According to the terms of the license, you do not own the book, and are required to return the book when you are finished with it. You will not be able to resell it, as you are only leasing the book. If you will not use the electronic version, and plan on reselling your book, or want to keep it, you may considering buying the traditional print version, at a higher price. For more information, please see the attached article from the ABA Journal.
Everyone else is welcome to use similar language to your syllabus. Students should be aware of their options.

I think students will appreciate it. One of my former students who saw the ABA Journal article sent me this kind note:

 I appreciated your paying attention and taking the time to inject your logic. Books are a keystone to education (of all kinds) and it’s nice of you to stick up for us. While I pay cash for my books (and my tuition), your point about school loans was well taken last semester. I have friends who are borrowing money to pay for books. Your attention to books prices was greatly appreciated by all of us as a class. We did notice.

Professors should all remain vigilant on this front.

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Jul 17, 2014

My FedSoc SCOTUSCast on Lane v. Franks

You can listen to my post-argument SCOTUSCast on Lane v. Franks, an interesting qualified immunity case.

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Jul 17, 2014

Cruz To Introduce Bill To Stop DACA

Senator Ted Cruz has indicated he will introduce a bill that would prevent the Federal Government from complying with President’s Deferred Action policy. Here is the key part:

No agency or instrumentality of the Federal Government may use Federal funding or resources— (1) to consider or adjudicate any new or previously denied application of any alien requesting consideration of deferred action for childhood arrivals, as authorized by Executive memorandum on Au- gust 15, 2012

This bill has zero prospect of passing, though it is interesting to think that Congress needs to pass a statute to force the President to enforce the law as written. I suppose this is one possible alternative to suing the President for non-enforcement of the law. Though, I’m sure the President would veto it.

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Jul 17, 2014

City Journal on Houston: America’s Opportunity City

Joel Kotkin and Tory Gattis have a great piece in city journal about the growth of Houston and “opportunity urbanism.” Here is a section discussing how Houston’s lack of zoning promotes economic growth:

Houston is neither the libertarian paradise imagined by many conservatives nor the antigovernment Wild West town conjured by liberals. The city is better understood as relentlessly pragmatic and pro-growth. Bob Lanier, the legendary three-time Democratic mayor who steered the city’s recovery from the 1980s oil bust, when the metro region bled more than 220,000 jobs in just five years, epitomized this can-do spirit. Lanier was more interested in building infrastructure and promoting growth than in regulation and redistribution. That focus remains strong today. “Houston is getting very comfortable with itself and what it is,” says retired Harris County judge Robert Eckels. “We are a place that has a big idea—supporting and growing through private industry, and that’s something everyone pretty much accepts.”

Low taxes are part of that idea. Texas has no income tax, as Governor Rick Perry frequently points out to businesses in other states, and its average state and local tax burden is 11th-lowest in the nation. New York, New Jersey, and California, by contrast, impose the three highest state tax burdens in the nation. The friendly tax environment is one reason that Houston ranked as the most affordable city to do business in a recent survey of global metropolitan areas by PricewaterhouseCoopers and the Partnership for New York City. It means a lot more money in their employees’ pockets, too. A family of three making $150,000 moving from New York City to Houston would save upward of $8,000 in taxes, an analysis conducted by the District of Columbia found.

An even bigger component of Houston’s growth, however, may be its planning regime, which allows development to follow the market instead of top-down government directives. The city and its unincorporated areas have no formal zoning, so land use is flexible and can readily meet demand. Getting building permits is simple and quick, with no arbitrary approval boards making development an interminable process. Neighborhoods can protect themselves with voluntary, opt-in deed restrictions or minimum lot sizes. Architect and developer Tim Cisneros credits the flexible planning system for the city’s burgeoning apartment and town-home development. “There are a lot of people who come here for jobs but don’t want to live, at least not yet, in the Woodlands,” he notes. “We can respond to this demand fast because there’s no zoning, and approvals don’t take forever. You could not do this so fast in virtually any city in America. The lack of zoning allows us not only to do neat things—but do them quickly and for less money.”

The flexible planning regime is also partly responsible for keeping Houston’s housing prices low compared with those of other major cities. On a square-foot basis, according to Knight Frank, a London-based real-estate consultancy, the same amount of money buys you almost seven times as much space in Houston as it does in San Francisco and more than four times as much as in New York. (See “Houston, New York Has a Problem,” Summer 2008.) Houston has built a new kind of “self-organizing” urban model, notes architect and author Lars Lerup, one that he calls “a creature of the market.”

The unseen costs of cumbersome zoning regulations are often hard to measure. Houston give us a great way to recognize it. Further the lack of zoning promotes diversity in choosing where you want to live:

The city turns the whole debate that dominates urban thinking today—whether to grow the suburbs or downtown—on its head. Rather than advocate one kind of housing, Houston prides itself on providing choices. In fact, as the city’s outer suburban ring has grown—last year attracting roughly 80 percent of all new home buyers—the downtown has also boomed. The city’s vibrant inner ring, notes demographer Wendell Cox, grew 3 percent during the last decade—four times the average in the top 15 metropolitan areas and more than Chicago, Los Angeles, New York, and Philadelphia. “Most cities would die for our in-fill,” says Jeff Taebel, director of Community and Environmental Planning at the Houston-Galveston Area Council (HGAC). No one would mistake downtown Houston for midtown Manhattan, true; but it represents 6 percent of the region’s jobs—a proportion 2.5 to 4.5 times greater than one finds, say, in downtown Los Angeles or Phoenix. Houston’s experience refutes the popular notion that urban density and central city development require heavy regulation.

And even helps the “neglected” areas prosper:

Houston’s housing-market flexibility has also benefited some of the city’s historically neglected areas. The once-depopulating Fifth Ward has seen a surge of new housing—much of it for middle-income African-Americans, attracted by the area’s long-standing black cultural vibe and close access to downtown as well as the Texas Medical Center. Rather than worry about gentrification, many locals support the change in fortunes. “In Houston, we don’t like the idea of keeping an image of poverty for our neighborhood,” explained Rev. Harvey Clemons, chairman of the Fifth Ward Community Redevelopment Corporation. “We welcome renewal.”

By allowing and encouraging development in the inner ring and on the fringe, the city increases its attractiveness to younger people, who want to live close to the urban core, while also providing affordable suburban housing. “Houston thrives because it has someplace for young people to stay inside the city but also offers an alternative when they get older. Just because you grow up doesn’t mean you have to leave the region,” notes Gilmer, now head of the Institute for Regional Forecasting at the University of Houston.

I’m writing an article, Backdoor Zoning, that looks at efforts to impose zoning in Houston through nuisance law. This would be a big mistake.

The article also rebuts a common myth-that Houston has no culture. To the contrary. People with more people, due to lower taxes and higher economic growth, can afford to indulge.

Not everyone is impressed by Houston’s growth and prospects. Critics dismiss the city’s development model as a disaster for the environment, quality of life, and civic culture. For the most part, they regard Houston as a cultural desert—a throwback to the sprawling postwar model of many American cities. “When one asks to see the social center of Houston,” scoffs architect Andrés Duany, “one is taken to the mall.”

But such statements don’t reflect a city where opportunity urbanism is shaping an impressively vibrant cultural landscape. A 2012 survey by Economic Modeling Specialists International (EMSI) of the city’s creative economy found 146,000 jobs, generating an annual economic impact of $9.1 billion. Houston is projected to have the largest gain in arts-related jobs by 2016 of any city in the study. Arts and culture expenditures totaled almost $1 billion per year in 2010, with total event attendance topping 16 million—numbers sure to grow, with almost 150,000 people per year moving into Greater Houston. The city boasts permanent professional resident companies in all of the major performing arts, including opera, ballet, symphony, and theater, and its theater district has more seats than any rival in the country, except for New York’s. Houston’s 18 museums attract 8.7 million visitors a year. This is no cultural backwater.

With their higher real incomes and lower taxes, Houstonians dine out substantially more than residents of any other major American city—and they’ve got lots of options. “You used to go to New Orleans for food and music,” notes Chris Williams of Lucille’s, a cutting-edge Houston restaurant that serves sophisticated Southern food. “Now you go down the block.” Taylor Francis, a 24-year-old advertising executive who moved recently from the Bay Area, points to restaurants like Underbelly, a popular Beard Prize–winning restaurant in the fashionable Montrose district. “My friends in the Bay Area rarely go out because it’s too expensive,” he said. “All their money goes to rent—but here, I can live in a roomy place and go out. There’s something attractive about that.” Houston’s leaders hope to lure more young people like Francis away from coastal cities such as Portland, Boston, New York, and Los Angeles. The city is building one of the nation’s most extensive bike systems and constructing a $215 million park system along its long-disdained bayous.

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