Feb 5, 2016

Bernie, Hillary, and #SCOTUS

At the Democratic Debate on February 4–the first head-to-head matchup between Bernie Sanders and Hillary Clinton, the Supreme Court came up several times.

First, Rachel Maddow asked Clinton about the death penalty:

Maddow: The last time I had the chance to talk with you on this issue, on the death penalty, you said that capital punishment has a place in a very few federal cases, but you also said you would breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide. Tonight, do you still support capital punishment, even if you do so reluctantly?

CLINTON: Yes, I do. And — you know, what I hope the Supreme Court will do is make it absolutely clear that any state that continues capital punishment either must meet the highest standards of evidentiary (ph) proof of effective assistance of counsel or they cannot continue it because that, to me, is the real dividing line.

Clinton has not yet thrown herself into the Breyer patch on the 8th Amendment.

But then Clinton gives a nonsensical argument about how the death penalty should be prohibited by the states, but not by the federal government:

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.


Second, Sanders reiterated that he would impose a Citizens United litmus test on any of his nominees to the Supreme Court:

Our job, together, is to end a rigged economy, create an economy that works for all, and absolutely overturn Citizens United. One person, one vote. That’s what American democracy is about.

So long as big money interests control the United States Congress, it is gonna be very hard to do what has to be done for working families. So let me be very clear. No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

Third, Clinton also stressed that she would only support Justices who would overturn Citizens United:

CLINTON: I want to reverse Citizens United.

Earlier this week, during a candidate forum, Clinton was asked about her process for nominating a Justice, and she replied that she has a “bunch of litmus tests” she would impose on her nominees. Here is the full exchange.

QUESTION:  Hi, Sec. Clinton.  You – the next president will have as many as three Supreme Court appointments to make. 

CLINTON:  Right. 

QUESTION:  I’m wondering beyond abortion are there any issues on which you would impose or assert a litmus test.  And if your answer is no, aren’t certain critical issues like marriage equality, campaign finance just so vital to what we believe in as Democrats that you would have to know the answer as to how these justices would rule before you make the nomination?

CLINTON:  Well, I’ll tell you what, Dave.  I do have a litmus test.  I have a bunch of litmus tests because I agree with you.  The next president could get as many as three appointments.  You know one of the many reasons why we can’t turn the White House over to the Republicans again is because of the Supreme Court. 

I’m looking for people who understand the way the real world works, who don’t have a kneejerk reaction to support business, to support the idea that you know money is speech, that gutted the Voting Rights Act.  

I voted for the reauthorization of the Voting Rights Act when I was in the Senate.  It passed 98 to nothing based on a very extensive set of hearings and research.  Supreme Court comes along.  They substitute their judgment for the Congress, signed by George W. Bush.  

That is one of our problems.  They have a view that I just fundamentally disagree with about what the way we have to keep the balance of power in our society is.  

So they have given way too much power to corporations.  They have given Citizens United, the biggest gift to the Koch brothers, Karl Rove and all of those folks whose values I don’t share, and who are doing everything they can to try to turn the clock back.  

We have to preserve marriage equality.  We have to go further to end discrimination against the LGBT community…


We’ve got to make sure…


We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.  We’ve got work to do…


CLINTON:  – here’s how I think about it, because when I was a senator, I had to vote on Supreme Court justices.

I’m looking for people who are rooted in the real world, who know that part of the genius of our system, both economic and government, is this balance of power.  If it gets too far out of whack, so that business has too much power, any branch of the government has too much power, the delicate balance that makes up our political system and the broad-based prosperity we should be working for in our economy is the worse off for it.

So I have very strong feelings about what I’ll be looking for if I am given the honor of appointing somebody to the Supreme Court.

Jonathan Adler links to a long-ago post from Eugene Volokh on why these litmus tests are so pernicious.

Note that President Obama rejected litmus tests, although he may have applied a sister test. Justice Sotomayor relayed this story while in the Bronx–which I had not previously heard:

She said that her confirmation hearings were a horrible experience and really got her down, but she discovered a lot about the rest of the country during her one-on-one interviews with senators. “I learned what a big issue water rights are out west,” she said. “That’s not something we think about in New York.” Sotomayor said that after she won confirmation, and Elena Kagan followed her, President Obama asked Justice Ruth Bader Ginsburg, “Are you happy with the two sisters I brought you?” Ginsburg replied, “I’m very, very happy. But I’ll be even happier when you give me five more.”

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I previously advised the Rand Paul campaign, and not advise the Ted Cruz campaign.


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Feb 4, 2016

POTUS To Open Military Front Against ISIS in Libya. What is the congressional authorization?

The New York Times reports that the President is considering opening a new front against ISIS in Libya. The article doesn’t even bother to address what the congressional authorization is for such a move. Is it the 2001 AUMF against Al Qaeda, because after all, Al Qaeda is really ISIS. Or is it the 2002 AUMF against Iraq, because after all, Iraq is really Iraq, Syria, and now Lebanon. To borrow from Justice Scalia’s dissent in King v. Burwell, “words no longer have meaning.”

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Feb 4, 2016

Prop1 Class 7 – The Bundle of Sticks

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.


The lecture notes are here.

Here is an article from 1970 discussing the case of State v. Shack.

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.


And this is Richard Epstein.


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Feb 4, 2016

ConLaw Class 7 – The Executive Power II- Foreign Affairs and War

The lecture notes are here.

The Executive Power II- Foreign Affairs and War

  • Inherent Executive Powers (308).
  • Executive Powers for Foreign Affairs (383-385).
  • Curtiss-Wright (385-390).
  • Dames & Moore v. Regan (392-399).
  • The War Power (411-413).
  • ISIS
  • Practice and Precedent (415-416).
  • Prisoners of War and Civilian Detention (439-440).
  • Korematsu v. United States (454-468)


Curtiss-Wright was a manufacturer of aircrafts and other military equipment, founded in 1929.



This is Curtiss-Wright’s headquarters in Caldwell, New Jersey (circa 1941).


Curtiss-Wright got in trouble by selling weapons to Bolivia during the Chaco War (1932-1935), where Bolivia was fighting against Paraguay.  The Chaco region was thought to contain oil. Bolivia and Paraguay, both poor landlocked countries, had difficulty obtaining arms. This was largely due to the fact that Congress, through a joint resolution, gave President Roosevelt the power to embargo arms shipments to any country engaged in the Chaco war. Curtiss-Wright sent bombers and fighter planes to Bolivia, notwithstanding the embargo, and was indicted.

Here are Paraguayan (not Bolivian) soldiers manning a machine gun during the Chaco war.


Dames & Moore v. Regan

This is Donald T. Regan, who was the secretary of the treasury in Dames & Moore v. Regan.


This is the logo for the Dames & Moore Group Company.

Dames-MooreJustice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

robert-jacksonOf course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.


A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Korematsu v. United States

This is a young Fred Korematsu.


This is Fred Korematsu later in life.


This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.


It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

  1. Give advice and instructions on the evacuation.
  2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

  1. Provide temporary residence elsewhere for all Japanese in family groups.
  2. Transport persons and a limited amount of clothing and equipment to their new residence.


Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

Map_of_World_War_II_Japanese_American_internment_campsThe San Francisco Examiner announces the “Ouster of all Japs in California near.”


This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”


This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.


Here are Americans locked up in internment camps.


Another photographed of interned Americans.


Here are Americans being rounded up on busses to the middle of the Utah desert.


Here is Eleanor Roosevelt at an internment camp.


This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.


And here is Fred Korematsu posing with Rosa Parks.


In 1990, Korematsu received a redress letter and a reparations check for his internment.

Korematsu-Fred Korematsu with redress & reparations letter and check 1990

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.


Korematsu passed away in 2005.


The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.


And this is Mutsuye Endo.



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Feb 3, 2016

Cambridge University Press will Publish “Unraveled: Obamacare, Religious Liberty, & Executive Power”

I am honored to announce that Cambridge University Press will publish my next book, “Unraveled: Obamacare, Religious Liberty, & Executive Power.” If everything goes to plan, the book will be released in September 2016, right before the beginning of the October 2016 term, and before the next presidential election. Unraveled will pick up where Unprecedented left off–in January 2013, and tell the story of the ACA’s second Act. The book will be book-ended by Hobby Lobby, King v. Burwell, and Little Sisters of the Poor, but also chronicle Obama’s political intrigues since its inception. In many respects, Unraveled fills in a lot of the gaps from Unprecedented–events that didn’t seem relevant years ago, that became much more relevant in light of later events.

Here is the current table of contents–note that the last few chapters remain to be written in light of whatever the Court does in Little Sisters, and what happens with the Presidential primaries between now and July 5, 2016 (my final submission date for final chapters).  See if you can figure out what the chapters are about based on the title.

Part I: The Promise of Obamacare (1/20/09 – 6/28/12)

            Chapter 1: If you like your insurance, you can keep your insurance.

Chapter 2: Federal and state exchanges

Chapter 3: Life and Religious Liberty

Part II: Conscience and Contraception (6/29/12 – 5/1/13)

Chapter 4: The Contraception Mandate

Chapter 5: Election Slowdown

Chapter 6: Religious Liberty in the Courts

Part III: Shutdown (5/21/13 – 9/30/13)

Chapter 7: Exchanges “established by the state”

Chapter 8: Tea Party Summer

Chapter 9: Train Wreck

Chapter 10: Filibuster

Part IV: Obamacare Unravels (10/1/13 – 12/30/13)

Chapter 11: Lights Out

Chapter 12: Cancelled

Chapter 13: Regulation by blog post

Chapter 14: Crashing into the Deadline

Part V: Religious Liberty (12/31/13 – 7/21/14)

Chapter 15: New Year’s Resolution

Chapter 16: Substantial Burden

Chapter 17: Glitch

Chapter 18: Between two ferns

Chapter 19: Corporate Prayer

Chapter 20: Notorious RBG

Part VI: Nuclear Fallout (7/22/14 – 11/21/14)

Chapter 21: Circuit Split

Chapter 22: Dueling Petitions

Chapter 23: Sue the President

Part VII: Subsidizing Obamacare (11/22/14 – 6/26/15)

Chapter 24: Grubergate

Chapter 25: King v. Burwell

Chapter 26: Gridlock

Chapter 27: Unravel the fabric

Chapter 28: Improve, don’t Destroy

Part VIII: The Nuns (6/27/15 – 6/30/16)

Chapter 29-33: To be concluded.


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Feb 2, 2016

Prop1 Class 6 – Property in Yourself

Today we will discuss how you can own property in yourself.

The lecture notes are here.

Here is a recent article about the rights of publicity of college football players.

First, we’ll do the case of Vanna White v. Samsung Electronic America.

vanna v. samsung

The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.


Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).


Samsung had a series of ads displaying their products in the 21s century.


To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.

In 2013, the National Institute of Health reached an agreement to honor Lacks’s memory:

On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks’ family. Under a new agreement, Lack’s genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.

The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.

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Feb 2, 2016

ConLaw Class 6 – The Executive Power I – The Appointment and Removal Power

The lecture notes are here.

The Executive Power I – The Appointment and Removal Power

  • The Executive Power – Article II (296-297).
  • Notes (306-308).
  • The “Removal” Power (348-351).
  • Myers v. United States (351-366).
  • Humphrey’s Executor v. United States (366-370).
  • The Appointment Power (334-335).
  • National Labor Relations Board v. Noel Canning

This video from the HBO Miniseries John Adams aptly summarizes the debate in the first Senate about whether Congress could place limitations on the removal power. Note the Senators explain that Adams’s vote only matters in case of a tie. Indeed the vote tied 10-10, and Adams cast the tie breaking vote as President of the Senate.

The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).


This is Justice Taft, who had the second-nicest mustache on the Court.


This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.


This is Justice Louis Brandeis.


Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.


This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.


This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.


This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.

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Jan 31, 2016

Cruz on #SCOTUS: “I will be willing to spend whatever political capital is necessary.”

In Iowa, Ted Cruz offered extended remarks on how he would approach nominating Justices to the Supreme Court (via ThinkProgress):

We are one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court striking down school choice programs across this country. We are one justice away from the Supreme Court striking down every restriction on abortion, and mandating unlimited abortion on demand, up until the time of birth, partial birth, with taxpayer funding, and no parental notification whatsoever. We are one justice away from the Supreme Court ordering veterans memorials torn down all over this country if they contain any acknowledgement of God Almighty.

Now the simple reality is Democrats on this issue, bat almost a thousand. Almost every Justice they put on the Supreme Court votes exactly as they intend. Republicans, we bat about .500. About half of our nominees are faithful to the Constitution. The other half are disasters. Many of the most liberal justices in this country — Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade — all of those were Republican appointees. And the reason is simple. Over and over again we keep electing Republican presidents for whom the Court is not a priority. And when it comes to a nomination, they take the easy road out.

They don’t want to nominate a principled constitutionalist, because then you have a fight on your hands. So instead they nominate a stealth candidate. Someone with no paper trail. Someone who is easy to confirm. And every single time we do that, we get caught.

Now I have spent my entire adult life fighting judicial activism, fighting to defend the Constitution, fighting to defend the Bill of Rights. Unlike the very fine individuals on that debate stage, I will be willing to spend whatever political capital is necessary, and sir I give you my word, every Justice I put on that court will be a principled constitutionalist jurist with a proven record who will be faithful to the law and will not legislate from the bench.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

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Jan 29, 2016

Video: Stanford Law Federalist Society – 1st Amendment, 2nd Amendment, and 3D-Printed Guns

On Thursday, January 28, the Stanford Federalist Society Chapter hosted me for a discussion of 3D-Printed guns, and how they interact with the First and Second Amendment. Prof. Michael McConnell was kind enough to comment on my talk.

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Jan 28, 2016

61% of Americans Support Deferred Action Policy Generally, Only 54% Support it through Executive Action

A new Reuters Poll asked respondents about whether they “back a plan that would allow certain illegal immigrants to stay in the country.” (I could not find the exact wording of the question). The results are interesting.

When the question was framed “in general terms,” support was broader for the policy.

The poll shows 61 percent of Americans support the plan to relax immigration policy for some undocumented people when it is described in general terms without using Obama’s name, including 42 percent of Republicans. Half of Republicans opposed the idea.

I suppose this means by statute, but without the actual polling question, I don’t know.

But when framed in terms of an executive action, support dropped, and fractured along political lines.

But when the same plan was described as being an executive action taken by Obama, support fell to 54 percent overall, with only 31 percent of Republicans supporting it and 62 percent opposing the measures.

For Democrats, 78 percent supported the plan when it was described without using Obama’s name, and 80 percent supported it when the president’s name was attached to it.

So what do we make of this? Republicans oppose the plan when it is tied to Obama’s executive action. For Democrats, it makes no difference. More broadly, overall support for the policy is 61% when performed without executive action. When it is performed for executive action, support drops down to 54%. The credibility interval is 3.2%. In other words, it becomes a 50/50 issue.

Regardless of what certain elite segments of the media tell you, this isn’t an open-and-shut issue.

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Jan 28, 2016

Health Care Ranked 8th Among Issues Facing Voters

One of the most common myths of the Affordable Care Act is that President Obama was inaugurated with a mandate by the American people to reform health insurance. On election day 2008, health care ranked as the fourth most important issue, following the economy, terrorism, and even gas prices! Additionally, President Obama ran on a health care plan that did not have an individual mandate, and did not raise taxes on anyone. The plan he proposed was effectively ripped off from Hillary Clinton, and the very elements he campaigned against. Why was healthcare ranked as such a low priority? Because the overwhelming majority of people were happy with their insurance. Here is a preview from Unraveled:

Every year since 2001, Gallup has surveyed Americans on how they would rate the quality of their personal healthcare. Consistently, year after year, around 80% of respondents rated it as good or excellent.[1] A February 2007 poll by CBS News found that 85% of people were satisfied with the quality of their own health insurance.[2] A September 2009 Quinnipiac University poll found that 88% of respondents were satisfied with their coverage.[3]  A June 2009 survey by ABC News yielded an 81% satisfaction rate.[4] Similarly, an August 2009 survey by the Kaiser Family Foundation found that 91% of the insured Americans rated their coverage as excellent or good.[5] Among the insured, 67% were very satisfied with their choice of doctors, 66% were very satisfied with the quality of care, and 82% were at least somewhat satisfied with the amount they paid. For the most part, people liked their insurance and doctors.

So it isn’t surprising, at all, that health care was not a highly-ranked issue among registered voters. Eight years later, a Kaiser poll has found that health-care is still the eighth-ranked issue.

Despite the ongoing debate between Republican lawmakers and President Obama on the future of the 2010 health care law, the January Kaiser Health Tracking Poll finds the Affordable Care Act (ACA) is only one of many issues that may impact voting decisions, with nearly a quarter (23 percent) saying it’s extremely important, but only four percent choosing it as the MOST important issue. Across all issues included in the poll, terrorism and the economy/jobs are the top two issues for voters at this point in the election. Across parties, the ACA does not rank higher than fourth in what voters say will be most important.

Now what is the takeaway here. Some may say this suggests that repealing Obamacare is not a priority. I disagree. For the most part, people haven’t quite felt the brunt of the ACA, so it’s elimination would not have nearly the same effect on the electorate as many predict. Note that this is a survey of registered voters. As Chuck Schumer noted, those who stand to lose the most are not registered.


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Jan 27, 2016

Justice Alito at 10 Years

In this month’s ABA Journal, Mark Walsh has a profile of Justice Alito’s ten years of service. Mark quotes me, and references my post about Alito’s remarks to the Federalist Society Texas Conference, where the Justice spoke at the George W. Bush Presidential library.

While the chief justice has spurned any contact with the Federalist Society, the conservative counterpart of the ACS, Alito has spoken frequently to the group and its affiliates. That includes a Texas event last September in which, according to one report, Alito reflected on his tenure and seemed to take some pleasure in the failed effort by Senate Democrats to filibuster his confirmation in 2006.

Josh Blackman, an associate professor at South Texas College of Law in Houston, attended the Sept. 19 Federalist Society Texas Chapters Conference in Dallas. The event was held at the institute of the president who appointed Alito to the Supreme Court, George W. Bush. Blackman posted a detailed account of the event, which included Alito dishing on some of the big cases of his tenure, including those in which he was in the majority and in dissent.

Blackman, a libertarian, said Alito seemed to relish appearances before conservative and libertarian crowds such as those attending Federalist Society events. “This is a crowd that will appreciate the constitutional perspective that he brings to the job,” Blackman says. “That may not be the case when he speaks at a law school.”


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Jan 27, 2016

Of Course House of Representative’s Obamacare Suit Would Increase Government Spending. All illegal modifications of the law do that.

Modern Healthcare reports on an Urban Institute study suggesting that if House of Representatives is successful, and the insurers receive less direct funding from the government, then they will raise premiums, and as a result premium tax credits (which are also paid for by the government) will increase.

If House Republicans win that lawsuit, costs to the federal government for keeping the law afloat could skyrocket, according to the Urban Institute, which does economic and social policy research.

That’s because the ACA requires insurers to offer cost-sharing reductions regardless of government funding. Without government reimbursement, insurers may offset those losses by increasing premiums on marketplace silver plans. That, in turn, would cause premium tax credits to rise to cover the higher premiums.

The government would then be on the hook for those higher premiums tax credits, which would go to many more people than just those who receive cost sharing reductions, according to the brief.

Well, duh!

Josh Blackman, an associate professor of law at South Texas College of Law, said it’s no surprise that a House win may result in higher costs for the government for the ACA.

“Whenever the law’s been modified by the executive, whenever the executive takes action that delays provisions of the law, that results in premiums going up and when premiums go up, that increases the amount of subsidies that have to be paid out,” Blackman said. “This seems like par for the course.”

When the individual mandate was delayed, insurers lost revenues. That resulted in higher premiums, yielding more premium tax credits.

When the administration offered special enrollment periods beyond the deadlines, customers were able to sign up when they get sick, use a lot of health care, and drop coverage. As a result insurers lost revenues. That resulted in higher premiums, yielding more premium tax credits.

When the employer mandate was delayed, insurers had fewer policies to underwrite. That resulted in higher premiums, yielding more premium tax credits. Are you sensing a pattern?

Every single time the President has tweaked the law, and screwed up the actuarial forecasts, the insurers lost money. As a result, premiums went up, and therefore tax subsidies went up. I don’t recall the Urban Institute releasing a similar report in light of previous modifications of the law.

If the goal was to keep the cost of insurance low, then the law would not have been modified in the way it was. That wasn’t the goal. Instead, the mission has been to keep the law on life support for as long as possible.

Also, I highly recommend Nick Bagley’s new paper on the legality of delays in the ACA. In particular, Nick writes that the President broke the law with the question at issue in the House lawsuit, but he doesn’t think there is standing.

Bagley recently wrote in a draft paper to be published in the University of Pennsylvania Law Review that by financing cost-sharing reductions out of an appropriations governing tax refunds, President Barack Obama “appears to have broken the law.”

Bagley, however, said he believes a federal appeals court will ultimately reverse the district court’s decision on House Republicans’ standing to sue over the matter.


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Jan 27, 2016

Why Obamacare Remains Vulnerable to Repeal

Avik Roy analyzes recent CBO estimates that “slashed their 2016 estimates of exchange enrollment from 21 million to 13 million.” He explains, in very clear terms, why the law is nowhere near as secure as some may think–the number of people harmed by the law far exceeds the number of people who benefited from the law. Also, those who benefited are unlikely to vote, or even be registered. Read this analysis in its entirety:

For all of the taxes and regulations and spending contained in Obamacare, what’s remarkable about the law is that it has only reduced the percentage of U.S. residents without health insurance by 2.7 percentage points between 2008 and 2014. The total U.S. population in 2014 was 318.3 million, meaning that the total impact of Obamacare on the uninsured population, on a 2014-adjusted basis, was around 8.6 million.

Remember that only a fraction of that 2.7 percent are U.S. citizens who can vote. “It has been reported that only a third of the uninsured are even registered to vote,” complained New York Sen. Chuck Schumer (D.) in 2014. Obamacare, said Schumer, “made no political sense.”

Also note that 8.6 million is a far lower figure than the number of people currently enrolled in Obamacare-sponsored products. Elsewhere in the latest Budget and Economic Outlook, CBO stated that “average monthly enrollment of newly eligible Medicaid beneficiaries was…9.6 million [in 2015] compared with 6.1 million in 2014.” Adding that to exchange enrollment gets you to roughly 24 million people on Obamacare-sponsored products.

The Obama administration often boasts about that much larger figure, claiming that 24 million people have been helped by Obamacare. But the government’s official estimates are that it’s under 9 million. Of which only a fraction can vote in the 2016 election.

Compare that to the number of people whose plans have been canceled (6 million), or the number of people who’ve had their premiums or their taxes hiked (dozens of millions). And that’s why Obamacare remains gravely vulnerable to repeal.

This is frankly inescapable from a political perspective. If people aren’t happy with the law, it doesn’t stay forever. The arguments about entrenchment seem much weaker in 2016 than they did in 2013–especially as states continue to refuse to expand Medicaid, a decision that frankly hasn’t been much of an issue on the national or local level.

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Jan 27, 2016

Richard Epstein at Electric Zoo

From last fall’s Electric Zoo Festival in New York. The sign was held up by a NYU Law Student. This is awesome.


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Jan 26, 2016

Lectures This Semester In California, Colorado, Texas, Virginia, North Carolina, Illinois, and Pennsylvania

This semester I have a number of talks at Federalist Society chapters throughout the country.

  1. 1/27/16 – U.C. Berkeley School of Law
  2. 1/28/16 – Stanford Law School
  3. 2/10/16 – University of Colorado Law School
  4. 2/10/16 – Denver Lawyer’s Chapter
  5. 2/19/16 – Austin Lawyer’s Chapter
  6. 2/29/16 – Regent Law School
  7. 3/7/16 – Duke Law School
  8. 4/4/16 – Northern Illinois University
  9. 4/13/16 – University of Pennsylvania Law School

If you are in the area, please stop by.

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Jan 26, 2016

Prop1 Class 4: The Capture Rule: Oil and Gas, Acquisition by Creation

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here.

Oil & Gas

And, “I drink your milkshake.”

Here are some pics illustrating slant drilling. One of which may be from a cartoon.



You can learn more about the Manziel family and oil here.

International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.


The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.


The author of the dissent, Justice Brandeis, was a big deal.


Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

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Jan 26, 2016

ConLaw Class 4 – The Legislative Powers

The lecture notes are here.

The Legislative Powers

  • Bicameralism & Presentment (260-261).
  • INS v. Chadha (261-272).
  • Clinton v. City of New York (272-281).
  • Read Article I, Section 8 of the Constitution (3-4).
  • Enumerated Powers in Article I, Section 8 (281-283).
  • Bills of Attainder (283-284).
  • Note 5 – Nixon v. GSA (293-294).
  • Ex Post Facto Clause (294-295).
  • Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.


This is Jagdish Chadha.

Jagdish Rai Chadha


Justice Louis Powell authored a concurring opinion.


Justice White dissented.


The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”


The majority opinion was authored by Justice John Paul Stevens.


Justice Anthony Michael Kennedy concurred.


Justice Stephen G. Breyer dissented, in part.


Justice Antonin Scalia dissented, in other parts.


Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.



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Jan 25, 2016

FantasySCOTUS Update: Four Cases Decided on 1/25/16

Today the Supreme Court decided four cases: Montgomery v. Louisiana (8th Amendment), Musacchio v. United States (Criminal Procedure), Menominee Tribe of Wis. v. United States (Civil Procedure), and FERC v. Electric Power Supply Assn. (Regulatory Law). The FantasySCOTUS crowd went 4-for-5, and the {Marshall}+ Algorithm went 5-for-5.


In Montgomery v. Alabama, both the crowd and algorithm predicted a reversal, but disagreed on the split.


Musacchio v. U.S. was a rare case that yielded a 9-0 affirm. The crowd nailed this. The algorithm got lucky by predicting a 5-4 affirm.



Menominee Indian Tribe of WI v. U.S. was another 9-0 affirm that the crowd got correctly. Interestingly, under the algorithm, the four votes to reverse were very weak (below 56%).


In FERC v. Elec. Pwr Supply Assoc., with Justice Alito recused, the vote split 6-2 to reverse. {Marshall}+ predicted a 8-0 reverse. FantasySCOTUS, interestingly, predicted a 4-4 affirm.



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Jan 25, 2016

Guest on “The What’s Up Radio Program” with Terry Lowry

Here is a two-part interview I did with Houston talk radio host Terry Lowry on the Supreme Court’s decision to grant U.S. v. Texas.

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