Government’s Brief Filed in House of Representatives v. Burwell

Today the executive branch filed its brief in House of Representatives v. Burwell. Here is the introduction:
For the first time in our Nation’s history, the district court allowed one House of Congress to invoke the jurisdiction of an Article III court to resolve a disagreement between the political branches over the Executive Branch’s execution of a federal statute. Such disagreements are routine, but they have always been resolved through the give-and-take of the political process—not by resort to the Judiciary. That unbroken history reflects the fundamental separation-of-powers principles embodied in Article III’s case-or-controversy requirement and the “restricted role for Article III courts” in our constitutional structure. Raines v. Byrd, 521 U.S. 811, 828 (1997). It also reflects the distinct powers of the Legislative and Executive Branches under the Constitution. As this Court and the Supreme Court have made clear, the House’s belief that the Executive Branch is misinterpreting a federal statute does not confer Article III standing or create a case or controversy fit for judicial resolution. The district court’s contrary conclusion cannot be reconciled with the structure of the Constitution, controlling precedent, and historical practice, and would “improperly and unnecessarily plunge[ ]” the Judiciary into a host of disputes between the political branches. Id. at 827.
This suit concerns the Executive Branch’s administration of the insurance subsidy program established by the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (ACA or Affordable Care Act). The Act requires the Department of the Treasury to make payments to health insurers to subsidize health coverage for eligible low- and moderate-income Americans. These mandated payments have two components: premium tax credits, which subsidize insurance premiums for eligible individuals, and cost-sharing reductions, which subsidize copayments and other types of out-of-pocket costs for certain individuals determined eligible to receive the tax credits. Since January 2014, Treasury has been paying both components of the subsidy program from the permanent appropriation in 31 U.S.C. § 1324, which the ACA amended. Congress has taken no legislative action to restrict these ongoing payments—to the contrary, it has enacted legislation predicated on the understanding that the payments would be made. Nonetheless, the House brought this suit asserting that the Section 1324 appropriation covers only the premium tax- credit component of the subsidy program, and that no appropriation is available to pay for the cost-sharing reduction component. After holding that the House had Article III standing and a cause of action, the district court adopted the House’s view on the merits. The court enjoined the Executive Branch from making further cost- sharing reduction payments but issued a sua sponte stay pending appeal.
That injunction epitomizes the “separation-of-powers problems inherent in legislative standing,” Campbell v. Clinton, 203 F.3d 19, 21 (D.C. Cir. 2000), by interfering with the proper functioning of all three branches of government. First, it “meddl[es] in the internal affairs of the legislative branch” by allowing one House of Congress to use litigation to circumvent the legislative process. Id. (citation omitted).
If the House wants to achieve the result it obtained in district court, the course prescribed by the Constitution would be to enact new legislation providing that the Section 1324 appropriation may not be used to make cost-sharing reduction payments. That would require the House to obtain the agreement of the Senate and to accept responsibility for the results. By filing this suit, the House seeks to achieve the same result without obtaining the concurrence of the Senate or accepting the political accountability attendant to legislation.
Second, this suit arrogates to the House a role that the Constitution assigns to the Executive Branch. “[I]t is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” Buckley v. Valeo, 424 U.S. 1, 138 (1976). The power “to seek judicial relief” to enforce federal law lies at the heart of that executive authority and “cannot possibly be regarded as merely in aid of the legislative function of Congress.” Id. To the contrary, “once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly— by passing new legislation.” Bowsher v. Synar, 478 U.S. 714, 733-34 (1986).
Third, this suit unmoors the Judiciary from “the traditional understanding of a case or controversy,” a doctrine developed “to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Raines, 521 U.S. at 820). The district court deemed irrelevant “the history of non-litigiousness between the political branches, recounted in Raines,” JA56, declaring that “there will never be a history of litigation  until the first lawsuit is filed.” Id. The Supreme Court, by contrast, admonished that this history shows that “[o]ur regime contemplates a more restricted role for Article III courts.” Raines, 521 U.S. at 828.
Those fundamental separation-of-powers principles, and the House’s lack of a statutory cause of action or any basis for equitable relief, should have prevented the district court from reaching the merits of the House’s claim at all. But the court further compounded its errors by adopting a misguided interpretation of the ACA’s amendment of 31 U.S.C. § 1324 that would thwart the structure and design of the ACA’s carefully calibrated system of subsidies, severely disrupt the insurance markets, and—perversely—lead to substantially greater federal expenditures from the Section 1324 appropriation. If the government stopped making cost-sharing reduction payments, insurers would still be required by statute to reduce the cost-sharing charges they impose on eligible individuals. Instead of recouping those costs as required by the statute, the insurers would make up the difference by raising their premiums. And because of the structure of the Act’s subsidy program, Treasury would then be required to pay considerably more from the Section 1324 appropriation, because the increased silver plan premiums would trigger a commensurate increase in the premium tax credits available to all individuals who receive them—a much larger population than the individuals eligible for cost-sharing reduction subsidies.
The district court did not dispute the perverse and self-defeating consequences of its holding. But the court incorrectly declared that these results are compelled by the unambiguous statutory text of Section 1324. Section 1324 provides a permanent appropriation of “[n]ecessary amounts . . . for refunding internal revenue collections as provided by law,” including “refunds due … from” a list of provisions that the ACA amended to include 26 U.S.C. § 36B. Section 36B sets forth conditions necessary to qualify for cost-sharing reductions as well as premium tax credits. The text, structure, design, and legislative history of the ACA demonstrate that both components of the subsidy program—tax credits and cost-sharing reductions—are “refunds due … from” Section 36B because they are inter-related compensatory payments made available through the application of Section 36B. Accordingly, when Congress amended Section 1324 to provide for “refunds due … from” Section 36B, Congress appropriated funds for both components of the ACA’s program of insurance subsidies. Thus, even if this suit were not barred as a threshold matter, it would be necessary to reverse the judgment of the district court.
Share this:TwitterFacebookEmailPrintGoogleTumblr

#Unraveled Tour in Alabama This Week: Birmingham, Montgomery, and Mobile

This week I am taking the #Unraveled tour to Alabama.
On Wednesday, October 26, I am speaking to the Birmingham Lawyer’s Chapter at noon. The event will be held at the City Club, 1901 Sixth Avenue North.
On Thursday, October 27, I am speaking to the Montgomery Lawyer’s Chapter at noon. The event will be held at the Capital City Club, 201 Monroe St #2100.
On Friday, October 28, I am speaking to the Mobile Lawyer’s Chapter at noon. The event will be held at the Pollock-Altmayer House, 501 Government Street.
If you are in the area, please I hope to see you there!
Share this:TwitterFacebookEmailPrintGoogleTumblr

Blackman v. Vladeck – Part II: Debate on the Election and SCOTUS at University of Texas

Following from the first round of our bout at St. Edwards, on Thursday, October 20, Steve Vladeck and I debated how the election will impact the Court. It was a spirited debate, with a number of professional forensic techniques: I said he was “wrong,” he called me a “nasty woman.” All had fun.

Share this:TwitterFacebookEmailPrintGoogleTumblr

Blackman v. Vladeck – Part I: Debate on Presidential Powers at St. Edwards University

One of my favorite sparring partners is Steve Vladeck, who recently moved from American University to the University of Texas. On Wednesday, October 19, and Thursday, October 20, Steve and I engaged in a two part debate. First, we debated presidential power and the election at St. Edwards University in Austin. Second, we debate the Supreme Court and the election at UT.
Here is the video from St. Edwards.

Share this:TwitterFacebookEmailPrintGoogleTumblr

Harvard Federalist Society: The Senate’s Duty to Vote on Judge Garland’s Nomination

On Monday, October 17, the Harvard Federalist Society chapter hosted me for a debate on whether the Senate has a duty to vote on Judge Garland’s nomination. Or at least it was supposed to be a debate. Despite the fact that many professors on the Harvard faculty are on record stating that the Senate has such a duty, the Chapter was unable to find a single person willing to debate me. The chapter also checked at other law schools, and no professor was willing to debate this topic.
Alas, I had to debate myself–or shadow-boxing as I called it. For the first few minutes of the event, I recounted the views of hundreds of law professors and others that the Senate has a duty to vote on Judge Garland’s confirmation. Here is a smattering of those views:
350 Law Professors: “This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government . . . The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.” (From HLS: Elizabeth Bartholet, Daniel Halperin, Charles J. Ogletree, Laurence H. Tribe).
Martha Minow and Deanell Tacha: Hardly a day elapsed after the death of Justice Antonin Scalia before members of the Senate told President Obama to ignore his clear constitutional duty to nominate a successor — and declared they would refuse to play their constitutionally mandated role of providing advice and consent. Perhaps some senators are now suspending their own duties simply because Republican presidential candidates Donald Trump and Senator Ted Cruz think this will help their races, advance their party, or hurt the opposing party … Article II of the Constitution is not ambiguous. It directs that the president “shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.” The senators swore their oath to the Constitution. An orderly process, adhering to these words of the Constitution, is not only what the law requires; it is essential to preserving the treasure that is our independent judiciary and rule of law. Let’s make sure this treasure survives this electoral season
President Obama –  “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs.”
VP Biden – In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.
Then, for the remainder of my time, I explained why no duty can be found in text, history, or practice. This is purely a political question.


Share this:TwitterFacebookEmailPrintGoogleTumblr

New Op-Ed in L.A. Times “Chabad’s ritual is a clear example of the free exercise of religion”

I blogged last week about a court’s decision to enter a ex parte TRO, halting a Jewish atonement ritual on the eve of the holiday of Yom Kippur. Beyond the jurisdictional arguments I raised in my amicus brief, the case has serious free exercise clause issues–that could have been avoided by dismissing the case on narrower grounds. This morning, the L.A. Times published my editorial, explaining the case in more detail.  It is titled “Chabad’s ritual is a clear example of the free exercise of religion.”
Every year, Jews around the world seek repentance before the holiday of Yom Kippur through an atonement ritual known as kapparot. In exchange for a donation, a rabbi gently waves a chicken over one’s head, reads a blessing, and then the bird is humanely slaughtered according to the precepts of Jewish dietary laws. Animal rights groups have repeatedly tried — and failed — to stop this ancient ritual. They tried again this year, filing a federal lawsuit in California against Chabad of Irvine, and seeking a restraining order just 12 days before Yom Kippur.
With less than 72 hours left to complete the ritual, U.S. District Court Judge André Birotte Jr. issued an unprecedented order halting Chabad’s and Rabbi Alter Tenebaum’s free exercise of religion. After some intervention from the First Liberty Institute, a Texas-based legal organization that focuses on religious freedoms, the judge dissolved his injunction but at that point it was too late to perform kapparot. And this case is not over; soon the lawsuit will be heard on its merits.
Those merits are nonexistent. The activists are challenging kapparot as an “unfair business practice” that involves “maliciously and intentionally” killing chickens. This argument is flatly contrary to California law, and even worse, it is unconstitutional on its face.
The activists argue, among other things, that because Chabad gets a donation, kapparot is not only a religious ritual but also a “business act.” But faith groups routinely charge fees — large and small — for a ticket to worship services, admission to Bible studies or to light a votive candle. Reading the law in this broad manner would entangle countless spiritual practices with a code designed to prohibit unfair business dealings.
Nor are chickens maliciously killed in the kapparot ritual. California has specifically recognized slaughtering poultry according to the “rules of the Jewish faith … [as] a humane method of slaughter.” After the ritual is complete, the bird can be either donated to the poor for food (if kapparot takes place in a slaughterhouse), or converted to fertilizer. This is in no sense a wanton or cruel act.
Finally, and most importantly, if California law were to be interpreted to criminalize kapparot, it would be unconstitutional. In 1993, the U.S. Supreme Court considered an appeal involving a Santeria church that sacrificed chickens as a form of spiritual devotion. The church challenged a Florida law that prohibited the “sacrifice or slaughter” of an animal if it is killed in “any type of ritual,” but permitted slaughtering animals in “any licensed [food] establishment.” The Supreme Court unanimously ruled that the law violated the 1st Amendment. The exact same act of slaughter was legal if performed in a food establishment, but illegal if performed in a house of worship. Such discrimination against a ritual that “may seem abhorrent to some,” Justice Anthony M. Kennedyexplained, violates the free exercise of religion.
California law generally protects animals from “malicious” slaughter, but not if they are rendered for food, obtained as “game” or used in scientific experiments. It is arguable that the way Chabad of Irvine currently disposes of the kapparot chickens — as fertilizer — is in fact food, albeit for plants not humans.
Even if the reasoning is not entirely persuasive, the court should read the statute in as broad a manner as possible to avoid a conflict with the Constitution’s “free exercise of religion” clause. In any case, if California law permits some forms of slaughter — for hunting or scientific experimentation — but criminalizes the exact same act for a religious exercise, it is unconstitutional, as in the Santeria situation. The government cannot create secular exemptions, but omit religious exceptions.
Critically, neither the California attorney general nor any district attorneys in the state, has ever charged a rabbi for performing kapparot. During oral arguments as Birotte first considered the case, counsel for the activists conceded that no such prosecution has been brought because the government likely believes doing so would be unconstitutional. Exactly.
In recent years, federal courts have been asked to decide very difficult free-exercise cases, such as religious charities seeking exemptions from Obamacare’s contraception mandate. This case, however, is easy: A religious organization wants to continue performing a millennium-old ritual that is lawful in California.
Animal rights activists cannot dictate how Jews exercise their religion. As the Supreme Court recognized nearly three decades ago, “it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”
Next year, Rabbi Tenenbaum should be free to practice his faith without judicial supervision.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Segment on Houston’s NBC Affiliate about Texas’s Lawsuits against the Federal Government

Nearly two months ago, I was interviewed by Houston’s NBC affiliate, KPRC, to discuss Texas’s frequent lawsuits against the federal government. At last, the piece aired.
Here is the video, and the transcript is below.

From the environment to transgender issues to immigration, Texas is certainly not afraid to push back against federal regulations that come from the top.
Records from the Attorney General’s Office show Texas has sued the federal government at least 46 times since President Barack Obama first took office.
“If Texas could write in their briefs, ‘Don’t Mess With Texas,’ they would,” said Josh Blackman, constitutional law professor at South Texas College of Law. “I have little doubt that Texas believes that their interpretation of the Constitution is stronger than that of the Presidency.”
That sentiment was clear in 2013, when Gov. Greg Abbott was still Texas Attorney General Greg Abbott.
“My job description has been simplified over the past four years, because what I do is go into the office, I sue the federal government and then I go home,” Abbott said while speaking to a Freedomworks group in Austin in 2013.
Fighting the federal government isn’t cheap. Records obtained by Channel 2 Investigates show taxpayers spent more than $6 million on these cases. The outcome includes eight wins, 12 losses, 17 cases still pending and nine withdrawn.
Blackman said that’s not a bad average.
“When you sue the federal government, you’re playing against the house. You have house odds and you’re likely going to lose,” Blackman said.
Some of Texas’ high-profile wins include blocking the president’s executive order on immigration and the president’s guidance to schools on transgender bathroom policies. Some of the losses include trying to stop the Affordable Care Act and the resettlement of Syrian refugees in the state.
VIEW: Texas v. Federal Government suits filed (please note that the status of many of these cases have changed since KPRC received this document in September. KPRC will continue monitoring these cases and update this story).
“The important thing is fighting the good fight, not necessarily winning,” Rice University political science professor Mark Jones said.
Jones said in addition to pushing back against what Texas perceives to be an overreaching federal government, there is a tinge of politics to some of these lawsuits.
“I think there is political benefit in suing the federal government when that government is run by Barack Obama,” Jones said. “Part of the Republican playbook today is run as much against President Obama here in Texas as against your actual opponent and it’s been very successful in the general election.”
Both Blackman and Jones said congressional deadlock on many issues leaves the door open for lawsuits when the president tries to enact new policy.
“If the states aren’t bringing these suits, it’s very difficult, if not impossible, for a lot of these issues to be resolved by the courts,” Jones said. “It falls to the states as those who can bring these suits in the first place.”
Both men added there is always going to be a natural conflict between Republican leaders in a conservative state and Democratic leaders in the White House.
“In their view, the pendulum has swung too much in favor of federal government encroachment and that has reduced state autonomy to a level that, in their view, is unconstitutional,” Jones said.
Two of the most recent lawsuits came in September regarding President Obama’s rule making more workers eligible for overtime and a plan to give an international organization oversight of internet domain names.
Officials with both Gov. Abbott’s and Attorney General Ken Paxton’s offices declined to comment for this story.
Share this:TwitterFacebookEmailPrintGoogleTumblr

The Clinton Campaign Has Previously Said Heller Was About “Safe Storage” Laws

During the debate this evening, Hillary Clinton said District of Columbia v. Heller was about a safe storage laws.
You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.
This utterly disingenuous line was not an accident. Her campaign has used this mischaracterization before. I wrote the following in May.

An advisor to Hillary Clinton said that Heller was “wrongly decided.” But she has absolutely no idea what the case held.
“Clinton believes Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe, like safe storage laws to prevent toddlers from accessing guns,” Maya Harris, a policy adviser to Clinton, said in an e-mailed statement. “In overturning Washington D.C.’s safe storage law, Clinton worries that Heller may open the door to overturning thoughtful, common sense safety measures in the future.”
The critical, constitutional issue, was whether the District of Columbia could ban the private ownership of handguns. The case in no way affected “safe storage laws.” In fact, the District of Columbia still has safe storage laws in effect.
From the Metropolitan Police Department’s website:
The law requires that no person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor under the age of 18 is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person . . .  Keeps the firearm in a securely locked box, secured container, or in a location which a reasonable person would believe to be secure.
If Ms. Harris is going to criticize a Supreme Court decision, she should have some clue what the case is about.
(I have my doubts about whether such a law is in fact constitutional, but Heller in no way affected such a law).
Update: In Heller, the Court also considered the constitutionality of the D.C. trigger-lock law. This is different from a “safe storage law.”  The Heller Court described the law in this fashion:
District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.
Under safe-storage laws, guns are to remain operable, but must remain in a secured case or box.
At the time, the only guns that could lawfully be owned in D.C. were certain long guns, or handguns that were owned before the ban went into effect.
For example, Dick Heller owned a firearm from the 1970s, but was not allowed to remove the locks. The instant he removed the lock–even if it were for self-defense–he would have broken the District of Columbia’s law.

Even assuming that Harris simply used the wrong term, her answer lets on more than she would like.To say that the problem with Heller was that it invalidated some sort of safe-storage law, presupposes that a resident of the District of Columbia had a constitutional right to own a gun in the first place. If you adopt the dissent’s view, D.C. could have banned ownership of handguns all-together. The storage law was an added benefit.
Share this:TwitterFacebookEmailPrintGoogleTumblr

New in National Review: “Obamacare is Unraveling Ahead of Schedule”

One of the most common questions I am asked during Unraveled events is whether the architects of Obamacare intended the law to fail–or unravel–so it would set the stage for single payer health insurance. My answer is a qualified no. The arrogant central planners behind the law sincerely thought that they could make a dynamic marketplace work with just the right amounts of government intervention–they really did. But, they recognized if they were wrong, the only alternative would be national health care. In this sense, Obamacare–not even through its third year–is already unraveling, way aead of schedule.
In a new piece in National Review, I explore this dynamic, and what is likely to come next:
The Affordable Care Act was never designed to be a permanent solution. Obamacare’s architects predicted that the law’s success would prove the government could be trusted to federalize health care, paving the way for a single-payer system. Reality has not been kind to their best-laid plans: Faced with failing exchanges and fleeing insurers, President Obama has urged Congress to “revisit a public plan to compete alongside private insurers.” Make no mistake: This is not a “tweak” or “reform,” but a grudging admission that Obamacare has unraveled way ahead of schedule.

MIT Professor and Obamacare mastermind Jonathan Gruber predicted that whether the law succeeded or failed, the end result would be the same. On one hand, Gruber argued that a successful implementation of the ACA would build confidence and support for nationalized health care, assuring liberals that “if you like single payer, then Obamacare has to succeed.” On the other hand, he warned that the ACA was “the last, best hope for private insurance,” and that if it didn’t work, we would “have to rip it up” and “revisit some kind of single-payer system.” Heads I win, tails you lose. (Indeed, through Wikileaks we’ve recently learned of Hillary Clinton’s active supports for a revision that “begins the unraveling of the ACA.”) Unsurprisingly, after only three years, Obamacare is currently spiraling down the latter pathway. In a brief moment of candor, former-president Clinton called the ACA’s collapse “the craziest thing in the world,” and lamented that people who liked their insurance have found their “premiums doubled and their coverage cut in half.” The law wasn’t supposed to implode so quickly. Its success was supposed to pave the way for advocates to enact universal health care in five or ten years, but that didn’t pan out. So now, never letting a crisis go to waste, President Obama and Hillary Clinton are prematurely scurrying to back “a public plan to compete alongside private insurers.”
Read the whole thing, and if you’re inclined, buy a copy of Unraveled 🙂
Share this:TwitterFacebookEmailPrintGoogleTumblr

Clinton Email from Wikileaks Trove: She Supports “The Unraveling of the ACA”

Lifezette reports on the following email sent from Hillary Clinton, included in the Wikileaks Trove:

On September 26, 2015,  Ann O’Leary, one of Clinton’s advisers, wrote “Madam Secretary – I wanted to be sure you saw this memo on the cadillac Tax.” The timing of this email is quite important. As I recounted on this blog, and in Unraveled, during the fall of 2015–after King v. Burwell settled the legality of the ACA’s core–Democrats began to publicly oppose the Cadillac Tax.
On September 21, The Hill reported that Clinton will come out against the Cadillac Tax. However, in a speech on September 24, Clinton did not say anything about the Cadillac Tax. She was still “examining” it. But by that point, Senators Schumer and Sanders, among others, publicly opposed the tax. Finally, on September 29, Clinton publicly opposed the tax.
With this context, consider Clinton’s reply to O’Leary on September 26:
Given the politics now w bipartisan support including Schumer, I’ll support repeal w ‘sense of the Senate’ that revenues would have to be found. I’d be open to a range of options to do that. But we have to be careful that the R version passes which begins the unraveling of the ACA.
There’s a lot to unpack there. First, Schumer’s support gave Clinton cover, because she was going with the “sense of the Senate.” But the second sentence is even more important. The Schumer/Sanders proposal would repeal the Cadillac tax, but make up for the shortfall in revenue by imposing “a surtax on the wealthiest people in this country.” Clinton, instead favors the Republican version, which simply repeals the Cadillac tax altogether, and does nothing to make up for the lost revenues. This has the effect of simultaneously keeping Clinton away from a tax increase, and appeasing labor unions that hate the Cadillac tax. It’s the best of both worlds.
But Clinton recognizes full well that this option “begins the unraveling of the ACA.” She’s right! The cadillac tax is one of the few mechanisms in the ACA to control costs. Once those cost controls are gone, noting will reign in rising premiums. Hence the Unraveling of the law, which paves the way for national health insurance.
Yesterday, I wrote a piece for National Review called “Obamacare is Unraveling ahead of schedule.” It is going to be published tomorrow. Now I need to update it!
Update: In a new email from Wikileaks (H/T @dabzs), a reply to Clinton puts this comment in a different light. A reply from her adviser Jake Sullivan states:
Your point on R version is key. Our Bernie contrast rests on defending ACA, so crucial to cast this as a fix and to be on the lookout for R efforts to make this a Trojan Horse for broader dismantling of ACA.

I think Sullivan read Clinton’s email as saying “we have to be careful that the R version does not pass which would begin the unraveling of the ACA.” You have to alter a lot of words in the sentence to get to that meaning, but I don’t think it changes the point I made above. The version of the repeal Clinton ultimately supported did not find an alternate funding source. The Sanders plan would have raised tax on wealthy people. Clinton, in effect, supported the (lazy) Republican plan on eliminating (delaying for the time being) the tax, without any sort of offset.
Update 2: More from Business Insider:

Campaign adviser Ann O’Leary asked Clinton about her support for the so-called Cadillac tax built into the ACA, suggesting that she come out for a partial repeal. The Cadillac tax would impose a surcharge on high-cost health insurance plans with expansive coverage that employers provide for their workers.
Since many unions had advocated for getting these high-quality plans for their workers, these traditionally Democratic-leaning groups were opposed to the tax, leading to bipartisan support for a delay or repeal of that aspect of the ACA.
In Clinton’s response, the nominee appeared to support a Cadillac-tax repeal bill written by Republicans. Here’s the email in its entirety. (The Clinton campaign has not confirmed the authenticity of the emails.)
“Given the politics now w bipartisan support including [Democratic New York Sen. Chuck] Schumer, I’ll support repeal w[ith] ‘sense of the Senate’ that revenues would have to be found. I’d be open to a range of options to do that. But we have to be careful that the R version passes which begins the unraveling of the ACA.”
Clinton’s supporters, and critics, have found a few different ways to interpret her comments. Jeffrey Anderson, a Hudson Institute senior fellow and opponent of Obamacare, suggested that Clinton was advocating for the “unraveling” of the ACA altogether. The suggested reason: more support to pass a public option — in which the government would offer its own insurance to people to compete with private insurers — or a single-payer system, in which the government is the only insurance provider, similar to systems in the UK or Canada.

The second option is that Clinton simply misspoke. The email directly after hers in the chain, from foreign-policy adviser Jake Sullivan, read:
“Your point on R version is key. Our Bernie contrast rests on defending ACA, so crucial to cast this as a fix and to be on the lookout for R efforts to make this a Trojan Horse for broader dismantling of the ACA.”
Sanders, during the primaries, was more critical of Obamacare and loudly called for a government-sponsored plan. Chelsea Clinton, the eventual nominee’s daughter, memorably attacked him for this in the primary, saying Sanders wanted to “dismantle Medicare” and “empower Republican governors to take away Medicaid,” despite Sanders plan not really doing either.
Put another way, reading into the context that comes with Sullivan’s email, Clinton fat-fingered an email and was trying to establish a middle-ground between Sanders and more progressive Democrats and the Republican position. This version also suggests she was perhaps warning about the Republican version of the Cadillac-tax repeal bill because it had the potential to unravel Obamacare.
Throughout the campaign, Clinton has repeatedly expressed her support for the ACA on the trail and called for improvements and strengthening of the law.
The Clinton campaign didn’t immediately respond to a request for comment.

Update: New emails shed more light on this exchange.
On September 26, 2015, Ann O’Leary emailed Podesta, and others, asking whether the campaign should take a position on the Cadillac Tax:
Also, as long as I have all of your attention – on Cadillac Tax – the general consensus is that we should frame our position as Cadillac Tax should be repealed but that we should tax people who make more than $250K b/c they don’t need to have tax-payer funded subsidies. I have not nailed >>> this down with HRC. Should I try to do that today if we are going to announce this on Meet the Press?
Podesta wrote back:
I think we will pay a huge price with the WH on this one. Worries me.
O’Leary responded:
Jen/Brian – Do you all want to try to land repeal of Cadillac tax + applying tax to $250K and above on MTP? Need to lock it with HRC and set it up with unions if we are going to pull trigger tomorrow. Please advise.
Jenn Palmieri suggested this would not be important enough to take attention away from the email scandal:
It doesn’t pass bar of news that would break through emails. So I don’t >> know that it is worth the effort.
O’Leary thought it was a worthwhile position to take:
I think it is more Q of political question – if we need to do it for >> political reason, this may be good venue. John – What do you think about getting out there on it tomorrow?
Fallon supported the outright repeal:
Can I ask what headline we are seeking with this? Because it strikes me as a clever attempt to be both for and against the cadillac tax. Why arent we just for outright repeal if we are going to cede back all the revenue anyway by holding <250k harmless?
O’Leary responded on 9/26/15 at 5:07 p.m.:
The idea is to go back to her 2008 position, which was that we should not be subsidizing higher earners on their health plans. But I agree that we will not be gaining much revenue nor will we be getting health savings by taking this position so and maybe cleaner just to go for repeal. The problem is that there are number of people who think that is a step too far. Let me check with her and get back on this chain after I hear back.
Robby Mook wrote:
I vote for repeal!
Several hours later, after Clinton’s email referenced above, O’Leary wrote:
Jen/Brian – HRC would like to go with the Senate Dem version of repeal with no caveats but strong message that it must be paid for and R version without pay for is unacceptable. Meet the Press worthy? If so, I want to work with Nikki and Amanda to set it up with unions.
This line is nonsensical. A Senate Dem version with “no caveats,” and a Republican version “without pay” are exactly the same. They both repeal the tax without funding it through higher taxes. This is not the Sanders proposal, which would have explicitly taxed people who make more than $250k a year. I have no idea how O’Leary got this from HRC’s email. I’ll have to sort this out at some point, I suppose.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Debate on Originalism at Northern Illinois University with Professor Robert Jones

On Thursday, October 13, the Northern Illinois Federalist Society Chapter hosted me for a debate on originalism with Professor Robert Jones. Professor Jones and I debated the constitutionality of DAPA last spring, so this was a fun reprisal. If you fast-forward to 34:45, you will see me do my best Khizr Kahn impression as I wave around my pocket Constitution and explain why we do not have a Democracy, but a Republic.

Share this:TwitterFacebookEmailPrintGoogleTumblr

Originalists Against Trump

This presidential election cycle has been surreal. Initially I supported and advised Senator Rand Paul’s campaign, hoping that the “libertarian moment” had some legs. I was wrong. After Paul dropped out, I shifted to Senator Ted Cruz’s campaign. My hope was that the American people could get behind a constitutionalist who has professed a belief in federalism and the separation of powers. There too, I was wrong. But following Cruz’s defeat, I was done. A few days after the Indiana primary, I wrote a piece for National Review, titled “Trump’s Constitution of One” (I drafted it well in advance, and was holding it for the right moment). In the article, I laid out in painstaking detail why I thought Trump was dangerous to our constitutional republic, even assuming he keeps his promise to appoint from his list of Judges. Five months later, nothing Trump has said or done has convinced me otherwise.
With that background, I am proud to join a list of “Originalists Against Trump.” Unlike many of these lists–which are based on general political grievances–this group focuses on areas within my competency: the President’s constitutional obligations and powers. On these fronts, Trump is utterly unqualified to be President. Make no mistake–I am dreading a Clinton Presidency. In quite predictable ways, she will move the country even further away from the original understanding of our Constitution. During the last debate, when asked about criteria for appointing a Supreme Court Justice, she didn’t even mention the Constitution. This wasn’t inadvertent. However, as bad as she will be, the arbitrary and capricious Trump will destroy our Republic in unpredictable ways. I am compelled to quote from a piece authored by Jeremy Rabkin and John Yoo in National Review.
In 1952, the National Archives in Washington arranged to put an original parchment text of the Constitution — along with an original parchment text of the Declaration of Independence — on public display. Because of the Cold War concerns about nuclear attacks, the Archives designed the display cases to slide down into a bomb-proof vault below the building. Even if the Soviets launched nuclear devastation on our nation’s capital, the Constitution would still be safe for future generations. Perhaps we should admire that level of devotion to the Constitution. But we have a stronger preference for avoiding nuclear war. We also want to avoid trade wars and the end of American alliances that are decades old. In short, we are unwilling to entrust our nation’s foreign and security policy to a Trump administration.
Here is the full “Originalists Against Trump” statement:

Originalists Against Trump

We, the undersigned lawyers and scholars, are committed to the original meaning of the Constitution of the United States. We write to oppose the election of Donald Trump.
Our Constitution vests in a single person the executive power of the United States. In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.
Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.

The President must take care that the laws be faithfully executed; he admires dictators as above the law.
The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.
The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.
The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.

We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so. More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.
Whatever reasons there might be to support Donald Trump, the Constitution is not among them.
We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.
Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him.
We urge all like-minded Americans to vote their consciences in November. And we call on them, through their voices and their ballots, to deny the executive power of the United States to a man as unfit to wield it as Donald Trump.

Prof. Jonathan H. Adler
Case Western Reserve University School of Law
Prof. William Baude
University of Chicago Law School
Prof. Josh Blackman
Houston College of Law
Prof. Steven G. Calabresi
Northwestern University Pritzker School of Law
Oren Cass
Domestic Policy Director, Romney-Ryan 2012
Prof. Bernard J. Dobski
Assumption College
Prof. Richard A. Epstein
New York University School of Law
Hoover Institution
University of Chicago Law School
Prof. Christopher Green
University of Mississippi School of Law
Josh Hammer
Jameson Jones
Prof. Richard Kay
University of Connecticut School of Law
Prof. Benjamin Kleinerman
James Madison College, Michigan State University
Prof. Stephen F. Knott
Author of Washington and Hamilton: The Alliance That Forged America
Yuval Levin
The Ethics and Public Policy Center
Prof. Nathan B. Oman
William & Mary Law School
Prof. Michael Stokes Paulsen
University of St. Thomas School of Law
Prof. David G. Post
Temple University Law School (ret.)
Prof. Jeremy A. Rabkin
Antonin Scalia Law School, George Mason University
Prof. Stephen E. Sachs
Duke University School of Law
Kristen Silverberg
Former U.S. Ambassador to the European Union
Prof. Steven D. Smith
University of San Diego School of Law
Prof. Stephen F. Smith
Notre Dame Law School
Prof. Ilya Somin
Antonin Scalia Law School, George Mason University
Prof. Kevin C. Walsh
University of Richmond School of Law
Adam White
Hoover Institution
Prof. Greg Weiner
Assumption College
Prof. Keith E. Whittington
Princeton University
George F. Will
Prof. Michael P. Zuckert
University of Notre Dame
(Institutional affiliations are for identification purposes only; this statement does not represent the views of these or any other institutions. For further information or to be added as a signatory, please contact [email protected] .)

Share this:TwitterFacebookEmailPrintGoogleTumblr

Upcoming Events at Harvard, Northwestern, St. Edwards, IJ, UT Austin, and Lone Star College

Next week will be a busy one.
On Monday, October 17 at noon, I will be speaking to the Harvard Federalist Society Chapter on whether the Senate has a constitutional duty to vote on Merrick Garland’s nomination. (Preview–it does not). Also, I will be popping in-and-out of the Forbes 30 under 30 Summit in Boston.

On Tuesday, October 18 at noon, I am speaking to the Northwestern Federalist Society Chapter on Unraveled, with a focus on the President’s illegal executive actions. Professor Jim Speta will kindly provide comments.

On Wednesday, October 19 at 11:00, I am debating Professor Steve Vladeck at St. Edwards University in Austin. We will be tussling over how the next President will use executive power domestically or abroad. (Preview–whether it is Clinton or Trump, the difference will be one of kind, rather than of degree). Tickets are free, and you can register here.

On Thursday morning at 10:45, I am moderating a panel at the Institute for Justice’s conference, “Economic Liberty: Lone Star Leadership.” The free event will be held at the InterContinental Stephen F. Austin. Our topic will be “Economic Liberty and the U.S. Constitution After St. Joseph Abbey.” On our panel will be Jeff Rowes, Senior Attorney, Institute for Justice; Andy Oldham, Deputy General Counsel to Governor Greg Abbott; and Rob Henneke, General Counsel and Director of the Center for the American Future at the Texas Public Policy Foundation.

On Thursday at noon (after a short Fare ride—no Uber, remember), Steve Vladeck will start Round 2 of our bout with a debate at his new school, U.T. Austin, about the effect of the election on the Supreme Court.

On Friday at 12:30, I will be talking about Unraveled at Lone Star College – Kingwood in Houston.

The following week I have talks in Birmingham on 10/26, Montgomery on 10/27, and Mobile on 10/28. Because many of you have asked, I am on sabbatical term–and am making it count.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Frederick, Maryland to Take Down CJ Taney Bust

In 1931, Chief Justice Charles Evans Hughes dedicated a bust of Roger Brook Taney in his predecessor’s hometown of Frederick, Maryland. “It is unfortunate,” Hughes said, “that the estimate of Chief Justice Taney’s judicial labors should have been so largely influenced by the opinion which he delivered in the case of Dred Scott.” Hughes blamed “the temper of the times” for the ignominy of the decision, citing its “negligible influence on constitutional jurisprudence.” Rather, Hughes praised Taney’s decision in Ableman v. Booth as “the crown of the judicial career of Chief Justice Taney.”
Eighty-five years later, the Frederick Historic Preservation Commission voted 4-1 to remove that bust of Taney and a plaque discussing Dred Scott.
Commissioners on Thursday emphasized the limited scope of their purview before signing off on the removal.
“We’re not here to decide to laud or to vilify these men,” said Matt Bonin, an alternate to the commission.
Commissioner Dan Lawton agreed, referring to the aldermen’s prior decision in support of the removal.
“This property belongs to the city, which means it belongs to the people,” he said, “and the people have spoken through their elected representatives.”

The soon-to-be removed plaque, installed in 2009, concludes:
The unenlightened racial view found in the pivotal Dred Scott decision, the national debate that ensued, the bloodshed of the Civil War that followed, all make it important to comprehend the historical context of our past and to continue our progress towards racial equality.

Going forward, anyone who wishes to read this plaque will have to visit the Mount Olivet Cemetery, which will also host the bust of Maryland’s first Governor Thomas Johnson (a slaveholder). It is a figurative and literal burying of Taney’s impact on the law.
My previous posts on Taney busts can be found here, here, and here.
Share this:TwitterFacebookEmailPrintGoogleTumblr

NY Times: Obamacare is So Expensive Because We Are Covering People With Pre-Existing Conditions

By far, the most popular provision of the Affordable Care Act is the ban on denying coverage, or charging higher rates, to those with pre-existing condition. This bar is known in the parlance as guaranteed issue and community rating. As I noted in Unraveled:
A September 2009 Kaiser survey found that 80% of respondents supported this ban – that included 88% of Democrats and 67% of Republicans.  Among those supporters, however, only 56% still favored the provision if it resulted in higher premiums; 36% would oppose it.  Supporters almost certainly did not realize that requiring insurers to cover sick people would necessarily shift the cost onto everyone else.
Today’s Times explains in stark detail just how expensive this coverage is.
It has turned out that so many marketplace customers need expensive medical care that some insurers are spending more on claims than they earn in premiums. And the federal government’s strategies for protecting insurance companies from large losses have not been as effective as hoped.
Insurers, including a few big ones like Aetna and Humana, are withdrawing from the marketplaces in many states, saying they are losing too much money.

Even a small number of customers with serious conditions can greatly increase costs. Roy Vaughn, a senior vice president at BlueCross BlueShield of Tennessee, said that just 5 percent of the company’s marketplace customers had accounted for nearly 75 percent of its claims costs.
Further, those who receive care frequently drop their coverage, leaving insurers with unpaid bills:
But insurers say they also wish the government could make it harder for people to drop their coverage after their health problem is treated. Health Care Service Corporation, which operates Blue Cross plans in five states, said less than half of its marketplace customers paid for coverage for the full year.
Ms. Latil dropped her coverage recently; she had finished her hepatitis treatment, a nearly six-month regimen of the drugs Sovaldi, Daklinza and ribavirin. It was not a willful swipe at the system, she said; she was struggling to make her premium payments of $179 a month.
“I got my stuff taken care of,” said Ms. Latil, who will soon have insurance through her job. “I am so extremely grateful.”
Some have argued that the GOP decision to make the risk corridors budget neutral (a budget President Obama signed–don’t forget) have contributed to the failing marketplaces. The Times counters that the overly sick risk pools explain the shortfalls:
There are other reasons insurers are raising their rates or leaving the marketplaces. A big one is that the Obama administration, thwarted by Republican opponents in Congress, has paid out only a fraction of the $2.5 billion it owes insurers under a provision of the health law that was supposed to protect them against unexpectedly large losses during their first few years in the marketplaces.
But these payments would not be so important if more of the roughly 10 million marketplace customers were in good health. The Blue Cross Blue Shield Association reported in March that new customers who bought marketplace plans from its member insurers in 2014 and 2015 had higher rates of hypertension, diabetes, coronary artery disease, depression, H.I.V.and hepatitis C.
The supporters of the ACA, from President Obama on down, insisted that guaranteed issue would not increase premiums because enough young and healthy people would enter the risk pools to diversify the costs. The arrogance of the central planners is now on full display. An honest, frank conversation would have told the American people in 2010 that they had to sacrifice to help those who were sicker. This is a worthwhile argument, but one that was never made.  I wrote in Unraveled:
But the American people did not understand that this was how the law would operate. President Obama’s long-time strategist David Axelrod conceded this critical contradiction of selling Obamacare. “We’ve created a sense that everyone can expect to win,” Axelrod observed, where “nobody has to sacrifice.” 66 In February 2009, the Kaiser Family Foundation surveyed whether people would be willing to sacrifice their own health insurance policies in order to achieve national health care reform. 67 The majority answered no: 56% of respondents said “if policymakers made the right changes, they could reform the health care system without changing the existing health care arrangements of people like yourself.” This is impossible. In contrast, only 37% acknowledged “making any real reforms to the health care system will probably require people like yourself to change your existing health care arrangements.”
Instead, we were lied to. “If you like your plan, you can keep your plan.” Perhaps the only person who was candid enough to admit the truth was Jonathan Gruber, who said “Americans want a fair and fixed insurance market…. You cannot have that without some redistribution away from a small number of people.” In hindsight, “small” turned out to be quite large.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Discussion of King v. Burwell and NFIB v. Sebelius in Wikileaks Trove

Zerohedge highlights two Obamacare-related emails from the Wikileaks trove.
The first was sent on June 2, 2015 by Neera Tanden (President of the Center for American Progress and Clinton Adviser) to Jake Sullivan (Clinton foreign policy adviser), Jennifer Palmieri (Clinton’s communications director), and John Podesta (chairman of Clinton’s campaign).
The message, with the subject line “King v. Burwell,” reads:
It is most likely that this decision has already been made by the Court, but on the off chance that history is repeating itself, then it’s possible they are still deciding (last time, seems like Roberts went from striking the mandate to supporting it in the weeks before). As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.
In this case, I’m not arguing that Hillary spend a lot of time attacking the Court. I do think it would be very helpful to all of our interest in a decision affirm the law, for Roberts and perhaps Kennedy to see negative political consequences to ruling against the government.
Therefore, I think it would be helpful to have a story on how progressives and Hillary would make the Supreme Court an election issue. (which would be a ready argument for liberals) if the Court rules agains the government. It’s not that you wish that happens. But that would be a necessary consequence of a negative decision . . . the Court itself would become a hugely important political issue.
At CAP [Center for American Progress] Action, we can get that story started. But kinda rests on you guys to make it stick.

Jennifer Palmieri replied, copying Brian Fallon (Clinton’s press secretary) and Christina (no last name provided):
Adding Brian Fallon and Christina.
She [Clinton] has already been making this an issue. Not sure how in depth you are suggesting but seems like this should be manageable.

None of this should come as a surprise. In both Unprecedented and Unraveled, I provided a detailed analysis of President Obama’s comments after NFIB and King were argued. Tanden is exactly right to describe Obama’s comments in 2012 as “throwing down the gauntlet” and a “warning” to the Court. No doubt, after the Chief’s vote, liberals and conservatives think that Obama’s comments were “vital to scaring Roberts off.” Whether Tanden is right or not is immaterial. (I conclude in the book that it didn’t work, but there are different opinions here). The left thinks it worked. And if it worked once, they think it will work again. Liberal repeated the same playbook, hoping to show Roberts and Kennedy the “negative political consequences to ruling against the government.”
Perhaps Roberts still thinks his actions preserved the reputation of the Court. Maybe that’s true for the general public. In Time, Don Verrilli praised Roberts’s “wise stewardship” of the “resilient institution.” But make no mistake of how the left views him behind closed doors: The highest echelons of the Democratic party now seem him as a pawn that can be cowed to rule in their favor with the right messaging.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Breaking: House of Representatives Files Amicus Brief in Risk Corridor Litigation

Today the House of Representatives filed an amicus brief, objecting to the proposed settlement in the risk corridor litigation. Here is their introduction.
The law is clear that insurance companies operating on the health exchanges established pursuant to the Patient Protection and Affordable Care Act have no right to government handouts in excess of incoming funds under the Act’s risk corridors program. This is because the program was intended to be budget-neutral and self-funding – i.e., outgoing payments would be covered by incoming payments – and Congress has confirmed this intent, not once but twice, through annual appropriations legislation. The Constitution provides in unambiguous terms that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” U.S. Const. art. I, § 9, cl. 7, and Congress has repeatedly exercised its constitutional authority to bar the payments at issue here.
The Department of Justice (“DOJ”) knows that insurers have no right to excess payments. In later-filed cases brought by other insurers seeking excess payments, DOJ moved to dismiss for failure to state a claim on the ground that the Department of Health and Human Services (“HHS”) has no obligation to make risk corridors payments in excess of program receipts. But DOJ has inexplicably failed to apprise this Court of those arguments and of the controlling precedents that mandate dismissal of Plaintiff Health Republic Insurance Company’s complaint.2 HHS, for its part, is apparently bent on paying insurers despite the absence of any legal obligation to do so. Allegedly in light of a non-existent “litigation risk,” HHS recently took the extraordinary step of urging insurers to enter into settlement agreements with the United States in order to receive payment on their meritless claims. In other words, HHS is trying to force the U.S. Treasury to disburse billions of dollars of taxpayer funds to insurance companies even though DOJ has convincingly demonstrated that HHS has no legal obligation (and no legal right) to pay these sums. The House strongly disagrees with this scheme to subvert Congressional intent by engineering a massive giveaway of taxpayer money.
Particularly in light of Plaintiff’s recent motion for class certification in this case, DOJ’s troubling failure to raise these arguments here should not deprive this Court of the opportunity to consider these compelling grounds for dismissal of Plaintiff’s claims, so as to resolve this case in a manner that is consistent with binding precedent and avoids the unnecessary expenditure of judicial resources.
I will write more about this case in due time.
Update: The House writes that in all other cases, DOJ has moved to dismiss for failure to state a claim. However, in the instant case–brought as a proposed class action–they did not seek to dismiss for failure to state a claim. They’ve only raised jurisdictional arguments:
Starting in May 2016, other QHPs began to file suits “pursuing the same risk corridors payments,” Pl. Health Rep. Ins. Co.’s Mot. to Appoint Quinn Emanuel Urquhart & Sullivan, LLP as Interim Class Counsel at 5 (ECF No. 15), including at least seven other cases in this Court pending before other Judges.2 All of the plaintiffs in these later-filed cases– like Plaintiff in this case – allege that they are entitled to risk corridors payments due to a “Statutory and Regulatory Mandate to Make Payments.”3 In each of the four later-filed risk corridors cases in which a response from the United States has been submitted, DOJ has moved to dismiss, making the same jurisdictional arguments it made here. DOJ also argues persuasively in those cases, however, that the plaintiff-insurers have failed to state a claim, because HHS has no legal obligation to make the payments at issue . . . .
The House sought leave to file this amicus curiae brief, for the purpose of apprising the Court of DOJ’s meritorious argument in the later-filed cases that the QHPs cannot state a statutory claim for risk corridors payments in excess of program receipts – an argument that applies with equal force here.
Share this:TwitterFacebookEmailPrintGoogleTumblr

The Novelty of Nationwide Injunctions

Judge Hanen’s nationwide injunction in Texas v. United States has spurred a widespread debate over the power of a single district court to bind actors nationwide. For example, a detailed piece in Salon about the effort to break down Judge Hanen’s injunction includes this discussion:
David Leopold, former president of the American Immigration Lawyers Association and counsel to various reform groups, told Salon via email. “As a legal strategy challenging the Republican injunction outside the 5th Circuit is smart and effective because it uses a potent legal argument to ask a simple question: Why does a federal judge in Brownsville, Texas think he has the power to make decisions affecting the rights of millions of immigrants across the country who’ve never set foot in his courtroom and over whom he has no jurisdiction?”
This isn’t novel, at all. As Josh Gerstein observed in Politico a few weeks ago, the D.C. District Court have routinely granted such relief.
Nonetheless, some liberal legal activists seem reluctant to deplore the conservative states’ tactics. The reason: civil rights and immigrants’ advocates have long visited the courtrooms of federal judges to seek sweeping rulings looking to alter federal policy across the country.
“A single case involving a single judge can issue an injunction against nationwide laws or policies and they have always done that. That’s the way our legal system works,” said Nina Perales of the Mexican American Legal Defense and Education Fund. “It’s almost as if conservatives figured this out after progressives did….It’s really not new.”
Perales is an intervenor in the U.S. v. Texas litigation, so her comments here carry extra weight.
I supposes what is novel here, is that after the Nuclear Option, the D.C. Circuit is no longer the desirable it once was.
Share this:TwitterFacebookEmailPrintGoogleTumblr

Dissolving the Temporary Restraining Order in United Poultry Concerns v. Chabad of Irvine

On Tuesday evening, moments before sunset–and the commencement of Yom Kippur–District Court Judge Birotte dissolved a temporary restraining order he had entered four days earlier. How that TRO was dissolved is a important story to be told.
On Thursday, September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur begins on sundown on October 10, 2016.
As I told the Atlantic, it was unconscionable that the plaintiffs waited this long to seek a TRO.
“This is a tradition that happens every year at the same time,” Blackman said. “The fact that the plaintiffs waited until six days before the holidays to file a temporary restraining order is unconscionable.” He hopes Chabad will seek legal recourse based on what has happened.
A preliminary injunction could have been sought months ago, providing all parties to fully brief the case. But instead, they waited till the last minute to ambush the defendants at the worst conceivable time.
The twelve day period between September 28 and October 10 is (probably) one of the most hectic periods on the Jewish Calendar. First, the defendants were served process about the TRO on Saturday, October 1 (the Jewish Sabbath). During this time, no business can be transacted. The holiday of Rosh Hashanah stretched from Sunday, October 2 through Tuesday, October 5.  Likewise during this period, no business can be transacted. Wednesday,  October 6 was a fast day (no food or beverages can be imbibed). On Friday, October 7, the district court issued the ex parte temporary restraining order. Once again, the defendants were served process later that day, on the eve of the Sabbath when no work can be transacted.
During the telephonic hearing, the district court said he was “waiting” for the defendants to reply during the period between October 1 and October 7. As the above calendar shows, Rabbi Tenenbaum and Chabad of Irvine had higher priorities at this time than responding to an absolutely frivolous legal claim–one that has been filed and is currently pending in several state courts, with the activists losing every time. Don’t even get me started on the abstention issues at play here–issued not raised because of the ex parte nature of the order. (Also, though not in the papers, the Chabad community suffered the loss of a four-month old infant due to SIDS during this period. Their priorities were truly elsewhere.)
Aside from the fact that the plaintiff’s claim had no legal merit, the district court showed little awareness of the spiritual demands during this period of atonement. As proof positive, the court set an bizarre briefing schedule. Briefs were due the Tuesday morning before Yom Kippur, and oral arguments were scheduled for 10:00 a.m. the morning after Yom Kippur–at this point, it was too late to perform the ritual, so the entire motion would be moot! To use an example, imagine if a group sought an ex parte TRO on December 13 to prohibit a Catholic Church from performing a ritual on Christmas Day. The Court issued the TRO on December 21, requested briefing on December 23, and held a hearing on December 26!? Now, consider the fact that the defendants are religiously prohibited from working on nearly half the days in question.
As I told the Atlantic:
But most flagrant of all, Blackman said, was the timing. It was “really unfortunate that the judge made the briefs due the morning before Yom Kippur, and then made the hearing at 10 a.m. the morning after Yom Kippur,” he said. “As you can imagine, this is a very busy time to try and be in touch with a rabbi.” On Tuesday afternoon, the court gave notice of a new hearing time—just a few hours before sundown in California, when Yom Kippur begins.
Even worse, the judge seemed irked that he had to hold a telephonic hearing on short notice at 3:30 p.m. PT on Tuesday. Keep in mind that the Kaparot ritual cannot be performed after sunset on Tuesday. So there was barely three hours to go until the entire motion was moot. The hearing did not start till nearly 4:00 p.m. (after counsel had already made their appearance). The hearing stretched about 90 minutes.  Then the judge recessed for about 45 minutes. Finally, a few moments before sunset, the district judge announced that he would dissolve the TRO. By that point, it was impossible for the defendants to engage in the ritual, as they were already on their way to temple.Indeed, I was listening to the telephonic hearing, but had to depart early to go to temple. I was in suspense for some time about the outcome of the hearing–you can imagine how I was focusing my prayers. I should also note that an application for a stay to the 9th Circuit was fully briefed, but by stretching the proceedings out so long, it would have been impossible to even petition for an emergency stay.
I realize this may affect my pending application for motion for leave to file an amicus brief (although that would make for a fun case of 1st Amendment retaliation), but with all due respect, it is my professional opinion that the District Court court erred here–especially given the fact that his reason for dissolving the TRO was a 30-year old Supreme Court precedent (Thomas v. Review Board) that was readily available before entering the order in the first place. The court also suggested that the defendants could perform the ritual a different way: by waiving a bag of coins instead of chickens. This was a galling comment. Should Catholics drink Kool-Aid instead of communion wine, or use a ritz cracker instead of a wafer, if some activists determines that is a better option? (Keep in mind that the California Attorney General has never interpreted the statute in the dubious manner plaintiff suggests). Also, the court referred to the ritual as a “sacrifice.” A quick google search would have revealed that it is a ritual of atonement. (Jews have not performed sacrifices since the destruction of the second Temple in 70 AD). I am sincerely grateful to my attorney Ari Kafuman, who as a practicing Jew, was able to correct the Judge on these points and others. (Counsel for plaintiff objected to Ari’s comments because the motion for leave to participate as amicus was still pending). Ari, like me, had to depart the call early to attend services. When the transcript is available, I will post it.
I am grateful to the diligent attorneys at First Liberty (Hiram Sasser, Jeremy Dys, Stephanie N. Phillips), Wilmer Hale (Matthew T. Martens, Gregory Boden, Kevin Gallagher), and Michael Jones for their brilliant work. I would especially like to commend Matthew T. Martens, who presented a brilliant oral arguments on virtually no notice. His recitation of Church of Lukumi was perfect. They were only retained on Monday, October 10, and worked throughout the night to file their brief two minutes before the court’s deadline of Tuesday, October 11, at 8:00 PT.
Share this:TwitterFacebookEmailPrintGoogleTumblr



Upcoming Events




October 2016
« Sep