Apr 23, 2015

ConLaw Class 27 – The First Amendment – Free Exercise

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


The First Amendment – Free Exercise

  • Freedom of Religion (1103-1104).
  • Madison’s Memorial and Remonstrance against Religious Assessments (1104-1106).
  • The Free Exercise Clause (1110-1111).
  • Wisconsin v. Yoder (1113-1116)
  • Employment Division v. Smith  (1116-1124).
  • Note 7 on Religious Freedom Restoration Act (RFRA) (1126-1127)
  • Burwell v. Hobby Lobby (2014) (Reading TBD)
  • Church of the Lukumi (1128-1129)
  •  Establishment Clause (1133).


Employment Division v. Smith


And here is a photograph of the seal of the Employment Division of Oregon.



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Apr 22, 2015

I may not live to see Justice Souter’s Papers

In 2009 when Justice Souter retired, the Blog of the Legal Times reported that his papers would be released in 50 years. My buddy Mike Sacks and I made a pact to visit the New Hampshire Historical Society in 2059. In that year, god willing, I will be 75, which is Justice Souter’s age today.

It turns out the papers won’t be available in 2059, or 2060, or even 2064. We don’t know when they will be available, because Justice Souter instructed the New Hampshire Historical Society to release them 50 years after his death. Thanks to the inquisitiveness of Gerard Magliocca, and the reporting of Tony Mauro, we now know that Souter threatened to incinerate his papers if they were not embargoed for half a century after his death.

Justice Souter told Gerard:

“I have given such papers as I’ve retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view.”

“As I’ve retained” suggests there are other papers that are not retained–in other words, destroyed.

Tony reported that the Executive Director of the Historical Society said Souter was “emphatic” about the embargo.

Bill Veillette, the historical society’s executive director in 2009, also confirmed on Wednesday that Souter’s wish all along was for release of his papers 50 years after his death, not his retirement.

“He was very emphatic about it,” Veillette recalled. “He told me, ‘I’ve got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.’” Since many papers are donated by families decades or centuries after a notable person’s death, Veillette said Souter’s 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.

If Justice Souter lives to be Justice Stevens’s current age, then the papers will not be released until 2085. I will be 101 in that year. If I’m even still around, there is a distinct possibility that I will be one of the few remaining lawyers who knew of Justice Souter as an active Justice. What a travesty. I hate to break it to Justice Souter, but by the time 2085 comes along, I don’t think any historians will care much about him, or his role on the Court. And that’s exactly the way he wants it.

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Apr 21, 2015

ConLaw Class 26 – The First Amendment Speech II

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

The First Amendment Speech II

  • Brown v. EMA (887-900).
  • United States v. O’Brien (900-907).
  • Texas v. Johnson (907-917).
  • Time, Place, and Manner Regulations (917-918).
  • Renton v. Playtime Theaters (918-924). Incitement (924).
  • Clear and Present Danger (927-931 note 3).
  • Brandenburg v. Ohio (935-937).
  • Note on Central Hudson (979-980).

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Apr 19, 2015

SCOTUS Goes Hollywood – “Woman in Gold” and Austria v. Altmann

Woman in Gold tells the story of Maria Altmann, who sued the Austrian Government to recover paintings that were stolen by the Nazis. This case culminated in the Supreme Court’s 2004 decision in Republic of Austria v. Altmann, finding that the Foreign Sovereign Immunities Act was not retroactive, and did not serve as a jurisdictional bar. The movie itself was okay (great story, weak acting other than Helen Mirren), but the scene in the Supreme Court was so terrible, I laughed out loud in the theater.

The entire scene lasted maybe two minutes, and it was painfully inaccurate.

First, the design of the Court wasn’t even close. There were red curtains on the side, no bar separating the lawyers from the audience, and Altmann (the client) sat second chair! Before the hearing started, she took out a box of cough drops and gave one to her lawyer, Schoenberg.



The actors they selected to play the Justices were passable, but the name tag in front of Chief Justice Rehnquist was absurd. (At least they got the gold stripes).


Also, why in the world is there a fan next to Justice Breyer!? Is he not cool enough on his own (don’t answer that).


Justices Kennedy and Thomas have a carafe of water in front of them:


And Justice O’Connor has a proper neck doily.


I could not find a video with Justices Stevens, Scalia, Souter, and Ginsburg.

Second, the petitioner got up, said “I’ll be concise”, and made an argument for about 15 seconds. That’s it. Then he sat down. He gets no questions.

Third, the United States got up. The lawyer playing Deputy Solicitor General Thomas Hungar looked like he was about 70 years old.  At least he was wearing a morning coat. He said something about how if this case goes forwards, other claims against Japan may be brought. This actually happened:

Chief Justice Rehnquist: Yes.

Mr. Hungar: The… we… there are currently cases pending against countries such as Japan and Poland, with which… which this country previously entered into agreements which both sides thought had resolved the issue entirely, and to now retroactively apply a substantive provision that this Court recognized in Ex parte Peru is a substantive, not merely jurisdictional, but a substantive legal defense, to apply that retroactively would be to change settled expectations, change the rules, and it should not be done.

Then Chief Justice Rehnquist looked at the octogenarian Altmann, and said something to the effect of, “If we rule for you, then we have to worry about claims from Japan.” Everyone in the audience started laughing. (Well, the Chief did join Justice Kennedy’s dissent, ruling against Altmann, so maybe he was thinking this.).

Fourth, Schoenberg’s argument was so, so, so terrible. Here is a rough transcript:

We’re very sensitive to the government’s concerns, Mr. Chief Justice. It is the can of worms argument . . . . We recommend opening the can. And extracting one little worm with a pair of tweezers and quickly closing it shut again . . . . This is a case of one woman, wanting back what is rightfully hers . . . . Let’s give her justice too.

Yes, this is actually the argument made. I burst out laughing. I couldn’t help it.

Perhaps the only thing that was semi-accurate was that in the movie Chief Justice Rehnquist asked a question of Schoenberg. I had no idea what the question was, something about jurisdiction that made no sense. In the movie, Schoenberg replied something to the effect of “I didn’t understand that question.” Apparently, that actually was said. Justice Souter asked some question, and Shoenberg replied:

“Well, I’m . . .  I’m not sure that I understand the question.” (Turn to 27:59 on Oyez).

There was one scene earlier in the movie where Ronald Lauder (the heir to the Estee Lauder fortune) unsuccessfully tries to get Altmann to drop her lawyer and have someone more experienced argue before the Court. (Her lawyer had never argued a case before SCOTUS before). According to “Lady in Gold,” the book that was the basis for the movie, Lauder suggested that she hire Robert Bork! According to Oyez, Bork only had one argument since the 1990s–the 2002 case of  Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. The role of Lauder was played by some actor named Ben Miles, but I think Tom Goldstein could have pulled it off much more naturally–and maybe he would have snagged the client too!

Watch the clip at your own peril. It’s painful to watch.

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Apr 16, 2015

In Face of Veto Threat, President Backs Down From Executive Action

The Times has an important overview of the President’s decision to back down from vetoing the bill of Iranian sanctions in the face of a veto-proof majority. The article ties together gridlock and executive power, and makes clear that when even the President’s own party thinks he has over-reached, he acquiesces.

In his assertions of executive power to advance his agenda in an era of gridlock, President Obama has been largely on offense. But his latest battle with Congress not only left him on defense, it actually broke the gridlock. Against him.

Mr. Obama’s abrupt decision to sign a compromise version of legislation on Iran that he had previously vowed to veto was a bruising retreat in his larger campaign to act without Congress’s getting in his way. In this case, partisanship gave way to rare consensus on Capitol Hill: Both sides agreed that he was wrong to cut them out.

The White House tried to make the best of the setback, arguing that the bipartisan bill was less objectionable than the initial draft. But the president’s concession in the face of potentially veto-proof majorities underscored that even his fellow Democrats believed he had overreached in trying to operate on his own. And it suggested that he may be approaching the outer boundaries of his authority with 21 months left in office.

I can’t imagine any other circumstances where the President’s own party would stand up against his domestic policies, for example with respect to immigration or Obamacare. Maybe, for now at least, foreign policy is still a safe zone for bipartisanship.

I would counter that the watered-down bill which the President signed has few meaningful restraints, and lets the President negotiate unfettered. As Yishai Schwartz noted on Lawfare, the President is “perfectly pleased” to sign this new deal.

The White House gained the high ground in any confrontation over the Iran deal the moment its lawyers discovered the sanctions regime could be dismantled by executive action. From then on, Congress and the potential deal’s critics have been playing defense. The delay period imposed by the revised Iran Nuclear Agreement Review Act at least offers some check on the executive. But a check of some sort was likely inevitable—and this one is rather minimal. In the long-term, the appearance of this check may simply offer the president a bit more legitimacy as he unilaterally carries a deal across the finish line.

This bipartisan bill may have been a way to shield the President from a tougher bill. Now, he can show face. The Times explains:

Still, as a practical matter, this bill is no more likely to actually stop the deal with Iran than the original version. Under either version, Congress could pass a resolution rejecting the Iran agreement, but Mr. Obama could veto it, meaning he needs to hold onto no more than 34 senators or 146 House members to prevent an override.

As a side note, the President says he has “exhausted” his executive powers.

And during an appearance here on Wednesday to talk about issues like pay equity, Mr. Obama acknowledged that he had fewer options left for using his power without congressional support. “We’ve probably exhausted what I can do through executive actions,” he told a woman who asked if he could do more on his own to equalize pay between men and women.

Color me not persuaded. He made these exact comments after DACA, and said he could not expand his powers with respect to immigration. Then, we got DAPA.

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Apr 16, 2015

ConLaw Class 25 – The First Amendment – Speech

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

The First Amendment – Speech I

  • The Addition of the Bill of Rights (43).
  • Amemdment Process – Article V (817-818).
  • Amendments Outside Article V (821-822 notes 14 and 15).
  • Barron v. Baltimore (48-53).
  • The BIll of Rights (827-831).
  • The First Amendment (831-839).
  • New York Times v. Sullivan (853-861).
  • Chaplinsky v. New Hampshire (880-884).
  • Categorical exclusions (885-887).

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.


This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.


Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.


Here is a transcript of the advertisement.

The New York Times

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
– New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.


Here is Sullivan talking with police officers.


Here is Sullivan with his family in 1962.


Chaplinsky v. New Hampshire

Are these fighting words?


Walter Chaplinsky, a Jehova’s Witness, would often preach in Rochester, New Hampshire’s Central Square.






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Apr 14, 2015

Texas Files Supplemental Opposition to Stay in Texas v. U.S.

You can download it here

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Apr 14, 2015

Bloomberg BNA on Crane v. Johnson

Kimberly Stawbridge Robinson (no relation to Curtis) wrote a solid overview of Crane v. Johnson–Mississippi’s challenge to DACA–which the 5th Circuit recently tossed on standing grounds. I am quoted in a few spot:

Tipping Its Hat. Josh Blackman, who filed an amicus brief with The Cato Institute supporting the state in the Texas case, said that the Mississippi and Texas cases ‘‘are quite different.’’

Blackman, a law professor at the South Texas Col- lege of Law, Houston, told Bloomberg BNA via e-mail April 8 that the Mississippi ‘‘case was filed in 2012 shortly after DACA was implemented. To show stand- ing, [Mississippi] relied on an outdated 2006 report on the effect of illegal immigration on the state.’’

The Fifth Circuit said that was insufficient to confer standing.

‘‘Mississippi submitted no evidence that any DACA eligible immigrants resided in the state,’’ the court said. ‘‘Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state.’’

‘‘Mississippi was required to demonstrate that the state will incur costs because of the DACA program,’’ the court said. ‘‘Because Mississippi’s claim of injury is not supported by any facts, we agree with the district court that Mississippi’s injury is purely speculative.’’

In contrast, Blackman said that the ‘‘Texas case was filed in 2014, two years after DACA was implemented. To show standing, Texas (and 2 other states) offered detailed affidavits documenting specific cost to the state for providing driver’s licenses to DAPA beneficiaries.’’

He said that a concurring opinion by Judge Priscilla Richman Owen ‘‘may have been tipping a hat’’ to Texas on how it could do a better job showing standing.

But Blackman said that while the record in the Mis- sissippi case ‘‘had virtually no basis to assess whether DACA was discretionary,’’ the record in the Texas case ‘‘has a trove of information about how DACA has been implemented.’’

‘‘On the merits, the 5th Circuit will have a solid re- cord to decide whether DAPA is in fact discretionary, or an ‘abdication’ of the law, as Judge Hanen found,’’ Blackman concluded.

Both Wydra and Blackman said that the issue is likely to land in the Supreme Court.

But Blackman predicted that if the court did agree to hear the case, arguments wouldn’t be heard until next fall.

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Apr 14, 2015

Wittes: POTUS “successfully turned congressional calcification and paralysis to his advantage”

Ben Wittes writes that the ISIS AUMF is now dead, and POTUS has won.

We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.

The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.

Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.

It was a smart play on the part of White House lawyers. And lawmakers, true to form, are showing its tactical wisdom.

This is a point that Justice Scalia made in his Noel Canning dissent. In any long-term struggle between the President and Congress, the President will prevail due to the collective action problems of getting Congress to agree. These collective action problems are even stronger in our age of gridlock.

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Apr 14, 2015

Sen. Ron Johnson Offers Preview of How POTUS Will React to King v. Burwell

In the WSJ, Wisconsin Sen. Ron Johnson offers a prediction of how the President will react if the Court invalidates the IRS Rule in King v. Burwell.

If the court rules against him, President Obama’s response will be diabolically simple and highly effective. He will ask Congress to pass a one-sentence bill allowing the subsidies to flow through federal exchanges. At the same time he will offer governors a contract to convert their federal exchanges into state exchanges with a simple stroke of a pen.

He will also mobilize his massive national political operation. It is easy to imagine the advertising campaign that will promote his simple solutions and viciously attack any opposition. Heart-wrenching examples of Americans who have benefited from ObamaCare—and there are millions who have, through taxpayer subsidies—will flood every TV channel.

The mainstream news media will ignore or contest the stories of those millions who lost their coverage because of ObamaCare and who now find health insurance very unaffordable. Without an effective response from Republicans, there is little doubt that the crisis would allow President Obama to permanently cement ObamaCare in place.

I think this is exactly what will happen. And the President will veto anything that is not a one-sentence bill. As I’ve noted before, the Republicans will lose this game of chicken (see here, here, and here).

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Apr 14, 2015

ConLaw Class 24 – Individual Liberty III

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

Individual Liberty III

  • Romer v. Evans (1432-1441).
  • Lawrence v. Texas (1557-1571).
  • Notes (1571-1572).
  • Substantive due process review (1572).
  • United States v. Windsor
  • Same-Sex Marriage Cases


Lawrence v. Texas

Here are photographs of John Geddes Lawrence and Tyron Garner, the Houston residents prosecuted under Texas’s sodomy statute.






United States v. Windsor

This is Edie Windsor, the face of U.S. v. Windsor.


On the steps of the Supreme Court.




In 2012, 538 forecasted support of same-sex marriage over the next eight years. This did not turn out to be accurate.


Please listen to this exchange between Justice Kagan and Paul Clement in United States v. Windsor.

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Apr 13, 2015

POTUS: King v. Burwell is “Pretty Clear Cut”

Following up on his previous comments (here and here), the President weighed in once again on King v. Burwell.

President Obama said Monday expressed confidence that the Supreme Court will uphold a key portion of his healthcare law this summer.

“I’m confident in the Supreme Court applying its own rules of interpreting laws [and] will uphold the law,” Obama said in an interview with Portland, Maine, NBC affiliate WCSH. “It’s pretty clear cut.”

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Apr 12, 2015

Obamacare Talk in Tampa Tomorrow

On Monday at noon I will be speaking at Stetson Law School on the constitutional challenge to Obamacare, as well as Hobby Lobby and King v. Burwell. Fittingly, I will be speaking the state where the challenge was born–not too far from Pensacola, where the initial complaint was filed by Florida and other states. If you are in the Tampa area, please stop by!


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Apr 10, 2015

Posner Writes 22 Page Antitrust Opinion With No Citations To Caselaw Other Than Underlying Proceedings

Judge Posner’s opinion in Aircraft Check Services Company v. Verizon Wireless has no citations to caselaw in its analysis section. None. Not one. The only citations are to the underly proceedings. After a lengthy blockquote from a previous case that ends on page 5, there is not a single citation to any other case. Forget about any citations to the record. In case you were curious, the case was argued on Feb. 10 and decided on April 9.

Posner being Posner.

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Apr 9, 2015

President Obama Weighs in on King v. Burwell, Explains Court Will “Factor” Impact of Law on Health Care

The Hill reports on an interview President Obama gave on CNN concerning King v. Burwell.

First, he commented on the challenge to the IRS Rule:

“I think this is sort of the last gasp of folks who’ve been fighting against this for ideological reasons,” Obama said in an interview with CNN.

Second, he stuck to the party line that there is no Plan B if the Court invalidates the IRS Rule

“The truth is, is that there aren’t that many options available if, in fact, they don’t have tax credits,” Obama said. “They can’t afford to get the health insurance that’s being provided out there.”

The Supreme Court case, which will likely be decided in June, rests on the language in ObamaCare related to insurance subsidies, which the president defended as “pretty straightforward.”

Third, he offered a prediction of how the Court will rule:

“I don’t think the Supreme Court is going to adopt the arguments of those who are arguing that, somehow, tax credits given to people who live in Texas don’t apply where somebody who lives in Massachusetts does get the tax credits,” Obama said, repeating his previous explanation of the origin of the King v. Burwell controversy.

Fourth, the President explained that the impact of the ACA “will be factored in when the” Court decides the case:

Obama stressed that the healthcare law is already working to expand access and reduce costs for millions of people in the U.S. — something he believes the Supreme Court justices are likely to take into account.

“I get letters every day from people who say, you know what, the Affordable Care Act saved my life, or saved my kid’s life because I got insurance,” he said.

“We hear stories about that all the time and I think that will be factored in when the Supreme Court takes a look at this case.”

Update: TPM has extended quotes from POTUS:

“If you read the statute, it’s pretty straightforward and it’s pretty clear. So I’m not anticipating that the Supreme Court would make such a bad decision,” he said. “If the Supreme Court made a ruling that said the folks who have federal exchanges don’t get the tax credits what you’d end up seeing is millions of people losing their health insurance. And the truth is that there aren’t that many options available if in fact they don’t have tax credits, they can’t afford to get the health insurance that’s being provided out there.”

The President has pre-emptively labeled the Court ruling against him a “bad decision.” Flashbacks to 2012.

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Apr 9, 2015

“Writing is a muscle”

I’ve really enjoyed the recent posts on the 10th Anniversary of PrawfsBlawg. Howard Wasserman’s post makes a very important point about junior faculty members blogging:

I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle–the more you use it, the more you are able to use. Rather than distracting from “real” scholarship, being on this site has allow me to fulfill the need to do “other stuff” while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).

I couldn’t agree more. Everyone told me not to blog when I was a law clerk. Everyone told me that it would doom any chances of my ever becoming an academic. I can say, without much qualification, that I got my job in large part because of my blog. But more importantly, the exercise of blogging has trained and conditioned me to become a better writer. People often ask me how I can write so much. My answer is usually the same–I work quickly. And that isn’t by accident. Writing is a muscle. The more you write, the better you get at it. I can now type out a pretty detailed post in a manner of minutes. The same agility carries over when I am writing a law review article. Blogging isn’t for everyone, but it provides an intensive regimen to hone your analytical skills.


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Apr 9, 2015

ConLaw Class 23 – Individual Liberty II

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

Individual Liberty II

  • Eisenstadt v. Baird (1494-1500).
  • Roe v. Wade (1500-1516).
  • Planned Parenthood v. Casey (1516-1540).
  • Notes (1540-1544).

Eisenstadt v. Baird

This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.




This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.

This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.


This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . .  and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”




Roe v. Wade

This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.




Here is McCorvey in 1985.


Roe didn’t even make top billing in the Times. LBJ died on decision day.


In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.

Here is the portrait of Taney that Scalia references in his Planned Parenthood dissent:





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Apr 9, 2015

Gender-Segregated Public Bathrooms

When I teach United States v. Virginia, I try to think of laws that involve gender classifications that would survive intermediate scrutiny. One of the the most useful examples I’ve come up with is a state policy of having separate bathrooms or locker rooms for men and women. I explain that a law providing for locker rooms segregated by race would easily flunk strict scrutiny. But locker rooms separated based on gender would survive intermediate scrutiny, right? In light of the developing caselaw in this arena, I don’t know if the answer will remain so clear. Two cases decided in the last week speak directly to this issue.

First, in an opinion by Judge Kim R. Gibson (for whom I clerked from 2009-11), the court rejected the claim of a transgender man who was denied access to the men’s bathroom and locker rooms at the University of Pittsburgh at Johnstown. Judge Gibson frames the issue in terms of the competing interest:

At the heart of this case are two important but competing interests. On the one hand is Plaintiff’s interest in performing some of life’s most basic and routine functions, which take place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex. Additionally, the Court finds controlling the unique contours under which this case arises. Namely, the context is a public university, whose mission is primarily pedagogical, but which is also tasked with providing safe and appropriate facilities for all of its students.

What is the state’s interest in favor of the sex-separated bathrooms? The court answers, allowing people to have a “safe and comfortable environment.” Why is excluding the plaintiff inconsistent with a “safe and comfortable environment”? The question can only be answered with the next rationale offered by Judge Gibson: because of “society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex.” Substitute the word “sex-segregated spaces” with “marriage,” and you have a page out of the Respondents brief in the upcoming marriage cases. Gibson adds further, “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”

If the Court holds this June that LGBT status is given heightened scrutiny under the equal protection clause, I don’t think these rationales will work anymore. I can see the government’s reply to this argument–the belief that the plaintiff’s presence in the bathrooms would eliminate this “safe and comfortable environment” is based on stereotypes and antiquated notions of socially-constructed gender roles.

The University offered this defense: “its policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.” But this begs the question. Why is the desire of some to disrobe around people of the opposite sex warranted in justifying this form of discrimination?

Another possible rationale is that the state claims that excluding transgender people from the bathroom can be used to prevent sexual gratification. This conflates gender identity and sexual orientation–they are not always connected–and again reinforces stereotypes about sexual attraction based on so-called antiquated mores.

Even though there are physical differences between men and women, can’t the state achieve a more narrowly tailored solution by installing stalls in the bathroom to permit those who want privacy to have privacy, and those who don’t to use the open space? Unisex bathrooms may be reasonable accommodations, but still have the effect of stigmatizing and othering people like the Plaintiff in this case who declined to use a single-occupancy bathroom. The Virginia Military Institute created accommodations for female cadets. Why can’t the same be done in public bathrooms and locker rooms? If the doctrine continues to develop in the direction it is currently developing, I don’t see how public bathrooms can continue to exist as they do now.

Relatedly, the Times offers this story from the White House:

Officials also announced the creation of an “all-gender restroom” in the Eisenhower Executive Office Building, where many of the White House staff members work, to provide an additional option for transgender individuals who are not comfortable using either the men’s or women’s restrooms.

The second case of note involves not the Equal Protection Clause, but Title VII and bathrooms. Title VII, unlike the equal protection clause, applies to private businesses. As Chris Geidner reports, the EEOC held that “some of the most common problems transgender people face in the workplace — including bathroom restrictions” violate Title VII.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor….

In the EEOC decision, provided to BuzzFeed News by Lusardi’s lawyers, the independent agency found that in addition the disparate treatment violation of Title VII, the Army also was guilty of harassment, subjecting her to a “hostile work environment based on sex” due to the restroom restrictions and by allowing the misgendering to continue “well after [the supervisor] was aware that [Lusardi]’s gender identity was female.”

(Three years ago, the EEOC took the position that discrimination against transgender people is a form of sex discrimination under Title VII. Just last week, DOJ filed suit against Southeastern Oklahoma State University, which allegedly denied tenure to a professor over her identity as a transgender woman.)

As I read the opinion, no medial procedure is necessary for a person to establish a gender identity, and others are prohibited from discriminating on this basis–including by denying access to a bathroom.

“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else),” the opinion states. “An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” …

Later, when discussing the Army’s claim that it restricted Lusardi’s restroom use due to potential discomfort of other employees, the EEOC found that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. … Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”

In a somewhat cryptic-comment, after noting the ebullience of the plaintiff and Transgender Law Center, Geidner suggests that not everyone in the LGBT community may be happy with the ruling:

It was not immediately clear how the EEOC decision will be received by government agencies and LGBT organizations. When the Macy decision came down in 2012, there initially was some reticence from other LGBT groups to discuss the ruling’s potential impact and from some areas of the federal government to apply the ruling to related legal provisions. Eventually, though, almost all LGBT groups and federal agencies joined in pressing the case that Title VII’s sex discrimination ban includes anti-transgender discrimination.

What is this “reticence” to discuss the “potential impact” of the law? Geidner does not say.

Judge Gibson’s opinion recognizes, implicitly, that this may not be the rule of law for long:

At the outset, the Court notes that society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identify, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identify, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.

As I’ve noted before, the Court’s upcoming decision on same-sex marriage is a lot harder than most people acknowledge.


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Apr 8, 2015

Congressional Inaction and the 2001 AUMF

Echoing a post from Jack Goldsmith, Ben Wittes argues that Congress’s inaction on opposing the President’s incursion against ISIS amounts to a de facto ratification of the President’s reading of the 2001 AUMF.

Today, I want to focus on another area where Congress is poised to do nothing: authorizing force against the Islamic State.

Specifically, I want to argue that this inaction has important consequences—though less in the fight against ISIS than in the relationship between the executive and legislative branches over war powers. In the context in which it is taking place, this inaction—in my opinion, anyway—constitutes a meaningful congressional acquiescence in the President’s bold and relatively attenuated claim of authority to confront ISIS under the 2001 AUMF.

Yet let’s review the inter-branch bidding so far. First, the President asserted that he didn’t need an additional congressional enactment because the 2001 AUMF already covered operations against the Islamic State. Then prominent key members of Congress moaned for months that he was operating without congressional involvement and argued that he should seek a separate authorization. In response, while continuing to maintain that he did not need one, the President sent up a draft authorization that would supplement—but not replace—the 2001 AUMF, thus effectively taunting Congress with the duplicative nature of its potential involvement in this space. In effect, President Obama told Congress to go through the motions of passing a resolution if it wished but to do so understanding that its actions wouldn’t matter.

This had the effect of relieving Congress entirely from responsibility—except perhaps moral responsibility—for authorizing force. Congress’s vote would only have operational importance if it somehow circumscribed the 2001 AUMF, in addition to passing a new one. So it’s not too surprising that, having been told that its action or inaction was symbolic only, Congress has not rushed to pass an AUMF.

But it’s worth pointing out that this inaction effectively embraces the President’s interpretation of the 2001 AUMF. Because almost nobody in Congress is arguing that current operations in Iraq and Syria are illegal. Indeed, the pressure is all in the other direction. People are complaining that Obama is not doing enough against the Islamic State, that we are showing weakness and lack of commitment, that our airstrikes alone are ineffective. Well, if you put those pieces together—(1) Congress is not complaining about the legality of what the President is doing, (2) Congress, in fact, seems to want the President to do more, and (3) Congress declines to pass a specific authorization to cover what he’s doing or to circumscribe the statute under which he claims to be operating—it follows that Congress must accept the claim of authority the President is making under current law.

I don’t think you have to be an enthusiast of executive power to read things this way. And this seems to me have potentially far-reaching implications for future interpretation of the AUMF.

This is a point I presaged in my article last summer Gridlock and Executive Power. Inaction, resulting in acquiescence, amounts to a ratification of the President’s flawed constitutional arguments.

Update: More from Jack Goldsmith on acquiescence and Bergdhal here and here.

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Apr 8, 2015

The Impact of Mississippi’s DACA Challenge on Texas’s DAPA Challenge

Marcia Coyle writes in the National Law Journal about how the 5th Circuit’s decision tossing Mississippi’s challenge to DACA may impact Texas’s challenge to DAPA. In contrast with my friend Stephen Legomsky, I do not think it makes that much of a difference, but for the first time in a while, the DOJ gets some good news on this case.

As the U.S. Department of Justice readies its defense of President Barack Obama’s immigration executive order in the U.S. Court of Appeals for the Fifth Circuit, its arguments have drawn an unexpected boost from a panel of that same court.

A unanimous three-judge panel in Crane v. Johnsonheld on Tuesday that the state of Mississippi and several federal U.S. Immigration and Customs Enforcement agents lacked standing to challenge the 2012 Deferred Action for Childhood Arrivals program, known as DACA.

“This decision has major implications for the appeal pending before the same court in Texas v. United States,” said immigration law scholar Stephen Legomsky of Washington University in St. Louis School of Law.

The government may find “slight” encouragement in the ruling, said Josh Blackman of South Texas College of Law. Still, he cautioned, the records in the two cases are very different.

Washington University’s Legomsky, who joined an amicus brief supporting the administration in the Texas case, said, “This conclusion wipes out the entire premise—that DACA and DAPA are not discretionary—for Judge Hanen’s determination that the APA required notice-and-comment rulemaking.”

Mississippi’s inability to show that the DACA program would decrease its net revenue rather than, as the administration claimed, increase it, applies to Texas’ arguments on standing, he added.

However, South Texas’ Blackman, who field an amicus brief in the district court supporting Texas on behalf of the Cato Institute, said, “I think the difference between the two cases is the record.” Mississippi filed its DACA challenge a week after the program was announced in 2012, he said.

“The record is very sparse,” Blackman said. “Mississippi had almost no evidence it would be injured by DACA. There was no track record. It relied on a 2006 study on the effect of illegal immigration on the state. It couldn’t prove concretely what the impact would be.”

Texas, to the contrary, has amassed a “huge file” establishing an impact, he said. The state had “very detailed affidavits from a number of state officials on the specific costs of applicants in terms of drivers’ licenses, down to the penny.”

On the alleged discretionary nature of the program, he added, “We’ve now had DACA for three years and almost everyone gets granted.”

On the standing ruling in the Mississippi case, the administration “doesn’t get much,” he argued. The “most troubling portion” of the opinion for Texas is the panel’s comments on the discretionary aspect of the program.

“Based on the record the court had before it, that was probably accurate, but the record before Hanen is different. Maybe the federal government has a slight benefit,” he said.

Panel rulings bind other panels within the circuit court.

While it is certainly true that conclusions of law from one panel are binding on another, the question of abdication is a factually-intensive question, based on the record before the court. A different panel could come to a different determination.

I should also note that contrary to some chatter that the Crane panel may also be the panel for Texas’s case, a colleague who is a frequent litigant in the 5th Circuit writes that the “5th Circuit’s Internal Operating Procedure’s don’t allow for games with assignments like the 7th or 9th Circuits.” (He means Posner and Reinhardt).


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