During an interview on CBN, Marco Rubio weighed in on the Supreme Court, as well as what happens when “God’s rules” come into conflict with civil society. I roughly transcribe his remarks in this post.
First, he was asked a question about whether Obergefell is “settled law,” and if the “Supreme Court has erred like in Dred Scott.”
It is current law, it is not settled law. No law is settled. Roe v. Wade is current law, but that doesn’t mean we aspire to fix it because we think it is wrong. But in the interim until we can get a Supreme Court to overturn Roe v. Wade we do everything possible within the constraints it has placed upon us to confront it, and limit the number of abortions, and save as many lives as possible.
Second, Rubio segued into a discussion on the role religion plays in civil society, and what happens when the two are in conflict.
We are clearly called in the Bible to adhere to our civil authorities. But that conflicts with also a requirement to adhere to God’s rules. When those two come in conflict, God’s rules always win. If we are ever ordered by a government authority to personally violate and sin, violate God’s law and sin, if we are ordered to stop preaching the gospel, if we are ordered to perform a same-sex married, as someone presiding over it, we are called on to ignore that, we cannot abide by that, because the government is compelling us to sin.
The host David Brody interjects, and asked “That’s what Kim Davis did?” Rubio doesn’t acknowledge the question, and continues answering.
In the absence of that, however, then it depends on the type of society you live in. If you live in a society where the government creates an avenue and a way for you to peacefully change the law, then you are called on to participate in that process to try to change, not ignoring it, but trying to change the law.
Rubio continued to explain why he thinks marriage is the union between a man and woman, and should be defined by the states, not the Supreme Court.
And that’s what we are endeavoring to do here. I continue to believe that marriage laws should be between one man and one woman, and the proper place for that to be defined is at the state level, where marriage has always been regulated, not by the U.S. Supreme Court, and not by the federal government.
I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio, Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.
Disclosure: I advise the Rand Paul campaign.
I’m in Iowa — the heartland of America. Earlier today, I sat down with Presidential hopeful Marco Rubio. I asked him about same-sex marriage being so-called “settled law.” He had some interesting things to say about the moral conflict many Christians face when the Bible commands to obey civil authorities but also the overlying mandate to follow God’s law. What do you think of what Rubio had to say? Watch below. We’ll have much more on this next week AFTER THANKSGIVING on The 700 Club. This is just a little taste of what’s to come.
Posted by David Brody on Tuesday, November 24, 2015
President Obama Signs NDAA With Signing Statement, But It May Be Unconstitutional In “Certain Circumstances.”
On the eve of Thanksgiving–when no one is paying attention–President Obama signed a virtually-identical NDAA that he previously vetoed, that had the same restrictions on transfers from detainees at Guantanamo Bay. His signing statement states that there are “certain circumstances” when the restrictions would be unconstitutional:
Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles. Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus. In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.
The “certain circumstances” rationale has been the self-professed modus operandi of the Obama lawyers. For example, citing a “unique set of circumstances,” the NSC justified the swap for Bowe Bergdahl for five high-value detainees. Rather than adopting a broad Article II theory of executive power–as was de rigueur during the Bush Administration–the Obama lawyers simply say, “Well, Congress can impose limits, but not in this situation.” What’s the difference? The Obama approach purports to establish limits, and identify circumstances that would not justify the executive override.
Is this a distinction without a difference? In a recent post at Just Security, responding to Charlie Savage’s book, Dawn Johnsen (who was nominated, but blocked as OLC head), defends the “circumstances” approach.
To take one prominent example that contrasts sharply with the interrogation memos of the Bush administration’s OLC: In an opinion authored by Barron, OLC meticulously interpreted and respected all potential legal constraints applicable to the proposed targeting of Anwar al-Aulaqi and advised — persuasively, in my view, at least as far as I can tell from the redacted version that is publicly available — that the operation would be lawful under a carefully constrained set of circumstances. Even though that memorandum did not conclusively opine on whether such targeting would be lawful in other circumstances, it strongly pointed toward legal limits. Moreover, Savage reports that administration lawyers later refused to deviate from those implied limits and opined that another American citizen could not be targeted because it appeared feasible that Pakistan might be able to capture him and transfer him to the US for prosecution — which (if Savage’s reporting is correct) is, in fact, what happened.
Does the “circumstances” bulwark work? Dawn’s writes, “Power Wars recounts time after time when Obama administration lawyers worked diligently with other officials to craft lawful, successful policies.” She adds, “Power Wars details the considerable extent to which the Obama administration has restored the rule of law to its traditional role as a constraining force on executive branch action.”
This “circumstances” framework only works so long as the President cares enough to follow the advice of OLC.I think one of the most damaging legacies of the Obama administration was its disregard of the Office designed t0 impose these checks.
Further, often the “circumstances” framework is hard to justify with a straight face. (See my article Gridlock and Executive Power). For example, with the NDAA, the restrictions on the transfer of the detainees were passed in light of the President’s repeated efforts to remove detainees in exchange for Bergdhal. The very “circumstances” Congress legislated against, were the “circumstances” the President found inapplicable. Color me skeptical that this was a meaningful distinction from NSC (not OLC).
At the CAC Blog, Brianne Gorod writes that it would be “political” for the Court to not grant the SG’s request so the U.S. v. Texas could be heard this year.
So the Court can hear the case this Term, and it absolutely should. That’s true not only because the questions it presents are incredibly important, but also because the President’s program will remain blocked until the Supreme Court decides this case. Moreover, given the timing of the presidential election, it’s possible this case could be mooted with the program never having gone into effect and with the Supreme Court never having had an opportunity to weigh in. Indeed, if the Court doesn’t hear the case this Term, it may look like the Court is playing politics with the timing of the decision, trying to avoid yet another politically charged case on its docket (there are already quite a few) in an election season. If there’s one thing Chief Justice Roberts has made clear, on repeated occasions, it’s that he doesn’t want it to appear that the Court is a political body.
But there is another way of looking at this situation. As Ilya and I explained in The Federalist, the Court could possibly avoid a significantly bigger political confrontation by following the “ordinary course” and allowing the case to be obviated by the election. On Twitter Chris Walker referred to this as “passive virtue.”
On the one hand the Court would affirmatively depart from the “ordinary course” because of the Solicitor General’s extraordinary request to hear this case before his Boss leaves office. On the other hand, the Court could passively do nothing, follow the ordinary course, and potentially avoid altogether the need to set a significant precedent in a compressed time.
We will soon find out what the Justices will do
On Friday the Solicitor General filed his petition for certiorari in United States v. Texas. Monday morning, Texas filed a letter requesting a 30-day extension to file its brief in opposition. Tuesday morning (after some last-minute scrambling), Ilya and I published our Op-Ed on The Federalist, explaining what Texas asked for, and anticipating whether the SG would formally oppose the extension. Tuesday evening (while I was on the flight home to New York), the Solicitor General filed a 2-page letter with the Court, formally opposing the extension, and in the alternative, noting that if it is granted, he will request expedited arguments in May. The Court will very likely rule on the issue by Wednesday.
The Solicitor General’s letter is a fascinating study in appellate procedure and advocacy.
First, the letter explains that the case should be heard “this Term”:
The government respectfully opposes state respondents’ request for a 30-day extension, to and including January 20, 2016, of the time to file a brief in opposition in the above-captioned case. A filing on the proposed date would preclude the Court, in the absence of unusual expedition, from deciding to hear the case this Term.
The SG does offer a compromise–instead of 30 days, he’ll concede to 8 days, and waive the government’s right to file a reply. Because this will get the case on the Court’s January 15, 2016 conference, which would allow the Court to decide the case “in the ordinary course.”
The government would, however, consent to an 8-day extension, to and including December 29, 2015, provided that the brief in opposition were physically on file with the Court on that date. A filing on that schedule, in conjunction with the government’s willingness to forgo its right to file a reply before the case is distributed, would allow the Court to consider the petition at its January 15, 2016 Conference, thereby enabling the case to be decided this Term in the ordinary course if the Court grants review.
I was trying to think in our article of describing the Courts the way the Court usually does business. “Ordinary course” is a good way of describing it. The SG also refers to the Court’s “default schedule”
In opposing state respondents’ extension request, the government is seeking nothing more than a schedule that more closely tracks the default schedule set forth in this Court’s rules.
That’s also a helpful way of describing it.
But why is this case so important to hear this term?
The policy was first announced on November 20, 2014, and was enjoined before the principal provisions became effective. If the Court were to grant the petition, but set review for next Term, it is possible that a decision on the merits would not be issued until June 2017, over two-and-half years after the policy was first announced.
This offers more meaning to the phrase “ordinary course” and “default schedule”–a big case argued in October won’t be resolved till June.
Next, the government explains that it moved “expeditiously at every stage.”
The government has endeavored to ensure prompt resolution of this case and moved expeditiously at every stage. The initial preliminary-injunction proceedings in district court were completed by February 16, 2015, less than two-and-a-half months after the States’ complaint was filed. The government promptly filed motions for a stay of the preliminary injunction in both the district court and the court of appeals, both of which were denied. The government also filed a motion to expedite the appeal, which the court of appeals granted. And the government filed its petition for a writ of certiorari just 11 days after the court of appeals’ decision.
If you notice, the SG gave the number of days that elapsed for every data point but one–how long it took them to see a stay in the Circuit Court. It took nearly a month–an inexplicable dithering. But the bigger discrepancy, noted obliquely in penultimate sentence, reflects the fact that the United States didn’t seek a stay from SCOTUS after the 5th Circuit denied one.
The exigencies of the situation and the need to preserve the possibility of prompt review make that appropriate, irrespective of the absence of a request that this Court stay the preliminary injunction pending certiorari review.
The failure to seek a stay from the Court back in May, 2015 still baffles me. If they sought a stay from the district court, and sought a stay from the Circuit Court, why no go ahead and seek a stay from SCOTUS? The shadow docket has become de rigueur in today’s practice. The answer the White House gave is that even if a stay was granted, they would not be able to implement the program because of the uncertainty that the Fifth Circuit, and maybe even SCOTUS, may ultimately rule against the Federal Government. This would keep the legitimacy of the program in limbo, and discourage people from applying. True enough. But if a stay was sought, oral arguments would likely have been held in June, or maybe even September 2015–like with Citizens United. (A ruling on the briefs would be unlikely). A decision on the stay would’ve followed soon. By this point, we would likely already have a pronouncement on the program’s legality. If the Supreme Court found that there was no standing–even on a stay–the 5th Circuit would’ve certainly had to oblige. If the Court found that the case was not justiciable–even on a stay–the 5th Circuit would have had to oblige. If the Court found that notice-and-comment was unnecessary–even on a stay–the 5th Circuit would have had to oblige. So even if the case first had to go back to the Circuit Court for arguments on the merits, with a stay, the government could have resumed preparation of DAPA. And if the Court had ruled in favor of the government on the stay, the odds are the Court would also rule for the government on the merits. So what did the government have to lose by not seeking a stay in the summer of 2015? Why would they prefer the Court ruling on it in the summer of 2016–mere months before the election. I hinted in some earlier posts that there was a political calculus here, and made this post explicit in The Federalist:
More practically, DAPA can’t possibly be implemented in the waning days of the Obama presidency, so even a government victory in June would only set up the question of whether the next president follows through on the policy. President Obama no doubt recognizes this dynamic and would welcome a campaign cudgel: “The Supreme Court upheld my program, but I can’t implement it in time, so vote for Hillary.”
On the flip side, if the Court had denied a stay in May 2015, that would have sent a strong signal to the 5th Circuit that the government was unlikely to prevail. So maybe this is the risk they took. But it was a huge risk.
The SG closes with a trump card:
We note, however, that should state respondents’ request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term.
I noted in a previous post how rare the May arguments are–only three in the last quarter-century, and none because the case fell on the wrong side of the January-February line. Even if the Justices give Texas 30 days, the “10th Justice” will be right back to request an argument in May.
We should get a ruling on Wednesday.
Ilya Shapiro and I have a new piece at The Federalist discussing the timing of the Solicitor General’s appeal in United States v. Texas. Since the government failed to seek a stay in May, I predicted that the Obama Administration effectively risked the Court not being able to resolve the case during the OT 2015 Term. We are now in that crunch time.
Our goal in this piece is to respond to the inevitable criticisms that it would be illegitimate for the Supreme Court to hear this case according to the normal course of its calendar process–that is offering the customary 30-day extension for the BIO, hearing the case at the appropriate conference, granting certiorari, and hearing the case when other cases granted at the same conference are held. We argue that not only would this process be appropriate, but it may even be the ideal course of action under the circumstances.
First, notwithstanding the Solicitor General’s admonition that this case warrants “immediate review,” this case could have come to the Supreme Court 6 months ago in the form of an emergency motion for a stay. These “shadow docket” appeals have become strikingly common in the same-sex marriage litigation, concerning voting rights, and everything else that is really, really urgent. The government did not seek such a stay–much to the consternation of many in the immigration community.
That is, in addition to the inexplicable delay in appealing Judge Hanen’s initial ruling, the administration didn’t seek Supreme Court review of the Fifth Circuit’s initial ruling—or even a stay of the sort that’s granted when, say, the legality of a voting law is in doubt close to an election. In a decision its supporters widely criticized, the White House opted instead to wait for the Fifth Circuit to consider the merits. That move sent a clear signal: this case is important, but not dire.
If indeed time were of the essence, as the government’s petition now insists, the solicitor general should have gone directly to the Supreme Court in May. Had he done so and prevailed on an emergency motion—perhaps after a hearing as early as June—the administration could have resumed preparations to roll out the program in the event of an “inevitable” court victory. By failing to do so, DAPA implementation is on hold.
As Texas noted in its request letter:
“If petitioners’ opposition stems from concern about short-term consequences of the district court’s preliminary injunction, petitioners could have sought a stay pending appeal.”
Texas is exactly right, and the equities suggest that the Solicitor General’s urgency may have a different base. We note:
The import of this step for the government’s top advocate—institutionally known as the “tenth justice”—is to make the court decide DAPA’s legality while President Obama is still in office.
Second, in keeping with the modus operandi of the Roberts Court–this is a case that may never need to be resolved. If the Court hears this case in the normal course of business, it could fall of the docket.
It would also mean the next president could rescind or otherwise change DAPA in a way that moots the case. In keeping with the modus operandi of the Roberts court, the justices can simply decide not to decide yet—with some hope that this turns out to be a decision not to decide ever. …
We will know as early as November 8, 2016, whether a Republican president will rescind DAPA or a Democratic one will extend it. If it’s the latter, the Supreme Court can hear the case and—we argue—find that it is unlawful. But if it’s the former, the justices can simply take the case off their plates and avoid the need to resolve a major challenge to our constitutional structure.
Unlike laws, which stay on the books regardless of who is elected, there’s a 50/50 chance that President Obama’s unilateral action will be reversed after January 20, 2017. The Supreme Court should invalidate DAPA—but only if and when it has to.
The Court has avoided the big constitutional questions in recent years by issuing fairly narrow statutory holdings–referred to by Richard Re asthe Doctrine of One Last Chance. Here, a big issue can be avoided by (gasp) granting a customary 30-day extension for a Brief in Opposition. In my mind, opting not to prematurely rush to decide this case would be the best-case scenario. If the President in November continues defending DAPA, it will be fully briefed, and can be resolved quickly.
Third, moving to the merits, this case is really, really complicated. It involves significant issues of standing, APA procedural and substantive claims, and (we argue) constitutional claims. The court of appeals yielded a sharply divided 135-page opinion. Contrary to the charges that the 5th Circuit “slow walked” the opinion, getting two judges to agree to a massive opinion, and respond to a forceful dissent, is time-consuming. Four months is well within the normal bounds of such a case. Getting (at least) 5 Justices to agree on an opinion involving a massive separation of powers case is going to be tougher–and this is a job that should not be rushed in the last 8 weeks of May and June.
When the Supreme Court has to rush to issue a landmark separation-of-powers decision, the decisions are often fractured and divided, as the justices lack sufficient time to coalesce around a single reasoning. This case may set a precedent that will shape the scope of executive power and prosecutorial discretion for decades to come. There is no reason for the court to cram the case into eight weeks in late spring.
Our position isn’t that the Court should, or should not take steps to expedite the case beyond the normal course of business. Rather, if the Court opts to proceed at the normal pace, there are strong reasons for doing so.
Texas Solicitor General Scott Keller has filed an opposed motion for a 30-day extension of time to file a brief in opposition to the SG’s petition for certiorari in United States v. Texas. Here is the key response to the government’s position:
Although petitioners have expressed opposition to the requested extension, the request rests on good cause arising from the deadlines recited above. If petitioners’ opposition stems from concern about short-term consequences of the district court’s preliminary injunction, petitioners could have sought a stay pending appeal. But after the district court and court of appeals months ago denied petitioners’ motions to stay the preliminary injunction pending appeal, petitioners declined to seek a stay from this Court. And as the State respondents noted in opposing those stay motions, the preliminary injunction does not require the Executive to remove any alien, and it does not impair the Executive’s ability to set priorities for determining which unauthorized aliens to remove.
This is a point I have made several times before–the failure to seek a stay back in May suggests this case isn’t as urgent as the government now insists.
The piece that Ilya and I were working on suddenly got a quick redirection. Stay tuned for more tonight.
The American Lawyer reports that Juridica, a commercial litigation funder, is halting all new investments in cases, in light of several “Courtroom setbacks.” Specifically, the article notes that the denials of cert in two high-profile antitrust case resulted in a $30 million write down.
Investor confidence has slid since June 18, when the fund announced that it was writing down a $30 million expected return on a claim involving alleged overseas price-fixing in the market for liquid crystal displays. The write-down appears to have been prompted by the U.S. Supreme Court’s denial of certiorari in two related appeals, Motorola Mobility v. AU Optronics and Hsiung v. United States.The high court’s decision kept in place an appellate ruling against Motorola that precluded civil Sherman Act claims arising out of foreign conduct by foreign-based companies.
“Had the case survived the challenges it faced, we believed the case would have generated cash proceeds to the company far in excess of its $29.7 million” valuation, Juridica said in its midyear investor report.
It’s fascinating to think an investment was made based on a prediction that the Supreme Court would grant certiorari filed by two of the top advocates in teh game.
The lecture notes are here.
First, start with the text of the 5th Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.”
Here are a number of photographs of Susette Kelo and her home, courtesy of the Institute for Justice (the public interest law firm that litigated Kelo to the Supreme Court).
After the case, Kelo disassembled the house, and moved it across town. It was moved from 8 East Street (by the water) to 36 Franklin Street.
Note that the entire lot is vacant, except for the stray building–The Italian Dramatic Club.
Here is a satellite photo from 2007 showing several other properties remaining on the lot. Today only the Italian Dramatic Club survives.
It now stands as a monument to eminent domain for private development.
In 2009, Pfizer pulled out of the New London project. The site of Kelo’s home remains vacant. There have been reports that feral cats now reside on the land.
Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday….
Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.
Scott Bullock, Kelo’s co-counsel in the case, told the Examiner’s Tim Carney: “This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”
Here’s how the Associated Press describes the vacant lot:
Weeds, glass, bricks, pieces of pipe and shingle splinters have replaced the knot of aging homes at the site of the nation’s most notorious eminent domain project.
There are a few signs of life: Feral cats glare at visitors from a miniature jungle of Queen Anne’s lace, thistle and goldenrod. Gulls swoop between the lot’s towering trees and the adjacent sewage treatment plant.
The lecture notes are here.
The First Amendment – Free Exercise
- Summary (836-838).
- Freedom of Religion (1103-1104).
- Madisons’ 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)
- Reading on Hobby Lobby & RFRA
- Same-Sex Marriage and Religious Liberty
- Church of the Lukumi (1128-1129)
- Establishment Clause (1133).
At the WSJ Law Blog, Jess Bravin reports on comments Chief Justice Roberts made during a discussion at NYU with 2nd Circuit Judge Robert Katzmann.
And following Franklin Roosevelt’s election in 1932, “it fell to Hughes to guide a very unpopular Supreme Court through that high noon showdown against America’s most popular president since George Washington,” Chief Justice Roberts said.
The court repeatedly struck down New Deal programs, so frustrating Roosevelt that in 1937 he proposed in a fireside chat increasing the size of the court in a way that would give his appointees a majority.
“Hughes was pressured; people said, ‘You’ve got to respond to it’ ” with a radio address of your own, Chief Justice Roberts said. But that, Hughes realized, would be “fighting the battle on the enemy’s turf.” Instead, he sent the Senate “a very measured letter” rebutting FDR’s claims and helping shift public opinion.
“This is the most unpopular institution in the country that, as far as anyone knows, has been prolonging the Great Depression by standing up to FDR,” Chief Justice Roberts said. “But through Hughes’s approach, it got to the point where FDR said, ‘The people are with me.’ Well, it certainly wasn’t the case that the people were with the court. But I think they were with the Constitution and that had a lot to do with how he handled the crisis. So there are things to learn from it,” he said.
(FDR’s policies very likely prolonged the Great Depression).
I think what Roberts is saying in his usual cagey fashion, that even if the people did not support the Court, they still supported the Constitution, and as a result, that affected how Hughes “handled the crisis.”
It shows, in speeches replete with lessons he has learned from his predecessors. (He’ll offer another such speech in New York later this month, on Chief Justice Charles Evans Hughes.) Noting that portraits of four of the greatest chief justices—John Jay, John Marshall, William Howard Taft, and Charles Evans Hughes—occupy places of honor in the Court’s two ceremonial conference rooms, Roberts said in 2007, “they all seem to be looking down at me with surprise.” And “as they are looking down upon me,” he added, “I am looking up to them.”
He explained in 2007 the lessons he draws from them. From Jay, the need for the Court to maintain the public’s confidence and respect. From Marshall, the importance of forging the justices’ own disparate voices into a truly institutional voice. From Taft, who is responsible for giving the Court a building of its own, the importance of establishing the Court’s independence. And from Hughes, the importance of preserving that independence against FDR’s court-packing plan.
Update: Bob Barnes at the Washington Post has an additional post, that explicitly notes the context of Roberts’s comments–that it was Hughes’s leadership, and not Owen Roberts’s “switch in time,” that pushed back Roosevelt’s court-packing scheme:
Instead, Roberts explained, Hughes wrote a letter to the Senate documenting the court’s work and detailing how adding justices would only make it harder. He worked “under the radar,” Roberts said, to allow time for Congress to realize the harm that could come from the momentous change Roosevelt was proposing.
“How can that be?” Roberts wondered. The Supreme Court was “the most unpopular institution in the country, that, as far as anyone knows, has been prolonging the Great Depression.”
Roosevelt said that “the people are with me,” Roberts continued. “Well, it certainly wasn’t the case that the people were with the court. But, I think they were with the Constitution.”
Roberts believes it was Hughes’s actions, not Justice Owen Roberts’s change of heart on one case — the “switch in time that saved nine” — that led FDR ultimately to withdraw his plan.
One of the consequences of the Court’s decision in King v. Burwell is that there is no incentive for states to manage their own exchanges. I predicted over the summer that several of the thirteen-struggling exchanges would a drop their exchanges altogether and opt for the federal exchange. This is especially apt because millions in federal funding, currently keeping the failing exchange afloat gets cut off.
On Friday, buried amidst 300 pages of rules, HHS announced what they are calling a “state-based exchange on the federal platform.”
The Hill reports:
The Obama administration on Friday proposed a new type of partnership between state and federal health marketplaces in an attempt to address the mounting financial pressures on state-run exchanges.
Under the new model, states would be allowed to use federal resources like call centers or website platforms while maintaining their own decision-making power.
The model, called “state-based exchange on the federal platform,” would allow states to “leverage the economies of scale,” the Department of Health and Human Services (HHS) wrote in its proposed rules.
States would “retain responsibility for plan management functions,” HHS said.
As I discuss in a Federalist Society White Paper I published before King was decided, states performed plan management functions long before the ACA came around.
Expect more states to opt for this model, and effectively merge into the federal HealthCare.gov.
A Pew Research survey asked people of different age groups whether the government should be able to censor racially offensive speech. The results are striking. For respondents over the age of 70, only 12% favored censorship. For Baby Boomers between 51 and 69, 24% favored censorship. For Gen Xers between 35-50, 27% favored censorship. But, for the millenials (of which I am a member) between 18 and 34, 40% favored censorship. The younger you are, the less you appreciate the importance of free speech. This isn’t to say that people should make offensive statements about minorities, but it is an altogether different matter whether the government can censor so-called “hate speech.”
As I noted recently, today’s college students become tomorrow’s law students, lawyers, politicians, and judges. If this trend continues, we are in serious trouble.
In related news, please read Michael Krauss’s column on why institutions should be very hesitant to rename colleges.
The idea, I take it, is to preserve only the names of individuals whose nomination would not arouse substantial opposition if the same buildings or schools or universities were to be named for the first time today.
To this I say, if we’re going to go on a re-naming splurge, here (in alphabetical order) are a few other institutions whose names we might want to reconsider:
Among those that would have to change names are the College of William & Mary, George Mason University (my alma matter), Harvard’s Kennedy School of Government (JFK did not have the best relations with women), Howard University (Gen. Howard led attacks against the Apache), anything named after Abraham Lincoln (he favored sending slaves back to Africa), Washington & Lee (double no-no), and Yale University itself (Elihu Yale oversaw a slave trade).
Ilya Shapiro and I have a Op-Ed coming out soon on the government’s petition in Texas v. United States. In the meantime, I wanted to highlight one point that has been hotly discussed: if the certiorari is not granted quickly enough to get on the Court’s normal argument calendar, will they schedule a special May, or even June sitting to hear the case?
The Washington Post reported today:
But experts on the court note that the justices could also make special accommodations for a case that carries such important questions about federalism and the balance of power between the political branches of government.
Cato Research Assistant Anthony Gruzdis (who helped on a previous issue) researched every instance in the past quarter-century where the Court scheduled a special May sitting. If we exclude cases that were re-argued, there were only three cases that were argued for the first time in May, and decided in June.
1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.
In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.
The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).
3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that “the High Court agreed to hear the case unusually quickly.”
I am not versed with the history of this case, but a footnote in the Petitioner’s reply brief states:
Independent Counsel contends that this Court should deny certiorari to speed the conclusion of his investigations. It appears, however, that his investigations will not end until long after this Court, if it determines to review this case, decides it. Petitioners would not object to expedited treatment for this case.
I think this uber-expedited argument may have something to do with the now-defunct Independent Counsel statute.
As Ilya and I will discuss shortly, the posture of Texas v. United States does not even come close to these precedents. Most significantly, the Solicitor General could have sought a stay in May from the 5th Circuit’s decision, but opted not to. If this was so dire, as I argued at the time, it could have been brought to the Court. They didn’t.
On Thursday, November 19, the Nebraska Federalist Society Chapter hosted me for a discussion on the 1st Amendment, 2nd Amendment, and 3D-Printed Guns. I appreciated the chance to visit again with my friends in Lincoln. Here is video from the talk.
A new analysis from the Pew Foundation concludes that more Mexicans are leaving the United States than entering the United States. Specifically, from 2009 to 2014, 870,000 Mexicans entered the United States, but a million Mexicans left.
From 2009 to 2014, 1 million Mexicans and their families (including U.S.-born children) left the U.S. for Mexico,according to data from the 2014 Mexican National Survey of Demographic Dynamics (ENADID). U.S. census data for the same period show an estimated 870,000 Mexican nationals left Mexico to come to the U.S., a smaller number than the flow of families from the U.S. to Mexico.
Why have the number returning to Mexico increased? The primary reason is family reunification, although lack of work opportunities was also a factor:
Fully six-in-ten (61%) of those Mexicans who reported that in 2009 they were living in the U.S. and by 2014 were back in Mexico said they had moved back either to reunite with family or to start a family. In comparison, 14% said they had been deported from the U.S., and only a small share (6%) gave employment reasons (either to look for a job or because they got a job in Mexico).
Roughly 45,000 Mexicans who arrived in 2009, and returned before 2014, did so because they were unable to find employment here.
Lack of work in the U.S. was a more important reason for the 180,000 return migrants who lived in Mexico in 2009, left for the U.S. after that, and came back to Mexico between 2009 and 2014. One-quarter (25%) of more recent returnees said the main reason they came back was they had not been able to find a job, while 40% said the main reason was to reunite with family.
The inability to find jobs was due, in part, to the weakened U.S. economy:
The decline in the flow of Mexican immigrants to the U.S. is due to several reasons (Passel et al, 2012). The slow recovery of the U.S. economy after the Great Recession may have made the U.S. less attractive to potential Mexican migrants and may have pushed out some Mexican immigrants as the U.S. job market deteriorated.
These findings bolster one of the arguments that I and others have made concerning the lawfulness of DAPA. It is beyond dispute that Congress has only appropriated enough funds for the President to deport roughly 400,000 aliens per year. However, this was not the only means designed to control the population of aliens in the United States unlawfully. Rather, Congress created a series of complex interlocking mechanisms that may pressure aliens to self-deport. Self-deportation may be due to a desire to return to see family or an inability to gain employment in the United States. In this sense, the threat of formal removal–however unlikely–is not the only impetus for self-deportation. DAPA weakens these pressures in two important respects.
First, by granting deferred action to parents of citizens, DAPA directly thwarts Congress’s goal of making it harder to keep families together where the child is a citizen, but the parent is not. Citizen children must wait up to 21-years before they can petition for a green card for their parents, and then the parent must leave the country, and seek consular processing abroad. During the two-decade-interregnum, the parent would be unable to obtain lawful employment, and could be subject to removal. The INA specifically countenances breaking apart families for considerable periods of time. DAPA disregards that. While this may seem a callous decision, it is reflected in both the text and history of the Immigration and Nationality Act. (This is true even though Congress has recognized in that deferred action may be granted–the specific goal trumps the general provision). As the Pew analysis concludes, hundreds of thousands of aliens self-deported in order to be closer with their families. DAPA subverts that incentive to self-deport, and instead works to keep families together. This is an admirable policy goal, but inconsistent with the tenor of the immigration laws.
Second, and perhaps more importantly, DAPA directly thwarts Congress’s goal of making it harder for aliens who are here illegally to find employment, and thus support themselves. Virtually all recipients of DAPA will receive work authorization, and be able to seek legal employment. It is safe to assume that many of the ~60,000 Mexicans who self-deported because they could not find suitable employment would be able to obtain lawful employment because of DAPA. The impetus for their decision to leave the country–inability to find work–very well may disappear as a direct consequence of DAPA. Gaining the ability to work legally, at or above the minimum wage, could cause aliens to think twice about leaving the country to gain work back home. Here too, DAPA is not consonant with congressional policy.
This study highlights how DAPA is manifestly contrary to the congressional scheme Congress designed. Formal removal is not the only avenue that Congress designed. Pressures that compel self-deportation are also at play. DAPA disregards those pressures.
UnitedHealth, one of the nations largest health insurance companies, threatened that it may not participate in the Obamacare federal exchanges in 2017 unless changes are made.
UnitedHealth Group, one of the nation’s largest health insurance companies, told investors Thursday morning that it was significantly lowering its profit estimates and blamed an expected loss of hundreds of millions of dollars selling individual policies under the federal health care law.
In light of the losses, the company warned that it was also weighing whether it would continue to offer individual coverage through the online exchanges for 2017.
The announcement comes as the latest blow to the market created under the Affordable Care Act to allow individuals who buy coverage on their own rather than through an employer better access to health insurance. As the law enters its third year, with open enrollment for 2016 now underway, many customers have faced sticker shock as premiums have risen significantly in some parts of the country, and some of the new companies offering coverage, including the so-called co-ops, have stopped selling coverage in recent weeks, leaving people with fewer options.
While the insurance giant has only been able to sell a fraction of policies to individuals through the exchanges (which some critics contend are not priced competitively), its discontent with the federal health care law could signal a broader industry pushback.
And UnitedHealth may also be using the news to prod the administration into making changes to the law or paying more of what the federal government owes insurers under one of the programs aimed at protecting them from losses in the early years. Federal officials have said they are paying less than 13 cents of every dollar they owe, although they say they will make additional payments later.
This is tremendous news, as it represents one of the first public statements of an insurance company suggesting that HealthCare.gov’s business model–which depends on voluntary participation by providers–is not working. Louise Radnofsky at the WSJ offers an overview of why the insurers are unhappy. In short–the core structural protections of Obamacare are not working to maintain sufficiently large risk pools of health buyers.
Mr. Hemsley said the company was worried about people essentially signing up for health plans only when they need to cover health expenses. The health law has a defined enrollment window (Nov. 1 to Jan. 31 for 2016) aimed at restricting people from signing up opportunistically. But skeptics have said that rules governing the “special enrollment period,” which allows people to sign up at other times if they have life changes, or simply learned about the penalty for going uninsured after the main deadline had passed last year, have been too lax. The company also indicated that people were dropping the coverage after they ran up big bills on it, raising questions about whether the penalties for going without insurance are acting as a sufficient incentive for people to be covered.
In the final chapter of Unprecedented, I warned that the individual mandate was not high enough to encourage people to purchase health insurance, if rates went too high. I also noted that in this toxic political environment, it was simply impossible for Congress to raise the penalty to match demand. Finally, there are even constitutional problems, because as the price of the penalty gets closer to the price of the cheapest policies, the Chief Justice’s saving construction begins to unravel.
So what does this mean practically? At the ACA Death Spiral, Seth Chandler explains that if United drops out, in many markets there will be no plans available on the federal exchange, or perhaps only one other provider:
United is a major player in the Exchange markets. It sells policies in about 47% of the 395 rating areas serviced by the federal exchange. Moreover, the loss of United could be very harmful to any remaining competition of the exchange markets. A quick study of data fromhealthcare.gov shows that if one looks at Silver plans in rating areas in which United sells a policy and one looks at all plan types (HMO, EPO, POS,PPO), there are 204 combinations. In 73 of those (about 36%), United is the only insurer, meaning that if no one else steps in to the United vacuum, there will no longer be a seller of that plan type. HMO plans in Alabama rating area 13 is an example of such a market. If United exits, it would appear that there will be no HMOs in that area.
In another 59 of those 204 (about 29%) rating area/plan type markets in which United participates, United is one of only two players. An example of such a market is the POS market in Arkansas, rating area 1. There UnitedHealthcare of Arkansas, Inc. and QCA HealthPlan are the only sellers. This meaning that if no one else steps in, there will be another large chunk of markets in which there will be an Obamacare monopoly.
The ACA simply does not work without voluntary insurer participation. There is no public option and their closest cousin, the coops are mostly dead or in financial distress. It surely should work better if there is at least some competition. But insurers don’t voluntarily participate where they think they can’t make money. So, unless United, one of the biggest health insurance carriers is doing something particularly wrong or unduly gloomy, one has to worry about its warning being an oracle of things to come for other insurers.
Indeed, WSJ cited several other insurance companies that have been similarly troubled by the declining signup numbers:
Several other big publicly traded insurers also flagged problems with their exchange business in their third-quarter earnings Anthem Inc. said enrollment is less than expected, though it is making a profit Aetna Inc. said it expects to lose money on its exchange business this year, but hopes to improve the result in 2016. Humana Inc. and Cigna Corp. also flagged challenges…
There are signs that broad pattern has continued–and in some cases worsened–this year. A Goldman Sachs Group Inc. analysis of state filings for 30 not-for-profit Blue Cross and Blue Shield insurers found that their overall company wide results were “barely break-even” for the first half of 2015.
Goldman analysts projected the group would post an aggregate loss for the full year–the first since the late 1980s. The analysis said the health-law exchanges appeared to be a “key driver” for the faltering corporate results, and the medical-loss ratio for the Blue insurers’ individual business was 99% in the first half of 2015–up from 91% at that point in 2014, and 82% for the first six months of 2013.
Bob Laszewski concludes that this means “the Obamacare insurance company business model does not work.”
Every health plan I talk to tells me that they don’t expect their Obamacare business to be profitable even in 2016 after their big rate increases. That does not bode well for the rate increases we can expect to be announced in the middle of next year’s elections.
And, then there are the insolvencies of 12 of the 23 original Obamacare co-op insurance companies–the canaries in the Obamacare coal mine–with almost all of the rest of the survivors losing lots of money.
Why is this happening?
Because nowhere near enough healthy people are signing up to pay for the sick.
Insurance companies simply cannot be profitable with this model:
That the Affordable Care Act’s individual market risk pool is so far unacceptable was reinforced by a recent McKinsey report that health insurers lost an aggregate $2.5 billion in the individual health insurance market in 2014–an average of $163 per enrollee. They reported that only 36% of health plans in the individual market made money in 2014–and that was before they found out that the federal government was only going to pay off on 12.6% of the risk corridor reinsurance payments the carriers expected and many had already booked.
Because the risk corridor program is revenue neutral, the fact that the carriers in the red are only going to collect 12.6% of what they requested means that the carriers losing money did so at a rate eight times greater than the carriers making money!
So when, Bob asks, will this denial end?
The Robert Wood Johnson Foundation and Urban Institute findings have now given additional credibility to the very same conclusion many of us have been trying to make since the Obamacare launch: The Obama administration has NOT been so successful in enrolling those eligible–they’ve got more than 60% of the group remaining!
If the Obama administration signs up the 10 million they are estimating they will sign-up during the current open enrollment, based upon the historic number that are subsidy eligible, they will have less than the 9 million of the 24 million RWJF and UI estimate are in the potential exchange subsidy market–just a 38% success rate. And, that is nowhere near where they will have to be to make these risk pools sustainable for the insurance companies or politically sustainable in the country.
Or keep the likes of UnitedHealth Group in the program.
How can Obamacare be fixed?
First, the Obama administration can improve, but not completely solve, their Obamacare problems by dramatically revisiting their regulations so as to give health plans the flexibility they need to better design plans their customers want to buy.
10 Questions for David Bernstein, Author of “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.”
I highly recommend that David Bernstein’s new book, “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.” David’s book offers an insightful analysis of how President Obama’s presidency has seen an unprecedented expansion of executive power, and an unparalleled disregard of Congress and the separation of powers. Despite the promises to reverse the excesses of the Bush Administration, President Obama has gone much farther. David’s book is essential reading to understand what went wrong the last 7 years.
To help explain Lawless book, I offered 10 questions to David, who was kind enough to answer.
1. What were your expectations for President Obama in 2009 when he took office largely on the promise of reversing President Bush’s positions towards executive power?
I expected there would be some slippage, because it’s natural for a president to have a broader view of presidential power once he’s in office. But I didn’t expect such a broad reversal of his campaign positions, both because I thought he was sincere about them, and because those positions, especially with regard to presidential war powers, were important to some of his core liberal constituencies.
2. What was your first hint that something that President Obama may not live up to those expectations?
I think Libya was the first thing that really struck me, because it involved such brazen disregard for the law, and such a direct contradiction of what Obama himself had said in writing was his understanding of the scope of the president’s war powers. I’m sure there were earlier hints, but in the early days of the administration I was busy with a baby and a book manuscript (Rehabilitating Lochner), so my ability to focus on how the administration was handling the separation of powers was limited.
3. How do you explain the disconnect between what candidate Obama promised, and what President Obama has done?
I think candidate Obama sold the electorate a bill of goods; Obama was never a sincere civil libertarian, and was never really interested in reining in executive power, these were just positions he took for campaign purposes, in particular to wrest the Democratic nomination from Hillary Clinton by appealing to the liberal Democratic base.
4. During the Bush Administration, the law professoriate lambasted the President’s attorneys, and charged them with rubber-stamping everything from torture to illegal wars. Many of those same professors took jobs in the Obama Administration. Have the Obama lawyers provided a constitutional check?
Sort of. Instead of asserting broad theories of constitutionally mandated executive power like John Yoo did, they have looked for barely plausible legal rationales to allow Obama to do what he wants to do. For example, instead of arguing that the War Powers Act is unconstitutional, Harold Koh argued that bombing Libya doesn’t constitute hostilities, though he took precisely the opposite position with regard to Reagan’s much, much, less intensive bombing of Libya twenty-five years earlier.
I think the Obama people think they are doing everyone a favor by not establishing broad precedents in the foreign affairs arena that Republican presidents can use. But making up dubious rules for the current president violates the rule of law. I disagree with Yoo on executive power, but at least his theory of it must be consistent across presidents, and therefore can’t be seen as simply manipulating the law to serve the incumbent administration. Indeed, to his credit John has been consistent in applying his theories to Obama administration military actions. It strikes me that the Obama administration lawyers have invented narrow and often bizarre rationales for presidential unilateralism precisely so they can avoid such consistency. It’s also worth noting that Obama has sometimes ignored his own lawyers at OLC and elsewhere when they tried to restrain his actions. Attorneys can’t provide a constitutional check if the president ignores their advice.
Finally, some Bush administration officials threatened to resign if Bush proceeded with some of the more aggressive legal theories some of the lawyers were pushing. Obama has pushed the envelope in a variety of ways, but I haven’t heard of any resignations, actual or threatened.
5. Explain the constitutional infirmities of the so-called “Czars”? How are these different from many other administration officials who do not need to undergo Senate confirmation?
The distinction between high-level advisors (who don’t require confirmation by the Senate) and principal officers (who do) is often lost in discussions of presidential czars. I limit my definition of “czar” to an individual who is not confirmed by the Senate and exercises final decision-making authority. A czar actually dictates or controls policy or the enforcement of laws and regulations. This may include controlling budgetary programs, administering or coordinating a policy area, or otherwise making or enforcing binding rules and regulations. It is these “czars,” and not mere advisors (no matter how influential), whose positions violate the Constitution, because they should be considered “principal officers” who need to be confirmed. George W. Bush had been by far the most prolific president in evading Senate confirmation and Congressional oversight hearings by appointing czars, but in his first term President Obama outdid Bush by a wide margin.
6. The President has often explained that gridlock, and an intransigent Republican Congress, has necessitated the use of executive power? Is this accurate? Should Republicans bear any blame?
We certainly have gridlock. But when the president’s supporters talk about gridlock, they mean “Republicans in Congress are not willing to go along with the president’s agenda.” But why does the president get to set the agenda? In our constitutional system, unlike parliamentary systems, the legislative branch is supposed to set the agenda. Other than using the bully pulpit, the president is limited to exercising his veto power (or not). Given the way our system is structured, if the president and Congress are at odds it’s more accurate to say that the president is responsible for gridlock. In the popular imagination, the president “runs” the government as if he’s a prime minister, so Congress gets more blame than it should. Popular conceptions of how the government works are at odds with the actual constitutional structure, and that’s a real problem. But the short answer is, there is nothing in the Constitution that suggests, implies, or even hints that the president’s power expands because Congress won’t pass the legislation he advocates..
7. How do you think President Obama’s history as a constitutional law lecturer at the University of Chicago has affected his understanding of his constitutional duties?
Obama taught Fourteenth Amendment related classes. There seems little if any evidence that he’s ever been interested in separation of powers or federalism, except to use the former as a campaign issue in 2008. I suspect he sees these considerations primarily as potential barriers to the progressive policies he advocates, with little if any actionable substantive content.
8. What do you make of the Presidents numerous comments directed at the Supreme Court, while the two big Obamacare cases were pending–NFIB v. Sebelius and King v. Burwell?
Presidents traditionally refrain from commenting on pending SCOTUS cases to avoid giving the impression they are trying to pressure or influence the Justices. That seems like a wise policy.
9. What do you think the biggest legacy will be for the Obama Presidency with respect to executive power? How will he be remembered in 50 years?
Unfortunately, I think his presidency is likely be remembered as the tipping point where executive power really got out of control. No president has asserted (and bragged about asserting!) such broad executive power across such a wide range of foreign and domestic matters, ignoring both the laws he’s supposed to execute and longstanding norms about when Congress needs to be consulted. The question is whether in fifty years we’ll look back and say “thank God there was a counter-reaction” or whether we’ll say “and that was the beginning of the end of the separation of powers.”
10. For the last question, do you think the winner of the 2016 election–either Republican or Democrat–will effect any meaningful changes from the policies of the Obama Administration?
Unfortunately, the trend has been that new presidents pocket whatever powers their predecessors gained, and then expand them further. I hope that doesn’t turn out to be the case, but I don’t have much reason for that hope. Liberal bloggers are praising Clinton precisely because they expect she won’t care about the rule of law, and the GOP frontrunner for the last several months seems to thrive on the fact that Republicans want their own narcissistic unilateralist in the White House.
These are very serious times. I thank David for his insights.
On Thursday, I will be giving my last lecture of the semester at the University of Nebraska Federalist Society Chapter on 3D-Printed Guns. If you are in the corn-husker state, please stop by and say hi!
I recently started listening to the audio book of The Wright Brothers, as narrated by the author David McCullough. I noticed that when McCullough says a year from the first decade of the 20th century, for example 1905, he pronounces it as “Nineteen five.” Colloquially, I would usually say “Nineteen-oh-five.” But then, I thought, for years in the first decade of the 21st century, I would say “two-thousand-and-five,” rather than “twenty-oh-five.”
English-at-home.com that offers this guide:
For years up until 2000, separate the four numbers into two pairs of two:
1965 = “nineteen sixty-five”
1871 = “eighteen seventy-one”
1999 = “nineteen ninety-nine”
For the decade 2001 – 2010, you say “two thousand and —-” when speaking British English:
2001 = “two thousand and one”
2009 = “two thousand and nine”
However, from 2010 onwards you have a choice.
For example, 2012 can be either “two thousand and twelve” or “twenty twelve“.