Aug 22, 2014

Greenhouse: The “Failed Commerce Clause attack” On Obamacare. Failed?

I recently contributed to a symposium issue in the Illinois Law Review, led by Professor David Hyman, asking why law professors “misunderestimated” the challenge to Obamacare. One of the threads several of the authors hit on, was how many law professors–mostly on the left– were shocked and stunned that the constitutional challenge to Obamacare went anywhere. To this day, many insist that the commerce clause argument was a joke, and had no validity. Although, most would at least acknowledge, at least begrudgingly, that a majority of the Supreme Court accepted that argument.

Not Linda Greenhouse.

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

The Commerce Clause challenge didn’t fail. It succeeded. Five Justices accepted it. And, the government was absolutely incapable of articulating a limiting principle on the commerce clause (though as I discuss in my book, this was a deliberate choice on the part of the SG).

I would usually not pounce on an error like this, but there is a special history with Greenhouse and the challenge to the ACA, which I discuss in Unprecedented, and my Illinois article. Throughout the entire debate, Greenhouse expressed a never-ceasing sense of shock and awe that this challenge even went anywhere. She even charged her successor at the Times, Adam Liptak with promoting a “false equivalency,” in covering the case.

Here is a segment from my article:

Linda Greenhouse, the Pulitzer Prize-winning reporter who covered the Supreme Court for the Times from 1978 to 2007, was not pleased with the coverage of the case in the paper of record. Greenhouse, who now writes in the Times opinion section and lectures at Yale Law School, appeared on a panel titled “Journalism and the Constitution outside the Courts,” along with Emily Bazelon (Slate), Charlie Savage (the New York Times), and Adam Liptak (the New York Times). Liptak was Greenhouse’s successor for the Supreme Court beat at the Times. Greenhouse asserted that Liptak and others at the Times, by giving the challengers so much attention, created a “false equivalency.” She claimed that Liptak validated Barnett and his frivolous ideas. Many oth- er professors in attendance shared this concern.

Liptak emphatically rejected Greenhouse’s “false equivalence” al- legation. At the conference, he quipped, “Do I sense some hostility?” Later, Liptak would tell me that he was “taken aback by what I per- ceived to be harsh and heartfelt criticism from people I respect at my alma mater” (Yale Law School). He added that at the conference “[t]here was something like a consensus that the press in general and perhaps The New York Times in particular had fallen down on the job by unduly dig- nifying the arguments in support of the Commerce Clause challenge to the Affordable Care Act.” Liptak, however, felt that he had “pre- sent[ed] both sides of the argument.” Courts are a “poor place to make the ‘false equivalency’ criticism,” Liptak explained. “The critique is weaker still when the arguments on one side were made by a majority of the states and had divided the lower courts.”

Legal arguments, however strong the political backing, only go anywhere because the argument has the power of persuasion. The uphill climb in NFIB was strong, as the challengers had to thread a needle between existing commerce clause precedents. But they did it!

In comparison, Halbig is much easier–the text is there. Now, there are lots of things beyond the text (purpose, structure, effects, etc.), which I won’t get into here, but this is an argument that should, and has been taken seriously.

On the point of Halbig, Greenhouse makes another misstatement in her column. She writes that all three judges on the 4th Circuit agreed that the statute, on its face, treats state exchanges in the same fashion as federal exchanges.

Section 1321(c) provides that if a state fails to establish an exchange, the secretary of Health and Human Services shall “establish and operate such Exchange within the state and the Secretary shall take such actions as are necessary to implement such other requirements.” The words “such Exchange,” the government argues, mean that the federal government stands in the state’s shoes when it complies with this instruction; for these purposes, the federal government is the state.

That interpretation “makes sense,” all three members of a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluded in King v. Burwell, a decision that, by an amazing coincidence of timing, was issued the same day, July 22, as the contrary D.C. Circuit opinion. Those three judges, Roger L. Gregory, Stephanie D. Thacker and Andre M. Davis, examined the statute as a whole, in light of its purpose, and at the end of the day found the federal-state issue to be ambiguous. That’s all they needed to find for the government to win the case.

This isn’t  exactly right. Judges Gregory and Thacker found the statute ambiguous, and resolved the issue on Chevron Step 2, where the government gets the utmost deference. Only Judge Davis found the statute was unambiguous, and resolved it in favor of the government on Chevron Step 1. For that matter, all three judges in Halbig on the D.C. Circuit did not find the statute worked for the government on its face. Judge Edwards also turned to Chevron Step 2. In this post, I count the votes. 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.


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Aug 22, 2014

RBG On Hobby Lobby: “Access to Birth Control” v. “Cost-Free Access to Birth Control”

One of the largest obfuscations in the Hobby Lobby debate, which RBG has contributed to, is that the majority opinion rejected the idea that “access to Birth Control” is a compelling interest. This is technically correct, but let’s be precise what “access” means. We aren’t talking here about reversing Griswold, and placing “legal” blocks in the place of access to birth control or other fundamental rights. Or, to put in terms of Casey, there is no “undue burden.”

Justice Alito’s opinion in Hobby Lobby made this point clearly.

Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v.Connecticut, 381 U. S. 479, 485-486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

What was at issue is not “access” to birth control, but “cost-free access.” That is employees won’t have to pay additional fees for it.

We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b)(2).

There is a world of legal difference between “access,” which wasn’t at issue, and “cost-free access,” which the court addressed.  The former constitutes a legal block, and the former is a financial block. Now, I’m sure you can argue that making women pay for birth control is unfair, and fewer women will use it if it is expensive–there are countless findings in the law to this effect. That’s all correct.

But many opponents of Hobby Lobby are deliberately loose with their language, and attempt to give the impression that the Hobby Lobby majority thought that legal access to birth control was not a compelling interest. This is wrong, and a deliberate obfsucation of the facts.

Leading that obscurity is Justice Ginsburg, in her answer to Marcia Coyle’s direct question:

NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?

GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.

The use of the passive voice, “making sure women have access,” renders unclear who is preventing them from having it in the first place–the government, or the employer. The answer is neither. The case concerned “cost-free access.” I would generally be willing to give the Justice the benefit of the doubt, but her previous comments to Katie Couric make clear that she is feeding into the War on Women meme as the Notorious RBG, and displaying massive amounts of hubris, in her efforts to impact popular opinion outside the Court.

It is to be expected that pundits make such opaque generalizations, but I would expect more from a Justice

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Aug 22, 2014

RBG on Republicans and Campaign Finance Law

Kudos to Marica Coyle, who conducted a brilliant interview with Justice Ginsburg. The mark of a great interview of a Justice is learning new stuff. And, I learned a lot of new stuff. Alas, what I learned does not help my of-late decreasing opinion of Justice Ginsburg. I recently noted that Justice Stevens has been quite quiet since his book launch faded, so RBG seems to have taken up the mantle. Many of her comments border on inappropriate, as they can be seen as direct attacks on her colleagues. Some may think this is healthy, and the Justices should be open about these types of internal deliberations. I don’t. It will take me a few posts to go through all of her comments. I’ll go in sequential order.

First, here is a Q&A concerning the Court’s reputation, and campaign finance law:

NLJ: You have said that you and your colleagues are most concerned that the Supreme Court not be viewed as a political institution. Recent polls show declining disregard for the high court and strong feelings that the justices apply their political beliefs, not the law, to the cases before them. What do you think is behind those reactions?

GINSBURG: I think it’s the spillover effect from the dismay about our dysfunctional Congress. Whatever the polls say about the court, we stand much, much higher than either of the other two branches. I think people are disillusioned with our government’s inability to work and that spills over to the court because we are part of the government.

One of the problems is that redistricting has led to safe seats for one party or the other. Still I think the biggest mistake this court made is in campaign finance, which Justice [Sandra Day] O’Connor could have saved us from. She left. Justices O’Connor, [John Paul] Stevens and [David] Souter (who supported campaign finance regulations) were Republican voters from the time they could vote and came from families that were always Republican. It should be increasingly clear how [money] is corrupting our system, and it is spreading in states that elect their judges. 

I think the first part of her answer is unobjectionable–though a good question is whether the Court should take notice of that dysfunction when interpreting the byproduct of a gridlocked, intractable Congress.

The second paragraph potentially worries me. Justice O’Connor has said as much, that she would not have voted with the Citizens United majority. But what’s the salience that O’Connor, Stevens, and Souter “were Republican voters.” Is she trying to say this is is a bipartisan issue? In truth, Souter and Stevens were consistently liberal voters, so at this point, their Republican voting status is almost immaterial (they claim the party left them–whatever). But, when read in context with the next sentence, I get worried. Is she insinuating in any way a link between Republicans and money corrupting the system. There is an abrupt jump between saying that those Justices were former Republicans, and then saying that money is corrupting the system. I can’t help but think, in her mind at least, there is some implicit connection.

Also, a point that may have been made elsewhere, recently dawned on me. The Justice sit in review of judgments from state judges, who apparently are being “corrupt[ed]” by money. Does RBG realize she is targeting the integrity of the very state judges she sits in review of? I think it is probably inappropriate for Justice O’Connor to do all the things she has done (robocalls and all), but for a sitting Justice, who sits in review of state judges, to say these things, is very disquieting. What does RBG think when she gets a cert petition from Texas, where all Justices sit for election? Is there an implicit bias that these judgments, perhaps with a corporate defendant, were the product of “corruption” from money?

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Aug 22, 2014

“Report from Nuremberg: The International War Crimes Trial”

I recently finished listening to “Report from Nuremberg: The International War Crimes Trial.” This audiobook re-enacts the transcribed radio broadcasts on the Armed Forces Network during the Nuremberg Trials in 1945-46. Rather than reading a history of Nuremberg, this recording recreates the contemporaneous daily broadcasts from the Palace of Justice in Nuremberg.

There are some fascinating insights into how the trial proceeded, how the Nazis behaved out of court, and what the service members thought about the Nazis (they should be taken out back and shot).

As a special treat, the host does an interview with “Mr. Justice Jackson.” Jackson does a wonderful job explaining why the rule of law demands a trial for these war criminals, and why this should be a sterling example to the world of how democracy works. Although, the host of the broadcast was not a fan of Justice Jackson’s cross-examination of Hermann Goring, the leader of the Nazi Party. He later said that Jackson lacked enough knowledge about European history to corner Goring. The British prosecutor apparently did much better.

It’s about 6 hours long, and is well worth a listen.

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Aug 21, 2014

GAO: Bergdahl Swap Violated “Clear and Unambiguous Law” and violated “Antideficiency Act”

The GAO has released a new report find that the DOD’s decision to release the detainees from Guantanamo without complying with the statute violated a “clear and unambiguous law” and violated the “Antideficiency Act.”

In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. Section 8111 prohibits the use of “funds appropriated or otherwise made available” in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity “except in accordance with section 1035 of the [FY 2014 NDAA].” Pub. L. No. 113‑76, § 8011. Section 1035 of the FY 2014 NDAA, in turn, requires the Secretary of Defense to notify certain congressional committees at least 30 days in advance of such a transfer, among other things. Pub. L. No. 113‑66, § 1035. Because DOD did not provide written notice to the relevant congressional committees until May 31, 2014, the same day as the transfer, DOD violated section 8111. DOD July 31 E-mail.

But in any event, the President did not rely on his Article II powers. The administration claimed that Congress would not have wanted it to apply this way under these “circumstances.”

Initially, Secretary of Defense Chuck Hagel justified the release on the President’s inherent Article II powers, as a rationale for his failure to comply with the law: “we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution.” White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President’s inherent powers during an interview on This Week, “We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don’t think anybody would have forgiven the United States government.”

Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the “Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances.” Further, “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.” The White House Press Secretary likewise explained, “The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances.”

This argument borders on absurd because virtually all members Congress–Republican and Democrat–specifically opposed this very trade. As I explain in Gridlock and Executive Power, “here lies the fatal flaw of the “congressional intransigence” theory of Article II—it manifests delusions of executive grandeur and machinations of congressional support, when neither exists.”

Yet, the argument provided by the DOD seems to offer a slightly different answer, that seems closer to inherent Article II powers:

We asked DOD for its legal views on the application of section 8111 to the transfer at issue in this opinion. DOD responded that section 8111 prohibits the use of appropriations “only if the transfer is unlawful under section 1035” and that the “transfer was lawful under section 1035, regardless of whether the Administration complied with any notice requirement imposed by section 1035(d).” DOD July 31 E‑mail, Attachment 1, at 1–2. DOD asserts that a transfer is lawful if the Secretary of Defense makes the requisite determinations under section 1035, and that “section 1035 does not impose any other preconditions on the Secretary’s authority under section 1035(b) to make transfers.” Id., Attachment 1, at 1. While DOD acknowledged the section 1035(d) 30-day advance notice requirement, DOD states that section 1035 does not provide that “a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.” Id.

GAO flatly rejects this obfuscation:

In our view, DOD has dismissed the significance of the express language enacted in section 8111. Section 8111 prohibits DOD from using appropriated funds to carry out a transfer “except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.” Pub. L. No. 113-76, § 8111. Section 8111 makes no distinction regarding the weight of various subsections under section 1035. The notification requirement in section 1035(d) thus stands on equal footing with the determination requirements in section 1035(a) or section 1035(b). Section 8111 means, then, that DOD must comply with all provisions in section 1035, including the notification requirement, before obligating appropriated funds to carry out a transfer. To read section 8111 otherwise would render the notification requirement meaningless.

DOD also falls back on Article II, but not the Commander in Chief power.

Alternatively, DOD asserts that section 8111 is unconstitutional as applied to this transfer.[5] DOD July 31 E-mail, Attachment 1, at 2–3. DOD states that providing notice “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.” Id., Attachment 1, at 2. DOD asserts that these provisions violate the “constitutionally-mandated separation of powers.” Id., Attachment 1, at 3. According to DOD, section 8111 improperly “attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose indirectly.” Id.

This is similar to the arguments justified for the Iraq strikes.

The GAO report offers no thoughts on the constitutional argument.


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Aug 21, 2014

Administrative Office: Courts Lacks Authority To Assign Panel Attorneys to Clemency Project

The Administrative Office of the United States Courts–whether speaking for all judges, or not–has determined that the Criminal Justice Act does not provide statutory authority for the courts to appoint federal public defenders or CJA panel attorneys to assist with seeking clemency.  You can find a memorandum from Judge Bates, along with a legal opinion here.

Here is an overview of the analysis:

On April 13, 2014, the Deputy Attorney General announced a new clemency initiative (“Clemency Project 2014”) for certain federal inmates currently serving lengthy sentences. Clemency is a function and responsibility solely of the Executive Branch, but this initiative may affect the courts, the United States probation offices, and the federal defenders. The Department of Justice (DOJ) has requested that federal defenders be detailed to the Office of the Pardon Attorney to assist in screening clemency applications, and some inmates have requested assistance of counsel. Questions have been raised, however, about the authority to appoint federal defenders or panel attorneys to represent clemency applicants under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

In essence, the General Counsel of the AO has concluded that there is no authority under the CJA or any other provision of law for courts to appoint federal defenders or CJA panel attorneys to represent non-capital clemency applicants under the new Executive Branch initiative. In light of that conclusion, we must advise that CJA panel attorneys are not authorized to be paid for non-capital clemency representations. The General Counsel did conclude, however, that agreements may be entered with DOJ to detail federal defenders to the Office of the Pardon Attorney to assist with screening clemency applications, so long as it is on a fully-reimbursed basis.

The General Counsel’s opinion further explains that: “the lack of court authority to appoint the FPDO to represent a clemency applicant would not preclude the FPDO from screening its client files to identify individuals who may satisfy the criteria established under this initiative or from reviewing files to assist another attorney representing a clemency applicant.” Involvement by federal defenders, to the extent consistent with the law and the priorities of each office, may have practical benefits to the courts, probation offices, and clemency applicants. Defenders customarily assist clients, even after sentencing, with inquiries related to incarceration, and may be well-equipped to review presentence reports and other information to determine whether applicants meet the criteria established by the DOJ for clemency. The opinion also acknowledges that “courts have discretionary authority to appoint FPDOs to assist in various administrative tasks for the general benefit of their office, the courts, or the judiciary,” but concludes that there is no authority to appoint federal defenders or panel attorneys to represent individual non-capital clemency applicants.

Here is the key portion of the analysis:

Since the Deputy Attorney General’s address to the New York State Bar Association and the formation of Clemency Project 2014, several U.S. district courts have issued orders (Standing, Administrative, and case specific) pursuant to 18 U.S.C. § 3006A(a)(1) and (c) authorizing FPDOs to represent individuals previously determined to be entitled to appointed counsel in seeking clemency under this initiative.9 Some of these orders cite § 3006A(a)(1) and (c) as authority to appoint counsel “in the interest of justice” and/or as “ancillary” matters, respectively, under the CJA. Others cite the CJA more generally, and still others cite no authority at all.

As discussed above, the power to grant clemency under federal law is a purely executive function; only the President has that power. See Harbison v. Bell, 556 U.S. 180, 186-87 (2009). Moreover, the exercise of that power is not adversarial in nature and does not involve a proceeding at all, judicial or otherwise. Rather, clemency “is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 412 (1993). There is no Sixth Amendment right to counsel for purposes of seeking executive clemency and no statutory right, except in capital cases. Our review leads to the conclusion that there is no authority under the CJA or other law to appoint counsel in non-capital clemency proceedings.

Congress has explicitly authorized CJA counsel appointed in capital cases to file clemency petitions on behalf of financially-eligible defendants. “Each attorney so appointed shall represent the defendant through every subsequent stage of available judicial proceedings . . . , and all available post-conviction process, together with stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” 10 18 U.S.C. § 3599(e). But Congress has not seen fit to provide this authorization in non-capital CJA appointments, whether in the interest of justice or otherwise, although it clearly could have done so if it had been so inclined. See 18 U.S.C. § 3006A(a). “Congress’ decision to furnish counsel for clemency proceedings [under § 3599(e)] demonstrates that it, too, recognized the importance of such process to death-sentenced prisoners[.]” Harbison v. Bell, 556 U.S. at 193.

Though this “memorandum” seems awfully close to an advisory opinion. The Judge seems to endorse a legal opinion finding the courts lacks statutory authority to take certain action. But, there may be no other way for this issue to be resolved, as this is a case for judges alone to consider in the administration of their courts.


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Aug 21, 2014

Ashby High Rise Judgment Appealed

Earlier this month, the developers behind the Ashby High Rise appealed the trial court’s final judgment. Here is the both parties notice of appeal. We should have arguments at some point this fall. Stay tuned.

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Aug 21, 2014

Government by Blog Post: Administration Extends No Child Left Behind Exemptions

Seeing that No Child Left Behind doesn’t fit with the Administration’s policies, the Department of Education has extended blanket waivers to states, exempting them from conditions of the law.

Secretary of Education Arne Duncan announced on Thursday that states could delay the use of test results in teacher-performance ratings by another year, an acknowledgment, in effect, of the enormous pressures mounting on the nation’s teachers because of new academic standards and more rigorous standardized testing.

Sounding like some of his fiercest critics, Mr. Duncan wrote in a blog post, “I believe testing issues are sucking the oxygen out of the room in a lot of schools,” and said that teachers needed time to adapt to new standards and tests that emphasize more than simply filling in bubbled answers to multiple-choice questions.

Over the past four years, close to 40 states have adopted laws that tie teacher evaluations in part to the performance of their students on standardized tests. Many districts have said they will use these performance reviews to decide how teachers are granted tenure, promoted or fired. These laws were adopted in response to conditions set by the Department of Education in the waivers it granted from the No Child Left Behind law that governs what states must do to receive federal education dollars. The test-based teacher evaluations were also included as conditions of Race to the Top grants that have been given by the Obama administration.

Last year Mr. Duncan said states could delay using teacher evaluations to make high-stakes personnel decisions. Thursday’s announcement allows states to delay using test results at all in performance reviews.

And, of course, this new law by the Administration was announced in a blog post by the Secretary of the Education (the Education Blog is much nicer than the HHS blog)!

That’s why we will be taking action in the coming weeks that give states more flexibility in key areas that teachers have said are causing worry.

States will have the opportunity to request a delay in when test results matter for teacher evaluation during this transition. As we always have, we’ll work with them in a spirit of flexibility to develop a plan that works, but typically I’d expect this to mean that states that request this delay will push back by one year (to 2015-16) the time when student growth measures based on new state assessments become part of their evaluation systems – and we will work with states seeking other areas of flexibility as well. We want to make sure that they are still sharing growth data with their teachers, and still moving forward on the other critical pieces of evaluation systems that provide useful feedback to educators.

I haven’t found the regulation yet, but it doesn’t matter, because there is a blog post. Because won’t someone please think of the children!

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Aug 21, 2014

Gridlock and Judicial Power

I have written about about the relationship between gridlock and executive power. (My article on that topic is currently running the Law Review gauntlet). The next chapter in this project focuses on the relationship between gridlock and judicial power.

How should courts act when they know that Congress wasn’t functioning as they may have once assumed? To use an example, should the Court take cognizance of the absolute mess that was the enactment of the ACA super statute. To use Halbig as an example, in a normal-functioning legislative process, if the “established by the states” language was an error (I’m not stating here whether it was or not), a rationally well-functioning congress would have fixed that language during committee and reconciliation work. NONE of that happened with the ACA, because of the election of Scott Brown. The Democrats lost their filibuster-proof majority, and they had to pass the draft bill that cleared the Senate on December 4, 2009.  Even though the bill was passed through the reconciliation process, there was no meaningful reconciliation that occurred. So we are stuck with an incomplete, draft version of the bill.

What should the court do, if anything, with that history. Should the court simply disregard it, and say that the bill passed the democratic process, and we shouldn’t care about what came before? Certainly this impacts the analysis whether the statute is ambiguous or not on its face. Should the court consider it in any way, perhaps with respect to the cannons of statutory interpretation–call it the incomplete cannon. Congress was forced to pass an incomplete version of the bill due to political gridlock, and we should treat it as an incomplete bill. I’m not sure which way this one would cut (I welcome your thoughts).

One answer would say, well, since Congress did a rush job, the Court should look to the bill’s overall purpose to fill in any gaps in the statute, and read the statute how Congress would have. (This argument is totally apart from Chevron Step 2, I’m still at Chevron Step 1 for ambiguity). Another answer would be say, well, Congress did a rush job, they probably had no cohesive thought on this particular provision (the legislative history is silent on this section), so let’s stick with the only thing that made it through the legislative gridlock and the President’s signature–the text. In other words, a certain realism about the impact of gridlock could great affect how judges read statutes enacted under these conditions.

A corollary of gridlock and judicial power, is when judges known, and take advantage of the fact that Congress isn’t functional after remand. Richard Re has written about the “doctrine of one last chance.” For example, in NAMUDNO, eight Justices on the Court sent Congress a warning–fix the Voting Rights Act or we will invalidate it. A few years later in Shelby County, Congress invalidated the coverage maps, but left the rest of the law intact, sending Congress another shot–fix the coverage map. Of course, in both cases, the Justices (reasonably) should have known there was absolutely no chance Congress would do what it wanted. The VRA re-authorization passed by a huge bipartisan majority. And there was no chance Congress would actually be able to pass new maps–the lack of progress in the last year has been evidence of the fact.

Here, the Justices seem to be relying on gridlock as a prop for judicial modesty. They can act as if the democratic process will work it out. The Justices aren’t making the Voting Rights Act unworkable. They are simply letting Congress fix it–even though they know it won’t happen. Passing the buck to a gridlocked Congress has a similar effect as the Court striking down the law itself. But, here the Court doesn’t need to assume the responsibility of invalidating the law.

In the first case, the Court can either ignore gridlock, and pretend the legislative process functioned normally, and apply all of the normal cannons of statutory interpretation. Or, they could take cognizance of the fact that none of the rules apply to a dysfunctional Congress, and go from there.

In the second case, the Court seems to be knowingly cognizant of the gridlock, but takes advantage of it by punting to a Congress they know won’t return the ball. This promotes a faux judicial modesty that seems to be a hallmark of the Roberts Court so far.

Another implication of gridlock and the judicial power, is that when laws are passed outside the normal legislative process–such as when the President takes unilateral executive action because Congress won’t enact his agenda–parties are forced to turn to litigation. As the New York Times recently explained, the normal rent-seeking and lobbying process is disturbed when the President–not Congress-decides which interests it will consider. In such cases, litigation very well may be the first opportunity for the minority party to have a say in a new policy. So here, the judicial power serves as a cog of the democratic policy to unlock gridlock.

I’ll develop these thoughts more.

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Aug 21, 2014

Limiting Executive Overreach Through The Senate’s Power of the Purse

One of the arguments offered in favor of the House’s lawsuit against the Obama Administration’s executive overreach, is that it is without any political means to stop the President. I think this argument has some salience with respect to the President’s willingness to selectively decline to enforce the law, but the Republican’s proposed strategy, if the GOP takes the Senate, offers an alternate approach:

“We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy,” McConnell said in an interview aboard his campaign bus traveling through Western Kentucky coal country. “That’s something he won’t like, but that will be done. I guarantee it.”

In a lengthy interview with Politico, Senate Minority Leader Mitch McConnell suggested that the Senate will attach riders to spending bills to cabin the Executive’s activities. For example, limiting regulations that the EPA can promulgate:

A “good example,” McConnell said, is adding restrictions to regulations from the Environmental Protection Agency. Adding riders to spending bills would change the “behavior of the bureaucracy, which I think has been the single biggest reason this recovery has been so tepid,” he said.

“He could,” McConnell said calmly when asked if such a tactic would prompt Obama to veto must-pass appropriations bills. “Yeah, he could.”

It’s unclear if McConnell could pass bigger limitations–such as restricting the President’s ability to rewrite Obamacare. The Congress could even pass a law that would *force* the President to implement the employer’s mandate, which is the gravaman of the House lawsuit.

Such an approach casts some doubt on the House’s litigation arguments.

This hardball would force the President to veto the bill, which may result in a shutdown.

But asked about the potential that his approach could spark another shutdown, McConnell said it would be up to the president to decide whether to veto spending bills that would keep the government open.

Obama “needs to be challenged, and the best way to do that is through the funding process,” McConnell said. “He would have to make a decision on a given bill, whether there’s more in it that he likes than dislikes.”

This would be a politically risky move, but a political move nonetheless. Of course, even if the President signs the law, he can just issue a signing statement, saying he won’t follow that part of the law.

McConnell pours a bucket of cold water on ay thoughts of repealing Obamacare through the reconciliation process, something that he considered in 2012.

“That’s how we got Obamacare; we’ll see if we can undo any of it that way,” Paul said in an interview. “It makes more sense to try to do it with 60, but I think you do what you have to do.”

But McConnell was coy on whether he’d pursue this tactic. And even if he tried to gut Obamacare, he knows full well he’d lack the support to override a presidential veto.

“We’ll see,” McConnell said when asked about reconciliation.

Stay tuned.


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Aug 20, 2014

Tom Goldstein Files Amicus Brief On Behalf of His Firm In Support of Neither Party

Tony Mauro reports that Tom Goldstein filed a brief on behalf of his firm, Goldstein & Russell, in support of neither party, supporting certiorari. There’s no party. Just Tom.

A little-noticed brief in a case before the U.S. Supreme Court this fall may launch a new genre of friend-of-the-court filings: written by a law firm on behalf of no client—not even law professors—and in support of neither side.

Or it might flop, its author Thomas Goldstein of Goldstein Russell readily acknowledges. “I’ve never heard of it being done before—the court is used to lawyers having clients,” he said in an interview. “But that has never deterred me from doing something before.”

Indeed Goldstein has shaken up the staid Supreme Court bar more than once—cold-calling losing lawyers in appeals court cases to drum up business in the 1990s, launching Supreme Court clinics at law schools, and in 2002, creating SCOTUSblog, a resource for high court practitioners and law junkies.

Goldstein says his brief in M&G Polymers USA v. Tackett may be the leading edge of an effort by the bar to assist the Supreme Court in new ways, not necessarily as advocates for a particular party.

Remarkably, Tom notes that the amici filing on behalf of clients are not “true amici,” but he is!

“The court is likely to be very concerned about coming up with a workable rule for everyone, not just the parties before them,” Goldstein said. As for amici, sometimes “they are not true amici. They have an ax to grind, a dog in the fight.” In his brief, Goldstein told the justices, “This is the rare true ‘amicus’ brief.”

And, Tom fancies that in certain cases, the Court will call for the views of an expert, similar to the CVSG when the United States has an interest. CVTG perhaps–Call for the views of Tom Goldstein.

Looking ahead, Goldstein said he hopes his brief could lead to something akin to the court’s so-called “CVSG” relationship with the U.S. solicitor general.

In cases where the federal government is not a party but might have some relevant things to say, the court often calls for the views of the solicitor general—CVSG for short—in the form of briefs that detail federal practices or other relevant information.
Goldstein posited that in select cases, the court could ask disinterested lawyers—or perhaps an organized Supreme Court bar group—to provide similar briefs when the government is not involved.

Here is the “Interest of the Amicus” statement from the brief:

This is the rare true “amicus” brief. It is respectfully submitted as a friend of the Court, with no agenda or desire to direct the outcome of the case. The only purpose of the brief is to provide the Court with factual information that may be useful in guiding its decision. Amicus is a law firm that practices before the Court. The firm has no interest in the outcome of the case. Nor is it aware that any of its clients has an interest in the outcome of the case. The genesis of the brief is a desire for members of the bar to provide the Court with assistance in deciding cases correctly. In particular, while many cases before the Court on the merits involve broad and general questions of law, or generate large numbers of thorough amicus submissions, others do not. A material number of cases instead involve important questions that arise in technical fields, yet generate few amicus briefs that elaborate on the legal issue and the factual context in which that issue regularly arises. In those cases, the bar has the ability to use its resources to provide the Court with that information. This appears to be such a case.

Tom explains that he was waiting for a case like this for years:

Goldstein, who said he has been looking for a case like M&G for years, thought it would be helpful to write an amicus brief that would give the court data that parties or other amici might not provide. Namely, a survey of collective bargaining agreements that tallies how many contain different provisions that lower courts have looked for in determining whether retiree benefits vest.
Even though he had no client in the case, Goldstein surveyed 100 collective bargaining agreements and told the court the results in his brief. As court rules provide, he sought and got permission from the parties to file the brief, but has received no feedback from them.

Unsurprisingly, Tony was unable to find any lawyer willing to comment on this brief.

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Aug 20, 2014

SCOTUS: Get the Picture Judges?! Stay Same-Sex Marriage Rulings.

For some time now, I have been blogging about the rule of law, as applied to the same-sex marriage cases. My discussion has nothing to do with the merits of the case, or how the case will turn out at the Supreme Court.

Rather, my focus has been on how the lower courts have behaved in bizarre ways with respect to fairly routine procedural matters. Twice the Supreme Court granted emergency stays from Utah, and twice those appeals were granted. Some courts, such as the 9th Circuit, took note of this action, and stayed its own ruling. Other courts–I’m looking at you 4th Circuit–without any analysis, declined to stay their ruling.

Like in Utah, the clerks in Virginia were forced to file emergency appeals to stop the mandate from going into effect. And once again, the unanimous (See update) Supreme Court has dutifully granted the stay.

All 9 Justices agreed to this order–including 4 Justices who are almost a lock to uphold that judgment. There has not even been a dissent from the liberal darling, the Notorious RBG, who has officiated at several same-sex weddings.

Granting stays is not a liberal or conservative issue. It is a procedural issue–maintain the status quo so the case can be fully appealed. This is especially the case where the Court has *twice* weighed in on this issue, and *twice* granted stays. There should be no surprise about this. The lesson was clear.

Shame on 4th Circuit Judges Floyd and Gregory for refusing to stay the rulings, without a single sentence of analysis, in the face of Supreme Court precedent to the contrary.

Update: As a few people pointed out on Twitter, technically the grant of the stay is not unanimous. It only means that no Justices were on record as offering a dissent. Justice Ginsburg made this point recently in an interview–perhaps with these stays, and Little Sisters of the Poor on her mind.

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.

In any event, I’m not persuaded. If a Justice disagrees with something, and decides not to dissent on record, then I will deem her in agreement. This business of joining an order you don’t agree with is a bit bizarre. Perhaps, a Justice doesn’t agree with it on the merits, but won’t dissent in order to maintain relations on the Court? If so, then the Justices agrees with granting the order. There isn’t a way to dissent quietly. Dissenting means you dissent. There are often dissents to denials of death penalty stays. The Justices know how to issue those.

We have courts of record, not courts of internal opinion. This is why I had a really tough time getting Justice Sotomayor’s outrage in Wheaton College, when she also joined the Little Sisters of the Poor Order. Perhaps they didn’t really accept the first order–but they joined it.

So I’ll caveat the phrase “unanimous,” but I will treat all 9 Justices acting in agreement.

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Aug 20, 2014

Constitutional Faces: Employment Division v. Al Smith

al-smithThe ACLU has the backstory of the lead plaintiff from Employment Division v. Smith, which wrought RFRA.

Al Smith was in his mid 50s-a recovering alcoholic who had picked himself up from the street, rebuilt his life, and made a career of helping others do the same-when he began reclaiming his Native American heritage. After almost half a lifetime without moorings, the ancient traditions that had been lost to him as a child became a growing source of spiritual comfort.

“I was spiritually unbalanced, I was starving. Now my spirit’s so happy. I’m on the high road, back to the Creator from whence I came.”

When he was seven, Smith was taken from the Klamath reservation by the federal Indian Agency and enrolled, like thousands of other Native American children, in a succession of boarding schools where, instead of big skies and open vistas, he found high fences, concrete yards and indoctrination into the white man’s culture. Memories of his own people’s ways were blotted out.

“They took us off, took me from my mother and my grandmother, and we were forbidden to speak our native tongue. They took away my freedom, and I couldn’t understand why I was locked up like that. We weren’t recognized as people. I was 55 or 56 years old before I attended my first Native American ceremony. I don’t speak Klamath. I know no Klamath songs.”

In 1983, Smith was fired from a job he held in Roseburg as a drug and alcohol counselor because he participated in the sacramental use of peyote, a controlled substance that, like the wine of Christian communions, is at the core of the centuries-old Native American religious ceremony in which Smith took part. Smith was denied unemployment benefits by the State of Oregon on grounds that his firing was for just cause. The confrontation inflamed the scars of the past.

“Is this going to continue on? Or am I going to put a stop to it, finally, and say: ‘You can’t tell me that I can’t go to religious ceremonies.”

Smith stood up for his rights-represented by Oregon Legal Services, with the aid of the ACLU. More than six years of litigation followed, culminating in a 1990 U.S. Supreme Court decision that affirmed the state’s denial of Smith’s unemployment claims.

“People have individual rights and they have be aware of that, to have the energy, the courage to speak out and question. Otherwise, we’ll fall into being just like a herd.”

Smith had only lost the battle, not the war. The Courts decision in Employment Division of Oregon v. Smith galvanized religious leaders of all faiths because it brazenly swept aside the long-held doctrine that government must show a “ compelling state interest” before infringing on religious practices. Oregon has since joined 23 other states and the federal government in declaring the sacramental use of peyote in Native American ceremonies legal. And President Clinton in 1993 signed into the law the restoring the “compelling interest” doctrine.

“I’m seeing to it that my little children – my daughter is twelve and my son is seven – have a choice about what path to follow. I didn’t have a choice. But they know the ceremonies. They know what a sweatlodge is. They’ve participated in a sundance. They know about the drum. So the culture is not lost.”

Oh, those were the days when the ACLU supported RFRA.

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



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Aug 20, 2014

Executive Power and Congressional Apathy

I have written at some length about the relationship between executive power and congressional intransigence–that is, when Congress positively refuses to comply with the President’s agenda. But there is a corollary to  this doctrine–executive power and congressional apathy. What happens when the President seeks to exercise an executive power, and rather than supporting or opposing the President, Congress says meh.

This seems to be the case in Iraq now, as explained in the Times. Last year, Congressional ferociously opposed the President’s request for authority to bomb Syria.

Mr. Obama has sometimes embraced that principle, but seldom reaped any political reward for doing so. Last year, the president abruptly backed away from plans to carry out strikes against Syria and said he wanted congressional approval first. Congress never acted on the request, and Mr. Obama did not take any military action against the government of President Bashar al-Assad.

But with the current actions in Iraq, Congress has basically shirked their duty to check the President’s war-making powers. They’ve basically said “who cares” to the War Powers Act, and are in no hurry to take a difficult vote. In this vacuum, the President has simply assumed the power to engage in military activities at will, without congressional authorization. So here, executive power is heightened by congressional apathy.

After authorizing an air campaign against militants in Iraq, Mr. Obama has yet to seek or receive a vote in Congress for what he has described as a potentially long-term mission.

The change in approach was dictated partly by circumstance: The situation in Iraq, where thousands of members of religious minorities were facing slaughter or starvation and American personnel were threatened by the swift advance of the Sunni fighters, was arguably more urgent than the one in Syria a year ago. And Congress is in the midst of a five-week summer break.

The President’s joke sums it up nicely.

Mingling with Senate Democrats at the White House earlier this summer, President Obama had a tart comeback to the suggestion that he should seek a vote of Congress before deepening American military involvement in Iraq.

“Guys, you can’t have it both ways here,” Mr. Obama told the group, according to Senator Tim Kaine of Virginia. “You can’t be ducking and dodging and hiding under the table when it comes time to vote, and then complain about the president not coming to you” for authorization.

The president’s comments were tinged with humor, Mr. Kaine said, but they reflected a serious reality that administration officials say has informed the president’s decision not to seek authorization to carry out airstrikes against militants in Iraq: Most lawmakers have little appetite for such a vote.

While Congress generally has no affirmative obligations to support the President’s war-making policies, they should at least go on record as to whether or not they agree with it–this is a key element of the separation of powers that should not be shirked due to the inconveniences of  taking tough votes. Tim Kaine explains:

“This is not about an imperial presidency. It’s about a Congress that’s reluctant to cast tough votes on U.S. military action,” said Mr. Kaine, who prompted Mr. Obama’s remarks because of an opinion article he wrote for The Washington Post declaring that the president needed congressional authorization for military action in Iraq. “We should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary,” Mr. Kaine said in an interview.

Beyond that, senior administration officials note that congressional leaders, who met with Mr. Obama about Iraq in June, have explicitly told them that Mr. Obama need not go to Congress to authorize military action.

When Congress doesn’t check the Executive’s power, the President will aggrandize, and assume the authority for himself.

But it also reflects a significant shift by Mr. Obama, who spent considerable political capital last year on a lobbying campaign to persuade lawmakers in both parties to back military action in Syria. That push yielded paltry support, and Mr. Obama has little patience for repeating the episode now, three months before midterm congressional elections.

As an aside, the National Security Council says the President has the “authority” to do this.

White House officials say Mr. Obama does not need such a vote, arguing that his constitutional powers as commander in chief are sufficient to cover the current mission.

“The president has the authority to take the recent actions undertaken in Iraq,” said Bernadette Meehan, a spokeswoman for the National Security Council. She noted that Mr. Obama provided a report to Congress on the initiation of airstrikes last week, and was keeping lawmakers informed regularly on American military efforts in Iraq.

The Times seems to suggest this is based on his Commander in Chief power, but without more context, this doesn’t seem to be what the NSC explained. There are perhaps other statutory sources of power. The Administration has assiduously avoided relying on inherent Article II powers throughout the presidency.

Though, the article notes that if the President wants to expand his operations, he would need congressional approval.

A number of lawmakers in both parties do say the president would need congressional approval for any broader American military campaign in Iraq. In a little-noticed move a week before leaving for its summer break, the House voted overwhelmingly in favor of a resolution to bar the president from deploying American forces in a “sustained combat role” in Iraq without specific authorization.

So what happens when the 40-day clock hits, and the strikes are going on? Certainly Harold Koh can whip up a memo arguing that these are not “hostilities.”

Update: More from Jack Goldsmith:

Congress’s pusillanimous calculus is easy to understand.  So too is the President’s thinking.  He cannot shirk responsibility for national security threats.  But he can meet those responsibilities in ways that minimize political costs – at least in the short term.  “Mr. Obama has little patience for repeating the episode now [of seeking congressional authorization], three months before midterm congressional elections,” says Davis.  The President has no interest in spending political capital on a war vote that Congress doesn’t want to take, concerning a country where the President promised to end war (and bragged about doing so), especially since the expenditure will only diminish the enthusiasm of his political base in the midterms.  Another important consideration is that the President likes the flexibility of unilateral war powers.  The Obama administration has long pushed the canard that it doesn’t want congressional authorization for military force against Islamist terrorists for fear that Congress will give it too much power.  This is nonsense as it concerns the use of force against IS, for at least four reasons: (1) Davis makes clear that the administration’s worry is whether Congress will authorize any force against IS, not too much force; (2) the President has enormous leverage in the negotiations over authorizations of force and could refuse to sign any authorization that did not suit him, especially since he claims to possess Article II powers to meet the threat if Congress does not give him what he wants; (3) if Congress gives him too broad an authorization for force, he need not exercise force beyond what he thinks fit; and (4) the administration that purports to worry about receiving too much power from Congress has pushed unilateral Article II war powers beyond past limits during the past six years.

And so again we witness presidential unilateralism in the use of military force because unilateralism advances the short-term interests of both political branches.  Tim Kaine is quite right to say (in the NYT piece) that “[w]e should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary.”   This was the premise of the the President’s speech on Syria a year ago.  Today the President no longer thinks congressional support for the use of force “is the right thing to do for our democracy,” or that “our power is rooted . . . in our example as a government of the people, by the people, and for the people,” or that that “all of us should be accountable as we move forward, and that can only be accomplished with a vote.”  And that in turn suggests that the President’s eloquent paean last August to the vital importance of congressional participation in the decision to use force was opportunistic or insincere or both.

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Aug 20, 2014

Prop1 Class 2 – Efficiency and Fairness

Today in class we will be talking about Ghen v. Rich and Keeble v. Hickeringill, through the lens of economic efficiency and fairness.

Today’s lecture notes are here. Today’s live chat is here.

Ghen v. Rich.

Here is the harvesting of a finback whale.


Fin whales are on average about 90 feet long, and can weigh over 70 tons. By point of comparison, an African elephant weighs roughly 8 tons.


Fin Whale


This is a bomb lance harpoon.


And a patent diagram of an 1878 bomb lance:


Another patent diagram from 1879.




More pics of bomb lances. It was basically a harpoon with a rocket attached to it.



This is a bomb lance gun.


Here is a drawing from 1897 showing the firing of a bomb lance (Frank T. Bullen, The Cruise of the Cachalot (1897)



This is what a captured whale looks like:


Keeble v. Hickeringill

Here is Edmund Hickeringill (courtesy of the British Musuem)–doesn’t he just look like a jerk!?


This is Lord Chief Justice John Holt who was the Lord Chief Justice of England, the author of the opinion in Keeble v. Hickeringill.


Here is a plan for the duck decoy.


The ducks get caught in these nets over the pipes.





Here is a dutch video showing the ducks getting cut (fast forward to about 1:05)

I suspect many of you have tried this kind of duck hunting.



Coase Theorem

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.




Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.



And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?



This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.


And they follow the sun’s path through the year.



Images courtesy of, Wikipedia, and Professor Frank Buckley.



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Aug 20, 2014

Prop2 Class 2: Mechanics of Adverse Possession

Today we will cover Howard v. Kunto (pronounced Koonto, please), O’Keeffe v. Snyder, and adverse possession against the government.

Today’s lecture notes are here. Today’s live chat is here.

Howard v. Kunto

This is the Hood Canal, the site of Howard v. Kunto.


Here are some maps that help explain this case.

Texas law allows tacking. Section 16.023:

Sec. 16.023.  TACKING OF SUCCESSIVE INTERESTS.  To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.

Texas law allows disabilities in a few situations. Section 16.001.


(a)  For the purposes of this subchapter, a person is under a legal disability if the person is:

(1)  younger than 18 years of age, regardless of whether the person is married;  or

(2)  of unsound mind.

(b)  If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.

(c)  A person may not tack one legal disability to another to extend a limitations period.

(d)  A disability that arises after a limitations period starts does not suspend the running of the period.

Adverse Possession Against the Government

Here is a 2008 NY Times story discussing a person’s attempt to adversely possess land from the government.

In a city where nearly every millimeter of land is spoken for, Darren Miller thought that he could grab nearly 10 acres at no cost, throw a fence around it and run a lucrative business from it. And that no one would care.

He didn’t even try to keep it a secret. According to prosecutors, Mr. Miller allowed hundreds of truck drivers to park on his annexed land in south Brooklyn, charging them a few hundred dollars a month for the space (“The best deal in town,” one trucker said).

The authorities said that Mr. Miller also ran a “chop shop” and used the land as a dumping ground for construction debris. He kept a sign on the his fence: “No trespassing. Violators will be prosecuted.”

On Wednesday, it was Mr. Miller, 47, of Queens, who was facing prosecution, on charges that included trespassing, illegally dumping toxic waste, and dismantling cars without a license, all on land that prosecutors said belonged not to him, but to the city, the state and a private developer.

Mr. Miller’s lawyer, Vincent M. Gerardi, said his client’s claim to the land was sound, and based on the legal doctrine of “adverse possession,” in which someone can claim title to property he has used for a specified number of years. Mr. Miller, his lawyer said, is a small-business owner who simply made good use of a wasted patch of land.

That land is worth more than $200 million, and the city has plans for it, prosecutors said. The Brooklyn district attorney, Charles J. Hynes, said that Mr. Miller, who pleaded not guilty at his arraignment in Brooklyn Criminal Court, had given “new meaning to the word chutzpah.”

According to Mr. Gerardi, Mr. Miller, who operates his own dump truck, has been using the parcel since 1995. In August 2005, the city’s Department of Housing Preservation and Development sent Mr. Miller a letter saying that he was illegally occupying the property.

He responded that he was claiming the land, which he had “enclosed and maintained” for “over 10 years,” Mr. Gerardi said. Under the law, claims of adverse possession can be made if an individual uses someone else’s property continuously for 10 years.

But city lawyers assert that such claims cannot be made against land “acquired for a public purpose.” In court papers, the city’s Law Department said that the disputed parcel was obtained by the city in 1968 through condemnation for the Fresh Creek Urban Renewal Project. To make matters more complicated, though the city owns most of the parcel, some parts belong to the state and others to a private developer, the authorities said.

Since 2005, when the housing department notified Mr. Miller that he was illegally occupying city property, he and city agencies have fought two battles in the courts. Whether he can claim title to the land is still being decided. His arrest on Tuesday was the result of separate legal action to stop him from using the lot as a dump.

Ultimately, Miller was convicted.

O’Keeffee v. Snyder (Adverse Possession of Chattels)

This is Georgia O’Keeffee, as photographed by her husband Alfred Stieglitz


O’Keeffe’s painting Cliffs

The other painting: Seaweed.

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Aug 19, 2014

George Takei: “The eyes of the world and history are upon you, Judge Sutton”

On his popular and whimsical Facebook page, George Takei offers these admonitions to Judge Sutton, who is currently considering the constitutionality of bans on same-sex marriage in Michigan, Kentucky, Ohio, and Tennessee.

One federal judge on the 6th Circuit may hold the key to the first loss of a marriage equality case since the Supreme Court’s Windsor case.

Remember this name: Jeffrey Stewart Sutton. The eyes of the world and history are upon you, Judge Sutton.

If Sutton (the swing vote on the three-judge panel) decides to uphold same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee, he will go against EVERY other court decision rendered since Windsor and set-up a show down in the U.S. Supreme Court, where 9 people (really, 5) will decide the rights of millions. During oral argument, Sutton seemed to indicate that one basis for upholding the bans in his belief that, in a democracy, the majority should be allowed to decide who is permitted to marry.

That was the law when I was young, when the “majority” decided racial minorities could not marry whites. It took a Supreme Court decision to overturn those laws–in Loving v. Virginia (1967). But this is about rights–guarantees of equality of treatment that cannot simply be voted away through plebiscite. Our courts, after all, are the last bastion of protection against a tyranny of the majority. That is one the very reasons why we have them.

So keep a close watch on the 6th Circuit, friends, and on the reasoning of one judge, who may believe he knows better than the dozens of fair minded jurists from across the political spectrum who have already examined and weighed in on this matter.


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Aug 19, 2014

The Appointment of the Special Prosecutor in the Perry Case

One issue that seems to have been lost in the media, is how the special prosecutor was appointed to investigate Governor Perry. I had thought–mistakenly–that the same drunk District Attorney who led the Public Integrity Unit also started the investigation. This isn’t right.
Shortly after Perry made the veto threat, Texans for Public Justice filed a complaint in Travis County.  As I understand it, all of the prosecutors in Travis County–who work under District Attorney Lehmberg– recused themselves from handling the complaint. At this point–for reasons I don’t completely follow–the administrative judge of Willamson Count appointed Bexar County Senior Judge Robert Richardson to appoint a special prosecutor. I couldn’t find any good explanation for this sequence of events–its possible no one wanted. I suspect Travis County Judges were not eligible to appoint a special prosecutor, but I’m not sure. If you know, please fill me in.Anyway, this roughly follows the Texas Code of Criminal Procedure, which provides for appointment of Attorneys pro tem (special prosecutors):

Art. 2.07. ATTORNEY PRO TEM. (a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
So if I follow, the indictment was triggered, not by the DUI DA, but because of the complaint filed by the Texans for Public Justice. At this point, it doesn’t seem the Travis DA had anything to do with the selection of the prosecutor. This seems to be a point lost in the media, that I didn’t realize till now. There is more coverage here, here, and here.
The question I don’t know–and if anyone knows this please drop me a line–is whether the special prosecutor was obligated by his authority to seek an indictment in the allegations of wrongdoing, or was this simply a matter of prosecutorial discretion. I lean towards the latter, but I’m not sure. Just because a complaint is filed does not mean a prosecutor needs to seek an indictment.

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Aug 19, 2014

First Amendment Challenge To Harris County Sheriff’s Social Media Policy That Punishes Employee Speech

The Houston Press reports that a Deputy in the Harris County Sheriff’s Department has filed suit challenging the Office’s social media policy, which bans employees from posting anything on social media that may “cause undue embarrassment or damage the reputation of and/or erode the public’s confidence” in the sheriff’s office. Further, “speech containing crude, blasphemy (sic), negative, or untrue claims about the HCSO and/or any HCSO personnel is forbidden and therefore will be grounds for disciplinary action.” The policy also provides that an employee’s actions “must never bring the HCSO into disrepute, nor should conduct be detrimental to the HCSO’s efficient operation.” The policy also provides that employees are “free to express themselves as private citizens on social media to the degree that their speech does not impair the working relationships of the HCSO . . . where such speech . . . negatively affect[s] the public perception of the HCSO.”

You can view the complaint, and the policy here.

Under Garcetti v. Ceballos, employees speech may be limited to communications made pursuant to the official’s duties. The Court reaffirmed this recently in Lane v. Franks. But here, the policy seems to be reaching purely private speech, done outside the workplace, that may have nothing to do with the employee’s duties. The policy tries to work around it, and seems to say anything said about the Office would be part of official duties–but this isn’t right:

HCSO personnel are cautioned that speech on or off duty, made pursuant to their official duties . . . is not protected speech under the First Amendment and may for [sic] the basis of discipline if deemed detrimental to the HCSO. Bureau personnel shall assume that their speech and related activity on social media sites will reflect upon their Bureau and on the HCSO.

Further, under Pickering v. Board of Education, public employees have the First Amendment right to speak critically about their employers, on matters of public importance, without fear of retaliation. In that case, a teacher wrote a letter to the newspaper criticizing the Board of Education. The Court upheld her right to do so, so long as the remarks weren’t knowingly or recklessly false.

The language in the policy seems really, really broad–especially “crude, blasphemy (sic), negative.” What does that even mean? This policy is extremely problematic.

From a policy perspective, shouldn’t we encourage employees revealing *accurate* information about police actions that would “damage the reputation of and/or erode the public’s confidence.” That means the police messed up, and the public should know about it.

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Aug 19, 2014

Another Unprepared Dream

At least once a semester I have the dream where I show up for class, totally unprepared to teach it. Last night I had a different version. I show up at a school where I am to give a Federalist Society talk (I am actually speaking there this semester). I start talking to the Chapter President, and say something like, “I’m really excited to talk about Hobby Lobby” (one of my topics this year). The President responds, I thought you were talking about Noel Canning and Executive Power.

Oh crap. I think. It was 11:40, and I had 20 minutes before the talk started, and was more-or-less unprepared to talk about Noel Canning. So I try to play it cool, and say, oh yeah, I was kidding. I mean’t Noel Canning. Then I ask for a few minutes alone to go prepare.

I go into this classroom, and start putting together a rough sketch of a Noel Canning talk, based on my Gridlock paper. I consider talking about NRLB, Obamacare modifications, DACA, and then decided against going into foreign affairs topics like Bergdahl and Libya. Yes, my dreams are this detailed–I was organizing an outline of talking points to guide me through the lecture.

But then, the Professor who would be commenting my talk (not the actual professor at that school) comes into the room and starts to chit chat. I look at the clock, and I have maybe 15 minutes left. I can’t think of a way to get rid of her, so I can continue preparing my lecture.

Then a student comes into the classroom to invite me to dinner. I got five minutes left, and I’m in trouble.

I don’t remember actually giving the talk. Hopefully I got a good turnout :)


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