Oct 9, 2015

1st Amendment, 2nd Amendment, and 3D-Printed Guns at Rutgers Law School with Dean Ronald Chen

On October 6, the Rutgers Newark Law School hosted me for a discussion on the right to print arms with Dean Ronald Chen. Here is the video:










And, a few blocks from the law school is the Justice William J. Brennan, Jr. Park.


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Oct 7, 2015

Prop2 Class 15 – Easements III

Today we will wrap up our coverage of easements, and focus on whether easements in gross are assignable, what the scopes of easements are, and whether easements can be terminated. The lecture notes are here.

Lots of pictures and maps and stuff.

Here is a map of the property in Miller v. Lutheran Conference & Camp Association.

View Larger Map

You can find out more about the property, which still operates as a club here, here, and here. Here are some old pictures of people wearing boating–but not bathing–at Lake Naomi. 

Here are some maps from Brown v. Voss, a case that took place on the Hood Canal (same place as Howard v. Kunto)–courtesy of the Dukeminier & Krier site..

Should an easement for a railroad cover an easement for a public trial? Here is a recent article about the Rails to Trails program. And for a different view from Mother Jones. The Supreme Court decided a Rails to Trails case.

Here is the map of the property at issue in the Presault case.


Here is the trail around Lake Champlaign. The Presualt’s home is on the right (Courtesy of Dukeminier & Krier):

Trail (1)

A related question: What does this sign mean? What exactly is not allowed in the park?


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Oct 7, 2015

ConLaw Class 15 – The Enforcement Powers of the 14th Amendment

The lecture notes are here.

The Enforcement Powers of the 14th Amendment

  • Note on 11th Amendment (1262-1263).
  • Sovereign Immunity (557-558).
  • 11th Amendment (558).
  • Chisolm v. Georgia (558-566).
  • Hans v. Louisiana (566-570).
  • City of Boerne v. Flores (1327-1337).
  • United States v. Morrison (1322-1327).

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.



City of Boerne v. Flores

Here are photographs of St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.

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Oct 5, 2015

#SCOTUS Now Tracks Changes To Revised Opinions and Combats Link Rot

In a statement announcing “What’s new, from www.supremecourt.gov,” the Supreme Court made two important changes to its policies that are directly responsive to criticism (led by Adam Liptak).

First, the Supreme Court will now alert the public when an opinion is modified.

Beginning with the October Term 2015, post-release edits to slip opinions on the Court’s website

will be highlighted and the date they occur will be noted. The date of any revision will be listed in a new “Revised” column on the charts of Opinions, In-Chambers Opinions, and Opinions Related to Orders under the “Opinions” tab on the website. The location of a revision will be highlighted in the opinion. When a cursor is placed over a highlighted section, a dialog box will open to show both old and new text. See “Sample Opinions” for an example of how postrelease edits will appear on the website.

On the slip opinions page, there will now be a column for “revisions” to indicate when an opinion is changed. The Court offers a “sample opinions” to demonstrate what it looks like.


Now, there is the original link for Nautilus, Inc. v. Biosig Instruments, Inc., and the revised version on 6/02/14. The header of the page offers this guide to the track changes.


Here is an example of a page that was modified:



This is a significant change to their policies, and I am very glad to see it. Last year, Adam Liptak wrote about this problem@SCOTUS_servo can now stand down.

Second, the combat link rot, the Court will store PDFs of all web sites that are cited in opinions:

The Court’s Office of Information Technology is collaborating with the Library, the Reporter of Decisions’ Office, and the Clerk’s Office to preserve web-based content cited in Court opinions. To address the problem of “link rot,” where internet material cited in Court opinions may change or cease to exist, web-based content included in Court opinions from the 2005 Term forward is being made available on the Court’s website. Hard copies will continue to be retained in the case files by the Clerk’s Office. See “Internet Sources Cited in Opinions.”

All of the cited documents–going back to 2005!–are available here. For example, here is the code from Reed v. Town of Gilbert. Adam Liptak also wrote about this problem.

Update: I should note that both Liptak pieces were based on articles in the Harvard Law Review. See their articles on link rot and the finality of decisions.


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Oct 5, 2015

#SCOTUS Inadvertently Posted, and Promptly Deleted, Same-Day Oral Argument for OBB Personenverkehr AG v. Sachs

I subscribe to an RSS feed that automatically posts all oral argument recordings from the Supreme Court. About 3:00 ET, an entry popped up for oral arguments in OBB Personenverkehr AG v. Sachs. That case was argued today. Huh, I thought? Shouldn’t the link appear on Friday? A page with link to http://www.supremecourt.gov/oral_arguments/audio/2014/13-1067 (no longer works), and a download link for http://www.supremecourt.gov/media/audio/mp3files/13-1067.mp3 (no longer works) were in the RSS posting. The docket number for Sachs is 13-1067.

Here is a screenshot of the RSS entry:


Someone inadvertently posted the audio for the case, and then immediately deleted it. This shows that the Court can publish audio the same day quite easily, but chooses not to. Happy First Monday everyone!

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Oct 5, 2015

Citizens United Litmus Test for the Supreme Court

To amend the Constitution to reverse the Citizens United Decision will take 2/3 of the House and Senate and 3/4 of the states to ratify it. This ill-fated Amendment has no chance. But to appoint a single Justice, and potentially sway the balance of the Supreme Court, takes only 51 votes in the Senate. The latter approach is much easier. Democratic candidate Bernie Sanders has imposed a litmus test, promising to only appoint Justices who vow to overturn Citizens United.

Sanders offered this promise:

“My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.”

I’m glad Sanders thinks Justices can overturn cases whenever they wish, as an “order of business.” Democratic candidate Hillary Clinton offered a less direct, but equally apparent litmus test:

“I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections,”

The irony of Clinton opposing a case that protected the right of a group to make a movie critical of her is too rich.

The Legal Ethics Forum comments on the appropriateness of such a litmus test:

While ideological screening of Supreme Court nominees by Presidents is the norm and privately administered litmus tests probably not uncommon, Senator Sanders goes one step further. He would require that nominees publically commit to case outcomes. Presumably, nominees would “tell the American people” about their specific commitments at a press conference or other public event, or at least in a signed statement made available to the press.

Sitting judges in jurisdictions that have adopted Rule 2.10(B) of the ABA Model Code of Judicial Conduct may have difficulty making the commitment required by Sanders. Rule 2.10(B) prohibits a judge from making pledges, promises, or commitments inconsistent with judicial impartiality in connection with cases, controversies, or issues likely to come before the court. But President Sanders could easily select a judge from a jurisdiction that has not incorporated Rule 2.10(B) into its judicial code or nominate a lawyer employed outside of the judiciary. And that nominee would be under no legal or ethical duty to refrain from making commitments on any number of issues, controversies, and cases. There is no code of judicial conduct applicable to Supreme Court Justices much less a code applicable to nominees for that office.

Of course, once on the Court the new Justice would be subject to the federal disqualification statute which requires recusal from cases in which a judge’s impartiality might reasonably be questioned. But this should not be much of a roadblock since Supreme Court Justices decide their own recusal motions.


This may be the first time a candidate has openly admitted to a litmus test. The notion of a litmus test came up during the 2012 VP debate between Paul Ryan and Joe Biden, and Biden vehemently rejected it.:

MS. RADDATZ: I want to go back to the abortion question here. If the Romney-Ryan ticket is elected, should those who believe that abortion should remain legal be worried?

REP. RYAN: We don’t think that unelected judges should make this decision; that people, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination.

VICE PRESIDENT BIDEN: The court — the next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is.

Just ask yourself: With Robert Bork being the chief adviser on the court for — for Mr. Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia or someone else on the court, far right, that would outlaw Planned — excuse me — outlaw abortion? I suspect that would happen.

I guarantee you that will not happen. We picked two people. We picked people who are open-minded. They’ve been good justices. So keep an eye on the Supreme Court —

REP. RYAN: Was there a litmus test on them?

VICE PRESIDENT BIDEN: There was no litmus test. We picked people who had an open mind, did not come with an agenda.

Disclosure: I have advised the Rand Paul campaign.

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Oct 5, 2015

Harlan Institute & ConSource Virtual Supreme Court Competition – Fisher v. University of Texas (II)

court150The Harlan Institute and The Constitutional Sources Project (ConSource) announce their Fourth Annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Fisher v. University of Texas at Austin (II), exploring whether race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution.

cceThe competition is endorsed by the Center for Civic Education’s We The People Program. Robert Leming, Director of the We the People Program found that our “Competition is relevant for high school students studying the Constitution and Bill of Rights.”

ConSource Executive Director Julie Silverbrook believes “the Competition is an excellent opportunity for high school students to develop core civic and constitutional literacy skills. Students are required to read the text of the Constitution, explore the history behind a contemporary constitutional dispute, and construct persuasive arguments. We know that experiences like the Virtual Supreme Court Competition leave a lifelong impression on participating students and encourages them to stay informed and engaged throughout their lives.”

BracketsThe members of the grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2016. Winners must be at least 18 years old at the time of the trip (it is no problem if the student has already graduated high school in September of 2016, so long as he or she was in high school during the competition). This offer is open to U.S. residents only. Members of the runner-up team will each receive an iPad Mini. Members of the third and fourth place teams will each receive a $100 Amazon.com Gift card.

Josh Blackman, President of the Harlan Institute, champions the Virtual Supreme Court, which provides an “unprecedented opportunity for high school students to engage in the highest level of appellate advocacy. They research the issues, write briefs, and make oral arguments before our judges. The strong caliber of the winning teams last year really impressed us. We can’t wait to see how the teams perform this year!”

Teachers interested in participating should sign up at HarlanInstitute.org, add an account, read the problem, and get started!

Please send any questions to [email protected] or [email protected].

Abigail Fisher at the Supreme Court in 2013

Abigail Fisher at the Supreme Court in 2013


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Oct 5, 2015

Oyez, Oyez, Oyez! The October 2015 Term of FantasySCOTUS Is Now In Session

Oyez, oyez oyez! Happy first Monday! Today LexPredict has launched the 7th Season of FantasySCOTUS. Continuing our successes from last year, FantasySCOTUS is sponsored by Thomson Reuters. If you’ve played before, or are new to the competition, sign up and start predicting cases. If you haven’t we have three new reasons to join.

1. Cash Prizes

Thanks to our good friends at Thomson Reuters, we are offering significant cash prizes.

  • Grand Prize – $10,000
  • 1st Prize – $5,000
  • 2nd Prize – $2,000
  • 3rd Prize – $1,000
  • Honorable Mention (5) – $500

2. Man v. Machine Competition

Marshall-AnimatedLexPredict has developed a revolutionary algorithm that can accurately predict Supreme Court cases. We call it {MARSHALL}+, after Chief Justice John Marshall.  This Term, {MARSHALL}will be competing against the players of FantasySCOTUS in a legal Man v. Machine contest.  It’s like IBM’s Watson on Jeopardy, except with the Supreme Court.  And we need your help.  By making predictions in all of the cases this term, you will contribute to the most sophisticated Supreme Court forecasting project of all time – with a shot at winning cash prizes to boot.

You can see all of our predictions in real time at the Prediction Tracker.

3. Unlock SCOTUS Justice Badges

If cash prizes and beating a computer were not enough incentives, if you make predictions, you can unlock your very own Justice Badges. Here are the badges for Chief Justice Roberts, Justice Scalia, Justice Kennedy, and (almost) everyone’s favorite, Justice Ginsburg.


Justice_Scalia (2) Justice_Kennedy wz_name

Sign up today!

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Oct 4, 2015

Straddling the World Between Scholarship and Advocacy

In the New Rambler, Cornell Law School Dean Eduardo Peñalver reviews Ilya Somin’s book on Kelo. (Ilya replies to the substance here). One of the more salient aspects of the review focused not on the case, but on the author. He writes:

At the time Kelo came down, Ilya Somin was a junior professor at George Mason Law School and a blogger for the Volokh Conspiracy – the most influential conservative law blog in the country. As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand:Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain.

Law professors occupy a unique role in our society. One the one hand, we are scholars. We are expected to dispassionately analyze what courts do, and provide commentary and insights into the law. But in doing so, it is virtually impossible not to develop opinions about whether the courts acted correctly or incorrectly, or whether the law is heading in a good or bad direction. (This is especially true when writing about constitutional matters). This latter tension doesn’t make dispassionate analysis impossible, but it does make it more difficult–it requires a lot of discipline to not make certain arguments. Many law professors–Ilya and myself included–use this knowledge to engage in forms of advocacy, whether it be writing editorials, filing amicus briefs, or testifying before legislative bodies. Penalver’s analysis of Ilya suggests that the latter affects the former: he “consistently straddled these two worlds of scholarship and property rights advocacy.” It is true, that over the last ten years, it would be impossible to discuss the backlash to Kelo without discussing Ilya (and the Institute for Justice). As much as Ilya became the expert about the case, he became part of the story.

I feel a certain kinship to Ilya, because (no doubt) something very similar could (and probably will) be written about me and Obamacare. I began teaching months after NFIB v. Sebelius was decided, and my first book about it was published shortly after the one year anniversary of the case. Since then, I’ve commented on virtually every aspect of the case in all manners of public fora. What does this mean for my scholarship? In Unprecedented, I went out of my way to be objective. This was feasible because I was a law clerk during the pendency of the case, and didn’t file any briefs, or even write any editorials about the case. Unraveled will not be so easy. I filed a brief in King v. Burwell, filed another one in the Little Sisters Case, and wrote countless editorials about the case. I testified before Congress about DAPA, where I referenced the lawless manner in which the ACA has been implemented. I won’t have the air of objectivity I had in Unprecedented for Unraveled. This was a conscious decision, that I am quite aware of, though I think it does open me up to the same sort of critiques Penalver offered for Ilya. I will try to write Unraveled in the same sort of style as Unprecedented, notwithstanding my personal connections with these cases. I hope it is successful.

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Oct 4, 2015

VP Biden to HRC on Obergefell: “You left the Supreme Court absolutely no choice whatsoever”

During a keynote speech to HRC (Human Rights Campaign), Vice President Biden offered these remarks about Obergefell:

The vice president opened by discussing praise he has received for the Meet the Press interview when he endorsed marriage equality in 2012. Biden quickly pivoted the focus back to the audience, however, saying this June’s marriage equality ruling “is not because of any national figure who spoke out,” but is instead because of the people in the room and thousands of others “who have had the courage to stand up and speak, to speak their hearts and minds.”

He continued: “You left the Supreme Court absolutely no choice, no choice whatsoever — I mean that — but to recognize the simple proposition my father taught me 50 years ago,” which, he had earlier said, was, when the Bidens saw a gay couple kissing on the street when the vice president was growing up, “They’re in love with each other, it’s that simple.”

You may recall that in 1987, after the Bork nomination imploded, Larry Tribe pushed for Justice Kennedy’s nomination, as part of his counsel to Senator Joe Biden, who then chaired the Senate Judiciary Committee. Linda Greenhouse reported at the time:

The chairman of the Senate Judiciary Committee, Senator Joseph R. Biden Jr., said: ”I’m glad the President has made his choice. We will get the process under way and move as rapidly as is prudent. We want to conduct the committee’s review with both thoroughness and dispatch.” ….

Laurence H. Tribe, the Harvard Law School professor and a liberal who has been a close adviser to Senator Biden, said in an interview that his initial impressions of Judge Kennedy were very favorable.

”His opinions are more sensitive than strident,” Mr. Tribe said. ”He replaces the dogmatism of Robert Bork with a sense of decency and moderation.”

No choice whatsoever.

Further, speaking of Biden, you will also recall that it was Biden’s appearance on Meet the Press, where he came out in support of gay marriage–even though the President had not yet done so–that made the President “angry.” Game Change reported:

Mr. Obama and his team were also angry when Mr. Biden declared his support for same-sex marriage on “Meet the Press” in the spring of last year, pre-empting the president’s own poll-tested plans to announce what the book indicates was a position he had held as early as 2004.


Time Magazine’s feature on Forcing the Spring relays similar events on the President’s “Evolution” towards supporting same-sex marriage: Even as right-wingers like Laura Bush came out in support of same-sex marriage, the White House was still concerned about the political risks in the upcoming election.

But for all the political and corporate cover, Obama’s political advisers remained worried that the costs outweighed the benefits — a fear that intensified as it became clear that North Carolina, a battleground state that Obama narrowly won in 2008, was poised to easily pass a constitutional amendment banning same-sex marriage.

“This was so past the sell-by date,” one senior administration official said of the timing of an announcement by the president, “yet there was still no real plan in place. It just shows you how scared everyone was of this issue.”

But, then Biden happened. The book recounts Vice President Biden’s own evolution.

It was clear from Biden’s body language that the question made him uncomfortable. His public position was no different from the president’s. As a senator, Biden voted for the Defense of Marriage Act. As a presidential candidate himself, he said he supported civil unions. And as the vice president, he had studiously toed the administration’s shifting line. ..

“Things are changing so rapidly, it’s going to become a political liability in the near term for an individual to say, ‘I oppose gay marriage.’ Mark my words.”

Having started down this road, he seemed incapable of stopping. People his children’s age could not understand why gay couples should not be allowed to marry, he said. “ ‘I mean, what’s the problem, Dad?’

“And my job — our job — is to keep this momentum rolling to the inevitable.”

The answer stunned everyone in the room, even top aides who were used to the gaffe-prone vice president’s habit of going off script.

Two weeks later, during an interview on meet the Press, Vice President Biden said that he supports same-sex marriage.

“What this is all about is a simple proposition,” he told Gregory. “Who do you love, and will you be loyal to the person you love? And that’s what people are finding out is what all marriages at their root are about.”

“And you’re comfortable with same-sex marriage now?” Gregory pressed.

“I, I — look — I am vice president of the United States. The president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties.”

This was more of a “my job” than “our job” line. And it set the White House into shock.

One of Biden’s advisers told him, “I think you may have just gotten in front of the president on gay marriage.”

Contrary to what some suspected, this was not an intentional test balloon. Biden went for it himself.

Political commentators immediatelybegan to speculate that Biden’s remarks were either intended as a trial balloon or had specifically been cleared by the White House to mollify gay voters without the president’s having to take a position. Neither was the case. When the White House press team received a transcript of the interview, tempers flared. Jarrett, who was still hoping that Obama might make a groundbreaking pre-election announcement, accused Biden through an intermediary of disloyalty. Campaign officials were also agitated. “They felt they already were vulnerable,” one White House official told me, “and they had not fully resolved yet what they wanted to do.”

And rather than embracing Biden’s comment, the White House tried to walk it back!

The White House quickly tried to walk back Biden’s comments. “What VP said — that all married couples should have exactly the same legal rights — is precisely POTUS’s position,” Axelrod tweeted on Sunday, May 6, the day Biden’s interview aired. Biden’s office was told to put out a “clarification” echoing that sentiment: “The vice president was expressing that he too is evolving on the issue,” it said. …

Griffin’s question had inadvertently set off a chain reaction. Obama and his team knew that he had to take a stand, soon, or risk looking as if he were “leading from behind,” a portrayal the White House hated.

Curiously enough, the first lady saw Biden’s comment as liberating:

Some of Obama’s top advisers urged him to take Biden to task for forcing his hand, but he refused. The first lady saw the whole thing as a blessing in disguise. The endless debate was over. You don’t have to dance around this issue anymore, she told her husband over breakfast on Wednesday, in a conversation she relayed afterward to several top White House officials. “Enjoy this day,” she said as he headed off for his interview. “You are free.”


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Oct 4, 2015

The Shooting Cycle, Again

In light of recent events, I post a link to my 2014 article with Shelby Baird (now a 1L at Duke Law!) titled The Shooting Cycle. Here is the abstract:

The pattern is a painfully familiar one. A gunman opens fire in a public place, killing many innocent victims. After this tragedy, support for gun control surges. With a closing window for reform, politicians and activists quickly push for new gun laws. But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.

We call this paradigm “the shooting cycle.” This article provides the first qualitative and quantitative analysis of the shooting cycle, and explains how and why people and governments react to mass shootings.

This article proceeds in five parts. First, we bring empirical clarity to the debate over mass shootings, and show that contrary to popular opinion, they are fairly rare, and are not occurring more frequently. Second, relying on cognitive biases such as the availability heuristic, substitution effect, and cultural cognition theory, we demonstrate why the perception of risk and reaction to these rare and unfamiliar events are heightened. Third we chronicle the various stages of the shooting cycle: tragedy, introspection, action, divergence, and return to the status quo. During the earlier stages, emotional capture sets in, allowing politicians and activists to garner support for reform. But, after the spike, soon support for reform fades, and regresses to the mean. Fifth, with this framework, we view the year following the horrific massacre in Newtown through the lens of the shooting cycle. We conclude by addressing whether the shooting cycle can be broken.

Everything we wrote in 2014 is just as, if not more true today. The President commented, “The reporting is routine. My response here at this podium ends up being routine. The conversation in the aftermath of it. ” He’s exactly right.

Mass shootings constitute a very small percentage of gun homicides in the United States (depending on how you count, less than 1%). But because of various cognitive  heuristics, they capture the hearts and minds of the public. But these events, no matter how hard the media tries, do little to affect public opinion anymore.  Perhaps the one positive outcome of this experience has been the decision of some, but not all, media sources to refuse to identify, and thus glorify the assailant. This murderer in particular was likely a copycast, who sought the same notoriety as the person who killed two reporters in Virginia on live television. He wrote on his blog, “A man who was known by no one, is now known by everyone … seems the more people you kill, the more you’re in the limelight.” One of the most “common-sense” approaches that can be taken now is to not give him what he wants.

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Oct 3, 2015

An Obamacare Truce?

The Affordable Care Act has not lived up to its name. As I’ve discussed at some length, the winners of Obamacare tend to be those who could not afford insurance before the law went into effect–either because they did not have enough money, or because pre-existing conditions made their premiums unaffordable. This number is fairly finite–under 20 million. But what about the two-hundreds millions people who were quite content with their health insurance policies before Obamacare, but stand to lose them? For the majority of them, they are paying more, and getting less. This–and not any litigation challenges–poses the biggest existential threat to the ACA. If rates continue to increase, as quality of care decreases–and more people opt to go uninsured–the law will quickly become unstable. In Slate, Reihan Salam cogently summarizes the numbers:

Whether the next president is a Republican or a Democrat, Obamacare is going to be overhauled. The reason is that in its current form, it is not serving middle-class families all that well. Back in June, Robert Laszewski, a close observer of the insurance industry, pointed out that among people eligible for the Obamacare exchanges, it is only the poorest and sickest who’ve been signing up for coverage in large numbers. For example, 76 percent of eligibles earning between 100 and 150 percent of the federal poverty level have enrolled while only 20 percent of eligibles earning between 251 and 300 percent have done so. This is despite the fact that the law uses all kinds of carrots (subsidies for those who can’t afford coverage) and sticks (penalties for those who forego coverage) to get uninsured people to sign up. The problem, according to Laszewski, is that while Obamacare-compliant plans are a good deal for the poor, who enjoy generous subsidies, and the sick, who get far more in benefits than they pay in premiums, they appear to be a bad deal for everyone else.

Recently, the economists Mark Pauly, Adam Leive, and Scott Harrington released aworking paper that estimates how much better or worse off “non-poor” uninsured people’s earnings would be after buying Silver or Bronze plans on the Obamacare exchanges. Among other things, they took into account the average financial burden involved in buying coverage as well as the value associated with consuming more medical care. What they found is that while most uninsured people making between 138 and 250 percent of the federal poverty level seem to be somewhat better off, a substantial majority of those earning more than 250 percent seem to be worse off. Essentially, most of the better-off uninsured are paying far more for their Silver and Bronze plans in premiums than they are getting out of them in benefits.

The result is that millions of middle-class people are choosing to go without coverage, despite the risk that entails. It turns out that it is very hard to force people to buy products that they don’t want. True, the IRS could get much tougher about forcing the uninsured middle-class to pay penalties, and Obamacare’s champions could get behind making these penalties more onerous. But does anyone see this get-tough approach as a huge vote-winner? As long as middle-class voters don’t believe that Obamacare is benefiting them, Obamacare is going to be politically vulnerable.

So what to do? Reihan offers this a truce that both Republicans and Democrats should–but won’t–jump at:

What might an Obamacare truce look like? Rather than fight the fact that the Obamacare exchanges have become a refuge for the poor and the sick, Republicans and Democrats should embrace it. The central elements of the Obamacare truce would be to repeal the unpopular individual and employer mandates, which are meant to corral people into buying insurance, and to deregulate individual insurance plans that are not sold on the exchanges. (Right now, all individual health insurance plans must be compliant with Obamacare’s insurance regulations.) If you want to buy an Obamacare-compliant policy, you’d be welcome to buy one on an exchange. But Obamacare’s insurance regulations and its premium subsidies would only apply to plans sold on the exchanges.If you choose to buy private insurance not on an exchange, your plan would be regulated by your state government, and you wouldn’t be eligible for any financial assistance. Premiums for off-exchange plans would tend to be much lower than for Obamacare-compliant plans, as they’d offer fewer free services upfront and they’d skimp on Obamacare-mandated benefits that many consumers don’t want or need. Yet because these plans are better-targeted to meet the needs of the middle-class unsinsured people who are avoiding the Obamacare exchanges like the plague, there is good reason to believe that coverage levels would increase. That’s an outcome both the left and the right should celebrate.

In effect, the Obamacare exchanges would only serve as high-risk pools:

Conservatives can talk a big game about replacing Obamacare with high-risk pools. Yet they often underestimate how expensive these high-risk pools would be and how difficult it would be to get them off the ground. The Obamacare exchanges are perfectly designed to serve this function. The downside, of course, is that because the exchanges would serve a poor and sick population, theaverage cost of serving beneficiaries on the exchanges would be high. This in turn means that insurers would charge very high unsubsidized premiums for exchange plans.

But isn’t this the feared death spiral? Reihan disagrees–very few people would sign up.

But these high unsubsidized premiums would affect relatively few people, as almost everyone who isn’t eligible for premium subsidies would flock to cheaper, lightly regulated off-exchange plans. (One big exception would be states like New York that had heavily regulated insurance markets even before Obamacare. This is an argument for allowing consumers to buy off-exchange insurance policies across state lines, so that New Yorkers could take advantage of lightly regulated Texan policies, or for states like New York to embrace deregulation.)

In many respects, a tax on insurance policies that would fund these sort of high-risk pools for the 20 million or so people that benefit from Obamacare would be far less destructive than forcing nearly every American onto the exchanges.

This is an interesting proposal, that incorporates elements of Obamacare, while eliminating the most unpopular aspects. I hope to see many more of these plans leading up to 2016.


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Oct 2, 2015

Kanye West: “I’m afraid of 3D Printing.”

I am loathe to blog about anything Kayne West, but on a recent episode of the Kardashian show, West summed up in two sentences the greatest threat that 3D-Printing faces, and why it won’t succeed. He visited a school in Armenia that teaches students about 3D-Printing. Once he sees the 3D-Printer, he opens up:

“This is what I’m afraid of right here, 3D printing. Because the Internet destroyed the music industry and now this is what we’re afraid of right now with the textile industry,” Kanye said. “There will come a time where people are making the shoes at home.”

He’s exactly right. Efforts to stifle 3D-printing will ultimately fail.




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Oct 2, 2015

Updates on the Cadillac Tax

The repeal of the Cadillac Tax represents the first front of attempts by Democrats to modify the ACA. Hillary Clinton–seeking to obtain union support-has now come out in opposition to it.

“Too many Americans are struggling to meet the cost of rising deductibles and drug prices. That’s why, among other steps, I encourage Congress to repeal the so-called Cadillac Tax, which applies to some employer-based health plans, and to fully pay for the cost of repeal,” Clinton wrote in a statement Tuesday.


A new poll by Kaiser shows 60% oppose the tax, while only 28% favor it. I’m surprise it’s that low. This tax will be devastating–of course, it also enables the rest of the law to be paid for.

The Hill reports that dozens of 101 economists–including Jonathan Gruber!–are coming out to oppose its repeal.

Dozens of economists and health experts from both sides of the aisle are coming to the defense of ObamaCare’s embattled Cadillac tax.

The 101 experts argue, in a letter distributed by the liberal Center on Budget and Policy Priorities, that the tax on high-cost health plans will slow the rise of healthcare costs, because employers don’t have enough incentive now to limit the sort of plans they offer.

The letter comes after Democratic presidential candidate Hillary Rodham Clinton endorsed scrapping the Cadillac tax, a position that is popular among organized labor. Sen. Bernie Sanders (I-Vt.), another Democratic candidate, also opposes the tax, and Republicans have long sought to repeal it.

The CBPP has said that it’s open to some minor tweaks to the Cadillac tax, and that Thursday’s letter was not a direct response to Clinton’s statement this week.

The letter’s signers include Jonathan Gruber, the economist who famously suggested the Obama administration relied on the “stupidity” of the U.S. voter to pass the Affordable Care Act; Douglas Elmendorf, who was head of the Congressional Budget Office (CBO) until earlier this year; and Ezekiel Emanuel, whose brother Rahm was White House chief of staff when ObamaCare was enacted.


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Oct 2, 2015

Events in Philadelphia, New York, and New Jersey on Monday and Tuesday

On Monday and Tuesday, I have five events scheduled in Philadelphia, New York, and New Jersey:





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Oct 2, 2015

President George W. Bush at Federalist Society Texas Chapters’ Conference

In a surprise, President Bush spoke for a few moments in the morning of the Federalist Society’s Texas Chapters’ Conference on September 19 . Bush thanked the Federalist Society for “caring about the law and our country.” He began by asking rhetorically, “Do I miss being in D.C.? No.” Concerning his post-POTUS activities, he talked about his painting. “I hired art instructor. I painted a cube, then a watermelon, and then I was off an running.” He added, “I was getting antsy. I wrote these books, much to the amazement of some people.” On a personal note, he said “It is a pleasure to watch my daughter, who was a slight pain in the ass as a teenager, grow up to become a mother.” Regarding his mother, Bush explained, “As my mother shrinks, she becomes more outspoken. The compressive spine opens the vocal cords. She’s a pain to be around these days.”

Graciously, he refused to criticize President Obama, noting that “I think it’s bad for our country to undermine the President.” But he did talk about #Jeb’s campaign. Concerning his father, 43 said “41 has a reason to live, and that is my little brother. I thought I was out of politics, but Jeb ruined it.” He added, “41 asks when is the Presidential inauguration. January 2017. OK, he will make it till then.” Barbara Bush did ask about Trump: “This time my mom is talking about Trump. I tell her, this guy is not going to last.” 43 explained, “My brother is going to win. It is a long process, a learning experience. Jeb has a great record in a big state. He’s learning.” He continued, “Watch a person who learned national politics. This is a long process. It’s what you want for a President. You want them to grind it out.” Bush reminisced that “he was the smirker. Remember ‘stop smirking.'” During “[t]he process, the weak will be exposed, and the strong will get stronger, and the country will have a viable choice for President.”



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Oct 2, 2015

The Fatal Conceit of Chief Justice Roberts’s “Long Game”

A common analysis of Chief Justice Roberts is that he is playing the “long game.” There are two variants of this claim–the short long game, and the long long game.

The easiest example of the short long game is what Richard Re has called the Doctrine of One Last Chance–the Chief Justice fires a warning shot across the bow before he invalidate a law. For example, Northwest Austin warned the Congress to fix the Voting Rights Act–they didn’t, and a few years later part of it was invalidated in Shelby County v. Holder. But even then, other parts remain–perhaps still on the chopping block. As Rick Hasen noted at the time, “The chief justice is a patient man playing a long game. He was content to wait four years to strike down a key provision of the Voting Rights Act. Apparently he likes to say I told you so.” Four years is about the upper limits of the short long game. Fisher II may be an example of this approach, but at worst, the Court tells the 5th Circuit they didn’t listen to Fisher I, so I don’t know if that quite counts.

The long long game occurs over a far greater time horizon. Perhaps the most commonly cited example goes like this–the Chief Justice upheld the Affordable Care Act to save the institutional credit of the Supreme Court to make it more tolerable to invalidate something else. For example, in June 2012 (after NFIB was decided), David Franklin wrote in Slate “A cynic might say that Roberts is keeping his powder dry for impending battles that are closer to his heart, such as the constitutionality of affirmative action. But I think Roberts is playing the long game.” Adam Liptak made a similar point, noting: “I think he’s an exceptionally smart, patient tactician who is playing a long game. He’s a young man by Supreme Court standards. He’s only 58. He’s going to be there for decades. And in incremental ways, he’s planting seeds in current decisions that will take root and allow him to move the Court in his preferred direction over time.” In Bloomberg, Paul Barrett wrote: “The chief justice’s majority opinion in last term’s Obamacare case revealed not a conservative-gone-wobbly, but a sophisticated steward of the court’s status as an independent institution. Roberts, 60, occasionally steps back from the ideological barricades, not for lack of spine but because he’s playing a savvy long game.”

The short long game makes sense only in a hypothetical world. No one expected the Congress to revise the Voting Rights Act in response to Northwest Austin. The Chief’s gentle nudge fell somewhere between faux humility and an empty gesture.

The long long game, however, suffers from a much deeper problem. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the “fatal conceit.” Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the “fatal conceit” of central planners that they presuppose enough knowledge to control all aspects of human existence. The notion that Roberts can forge a thirty-year plan—-Stalin only tried for 5 years–to transform the law crumbles on inspection.

The Supreme Court does not exist in a vacuum, where a stasis is maintained. Everything changes. First, and most obviously, the composition of the Court changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, if President Clinton appoints three Justices, all of those plans vanish instantly. His first decade of planning and calculating will be for naught, and the Chief Justice will be in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they’ll vote. Maybe those Justices will also have a master plan, and will not agree with the Chief’s plan. Or maybe (hopefully not) we will get another Souter or Stevens.

Second, beyond the composition of the Court, the Chief needs to deal with unpredictable actions from the other branches. It is impossible to know what sort of cases will make their way to the Court’s docket. As Randy and I noted in our Weekly Standard piece, no one (not even the Chief) can anticipate the constitutional black swans that will emerge in the future.

If you had been told in 2008 that the Supreme Court would soon be called upon to decide whether Congress could compel millions of Americans to buy health insurance, you would have chuckled. If you had been told in 2000 that the Supreme Court would hear a series of cases over the next decade deciding whether the president had the power to detain suspected terrorists in Guantánamo Bay, Cuba, you would have laughed. If you had been told two years earlier that a disputed presidential election in Florida would be appealed to the Supreme Court, you wouldn’t have believed it.

Ruling a certain way in some cases, in the hopes that you can rule differently in others, totally mistakes that a third category of unforeseen cases will alter that calculus. Maybe the Chief Justice decides to uphold Obamacare so he can invalidate affirmative action (assuming everything else is equal), but what happens when the Court is called on to decide whether the President’s use of executive action to enter the United States into a binding climate “treaty” is valid. Or if a Russian company, that does business in Syria and the United States, sues in a federal court when an American-backed rebel group blows up its airfield. Or if an FDR wannabe decides to pack the Court, and force the oldest Justices into “Senior” status, where they cannot hear cases. I could go on and make up cases, but the simple fact is, horse trading one conservative decision for another liberal decision wreaks of an omniscience based on ceteris paribus (all things remain equal).

Third, it also assumes that public opinion of the Court remains static. Maybe the Chief Justice did vote the way he did in NFIB to avoid the Court becoming an issue during the 2012 election. (I write about this in Unprecedented). Maybe he hoped that there would be a temporary blip in the Court’s unpopularity, but conservatives would come around. Attempting to forecast public opinion is a foolhardy errand–just ask Hillary Clinton and Jeb Bush right now–and in the four years since NFIB, we still haven’t seen such a turnaround. Recent numbers from Gallup show:

Half of Americans (50%) disapprove of the job the U.S. Supreme Court is doing, while slightly fewer (45%) approve. Although the high court’s approval rating is similar to what it has been in recent years, the current disapproval rating is at a new high

Republicans and Democrats are trending downwards in their favorability of the Court:


But maybe after this upcoming “Conservative” term, the numbers will be different? Well that depends (as always) on what Justice Kennedy does. Any prediction of a conservative resurgence is unpredictable.

If there is a Justice on the Court playing the long game, it is Justice Thomas. His dissents frequently raise issues that people had not considered before. These dissents start discussions, scholarly debate, and plant the seeds to alter cases many years in the future. His writings on the administrative state last year I think augur a serious shift in our law. His McDonald opinion on the privileges or immunities clause cannot be disregarded. Thomas’s commitment to exploring the original meaning of various provisions of the Constitution have the greatest potential to shape our Supreme Court jurisprudence in decades. Frameworks like originalism or textualism make an impact on the court over the long haul–not trying to horse trade a liberal case for a conservative case.




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Oct 1, 2015

We Felt A Great Disturbance in the #SCOTUS Force

In the New York Times, Linda Greenhouse reflects how conservative perspectives of the Supreme Court have shifted.

The Republican debate on Sept. 16 brought to the surface for a national audience the grumbling in conservative circles that began when Chief Justice Roberts cast the deciding vote three years ago to reject the first challenge to the Affordable Care Act. His authorship of majority opinion inKing v. Burwell in June, rejecting a second and even more contrived attack on the law rubbed salt in a still open wound. Well before then, under the headline “Right Fears Roberts Going Soft,” Josh Gerstein observed a year ago in Politico that conservatives were expressing toward the chief justice “a kind of buyer’s remorse that could result in even more pressure for ideologically pure nominees.”

That prophecy came dramatically to pass during the Republican debate when an organization called the Judicial Crisis Network (it called itself the Judicial Confirmation Network during the pre-Obama years, when its mission was to see nominees to the federal bench confirmed rather than blocked) ran an anti-Roberts spot labeled “No Surprises” that displayed head shots of the chief justice flanked by JusticeAnthony M. Kennedy and — implausibly —David H. Souter.

What to make of it? As Adam White tweeted, “Linda Greenhouse summarizes everything she’s ever written, in two sentences.”

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received.

True enough, but Greenhouse seems surprised by this new vast right-wing judicial (Volokh?) conspiracy.

Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

And who is this “increasingly influential segment of the conservative elite”? Apparently George Will, Randy Barnett, and me?! Greenhouse explains:

The problem, from the point of view of the chief justice’s critics, isn’t only that he voted the wrong way, but that on a deeper level, he didn’t get the memo. John Roberts is conservative, beyond any doubt, but he’s a 20th-century conservative in a 21st-century world.

Remember when “judicial activism” was a nasty label that conservatives hurled at liberals and when “legislating from the bench” was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul’s presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that “presidential candidates should reject the vapid labels of ‘restraint’ and ‘legislating from the bench.’ ” Rather, they argued, “The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.

In a variation of that theme, the columnist George Will, in a piece that went viral in the conservative blogosphere during midsummer, castigated Chief Justice Roberts for, of all things, his dissenting opinion in the same-sex marriage case. It was not that Mr. Will, often a reliable barometer of inside-the-Beltway conservative thought, had suddenly embraced marriage equality. Rather, he objected to what it was the chief justice was objecting to in Justice Kennedy’s majority opinion.

This morning after I read Linda’s column, I felt a disturbance in the #SCOTUS force. The discussion of judicial engagement is not new. My good friends at IJ, led by Clark Neily, have been discussing this topic for years. Ed Whalen and Clark had an extensive debate on the topic. But what changed? The Chief Justice’s decisions in NFIB, and King v. Burwell created a ripple, a cognitive dissonance if you will, in the way conservatives approach judicial selections. They realized that the strategy they stuck with–the strategy that perhaps a young John Roberts adhered to in the Reagan White House–hadn’t panned out. So maybe they should try something new? And this is what Greenhouse’s column reflects. 2017 will be different–as Leonard Leo made clear during the FedSoc’s recent panel on judicial nominations:

Update: As Evan Bernick tweeted, Greenhouse wrote about judicial engagement in a 2011 piece titled “Actively Engaged.”

In this new topsy-turvy world, judicial restraint, which used to be a good thing, is now bad. There is a “false dichotomy,” the center’s declaration informs us, “between improper judicial activism and supposedly laudable judicial restraint.” Restraint meansabdication by judges who fail to do their duty. “Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

I suppose what is new is that we are no longer just talking about IJ, but the “increasingly influential segment of the conservative elite” that is now shifting how Republicans appoint judges.

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Oct 1, 2015

National Constitution Center Podcast on Evenwell, Friedrichs, and Fisher

The National Constitution Center invited me to discuss the upcoming term on their “We the People” Podcast. Jeffrey Rosen, Kenji Yoshino (NYU), and I discussed Friedrichs v. California Teachers Association, about unions and free speech; Evenwel v. Abbott, about the principle of “one person, one vote”; and Fisher v. University of Texas, about affirmative action. You can listen to the podcast here or here.

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Sep 30, 2015

Federalist Society Teleforum on Texas RFRA and Houston “HERO” Referendum

Today at 2:00 ET/1:00 CT, I will be speaking on a Federalist Society Teleforum on Texas’s RFRA, along with John Eastman, Eugene Volokh, and Kathleen Hunker. Details are here.

Wednesday, September 30, 2015 | 1:00 p.m. CDT
Prof. John C. Eastman
Henry Salvatori Professor of Law & Community Service
Chapman University
School of Law
Prof. Josh Blackman
Assistant Professor of Law
South Texas
College of Law
Kathleen Hunker
Senior Policy Analyst
Texas Public Policy Foundation
Prof. Eugene Volokh
Gary T. Schwartz Professor of Law
School of Law
The Houston Equal Rights Ordinance (HERO) ballot initiative, which extends to housing & employment, has been described as an expansive LGBT anti-discrimination measure. The Texas Religious Freedom Restoration Act and the new Pastor Protection Act are intended to provide rights of conscience protection and some assurance of employment accommodation for religious objectors, in light of initiatives like HERO and the anti-discrimination ordinance in San Antonio. After the Supreme Court Obergefell v. Hodges decision, more and more states will face the conundrum encountered by states like Indiana, Kentucky, and now Texas, where the recently affirmed LGBT constitutional privacy interest is in tension with state and federal RFRA laws and other constitutional religious objector protections. Will states that desire to carve out religious conviction protections be eclipsed by the momentum of locally based anti-discrimination measures? Do federal laws provide sufficient public office and private party religious expression protection?

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