Sep 2, 2014

Video: Can Cops Search Your Cell Phone? Learn Liberty

Learn Liberty invited me to record a video on Riley v. California, and whether the police can search your cell phone after an arrest. I will be hosting a Learn Liberty Live session on October 1 at 7:00. This video and program is made for College students, and aims to give them an introduction to basic 4th Amendment principles. You can register here.

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Sep 2, 2014

Federal Court Denies Houston Removal Motion in SSM Marriage Benefits Case, Remands to State Court Because Mottley

In December, the Mayor of Houston decided to extend benefits to city employees who are in same-sex marriages. A suit was filed, claiming that the Mayor’s decision was foreclosed by the Texas Constitution, which prohibits the recognition of same-sex relationships. The Mayor countered that following Windsor, the Texas Constitutional provision was void, and she was free to extend the benefits. The plaintiffs challenged the Mayor in state court, alleging a violation of many provisions of state law. (Taxpayer standing in Texas is much broader than under Article III). A state family judge entered a TRO. The complaint only mentioned, in passing, a provision of state law that requires the Mayor to comply with federal law. On this basis, the City removed the case to federal court. Last week, Judge Lee Rosenthal in the Southern District of Texas remanded the case, finding no federal question.

The motion to remand does not turn on the substantive issue of whether the United States Constitution requires state law to recognize same-sex marriages and grant related benefits. The

issue is instead straight out of a law school federal courts class. The issue is whether this court has federal subject-matter jurisdiction necessary to decide the substantive issue. The complaint filed in state court does not raise a claim under, or refer to, federal law. Instead, the complaint alleges that Mayor Parker’s directive and its implementation violate Section 6.024 of the Texas Family Code; Article II, Section 22 of the Houston City Charter; and Article 1, Section 32 of the Texas Constitution. The defendants argue that removal is proper under 28 U.S.C. § 1441(a) because Section 22 of the Houston City Charter refers to federal law, and because the plaintiffs’ claims necessarily raise a substantial federal question. The plaintiffs deny that the federal law reference in the City Charter is sufficient to establish jurisdiction or that the complaint otherwise necessarily raises federal issues.

The court bases its decision on one of my favorite cases, Mottley!

Whether the defendants’ argument is right is a substantive issue of federal constitutional law. The problem with their argument in the context of the law governing federal jurisdiction is that it raises a federal-law defense to a state-law cause of action. The Supreme Court has consistently held that a federal defense to a state-law claim cannot confer federal jurisdiction, even when that federal defense is clearly anticipated and even when the plaintiffs themselves refer to the defense in their complaint. See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003); Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986); Franchise Tax Bd., 463 U.S. at 12; Louisville & Nashville R.R. Co., 211 U.S. at 152. “Although such allegations show that very likely, in the course of litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff’s original cause of action, arises under the Constitution.” Louisville & Nashville R.R. Co., 211 U.S. at 152.

The Supreme Court has told federal district courts for over a century that raising a federal defense to a state-court complaint that alleges only state-law claims, even when it is obvious to all that the federal defense will be raised and must be decided, is not enough to give a federal court subject-matter jurisdiction. Instead, any issue of federal law must be “an element, and an essential one, of the plaintiff’s cause of action.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003). “

Even though the complaint references a provision that requires the City to comply with federal law, this by itself is not enough to satisfy Mottley.

The fact that the plaintiffs asserted a claim under Article II, Section 22 of the Houston City Charter, which contains a clause describing the Mayor’s obligation to comply with federal law, does not transform the defense into an element of the plaintiffs’ claims. References to federal law or to the United States Constitution in a plaintiff’s complaint do not, on their own, create federal-question jurisdiction. See, e.g., Walter v. Old Am. Cnty. Mut. Fire Ins. Co., No. Civ. A. H-12-2581, 2012 WL 5818227 (S.D. Tex. Nov. 14, 2012) (“A vague reference to ‘the Constitution’ does not establish

ederal-question jurisdiction.”); Maguire v. Telcom Global Solutions, Inc., No. Civ. A. 3:02-CV- 1728-G, 2003 WL 124475 (N.D. Tex. Jan. 10, 2003) (“‘[M]ere reference to the Federal Constitution, laws or treaties [is] not adequate to disclose a federal question.’ ” (second alteration in original) (quoting Ashley v. Sw. Bell Tel. Co., 410 F. Supp. 1389, 1392 (W.D. Tex. 1976)). A state entity’s explicit or implicit obligation to act consistently with federal law does not grant federal-question jurisdiction or transform the dispute over whether the entity complied with federal law into an element of the plaintiff’s state-law claims. See Gully v. First Nat. Bank, 299 U.S. 109, 115 (1936) (“True, the tax, though assessed through the action of the state, must be consistent with the federal statute consenting, subject to restrictions, that such assessments may be made…. It must also be consistent with the Constitution of the United States…. That there is a federal law permitting such taxation does not change the basis of the suit, which is still the statute of the state”). Although the Houston City Charter refers generally to “federal law,” it is clear that the claim that the Mayor’s directive violates the Houston City Charter does not require the plaintiffs to prove compliance with federal constitutional law as interpreted by the United States Supreme Court to assert a plausible claim.

As a total side, it is so, so refreshing that a case involving same-sex marriage is resolved by a federal judge on neutral principles of jurisdiction.


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Sep 2, 2014

Goldsmith: POTUS Avoiding War Powers Resolution By Separating Each Strike As New Discrete Mission

Jack Goldsmith has a fascinating post, positing a theory why the President has sent a letter to Congress after each specific military action in Iraq (this pattern had also crossed my mind, but I didn’t make the connection):

Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq.  (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)  What follows is my analysis of this second possibility.

Simplifying somewhat, Section 4(a) of the WPR requires the President to inform the Speaker of the House and the President pro tempore of the Senate about the scope and legal basis for the introduction of U.S. armed forces into hostilities and related situations.  Section 5(b) then states that within 60 (or some circumstances 90) days, “the President shall terminate any use of United States Armed Forces with respect to which such report was submitted,” absent appropriate congressional authorization.  The duty to terminate hostilities is tied to any use of the armed forces with respect to which the original report was submitted.  If the use of the armed forces with respect to which the report is filed is narrowly defined, then arguably no duty to report materializes if the discrete use of the armed forces related to the report terminates before the 60 days.

In other words, each strike is a different action, that starts a new 60 day clock.

So for example, the administration might argue that the use of force with respect to the Mount Sinjar siege (the topic of the August 8 letter) is over and thus no clock is running with respect to that use of force.  And the same might go for the use of force with respect to the Mosul Dam that was the topic of the August 18 letter.  As long as that use of force is over within 60 days after it began, the argument goes, the clock stops with respect to that action even though operations continue in Iraq.  On this logic, if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b).

This strained and bizarre interpretation would allow the President to flout the 60 day clock by treating each attack as a separate “original report.”

Discrete mission reporting to avoid WPR time limits fits reasonably well with the text of the WPR, though of course not with its spirit.  If this is what the administration is up to, then it has found a clever way – in an era of nimble, distinct, drone-dominated missions – to gut what little may be left of the WPR’s time limits.  (Discrete reporting of this sort might not be unprecedented.

This is even worse than Harold Koh’s redefinition of “hostilities.”

As I once noted, “President Clinton submitted four WPR reports to Congress over a seven-month period every time the U.S. had a significant air strike in Bosnia,” though we don’t know if this was done to skirt the WPR, or under what theory.)  Moreover, discrete reporting is not the only way the President might avoid a duty to terminate the use of U.S. armed forces in Iraq under Section 5(b).  He might claim, as he controversially did in Libya, that the armed forces deployed in Iraq are not engaged in “hostilities” under Section 4(a) and thus that the duties of Section 5(b) are not in play.  (This was a bad argument in Libya but would beworse as applied to air strikes in Iraq (see addendum.))  Or the President might claim that he reported to Congress under Section 4(b) or (c), not 4(a), and thus has no duty to terminate the use of U.S. forces under Section 5(b).  (Again, probably not a great argument for all of the current uses of force in Iraq.)

In any event, we have now hit the 60-day mark from the first attack on Baghdad.

The President’s legal team is apparently already using one of these legal rationales.  The first Iraq WPR, concerning the troops sent to Baghdad, was sent to Congress in June, more than 60 days ago, and I believe the troops are still in Baghdad to defend the embassy.  Assuming someone inside the Executive branch is paying attention to this issue (no one in Congress seems to have noticed), the legal rationale for why the Section 5(b) termination duty has not been triggered is probably that the troops in Baghdad are not engaged in hostilities and do not face an imminent threat of hostilities.  This argument is plausible in the Baghdad context but is much harder to make with respect to the bombing (and Special Operations Forces) north of Baghdad.  The clock for those bombings and those forces started ticking in early August, and in that context the President may have to rely on the discrete reporting argument outlined above to skirt Section 5(b).  We probably won’t know the administration’s legal theory in that context until early October, when the sixty-day clock on the August uses of force in Iraq ostensibly expires – assuming, that is, that the President has not satisfied the WPR in the interim by winning congressional authorization (or an extension of time) for the Iraq deployment.

Tick Tock.

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Sep 2, 2014

Halbig and Two Conceptions of Liberty

At its core, the debate in NFIB v. Sebelius and the individual mandate boiled down to two conceptions of liberty–freedom from the government, or freedom of financial concerns involving health insurance costs.

For the government, Solicitor General Verrilli argued that the Affordable Care Act promotes liberty. No longer needing to fear what will happen to you if you get sick, makes you more free. In short, with government aid, you are now free from uncertainty. As I explained in Unprecedented, this was a message shared by Verrilli, the President, and many other supporters of the law:

“There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.” The relationship between health security and liberty was a ser- mon that progressives had preached throughout the enactment of the ACA.

Upon signing the bill, President Obama declared that it enshrined “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [cre- ates the] opportunity for affordable health care for all Americans [so they] have the freedom to have a healthier life [and] to have the lib- erty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal ode to freedom from the Declaration of Indepen- dence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.”

President Obama delivered a similar message in his second inaugural address, also evoking Jefferson.“That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, who must secure these rights. This was President Obama’s modern liberty, and Verrilli was its messenger to the Court.

But, on the other hand, Paul Clement argued that the Affordable Care Act itself was the threat to liberty. Rather than fearing uncertainty, opponents of the ACA feared the government, and coercion itself. Also from Unprecedented:

Paul Clement rose to have the last word and provided an impromptu rebuttal that offered a very different vision of what individual liberty means.

“Let me just finish by saying I certainly appreciate what the solic- itor general says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty.

“But I would respectfully suggest that it’s a very funny concep- tion of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the individual liberty of Justice Kennedy.

Clement echoed a point he had made in his brief: “The Constitu- tion protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power [of the federal government] to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’s authority to regulate existing commercial intercourse. It is a revolu- tion in the relationship between the central government and the gov- erned.” Such a conception of freedom for society as a whole comes at the expense of liberty for the individual. “

With Halbig, it seems we have returned to the same debate. Nick Bagley explains that if Halbig is successful, up to 8 million people will be free from the Affordable Care Act’s mandate. But, what does it mean for them to be free? Which conception of liberty are we talking about?

Jon Adler and Michael Cannon seem to be using the Clement-version of liberty–freedom from the government itself.

For the challengers, that’s a good thing. In Michael Cannon’s words, “a victory for the Halbig plaintiffs would free more than 8.3 million residents” from the mandate. The pending Supreme Court petition makes the same point:

[B]y purporting to make a credit “allowable” in states served by HealthCare.Gov, the IRS Rule reduces the number of people in those states exempt from the individual mandate penalty. Now ineligible for exemptions, those individuals are no longer free to forgo coverage … .

Bagley focuses on the latter vision of freedom–freedom from financial harm.

Would you really have more freedom if you lost the tax credit and, because you could no longer afford insurance, you were exempt from the mandate? No doubt, some people would say yes. They bristle at the mandate and don’t value insurance very much—even cut-rate insurance. They’re also pretty cavalier about asking the rest of us to pick up the tab if they fall ill or have an accident.

Many near-poor families, however, would find it liberating to get cheap coverage, even if they were required to do so. As Bill has eloquently observed, health insurance offers a kind of freedom, too. It’s the freedom to quit that stultifying desk job that you stay in only because of the health benefits. It’s the freedom not to have to choose between making rent and buying your kid’s asthma medication. And it’s the freedom not to fear that a car accident or a cancer diagnosis might bankrupt you.

Yes, if the Halbig challengers prevail, millions of people would be exempt from the mandate penalty. But that just means they’d be free to decline coverage that, without tax credits, they can’t afford anyhow. What kind of freedom is that?

Bagley alludes to Justice Kennedy:

The argument is tailor-made for Justice Kennedy, who cares so deeply about personal liberty that whole books have been written about it.

We should recall that in NFIB, Kennedy took the classical, rather the active view of liberty.

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Sep 2, 2014

Upcoming Talks in Michigan, D.C., Maryland, Virginia, Ohio, Georgia, Pennsylvania, California, Tennessee, Arkansas, Indiana, Illinois, and Texas

This fall, I will be speaking in 13 states on various topics, including Hobby Lobby and Religious Liberty, Noel Canning and Executive Power, 3D Guns and the 2nd Amendment, and Judicial Decision Making. My calendar is just about booked, so if you are interested in inviting me to your school, please drop me a line about the spring semester. Also, if you are in any of these places, please drop by and say hi!

  1. 9/4/14 at 12:15 - Texas Bar – Advanced Civil Appellate Practice Course. I will be giving a talk on the lunchtime panel on judicial decision making, alongside Justice Eva Guzman and Lee Epstein.
  2. 9/11/14 at 12:00 – Michigan State University College of Law Federalist Society
  3. 9/11/14  at 5:30 p.m. – Grand Rapids Federalist Society Chapter
  4. 9/15/14 at 12:20 p.m. – (early) Constitution Day Celebration at South Texas College of Law
  5. 9/16/14 at 5:00 p.m. – Guest Lecture in David Bernstein’s ConLaw Class, George Mason University School of Law (not too long ago I sat in that class).
  6. 9/17/14 at 12:00 p.m. – American University Washington College of Law Federalist Society Chapter. I will be tag-teaming with Steve Vladeck to discuss “The Separation of Powers Heading into—and After—the Midterms.”
  7. 9/18/14 at 12:00 p.m. – University of Maryland School of Law Federalist Society Chapter
  8. 9/18/14 at 2:30 p.m. – University of Baltimore School of Law Federalist Society Chapter
  9. 9/23/14 at 12:10 p.m. – Ohio State University College of Law Federalist Society Chapter
  10. 9/30/14 at 11:45 a.m. – Baylor University College of Law Federalist Society Chapter
  11. 10/9/14 at 11:55 p.m. – Georgia State University College of Law Federalist Society Chapter
  12. 10/9/14 at 2:30 p.m. – University of Georgia School of Law Federalist Society Chapter
  13. 10/10/14 – Junior Federal Courts Workshop – University of Georgia
  14. 10/20/14 at 5:30 p.m. – Philadelphia Federalist Society Lawyers Chapter
  15. 10/21/14 – Forbes 30 under 30 Summit
  16. 10/23/14 at 12:00 p.m. – U.C. Davis Federalist Society Chapter
  17. 10/24/14 at 12:00 p.m. – Sacramento Federalist Society Chapter
  18. 10/28/14 – Memphis Federalist Society Chapter
  19. 10/28/14 – University of Little Rock, Arkansas, Federalist Society Chapter
  20. 10/30/14 – University of Indiana, Bloomington Federalist Society Chapter
  21. 10/30/14 – University of Indiana, Indianapolis, Federalist Society Chapter
  22. 10/31/14 – Indianapolis Lawyers Federalist Society Chapter
  23. 11/4/14 – University of Houston Federalist Society Chapter
  24. 11/6/14 – University of Chicago Law School Federalist Society Chapter
  25. 11/7/14 – Loyola Chicago Constitutional Law Colloquium


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Sep 2, 2014

Announcing the Third Annual Harlan Institute – ConSource Virtual Supreme Court Competition for High School Students

Building on the success of the 2013 and 2014 Virtual Supreme Court project, the Harlan Institute and The Constitutional Sources Project (ConSource) will host the third 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 Zivotofsky v. Kerry, exploring whether the President’s power to diplomatically recognize foreign nations is subject to control by Congress.

The 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 the “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.”

The 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 2015. 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 2015, 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 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, add an account, read the problem, and get started!

Please send any questions to or

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Sep 1, 2014

Dubious Facts in Supreme Court Amicus Briefs

One of my longest standing gripes has been briefs submitted to the Supreme Court that offer facts nowhere to be found in the record. These are facts that weren’t accepted by the lower court, contested by opposing counsel, or even verified or vetted. At times, these facts were created for the purpose of litigation! Even worse, is when the Justices cite these dubious facts, as if they’re gospel. Enough already!

Adam Liptak in the Times shines a light of this quandary, with a focus on another excellent article by Allison Orr Larsen, which I discussed here.

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

Adam also highlights some recent discussions from the Justices over the value, or lack thereof, of these factual briefs:

Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

The article also highlights some of the more egregious citations:

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

Stick to the facts!

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Aug 31, 2014

Unprecedented On Sale At Amazon for $8.12

My book, which came out this time last year, is now on a steep discount for Amazon at the low, low price of $8.12. That’s a 71% discount off the cover price! If you haven’t already, consider buying a copy.

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Aug 31, 2014

President Johnson Ordered Justice Fortas To Sabotage His Daughter’s Relationship With George Hamilton

Villanova LawProf Tuan Samahon has been waged in a lengthy FOIA court battle to obtain records concerning, among other things, the relationship between President Johnson and his crony Justice Abe Fortas. The Philadelphia Inquirer published a story focusing on one of the more bizarre allegations in the paper: that LBJ ordered Fortas, along with J. Edgar Hoover, to dig up gossip, and try to break up the relationship Johnson’s daughter was having with actor George Hamilton!

For a few months in 1966, the budding romance between film star George Hamilton and Lynda Bird Johnson, daughter of the 36th president, was the talk of Washington. …

But a previously confidential FBI file – which a Philadelphia judge last week outlined in an opinion and ordered to be released – shows for the first time how far Johnson went to protect his daughter and his presidency.

The file indicates Johnson enlisted Supreme Court Justice Abe Fortas and J. Edgar Hoover’s FBI to investigate every rumor they could find about Hamilton, including claims that he was gay and a draft-dodger, in a bid to dig up dirt on the actor.

In his ruling, U.S. District Judge Eduardo Robreno called it not only an improper probe but a “potentially illegal use of executive power.”

The documents were the focus of a four-year court battle by a Villanova Law School professor, Tuan Samahon, and his students. But they also offer a window into a presidential administration and an FBI that apparently thought little of violating the privacy of American citizens – an accusation that has resonated for modern presidential administrations.

According to Robreno, who reviewed the controversial file, the documents ended up reflecting most poorly on the FBI itself.

“This case is about the ability of the federal government to pry into the private lives of U.S. citizens with virtual impunity,” he wrote in his opinion. “The file can be read as an effort by the FBI to uncover embarrassing details about a private citizen as a personal favor to the president.”

The article discusses how Samahon pursued these documents:

The FBI file burnishes a long-established record of the excesses of Hoover’s agency and Johnson’s willingness to use it to investigate perceived threats. But that wasn’t what Samahon, who teaches courses on constitutional law and federal courts, initially went looking for.

He wanted to know what role the FBI may have played in the 1969 resignation of Fortas from the highest court after only four years. Fortas, a Johnson appointee to the court, had been the president’s former attorney and longtime confidant.

Samahon filed a Freedom of Information Act request in 2010 to see a memo that he hoped would give him material for a book on Fortas. At the time, he believed it could indicate the FBI used knowledge of some illicit relationship Fortas had with a man to pressure him into disclosing confidential information about a Supreme Court case.

The Department of Justice released the memo but redacted a single name, saying it could reveal embarrassing details about a private citizen.

Samahon rejected the argument, saying there was no legal reason to keep the name confidential, but the FBI didn’t budge. So Samahon put his students to work, and in 2012 sued for the documents’ release, as well as for the release of the file containing the memo. Samahon said 19 students and Beth Lyon, another Villanova professor, devoted many hours to the case over two years.

The memo Samahon wanted was a two-page report by Cartha DeLoach, deputy director of the FBI and Hoover’s right-hand man.

DeLoach, then the third-highest-ranking official in the FBI, had investigated some of the nation’s most notorious crimes, including the assassinations of President John F. Kennedy and the Rev. Dr. Martin Luther King Jr. He was a Hoover loyalist with close ties to Johnson, and many believed he regularly leaked information to the White House about the most salacious FBI investigations.

Here are the specific allegations concerning Fortas, who by 1966 was already on the Court.

As the romance blossomed between Hamilton and the president’s daughter in early 1966, DeLoach and Fortas were given the uncommon task of sabotaging the relationship. The president, DeLoach wrote in his memoir, also wanted “a full rundown” on Hamilton.

“As far as the president was concerned, Fortas’ seat on the Supreme Court didn’t preclude him from doing a little moonlighting for the president,” DeLoach wrote.

DeLoach and Fortas had a laugh over it, according to DeLoach, then began what DeLoach called a “discreet background check,” reviewing the actor’s family, friends, credit history, draft deferment, and more.

DeLoach became anxious as they failed to turn up anything damaging.

“Every few days I would hustle over to Abe’s office in the Supreme Court building,” he wrote in his 1995 memoir, Hoover’s FBI: The Inside Story by Hoover’s Trusted Lieutenant. “He would sweep in, his robes fluttering, and the two of us would pore over the gossip columns and try to think of ways to break up a young couple in love. . . . Each day we expected the president to call and chew us out.”

When it was clear there was no more to be done, Fortas called to thank DeLoach for his help. DeLoach preserved the conversation in a memo to his boss.

“Justice Fortas called at 10:30 this morning to express appreciation for the information the Director had me furnish him concerning the George Hamilton matter,” the memo states. “Justice Fortas advised he agreed with the Director that no further action need be taken at this time.”

The article also addresses allegations that Fortas frequented a male prostitute.

In fact, Fortas later confronted claims that he had a dalliance with a male prostitute. In 1967, DeLoach informed Fortas the prostitute had alleged having a sexual relationship with the justice. Fortas, according to the FBI memo on the incident, denied the allegation and thanked DeLoach for informing him.

I have heard some other rumors about this allegation.

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Aug 31, 2014

NY Times Editorializes In Favor of En Banc Review in Halbig

This just may be the biggest en banc decision I can recall. Halbig is it? Really Big! (I’ve been saving that pun for a really long time).

The New York Times Editorial Board has taken a position on whether the D.C. Circuit should grant review in Halbig. Has the Times ever editorialized concerning an en banc call before?

Now the fight has shifted to an arcanelegaldebate over whether the full appeals court in the District of Columbia should rehear the case or allow it to be appealed directly to the Supreme Court.

The law’s defenders would prefer a rehearing. They are confident that the full court, with a majority of judges appointed by Democratic presidents, would overturn the panel’s ruling. The opponents want to fast-track the case to the Supreme Court, hoping that the five conservative justices will uphold the ruling. They argue that there should be no rehearing because the case is not of “exceptional importance,” one factor the appeals court considers in deciding whether to order a rehearing.

The stakes here are high, since the Supreme Court is almost certain to step in when different federal appeals courts reach opposing results on the same question. If the full D.C. appeals court were to overturn the panel’s ruling, there would be less reason for the Supreme Court to get involved. But the legal maneuvering should not obscure the fact that six of the eight federal judges who have considered the challengers’ subsidy claim have seen right through it.

I’ve explained that this perception–that Obama nominees will rule for Obama–is a “dangerous mindset.” The politicization of the courts may seem advantageous in the short run, but I fear what it means in the long run. If we learned any lesson from NFIB, it’s that courts do not react well to pressure from the media–or at least they don’t react the way we think they will.

Let’s assume that en banc review is granted. Then for the next 6 months, there will be pressure on the D.C. Circuit–in particular the newly-appointed judges–to uphold the law. Do you really think this is the type of pressure the judges would want to go through? Especially when the Court would likely grant cert in any event? The D.C. Circuit, keeping with their practice of seldom granting en banc review, may be counseled by letting this one go, and allowing the Court to deal with it.

As a reminder, the SG’s Brief in opposition to cert is due on September 3.

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Aug 29, 2014

Kelo’s Comprehensive Plan Does Not Include “We’ll Figure It Out”

One of the greatest frauds (and there are many) of Kelo is the farce that the requirement of a “comprehensive plan” prevents abuse. This shibboleth is absurd, as courts have found the comprehensive plans need not be comprehensive, nor plans at all. Taken seriously, Kelo will permit the exercise of eminent domain whenever there is any idea written down about how property may be used to improve the tax base. This usually gives any non-stupid staffer the ability to concoct some hair-brain scheme to take someone’s property. But in the past, there had to be something on paper.

And then there’s New Jersey. As you may have read, Atlantic City is in dire conditions. Several casinos just filed for bankruptcy and are closing down, including The Revel. Earlier, to help those failing casinos, the City had decided to take the home of Charlie Birnbaum, a 67-year-old piano tuner, whose parents were Holocaust survivors. Now, that the Casino has gone bankrupt, the plans have totally fallen apart. So does this stop the government from taking the property? Of course not. With no plans, but a hope and a dream, the city is proceeding with the eminent domain proceedings.

The lawyer for the Casino Authority explains that there will be a comprehensive plan one day, which is good enough for taking the property now.

Stuart M. Lederman, the lawyer for the casino authority, said that the details of the shops and restaurants to be erected can await a developer’s conceptions.

Unbelievable. The best laid schemes of mice and men. But with Steinbeck, there was actually a plan!

This comprehensive plan is neither comprehensive, nor a plan, nor even an actual idea. It’s a work of fiction. An IOU that one day there will be a comprehensive plan. If this survives Kelo, then anything will survive Kelo. A promise to act is not cannot possibly suffice. But again, this is New Jersey.

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Aug 29, 2014

Apparently, the President also doesn’t have a Strategy on Immigration Either

Yesterday, after the President admitted that he didn’t have a strategy with respect to ISIS, I tweeted, somewhat facetiously, “Is it possible the President also doesn’t have a strategy on immigration?” Since his June press conference in the Rose Garden, where the President announced that he would go it alone on immigration, countless rumors have trickled throughout D.C. The most outlandish rumors suggested the President would extend DACA to the 5 million family members of the Dreamers. Rep. Gutierrez insisted the President would do this! We were told, at various points, that this news would come around Labor Day. But nothing was confirmed by the Administration. I wondered, much like the uncertainty over how to deal with ISIS, maybe the President also doesn’t have a strategy on immigration?

Now, I find that I was somewhat right. The Times reports that the President will ditch his plans to act in September, and will now wait (shocker) for after the mid-term elections to decide.

Under pressure from nervous Democratic Senate candidates in tight races, President Obama is rethinking the timing of his pledge to act on his own to reshape the nation’s immigration system by summer’s end, and could instead delay some or all of his most controversial proposals until after the midterm elections in November, according to people familiar with White House deliberations.

The president vowed in late June to act unilaterally out of frustration with what he termed Republican obstruction, and said he would announce a decision soon after receiving recommendations from top aides at the end of the summer.

But now Mr. Obama and his aides appear to be backing away from a firm commitment to that timing. In remarks to reporters on Thursday, Mr. Obama hinted at the possibility of a delay.

In a terrible choice of words, Josh Earnest (an inapt name for a Press Secretary if there ever was one), says that the President wont put “the cart before the horse.”

Josh Earnest, the White House press secretary, said Friday that the president was “as determined as ever to take that kind of action on his own.” But he and other White House officials declined to repeat the president’s earlier pledge of an announcement by the end of this summer, or to say whether the president was considering delaying some of his decisions until later this year.

“That’s putting the cart before the horse,” Mr. Earnest said. “Those who are speculating about how those recommendations might be implemented are a little ahead of themselves.”

Why is this word choice tragic? The President’s “I have on strategy” blunder yesterday was framed in almost identical terms–which makes me think this was a vetted talking point. Or not.

“I don’t want to put the cart before the horse,” Obama told reporters during a White House news briefing. “We don’t have a strategy yet.”

This is very significant,as we were assured, all summer, that we would get unilateral executive action soon! I imagine immigration rights groups are now getting very, very nervous. They may not get what they were hoping for.

A person familiar with the White House deliberations disputed part of a report on Friday in The Los Angeles Times that suggested Mr. Obama might announce tighter enforcement measurements in the coming days and then delay until after the election a proposal to shield from deportation millions of illegal immigrants.

“The notion that we would divide up enforcement and the other recommendations is highly unlikely,” the person said. But the person declined to say whether an announcement might be delayed or divided up in another way.

The debate within the White House is fierce:

Inside the White House, the timing of an announcement has become the subject of a fierce debate.

Some of Mr. Obama’s advisers are urging him to postpone it, fearful of the political ramifications of a sweeping action to protect millions of illegal immigrants from deportation and provide many of them official work papers. Such a move by the president, some senior officials worry, could set off a pitched fight with Republicans and dash hopes for Democrats running in conservative states.

Democratic control of the Senate hinges on the outcomes of about a half-dozen close races in states where Mr. Obama is not popular, and strategists fear that an immigration announcement could complicate Democratic efforts to prevail in those states, including several races in states that Mr. Obama lost in both 2008 and 2012.

Wait a minute? I thought that immigration reform was a sure winner! How could it be that it would hurt electoral prospects. Maybe this issue is more divisive than we were led to believe.

Others in the White House almost want the President to dare the Republicans, and hope they drag him into an impeachment battle.

But others inside the White House are pushing the president to stick to his promised schedule, regardless of the immediate political consequences. They argue that Republicans will criticize the president and attack Democratic candidates even if Mr. Obama delays parts of his announcement until after the election.

And some argue that the Republican reaction — which could include calls for impeachment of the president or a move to shut down the government — could benefit Democrats politically by creating a backlash against Republicans among voters.

In any event, the President continues to cite congressional intransigence as a rational to act alone:

“Some of these things do affect timelines, and we’re just going to be working through as systematically as possible in order to get this done,” Mr. Obama said. “But have no doubt, in the absence of congressional action, I’m going to do what I can to make sure the system works better.”

But working around this gridlock (also known as bypassing Congress) has a cost:

At the same time, the president’s repeated efforts to go around a gridlocked Congress have already prompted a Republican lawsuit alleging that he has abused the executive powers of his office. A decision to protect millions of illegal immigrants from deportation would provide new ammunition to critics who accuse Mr. Obama of building an “imperial presidency” with little regard to the nation’s laws. …

“If he acts unilaterally right now and goes in and grants five million people status in the country, I think he blows up the debate, destroys the debate,” said Senator Rand Paul, a Kentucky Republican. “He is going to ignite a furor in the country if he thinks he can do that by executive fiat.”

A broader move could risk an impeachment conflagration that could consume the remainder of his presidency, and a clash over the balance of powers between the executive and the legislative branches of government could reverberate for decades.

Today a colleague presented a paper on DACA, and I had a lengthy chat afterwards about immigration policy. I recognize I am in a small minority of people who support the DREAM Act but oppose DACA. I appreciate the policy objectives of providing some status to the DREAMERS, but not if it is done in an unconstitutional manner.

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Aug 29, 2014

The “Dangerous Mindset” about the D.C. Circuit in Halbig

Greg Stohr of Bloomberg News interviewed me about the D.C. Circuit’s pending decision concerning rehearing en banc in Halbig. I noted that the mindset of Harry Reid, Emily Bazelon, and others, that the court will vacate the panel decision just because there are more Obama appointees on the court presents a “dangerous mindset.”

Senate Majority Leader Harry Reid, a Nevada Democrat, last month fueled the perception that the Democratic appointees would tip the balance. Asked whether the D.C. Circuit panel’s decision vindicated his decision to change the voting rules, he replied, “if you look at simple math, it sure does.”

Those comments, and the assumption that the D.C. Circuit will divide along partisan lines to uphold the IRS rule, have drawn fire from critics of the health-care law.

“It’s a really dangerous mindset,” said Josh Blackman, a professor at South Texas College of Law in Houston who wrote a book on the first health-care case. He called the D.C. Circuit a “very professional court” with a tradition of granting full-court review sparingly.

A decision by the full appeals court to reverse the panel would eliminate the circuit split, making a Supreme Court grant of review less of a necessity. Although the justices could still get involved, they might be reluctant to outlaw subsidies being used by millions of Americans.

Two years ago, four justices said they would have thrown out the entire law. Chief Justice John Roberts joined the court’s four Democratic appointees in voting to largely uphold the measure.

The S.G. Brief in Opposition to Cert is due on Wednesday, September 3. Stay tuned.

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Aug 28, 2014

Youngstown Sheet & Tube v. Sawyer. In Meme Form.




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Aug 27, 2014

Avoiding North Carolina v. South Carolina in the Supreme Court’s Original Jurisdiction

The Times had a fascinating piece on trying to establish the boundary between North Carolina and South Carolina that touches on so many things I find interesting–colonial history, property lines, and the original jurisdiction of the Supreme Court! In short, to avoid the bruising litigation fees of litigating a boundary dispute to the Supreme Court the Carolinas decided to resolve the disputes themselves, based on surveys ordered from the time of King George III. So much to love about this!

First, the article offers a fascinating history of why the border is so disputed–lazy colonial surveyors:

When the two Carolinas were created as separate British colonies, they were supposed to be split by two simple straight lines: one running northwest from the Atlantic Coast to the 35th Parallel, the other following the 35th due west to the “South Seas.” But making the territory resemble the map wasn’t so easy.

The original 1735 survey party, for example, had members who sometimes didn’t show up, sometimes didn’t get paid and often gave up while trudging through the ghastly swamps and wilderness they encountered on their way up from the coast. That may explain why they failed to reach their target, the 35th Parallel, after two years of effort: Instead, they drove a stake into the ground 12 miles too far to the south, and went home.

King George III (yes that King George) tried to fix it, but it also didn’t work.

Another party, sent out in 1764 to continue the survey, headed west from that same erroneous stake, despite explicit orders from King George III to verify that the first surveyors had indeed reached the 35th Parallel. By the time they detected their error, 64 miles later, they had shaved 422,000 acres off what was supposed to be South Carolina. Subsequent efforts to compensate South Carolina by continuing the westward line slightly north of the 35th Parallel were similarly jinxed, this time by a compass-deflecting magnetic anomaly west of present-day Charlotte, N.C., that skewed the boundary slightly northwest, carving thousands of acres out of what was supposed to be North Carolina.

Second, the article explores some other costly state-v-state litigation, including Georgia v. Tennessee (which didn’t make it to the Court), Georgia v. South Carolina (boundary along Savannah River), and New Jersey v. New York (dispute over Ellis Island).

Georgia and Tennessee, to cite the loudest current example, are trading insults and ultimatums over a strip of land barely a mile wide. In 1990 Georgia marched South Carolina to the Supreme Court over a handful of islands in the Savannah River (South Carolina prevailed). New Jersey did the same to New York a few years later over landfill around Ellis Island. When New Jersey won, Rudolph W. Giuliani, then the mayor of New York City, quipped, “It must have been a fix.” …

The default response these days to situations like this is usually conflict, which can be costly. The legal bill for South Carolina’s defense against Georgia, for example, topped $10 million, and so traumatized South Carolina officials that they looked for a peaceful way to find the missing border with North Carolina.

To avoid that problem, North and South Carolina decided to work it out amicably.

The Carolinas have shown that cooperation is cheaper than litigation. Sidney C. Miller, the boundary commission’s co-chairman from South Carolina, said 20 years of boundary resurveying had cost his state just a fraction of the bills from the 1990 Georgia lawsuit, not to mention lower levels of stress and vitriol.

And they had to use sophisticated technology to match up the metes and bounds of surveys from days of yesteryear.

In 1993 the two states’ mapping agencies pledged to cooperate, harnessing geospatial technology to old-fashioned detective work. In one border segment near Charlotte, they unearthed colonial-era property maps that had used the boundary trees as tract corners and overlaid Geographic Information System data — mapping technology accurate within inches — to calculate where the trees once stood.

In another segment, researchers found a stone boundary monument that had been set as part of a 1928 resurvey, except it now stood near a tee on a golf course. Officials at the course had moved it years before so duffers could brag about their two-state tee shot. Using the original 1928 maps, advanced mathematics and some informed guesswork, the joint survey teams navigated to the exact spot where the monument had been uprooted, and even found its broken-off base.

By 2013, the entire 334-mile boundary had been relocated and re-marked.


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Aug 27, 2014

Prop1 Class 4: The Capture Rule: Oil and Gas, Acquisition by Creation

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here. The livechat is here.

Oil & Gas

And, “I drink your milkshake.”

Here are some pics illustrating slant drilling. One of which may be from a cartoon.



You can learn more about the Manziel family and oil here.


International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.


The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.


The author of the dissent, Justice Brandeis, was a big deal.


Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

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Aug 27, 2014

Prop2 Class 4 – Marketable Title

Today we will continue our discussion of the contract of sales with a focus on duty to disclose defects and the merger doctrine. The lecture notes are here. The livechat is here.

Here is the Texas form listing all the required disclosures.

The New York Times and Atlas Obscura have good articles about the Haunted House.

The Ghost of Nyack | Atlas Obscura

The Times writes:

The phones have been ringing at real-estate offices in Rockland County. A patient in a psychiatric hospital called. So did a para-psychologist from Florida. And so did the Amazing Kreskin, all the way from his hotel room in Atlantic City.

That turreted turn-of-the-century Victorian house in Nyack is back on the market – the one that the owner says has not one, not two, but three ghosts. The one that was the subject of a court ruling last week.

There was nothing creepy about Justice Edward H. Lehner’s decision in State Supreme Court in Manhattan. He found that a would-be buyer, Jeffrey M. Stambovsky, could not back out of a $650,000 contract on the three-story clapboard house without losing his $32,500 down payment on it.

Mr. Stambovsky, who acknowledges that the contract expired after he skipped a scheduled closing last fall, had argued that no one warned him about any preternatural residents who, presumably, would not comply with ordinary eviction orders.

As for whether he will see the ghosts in Nyack – in 22 years, the owner, Helen V. Ackley, has seen only one.

”He was sitting in midair, watching me paint the ceiling in the living room, rocking and back forth,” she said. ”I was on an 8-foot stepladder. I asked if he approved of what we were doing to the house, if the colors were to his liking. He smiled and he nodded his head.”

Mrs. Ackley said one of the other ghosts would waltz into her daughter’s bedroom. ”We don’t know whether or not she was the one who woke the children up by shaking the bed,” she said.

Ghost No. 3 was a Navy lieutenant during the American Revolution. ”My son saw him eyeball to eyeball outside the basement door,” Mrs. Ackley said.

Atlas Obscura writes:

During the 1960s, the 7,000 residents of the tiny village knew that the 5,000 square foot house was haunted, but nobody bothered to tell the Ackley couple before they decided to move in.

Helen and George Ackley, who lived in the home for more than 20 years, reported that they had seen a ghost in the house on at least one occasion and that they would be awoken every morning by a shaking bed, but otherwise lived in peace with whatever spirits resided in their home. When they decided to move and sold the house in 1990, they didn’t bother to tell the new buyers about the ghost problem.

With $32,500 in escrow, Jeffrey and Patrice Stambovsky backed out of the contract when they learned that the house was haunted. When the Ackleys refused to refund the deposit, the Stambovskys sued, leading to what would come to be known as the “Ghostbusters” ruling. The New York Appellate court ruled that, because a routine home inspection would never uncover it, sellers must disclose that a house is haunted to potential buyers.

Here is a Google Map of the haunted house:

View Larger Map

There was at least one Texan who wanted a lease voided because the house was haunted. In some cases, a haunted house may actually increase the property value. Recently the Pennslyvania Supreme Court found that there was no duty for sellers to disclose there was a murder-suicide in the house.

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Aug 26, 2014

President Bypassing Treaty Clause For Climate Change Accord?

The Times has a story suggesting that the President will enact sweeping changes to American climate change policy through a United Nations framework.

The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.

But it won’t be a treaty, so it won’t require 2/3 vote in the Senate. So what exactly is it? I’ve read the article, and I have no idea. Here’s how the Times introduces it:

To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.

Perhaps my knowledge of international law is a bit rusty, but what the hell does this mean?  Are “politically binding” and “name and shame” terms of art in modern international law?

The article elaborates, and says that this new agreement would expand upon a 1992 treaty:

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

How would Congress be “legally required to enact” any policies? Or is this saying the President would enact these policies himself? It seems the latter.

In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions. That regulation, which would not be not final until next year, already faces legal challenges, including a lawsuit filed on behalf of a dozen states.

And what happens if a court finds the President lacks such powers? Or, per Missouri v. Holland, does the treaty enhance the President’s powers?

What is clear, is that, once again, the supporters of this law–apparently including the President–are citing the gridlocked Senate’s unwillingness to support this agenda as a justification for this creativity.

“If you want a deal that includes all the major emitters, including the U.S., you cannot realistically pursue a legally binding treaty at this time,” said Paul Bledsoe, a top climate change official in the Clinton administration who works closely with the Obama White House on international climate change policy.

Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming. …

“There’s some legal and political magic to this,” said Jake Schmidt, an expert in global climate negotiations with the Natural Resources Defense Council, an advocacy group. “They’re trying to move this as far as possible without having to reach the 67-vote threshold” in the Senate.

This is asinine, because unlike the 60-vote limit imposed by the filibuster, the 2/3 requirement comes straight from the Constitution. This is not gridlock! Seeking a super-majority to ratify a treaty is a limit imposed by our Framers to ensure that the President did not get us into foolish treaties that lack bipartisan support. Of course, such trifles are of no moment for the President, who needs to correct this gridlock.

Update: Jack Goldsmith weighs in on this non-story:

I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.” …

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)


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Aug 26, 2014

Posner’s Greatest Hits in SSM Oral Arguments – “Pathetic,” “Ridiculous,” and “Absurd.”

Early reports (here and here) suggest that Judge Posner was at his finest (worst?) today with his vitriolic questions to the Attorneys General of Wisconsin and Indiana, who were attempting to defend (unsuccessfully it seems) their bans on same-sex marriage. Here are the highlights:

  • “It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.
  • At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.
  • “What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”
  • A three-judge federal appeals panel on Tuesday closely questioned Wisconsin and Indiana’s bans on same-sex marriage, with one judge calling parts of the states’ arguments “absurd” and “ridiculous.”
  • “These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law. Who is being helped?”
  • Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.
  • But Posner expressed skepticism of the idea that the states were trying to promote procreation. “You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”
  • Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.
  • “These children would be better off if their parents could marry, no? It’s obvious,” Posner said.
  • “Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”
  • At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”
  • “How can tradition be the reason?” he asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.
  • When Samuelson offered “deference to the democratic process [as] another purpose,” Posner wanted more, telling the frustrated lawyer, “You have to have something better.”

I don’t think the lawyers could do any better.

Putting aside the merits of the case, Posner is a bully from the bench. I’ve followed all of the other arguments in these cases, and the judges, even those who disagree with the lawyers, managed to be courteous and respectful.

Update: Ian Milhiser at ThinkProgress transcribes a full exchange with Posner:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?


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Aug 26, 2014

PACER Offers Terrible Explanation Why They Are Removing A Decade of Court Information

Following up from my post this morning, where we learned unceremoniously that PACER would be dumping a decade of information off of PACER, the WSJ has obtained a statement explaining this idiotic move.

On August 11, a change was made to the PACER architecture in preparation for the implementation of the Next Generation of the Judiciary’s Case Management/Electronic Case Files System. NextGen replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen.

As a result of these architectural changes, the locally developed legacy case management systems in four courts of appeals and one bankruptcy court are now incompatible with PACER, and therefore the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.

Seriously? Obtained directly, by going to the court in person? What kind of horrible rationale is that.

And, since these documents can no longer be purchased why wouldn’t they offer these documents to be archived? My friend Mike Carver is trying to obtain the archived documents.

But that means it is much harder for the public to access historical records — and the lack of forewarning left some legal and technical experts reeling. Brian Carver, an assistant professor at University of California at Berkeley School of Information, says he was frustrated and disappointed by the change. Carver is a co-founder of nonprofit group Free Law Project, which recently partnered with Princeton’s Center for Information Technology Policy to maintain the RECAP platform — a crowd-sourced project which hosts free archives of documents others have obtained through the paid PACER system.Using a browser extension, RECAP users can see when documents are already available for free in their archive which currently stands at roughly 3 million court documents — and automatically upload documents that they pay for to that public archive.

Carver says their group would be happy to host the files publicly, and are reaching out the courts to see if that is possible. But he was still shocked by the lack of advance warning. “If we had known about it in advance maybe we could have done something to target these documents and archive them publicly,” he says. “It was really an announcement of an accomplished feat — we weren’t told until after this deed was already done.”

 I hope PACER doesn’t let this data go down the memory hole.

Update:  Todd Ruger writes at Legal Times that you can obtain the records by emailing the court! For the low cost of $30 per case!

Want to access a case filed in the Second Circuit before Jan. 1, 2010? You now must send an email or written request to the court clerks office to obtain the records. The cost: $30 for the entire file, which will be sent by email. (PACER costs are 10 cents per page. Opinions, however, are free.)

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