Aug 28, 2015

D.C. Circuit Upholds Constitutionality of #SCOTUS Plaza Protest Ban, Cites Justice Breyer’s Door Dissent

Today the D.C. Circuit upheld the constitutionality of the ban on protesting in the Supreme Court plaza. In doing so, Judge Srinivasan cited Justice Breyer’s statement about closing the door (remember that?):

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” Id. at 183. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

The court also cited Williams-Yulee, citing the interest in “assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure” as a reason why the ban could survive scrutiny.

Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court’s actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure. The Supreme Court recently, in its just-completed Term, strongly reinforced the latter interest’s vitality, along with the government’s considerable latitude to secure its realization even through speech-restrictive measures. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015). The statute’s reasonableness is reinforced by the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the Court’s plaza. We therefore uphold the statute’s constitutionality.

What a curious application of Williams-Yulee.


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Aug 27, 2015

Justice Thomas is Not Alone in Using Langauge From Briefs

In the New York Times, Adam Liptak analyzes a study assessing how similar the Justices’s opinions are to the merits briefs. The overwhelming majority of the article focuses on how Justice Thomas “contain language from briefs submitted to the court at unusually high rates.” Thomas’s name appears twenty times in the article. If you only read the first 15 paragraphs, you would think that Thomas is an outlier on the Court. But then, we get to paragraphs 16 and 17:

Over the years, the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent. Justice Thomas’s rate was 11.3 percent. Justice Sonia Sotomayor’s was 11 percent, and Justice Ruth Bader Ginsburg’s 10.5 percent. All three sometimes produce institutional prose.

Justice Elena Kagan, who has a livelier writing style, had the lowest rate, at 7.1 percent, and Chief Justice Roberts was in the middle, at 9.2 percent.


Thomas is at 11.3. Sotomayor is at 11. And the Notorious RBG is at 10.5. Are these numbers so far apart, that an entire lede is warranted  on Thomas’s writing style, when his colleagues have virtually indistinguishable rates? Professor Feldman’s study focuses on Thomas, Ginsburg, and Sotomayor as trio:

Several of the justices including Douglas, Murphy, Whittaker, Minton, and Sotomayor have median values clearly over 10%. Indeed each of the justices in- terquartile ranges exceeds 10% except for Justices Jackson and Kagan. There is a clear decrease in the maximum values of language overlap per justice over time as well potentially indicating that the greater variety of legal research tools at the justices’ disposal and a shrinking docket led to less reliance on the parties’ briefs.

The differences between the justices’ overlap values increase our understanding of the differential utility of briefs. The range in median language overlap value across justices is almost as large as the value for the justice with the smallest overlap value (Justice Kagan has a median overlap value of 6.5% although this is based on only 46 observations or 23 cases). On the other end of the spectrum, Justice Murphy has the largest median overlap value with 12.5%. Since the Burger Court era, the justices with median overlap values of 10% or greater are Justices Thomas, Ginsburg, and Sotomayor.

The only portion of the article that singles out Thomas is that he is more likely to “share” language from a “conservative” brief. But the article explains, this isn’t surprising, as he is the most statistically “conservative” justice on the Court.

Almost all of the justices with a strong propensity to share brief language de- pending on the ideological direction of the brief were on the Court prior to the 1980’s. All of those justices favored language from liberal briefs. Justice Rutledge and Whittaker’s difference between overlap values with liberal and conservative briefs at 7.94% and 6.44% are almost double that of the justice with next highest value – Justice Fortas at 3.61%. The remainder of the justices in Table 2 fit into the 2-3% difference range. Justice Thomas is the only contemporary justice with a difference value of over 2%. Since he is often touted as a staunch conservative justice (Smith 1996), his preference towards conservative briefs may not be surprising. Still, other justices whose votes on the merits are strongly associated with their ideological preferences do not fit this pattern

In any event, kudos to Justice Kagan for being in the same company as the great Justice Jackson. In her interview with Bryan Garner, she explained how she rewrites the first drafts of her law clerks in their entirety.

Kagan asks her clerks to write the first draft of an opinion, which she then uses as a “springboard” for writing her own second draft, which she said is “98 percent mine. The new opinion is mine.”

It shows.

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Aug 27, 2015

Kagan uses contractions in dissents, but not majority opinions because her “colleagues” (Scalia) don’t like it

Bryan Garner, in his latest interview with Justice Kagan, extracted a fascinating gem.

Garner also noted that unlike some justices, Kagan uses contractions like “don’t” in her opinions. Kagan said she only does so in dissents, because those represent a more individual opinion than the judgment of the entire majority. “Some of my colleagues don’t like it,” she said. “At least one justice has given me a little grief” for using contractions.

I love how she used a contraction, “don’t,” to say her colleagues dislike contractions.

We often discuss the difficulties of writing a majority opinion from a substantive perspective–trying to keep everyone on board. But there’s also the technical aspect. Judges may grumble at prose as well. This is a delicate issue. From my time clerking, one of the big battles was the Oxford comma. A certain judge who shall go unnamed refused to use the Oxford comma, no matter how often he was asked to do so. After a while, the other judges on the court stopped making the suggestion to add the Oxford comma. Perhaps Kagan’s colleagues are more persistent about contractions.  I’m going to take a wild guess that it was her hunting buddy Nino. Recall that Garner and Scalia’s book almost fell apart over the contraction:

The work was sometimes rough going—“Reading Law” alone took two hundred and sixteen drafts. “Justice Scalia is an intellectual pugilist, throwing some very hard punches,” Garner explained. “But he wanted to see what I had coming back. He’ll work out positions by taking a strong stance and seeing what you have.” . . . In one of their darker moments, the book was almost cancelled—over a dispute about grammatical contractions, like “don’t” and “can’t,” that they had to leave unresolved. (Garner deems them acceptable in legal writing; Scalia, the only child of a professor of Romance languages, finds them “intellectually abominable, but commercially reasonable.”) “And yet,” Garner said, “Justice Scalia and I have not yet found a case that we would decide differently. We begin and end with the words of the text.”

Elsewhere, Scalia told Nina Totenberg that “using contractions comes off as an attempt to be ‘buddy-buddy’ with the judge.”

A quick search of the Supreme Court database on WestLaw reveals only a handful of don’ts (plural of don’t?) in recent years, excluding where the Court was quoting something else. Roberts and Kagan are the worst offenders. Here is a sampling:

  • According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2430 (2015) (Roberts, C.J.).
  • To my knowledge, no court has *1092 ever read any such provision to exclude things that don’t record or preserve data; rather, all courts have adhered to the statutory language’s ordinary (i.e., expansive) meaning. Yates v. United States, 135 S. Ct. 1074, 1091-92, 191 L. Ed. 2d 64 (2015) (Kagan, J., dissenting).
  • Biological Father and the Solicitor General argue that a tribe or state agency could provide the requisite remedial services under § 1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don’t? And if they don’t, would the adoptive parents have to undertake the task? Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2564, 186 L. Ed. 2d 729 (U.S.S.C. 2013) (Alito, J.).
  • First, a patent is either valid or invalid. The parties of course don’t know the answer with certainty at the outset of litigation; hence the litigation. But the same is true of any hard legal question that is yet to be adjudicated. Just because people don’t know the answer doesn’t mean there is no answer until a court declares one. F.T.C. v. Actavis, Inc., 133 S. Ct. 2223, 2244, 186 L. Ed. 2d 343 (2013) (Roberts, J., dissenting).
  • So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1534, 185 L. Ed. 2d 636 (2013) (Kagan, J., dissenting).
  • If States decide to enroll and comply with those requirements, they get federal money. If they don’t, they don’t. Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391, 1404, 185 L. Ed. 2d 471 (2013) (Roberts, J., dissenting).

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Aug 27, 2015

Law School Diversity “Shell Game” and Compelling Interests

Jay Sterling Silver (St. Thomas) has a disquieting Op-Ed in the National Law Journal, titled “Law Schools’ Shell Game of Minority Enrollment.” (Via TaxProf). Silver writes that law schools are taking example of a reporting “loophole” to increase diversity numbers without hurting their LSAT numbers and rankings. What’s the loophole? First, schools report the median LSAT of the incoming 1L class, not 2L transfers. Schools have every incentive to get this number as high as possible, in order to improve the all-important U.S. News & World Rankings. As a result, fewer minority applicants are admitted as 1Ls. Second, schools report the diversity numbers for the entire student body, not just the incoming 1Ls. As a result, schools then admit minority students as 2L transfers. Silver writes:

As one law school administrator explains: It is not a terribly well-kept secret that many upper-tier schools or aspiring upper-tier schools will take no chances at all on their entering classes and then will raid places like here for students of color who have done well and give them lots of money and take them in. Then they can report that their overall student population has diversity even though their first-year class looks very white.

But why? It’s simple. As a group, the LSAT scores of minority students are lower than nonminority students. In a gaping and opportunistic loophole, the ABA requires law schools to report the racial makeup of the student body as a whole, but only the LSAT scores of first-year students. Neither the race nor the LSATs of transfer students must be disclosed. Admitting more minority students after the first year thus kills two birds with one stone: It inflates the number of minorities enrolled at the school while, at the same time, preserving the school’s all-important, LSAT-related ranking in U.S. News.

This “shell game,” Silver writes, creates the “illusion of minority access.”

The cost of the practice, of course, is that these schools have produced nothing more than the illusion of expanded minority access to the profession, often provide these students with smaller scholarships, and, in the process, have successfully gamed the rankings by averting the inclusion of lower LSAT scores into the LSAT profile they must disclose.

Silver offers this anecdote, though he doesn’t name names:

Elite schools — two of which ushered in transfers last year roughly equal in number to one-fifth of their first-year class — are hardly exempt from the temptation.

Many schools, not content to wait for transfer applications to show up in the mail, aggressively recruit transfers. And often it’s not pretty. At some schools, administrators write and phone students on the dean’s list at neighboring law schools, sometimes disparaging the students’ current school. But perhaps the seamiest ploy of all was a recent dinner party thrown by a law dean who implored his guests, almost all of whom were minority students who’d done well at another school, to transfer and to convince their classmates to do so as well.

This behavior is shameful, not just from a policy perspective, but from a constitutional perspective. In his dissent in Grutter v. Bollinger, Justice Thomas contends that if schools really want to increase diversity–and this is indeed a “compelling” interest that satisfies strict scrutiny under the Equal Protection Clause–then there is a much easier way of accomplishing this goal. Instead of using using race-based preferences, schools should drop the discriminatory admission criteria (LSAT). Thomas cites the success of historical black colleges that do no have stringent admission criteria. But of course, Thomas writes, “elite” schools will not do this as it will impact their academic selectivity.” Priorities: academic standing comes before diversity. Instead, schools turn to affirmative action as a way to keep their elite rankings, and admit more minority students, without harming their overall academic standing.

Read Justice Thomas’s analysis.

One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondents Bollinger et al. 33—36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4

4.  The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of “diversity” are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School’s reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

Apparently, even with affirmative action policies in place, schools refuse to admit the minority candidates as 1Ls, and let them in as 2Ls, to keep their rankings high. The critical benefits from diversity, it seems, are only needed for the 2nd and 3rd years of law school.

If diversity were such a compelling interest, that it can overcome equal protection strict scrutiny–a distinction only achieved previously in Korematsu–it would be unthinkable for law school deans to sacrifice minority admission in the 1L class, and amplify them for the 2L class, so rankings would not take a hit. If diversity is important for a 2L class, why should it be any less important for the 1L class. If anything, new wide-eyed law students would stand to benefit most from a broad-range of perspectives, far more than the jaded 2Ls, no? This does not suggest that the commitment to diversity is consistent, let alone compelling. Justice Thomas, at least in this part of his Grutter dissent, is exactly right. Indeed, the decision of George Washington University to drop the SAT requirement, in the hopes of attracting more minority students, is an example of putting their money where their mouth is. (Although, it may be the case that eliminating the SAT requirement means there are fewer bad scores to report, and thus rankings are higher).

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Aug 27, 2015

Katrina, Commandeering, and Posse Comitatus

Former FEMA Director Michael Brown (of “Brownie” fame) writes in Politico that he isn’t to blame for many of the failures in New Orleans after Hurricane Katrina. His explanation why he didn’t force the city to evacuate–involving federalism and the posse comitatus act–is fascinating.

I’m often asked, as the person who was running FEMA when Hurricane Katrina hit, why I didn’t evacuate New Orleans. My response is simple—FEMA had no authority to do that under the Constitution, which clearly establishes a system of federalism in which state and local governments are autonomous governmental entities. We call first responders “first” for a reason. When you dial 9-1-1 your call isn’t answered by an operator at 500 C Street SW, Washington, D.C., 20472. Your call is answered by a local government entity that has first and primary responsibility for a disaster.

Could FEMA have ordered the evacuation of New Orleans? Yes, had it waived posse comitatus and invoked the Insurrection Act, which Congress ultimately amended in 2006 to permit deployment of troops in response to natural disasters. That unprecedented action was actually contemplated days after landfall aboard Air Force One—and I advocated for it. After I advised the president to federalize the response, he sat with Louisiana Governor Kathleen Blanco and New Orleans Mayor Ray Nagin on Air Force One and outlined his plan. We immediately started drafting the federalization documents for the president’s signature, but Governor Blanco requested time to think it over and the president acquiesced. While the governor considered her options, the city became more and more dysfunctional. Blanco ultimately rejected the president’s plan, and political considerations eventually pushed the idea aside.

Go figure. The Bush Administration considered invoking the Insurrection Act to evacuate New Orleans after Katrina.

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Aug 26, 2015

Surge Pricing for In-Flight Wi-Fi

Air travel has been revolutionized over the last two years–for me at least. First, the FAA eliminated the idiotic rule that prevented me from using my phone during takeoff and landing. That would eliminate roughly 30 minutes of productivity from every flight. Second, United (my airline of choice in the hub of Houston) has expanded Wi-Fi coverage to almost its entire fleet. This has increased my productivity in ways I can’t even describe, especially on flights during the day that are more than 2 hours long. On flights where the middle seat has been empty, I’ve even been able to set up my second monitor. With Wi-Fi, I can do everything I could do on the ground, in the air. I’ve even purchased the WiFi over my phone, and tethered over bluetooth to my laptop, so I can stay online without paying again when the laptop ban goes into effect during takeoff and landing. It has been a game-changer.

United, unlike American and Delta, does not rely on Gogo. Rather, it uses its own proprietary service, United WiFi. Unfortunately, United does not allow for a monthly subscription, but the FAQ says “we may offer these options in the future.” As a result, I pay the full price every time I fly. I’ve noticed that the rate bounces around, almost randomly. Here is a sampling:

  • IAH – EWR, 3 hours cost $11.97 (Friday)
  • IAH – MIA, 2 hours cost $7.98 (this was a mistake, as there was no coverage over the Gulf of Mexico)
  • IAH – DCA,  unlimited for $6.99 (Sunday)
  • IAH – DCA, unlimited for $4.99 (Friday)
  • IAH – EWR, unlimited for $3.99 (Thursday)
  • IAH – EWR, unlimited for $8.99 (Wednesday)

In other words, the prices for the same destinations are all over the place, even on the same trip. I suspected some sort of surge pricing was in effect. The New York Times confirms this may be the case, at least with respect to GoGo.

Consider the following increases: Wi-Fi service on transcontinental flights — such as from San Francisco to New York, from Boston to Seattle or from Los Angeles to New York — now cost $28 to $40, up from roughly $18 in 2012, according to Gogo.

Yet those numbers rarely show up in the average price quote for an in-flight Gogo Wi-Fi session, which now amounts to about $12, up just slightly from $10 in 2012. That’s partly because on flights where fewer people are likely to use Wi-Fi, pricing has remained unchanged, which brings down the average cost per session. For example, Gogo’s Wi-Fi service on flights between New York and Fort Lauderdale, Fla., has cost $10 since 2012. In addition, passengers can choose to pay smaller amounts to use Wi-Fi for a portion of a flight instead of the entire trip.

Gogo’s prices are not just higher now; they are also more unpredictable. The company uses a method called dynamic pricing, in which it tries to forecast the demand for Wi-Fi on each flight and scale pricing accordingly. So the prices for the full durations of transcontinental flights also change each day: Gogo charges the most, $40, on Mondays and Thursdays; Tuesdays, Wednesdays, Fridays and Sundays cost $34; and Saturdays are the cheapest, at $28.

At first travelers may balk at the high prices, but there is a good reason for it–congestion and limited capacity. Wi-Fi in the air is a classic example of scarce resources.

Michael Small, the chief executive of Gogo, said in an interview that the company had raised prices because demand for Internet service in the sky had exceeded capacity.

“We’re starting to have millions of users, so it’s getting more and more congested, and we have raised prices, which you typically do when you have more demand than you have supply,” he said. “There’s nothing to apologize for. We have trouble finding a business in America that does anything differently.”

Part of the reason Gogo’s costs can be so high is that the prevailing technology it uses has hit some limits. Its in-flight Wi-Fi works like the cellular network that provides service for cellphones, in which antennas are used to transmit signals to and from towers on the ground. Adding capacity is difficult because there is a limited amount of radio spectrum available for the towers.

To improve the situation, Gogo uses satellite technology for over-water flights, and the company is upgrading to a faster satellite technology called2Ku. The new satellite technology, which received regulatory approval on Monday and will be widely released next year, should add capacity and eventually let the company lower prices, Mr. Small said.

“When we start rolling out the satellite technology and bring out more capacity, we’ll be back in the business of trying to bring on new customers and grow the business and introduce exciting new price plans,” Mr. Small said.

Consider Southwest, which does not have variable pricing.

Southwest has about 550 aircraft equipped with Global Eagle Entertainment’s Wi-Fi services, said Kevin Kleist, Southwest’s manager of Wi-Fi and in-flight entertainment. He said the company had experimented with different prices before concluding that $8 was the sweet spot.

“You don’t want to overprice and not get enough customers. And you don’t want to underprice it and get too many and too much congestion,” Mr. Kleist said.

With respect to Southwest, I recently took a flight and paid $8 for Wi-Fi. I noticed that many people on the sold-out flight were signed onto their phones. It was so slow, it became unusable.  It was a waste of money. The Wi-Fi on United is really fast. I can even search WestLaw and other cumbersome databases with ease. On Southwest, the same search was so slow it became a waste of time to even try.

I wish United offered an unlimited monthly package, which GoGO does. I would buy it in a heartbeat. Or at a minimum, give customers with status, or who are in Business Class a steep discount.

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Aug 26, 2015

Cato Daily Podcast: Little Sisters of the Poor Amicus Brief

I am on today’s Cato Daily Podcast with Caleb Brown discussing the brief I authored with Ilya Shapiro on behalf of the Little Sisters of the Poor’s cert petition. You can listen here or download the file here. Also, I was recently selected as a Cato Adjunct Scholar, and now have a snazzy people page.

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Aug 26, 2015

Jeb Bush on #SCOTUS Nominees: “Fight Like Hell” for Candidates “With Proven Record” of “Judicial Restraint”

The Bush legacy on Supreme Court nominees is mixed. President George H.W. Bush, seeking to avoid a bruising confirmation battle, appointed the “stealth” David Souter, who turned out to be a consistent vote with the liberal bloc. But, he also appointed Clarence Thomas, who by several measures is the most conservative Justices in decades. President George W. Bush, presented with the opportunity to fill the Chief Justice position, chose John Roberts. Roberts, a long-time attorney in Republican administration, and the premier Supreme Court advocate of his day, had fastidiously avoided expressing his own views on the law–other than a brief stint on the D.C. Circuit. Bush’s second nomination, Harriet Miers (thankfully) went up in flames. The backup pick, Samuel Alito, was a safe, and reliable appointment, in light of Alito’s two-decades service on the Third Circuit.

So what lessons has presidential candidate Jeb Bush learned from the last-four Republican nominations to the Supreme Court, at the hands of his brother and father? They’re mixed. On the one hand, Bush seemingly learned the lesson of the Souter nomination–a lifetime Supreme Court appointment is so important, that a bruising political fight is well worth the cost. On the other hand, he didn’t learn the lesson of what it means to appoint a candidate with a record of “judicial restraint.”

In remarks in New Hampshire, Bush explained:

He said past presidents — whom he didn’t name, but the past two Republicans in the White House were his father and his brother — have picked people “that don’t have a proven record” because they’ve been too worried about facing an increasingly bloody Senate confirmation process.

“They wander, and you go, ‘How could that be?'” Mr. Bush said at a town hall meeting this month in Keene, New Hampshire.

“Because we’re in this partisan environment now where every one of these appointees, it’ll be a big huge fight, and so, I believe we need to have people of experience, of a proven record, a consistent judicial philosophy that you know because they’ve done it over and over and over again, and then you got to fight like hell to make sure they get passed, and that’s my pledge,” the former governor said.

He added during an interview with radio host and ConLaw prof Hugh Hewitt:

“And so I think you have to be all in to fight for people that have a record, because today in America, the minute you have a record, you’re subject to attack. But that’s the best way to prove that someone has a consistency in their view of, in terms of judicial philosophy.”

Yes, appointing candidates with records is essential. No more stealth candidates, hoping they can breeze through the hearing. Let’s focus on judges with paper trails, so we know how they approach the law. (See my writings here and here). The “nuclear option” left the fillibuster on the table for Supreme Court nominations, but we should not kid ourselves to think that is set in stone. Whichever party is in power next will strongly consider, and perhaps eliminate it, especially if it involves a replacement for Justice Kennedy.

But where Bush has not learned his lesson, is what kind of “proven record” he is looking for. Hewitt asked Bush about his criteria for a Justice:

“I think the way you do it is that you focus on people that are qualified to be Supreme Court justices that have a proven record of judicial restraint,”

He added that he wants:

people who have a “proven record of not legislating from the bench.”

His spokesperson made the point even more clearly:

“As evidenced by his record in Florida, Governor Bush would nominate and fight to confirm individuals with a clear, proven record grounded in strictly interpreting the law, not legislating from the bench, and adherence to the Constitution’s limits on government’s authority,” she said.

These are talking points that didn’t work 20 years ago, and they mean even less today than they did before. While Bush has learned his lesson from the Souter nomination, he has not gleaned any insights from the Roberts nomination. Roberts’s judicial restraint has led to his decisions in NFIB and King v. Burwell. In the former, he found that the individual mandate exceeded Congress’s powers under the commerce clause, but through the saving construction, he saved the law. In the latter, he found that the plain-meaning of the statute was “strong,” but that couldn’t have possibly been what Congress meant, so he saved the law. If it wasn’t entirely clear how he approaches the issue, the last paragraph of his King opinion made painfully clear that he would defer to Congress, and only the democratic process could do anything about it. Restrained, no? (My working theory on Roberts–who has venerated the Court for so long–is that his fidelity to the Supreme Court as an institution trumps his fidelity to the Constitution itself. He will only exercise the judicial role when he thinks the Court can weather the storm. His judgment has proved myopic–liberals are still outraged at Citizens United and Shelby County, and conservatives are still outraged at NFIB and King v. Burwell. I will develop this in more detail elsewhere).

Yet what does Bush say about Roberts, in light of his decisions in King v. Burwell and Obergefell.

“Well, I liked one of his rulings, and I didn’t like the other, but he is a person of unimpeachable integrity and great intelligence, and I’ve met him a few times. And he’s an impressive guy for sure.”

This is not reassuring for 2016. It isn’t clear Bush has considered the implications of how Roberts’ judicial restraint saved Obamacare not once, but twice. He should look closer to the other two Bush nominees–Thomas and Alito. Both ruled against Obamacare twice, and both followed their understanding of the Constitution and the statute. Would Bush call them activist judges that legislate from the bench?

The debate about “judicial restraint” and “engagement” never seems to end (and I’m sure this post will unleash a torrent of replies), but at a minimum, a Presidential candidate should actually understand what the phrase “judicial restraint” means, and how the Chief Justice’s minimalism has affected his votes. This is too important to screw up again.

(For purposes of full disclosure, I have been advising the Rand Paul campaign on various legal issues.)

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Aug 26, 2015

William Rehnquist’s High School Yearbook

I now have a copy of William Rehnquist’s 1942 High School Yearbook, The Copperdome, form Shorewood High School in Shorewood, Wisconsin. Though Rehnquist is most remembered as an Arizonan, he was born in Milwaukee. I also have a copy of Justice Scalia’s HS Yearbook and Justice Ginsburg’s College Yearbook.

It’s crazy to think he graduated barely 6 months after Pearl Harbor.


Rehnquist’s caption reads:

The favorite pastime of Bill, in and out of school, is cartooning. Lost to art however, he did become co-feature editor of the Ripples and was awarded the Quill and Scroll for his work there. A member of Student council, Hall monitors, and Hi-Y, Bill completed his list of extra curriculars.


Rehnquist was a lifelong Doodler, as revealed in his papers housed at Stanford:

The Rehnquist files do offer a few glimpses into the justice’s lighter side.

He had a habit of doodling faces in the margins of his law school notebooks, and a journal from 1948—the year he earned both his bachelor’s and master’s degrees—kept records of his poker winnings and expenditures.

Kyle Graham added:

(2) It also appears that Rehnquist liked to doodle, and in particular, that he enjoyed drawing portraits of now-obscure individuals in the margins of his notebooks. So, here’s a word of advice to you kids out there: Don’t pay attention in class, and you eventually will become Chief Justice of the United States Supreme Court.


Here is his photograph from Hi-Y (second row, first from the left):


Here is his photograph as a Hall Monitor (top row, third from the left).


Rehnquist also wrote a signature to Dorothy, whose yearbook I now have. It reads:

Dorothy we’ve been through 2 years of [something] writing and four of home-room together – and it’s been fun. B. Rehnqusit.


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Aug 26, 2015

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.

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. Also, the ABA Journal asks if spirits, slayings are “material defects.”

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Aug 26, 2015

ConLaw Class 4 – The Legislative Powers

The lecture notes are here.

The Legislative Powers

  • Bicameralism & Presentment (260-261).
  • INS v. Chadha (261-272).
  • Clinton v. City of New York (272-281).
  • Read Article I, Section 8 of the Constitution (3-4).
  • Enumerated Powers in Article I, Section 8 (281-283).
  • Bills of Attainder (283-284).
  • Note 5 – Nixon v. GSA (293-294).
  • Ex Post Facto Clause (294-295).
  • Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.


This is Jagdish Chadha.

Jagdish Rai Chadha


Justice Louis Powell authored a concurring opinion.


Justice White dissented.


The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”


The majority opinion was authored by Justice John Paul Stevens.


Justice Anthony Michael Kennedy concurred.


Justice Stephen G. Breyer dissented, in part.


Justice Antonin Scalia dissented, in other parts.


Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.



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Aug 25, 2015

Betting on #SCOTUS

My Lex Predict colleagues Daniel Katz and Mike Bommarito, along with Tyler Soellinger and James Chen, have published a fascinating study of how securities markets react to the Supreme Court. The authors find:

Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth.

For example, here is the graph showing the abnormal returns in the stock for Myriad Genetics, before and after the Supreme Court’s complicated decision at 10:00.


You can see the spike right after 10:00 when the decision was released.The authors explain:

As displayed in Figure 1, the Court’s compromise decision initially confused the equity market. Fueled in part by media reports, would-be arbitrageurs interpreted the Court’s decision as positive to Myriad in the initial hours of trading. However, this view was ultimately displaced as more careful reading and subsequent understanding revealed that the decision was highly unfavorable to Myriad’s business interests. As a result, the stock began to trade down in the second half of the session. Media coverage following the initial trading day called it a “wild ride” and a “market whipsaw.”

As the dust settled, the Court’s decision was indeed detrimental to Myriad’s long-term financial value. Even after controlling for overall market trends, Myriad’s stock lost in excess of 20% of value over the two-day trading window. Attendant to this change in price, there was also a significant increase in volume as traders sought to shift their positions in light the Court’s decision. Specifically, on the date of decision, there was roughly a thirteen-fold increase in trading volume of the stock. The day thereafter witnessed an eighteen-fold increase in trading volume.

The article also highlights a number of SCOTUS decisions that yielded statistically significant movements on the market. For examples, these graphs illustrate what happened after 10:00 in four cases:

  • Limelight Networks v. Akamai (2014): The Court held the answer was no and that decision was highly beneficial to Limelight Networks (LLNW). As displayed in Figure 5, the stock experienced an almost immediate gain of 5%, finishing the day up nearly 15%. The second day of trading saw LLNW continue to steadily rise into the afternoon of the session.
  • Coeur Alaska v. SE Alaska Conservation Council (2009): “As displayed in Figure 5, within hours, the Coeur stock (CDE) traded up 10% and finished the day by posting S&P adjusted cumu- lative abnormal returns around 15%. The following day saw some small additional gains, but most of the returns had been established in the first trading day. “
  • Altria Group v. Good (2008): “As displayed in Figure 5, following this Court announcement, Altria’s (MO) stock immediately trended down, followed by lateral trading for much of the balance of the date of decision. In the following day, Altria’s continued to decline relative to the S&P as the financial implications of the Court’s decision began to become more widely understood. Ultimately, at the close of the two-day window, the stock had experienced a negative cumulative abnormal return of nearly 9%. “
  • Whitman v. American Trucking (2001):  “While the Court’s decision was somewhat mixed, Figure 5 reveals what appears to be a clear negative market reaction to the Court’s decision. The then largest automaker General Motors (GM) traded down over the next two sessions.13 ”

The portion of the paper that hits closest to home studies the impact of NFIB v. Sebelius on the leading healthcare companies:


Fascinatingly, the insurance companies surged during the initial reporting that the Court invalidated the mandate. (This counters the conventional wisdom that the insurance companies are happy with Obamacare…). But when everything settled, and everyone realized what happened, the insurance stocks tumbled. The only stocks that continued to grow was Hospital Corporation of America and Magellan Health Services. Aetna, Cigna, Humana, and Anthem all fell.

In Figure 6, we plot cumulative abnormal returns for a significant number of healthcare related stocks including Aetna (AET), Cigna (CI), Hospital Corporation of America (HCA), Health Net (HNT), Humana (HUM), Magellan Health (MGLN) and Anthem / Well Point (WLP). Over the two-day trading window, the Court’s decision drove down the price of a variety of health insurance companies while simultaneously increasing the value of one large hospital conglomerate (HCA) and a healthcare management business (MGLN). Interestingly, each of the stocks of the health insurance companies that ultimately trended downward experienced a significant short term uptick in the immediately aftermath of the Court’s decision. This is likely due to the widespread initial misreporting of the Court’s decision, which appeared to engender market confusion in the immediate aftermath of the Court’s ruling.14 However, unlike the Myriad case discussed earlier, the market quickly corrected itself in response to the subsequent accurate reporting of the Court’s decision. Collectively, among the stocks we evaluated in this study, the Obamacare decision was responsible for absolute changes in shareholder wealth in excess of 6.3 billion dollars.

Very cool.

In 2011, I noted that Ted Franks (who is now my attorney) made an investment decision based on his predicted outcome in Wal-Mart v. Dukes. He was so confident that the Supreme Court would reverse the 9th Circuit that he made a leveraged bet–of 10% of his net assets–that WMT (Wal-Mart’s symbol) will bounce. At the time, 76% of FantasySCOTUS members predicted a reversal. The great, and late Larry Ribstein suggested markets need greater sources of information to make these sorts of investments.

Unfortunately, Ted’s bet didn’t pan out. WSJ Law Blog reported:

No, unfortunately for the lawyer he was in court all morning, challenging the $3.4 billion settlement reached in 2009 in the high-profile Indian trust litigation, which claims the federal government mismanaged the revenue in American Indian trust funds. (Here’s an LB post on the settlement in that case.)

Frank told the Law Blog that by the time he got out of the Cobell settlement hearing, for a noon lunch break, he had missed the bump from the Dukes ruling.

“There were 90 people in the courtroom,” he said. “I couldn’t say, ‘can we stop the proceedings, because I need to engage in a stock sale.’”

Now, it seems Ted is not alone. Others are taking advantage of their SCOTUS predicting prowess.

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Aug 25, 2015

New Amicus: How Regulatory Incompetence and King v. Burwell Could Save the Little Sisters of the Poor

Obamacare imposes a requirement that employers provide insurance that covers “preventive care” for women, but does not specify what that entails. The Department of Health & Human Services (HHS) determined that “preventive care” includes all FDA-approved contraceptives, from condoms to the morning-after pill.

While houses of worship were exempted outright from the mandate, other religious orders were not. (And, as we know from the Hobby Lobby case, for-profit employers who object to certain forms of contraceptive don’t have to pay to cover them.) Instead, under an “accommodation” created by HHS and the Departments of Labor and Treasury, an objecting religious organization isn’t required to pay for the offending contraceptives, but they do have to notify HHS, which then modifies their insurance contracts so their insurers cover the objected-to items.

Even though the religious organizations are not paying for the contraceptives, groups like the Little Sisters of the Poor—an order of nuns who provide various kinds of social services—still feel complicit in sin and claim that their free exercise of religion has been burdened.

Cato and I have filed an amicus brief supporting the Little Sisters’ request that the Supreme Court hear their case. The Little Sisters raise claims under the First Amendment and the Religious Freedom Restoration Act. Our brief asks the Court to consider a supplemental question: Whether the Departments have the interpretive authority and “expertise” to resolve this “major question” of profound social, “economic and political significance”—to quote Chief Justice Roberts’s majority opinion in King v. Burwell (where he said that courts couldn’t simply defer to the IRS on the important question presented there).

Congress gave absolutely no indication that it delegated to federal agencies the authority to decide which religious groups would be exempted and which could have their religious liberty burdened under an accommodation, or for that matter, how agencies were to design any accommodations. To quote another recent case where the Court refused to defer to an administrative agency, UARG v. EPA (2014), here the agencies are “laying claim to an extravagant statutory power” affecting fundamental religious liberty interests—a power that the ACA “is not designed to grant.”

Here is the summary of the argument:

This case can be resolved without further engaging in the delicate analysis required by the Religious Freedom Restoration Act. In Burwell v. Hobby Lobby Stores, the Court held that regulations implementing the Affordable Care Act’s “preventive care” mandate violated RFRA for certain closely held corporations. 134 S.Ct. at 2785. The petition here focuses on the legality of a religious “accommodation” to the same “preventive care” mandate for certain religious non-profits. It was promulgated by the Departments of Health and Human Services (“HHS”), Labor, and Treasury (“Departments”). Before addressing RFRA, however, the threshold question is whether the Departments had the requisite interpretive authority and “expertise” to resolve this “major question” of profound social, “economic and political significance.” King v. Burwell, 135 S.Ct. 2480, 2489 (2015) (citing Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014) (“UARG”) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000))). If they do not, Hobby Lobby provides the rule of decision and petitioners must be exempted from the mandate. The Court should supplement the questions presented by the petitioners to resolve this foundational issue.

If the Departments lack the interpretive authority to craft accommodations, then Hobby Lobby provides the rule of decision and the Little Sisters must be exempted from the mandate. Accordingly, the Supreme Court should consider this additional question and conclude that the Departments’ regulatory incompetence prevents them from forcing the Little Sisters to be complicit in what they view as sin.

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Aug 24, 2015

Prop2 Class 3: Introduction to the Sales Contract

Today we will provide an introduction to buying and selling homes, and go over the contract of sale.

All of Texas’s standardized sales contract forms are available here. You may wish to take a look at the Texas Real Estate Commission Residential Sales Contract, which we will go over in class.

The lecture note are here.

The site of the first case, Licari v. Blackwelder, is in Westport, CT.

The Texas Statute of Frauds provides:

Sec. 26.01.  PROMISE OR AGREEMENT MUST BE IN WRITING. (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1)  in writing; and

(2)  signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b)  Subsection (a) of this section applies to:

(1)  a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;

(2)  a promise by one person to answer for the debt, default, or miscarriage of another person;

(3)  an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;

(4)  a contract for the sale of real estate;

(5)  a lease of real estate for a term longer than one year;

(6)  an agreement which is not to be performed within one year from the date of making the agreement;

(7)  a promise or agreement to pay a commission for the sale or purchase of:

(A)  an oil or gas mining lease;

(B)  an oil or gas royalty;

(C)  minerals;  or

(D)  a mineral interest;  and

(8)  an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code.  This section shall not apply to pharmacists.

The Texas Enacted Uniform Electronic Transactions Act provides:

(8)  “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(b)  This chapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means.  Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.


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Aug 24, 2015

ConLaw Class 3 – The Separation of Powers

The lecture notes are here.

The Separation of Powers

  • Separation of Powers (173-175).
  • Youngstown Sheet & Tube (175-190).
  • The Powers of Congress – Article I (190-192).
  • Enumerated Powers (192-193).
  • M’Culloch v. Maryland (193-209)

This is a postcard of the Youngstown Sheet and Tube Mill.


Here are photographs of the actual steel mill at issue in Youngstown, Ohio.




This is Secretary of Commerce Charles Sawyer, whom Truman ordered to seize the steel mill.


 The lead opinion in Youngstown was authored by Justice Hugo Black.


There were also concurring opinions written by five Justices. This is Justice Felix Frankfurter.


This is Justice William O. Douglas.


This is Justice Robert H. Jackson. Justice Jackson, who would serve as the lead prosecutor at Nuremberg, authored what has been seen as the definitive opinion in Youngstown.


This is Justice Tom C. Clark (a graduate of University of Texas at Austin).


Chief Justice Vinson dissented, joined by Justices Reed and Minton.


You can read Executive Order 10340, Executive Order 10340 – Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companiesm, here:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.

This was Marshall’s original draft opinion in M’Cullough v. Maryland.


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Aug 22, 2015

Congress Is Not Required To “Declare War”

In The Atlantic, Garrett Epps writes a strong piece explaining that Congress has fallen on its duty for refusing to vote on the President’s use of military action against ISIS. I agree wholeheartedly that to avoid the political blowback, Congress has ceded its power over the use of force. But I take one, small exception with Garrett’s article. He writes:

There is a way that the government could explain itself; indeed, the government is required to do that by Article I of the Constitution, which assigns to Congress the power to “declare war.”

Garrett emphasized “required” in the original. That is not correct. Congress isn’t required to do (nearly) anything.

Article I, Section 8 provides that “The Congress shall have power . . . to declare war.” Congress has the power, but they need not use it. It is discretionary. If Congress doesn’t declare war, that means the President must stop engaging in war. (We can discuss elsewhere whether POTUS already has the authority under the 2001 or 2002 AUMFs).

I discuss the fact that Congress really doesn’t have any affirmative obligations in this article:

Our Constitution strikes a stark asymmetry with respect to the duties and obligations of Congress and the President. In Article I, Congress bears no affirmative duties.21 “Congress shall have Power” to make a number of laws,22 but need not do so. The only duties Congress owes to the other branches concern compensation for the President and federal judges—these commands appear in Article II23 and Article III,24 not in Article I.25 This structure reflects the framers’ design that the Congress need not, and indeed cannot, act unless majorities of the House and Senate agree.

Article II operates in a diametrically opposite manner on the unitary executive. While congressional power is bound in discretion and agreement, the Executive power bears heavy responsibilities. This philosophy is embodied in the constitutional duty to “take Care that the Laws be faithfully executed.”26 Section I vests the office of the Presidency and determines how he is elected.27 Section II grants the President a number of authorities.28 Virtually all of these duties are prefaced by shall: “shall be Commander-in-Chief” and “shall have Power to grant Reprieves and Pardons.”29 Several of the key “shall” duties may only be exercised “by and with the Advice and Consent of the Senate,” such as the power to “make Treaties,” and “nominate” ambassadors, ministers, judges, and officers of the United States.30

The Constitution does not simply vest the President with powers concerning his own office, but imposes a duty on the President to execute the laws of Congress with Specifically, Article II, Section III defines the scope of the President’s affirmative obligations toward Congress. First, the President “shall from time to time give to the Congress Information of the State of the Union.”32 This is a duty the President cannot shirk; Congress must be apprised of the state of the nation to inform its governance.33 Second, the President “shall receive Ambassadors and other public Ministers.”34 He must engage with this aspect of foreign diplomacy, which limits what is sometimes viewed as an unfettered power over foreign affairs. Third, the President “shall Commission all the Officers of the United States.”35 The President has an obligation to commission officers for whatever positions Congress creates. Fourth, “on extraordinary Occasions,” the President “may”—not must—“adjourn” or “convene” Congress.36 Indeed, so as not to unduly infringe on the separation of powers, the Framers limited that responsibility to circumstances where the President “shall think [it] proper,” rather than at his whim.37

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Aug 22, 2015

BREAKING: #SCOTUS Grants Stay in Mellouli v. Lynch

Last term, the Supreme Court decided the case of Mellouli v. Lynch, and reversed the 8th Circuit’s decision affirming the petitioner’s removal. However, as I discussed with Kimberly Robinson of Bloomberg, the Court only reversed the case, and did not remand it. The 8th Circuit remanded the case to the Board of Immigration Appeals. The court noted, that SCOTUS “did not explicitly remand for further proceedings to this court or to the BIA.”

Melloui then filed an emergency stay with the Supreme Court.

Yesterday, Circuit Justice Alito referred the petition to the entire Court, and granted a stay pending “the timely filing of a petition for a writ of certiorari, or of a petition for writ of mandamus and prohibition, and further order of this Court.”

I think this may be an illustration of what Richard Re calls a “SCOTUS Repeater.” Once the Court has taken an interest in a case once, it is more likely to take an interest in it again. This isn’t a cert grant, but at a minimum, the Justices were aware of the facts, and quickly jumped in to stop the remand.

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Aug 21, 2015

Podcast: Steve Vladeck and I Talk About Second Amendments Rights for Non-Citizens

You can hear my buddy Steve Vladeck and I on Bloomberg Law to discuss the 7th Circuit’s recent decision finding the Second Amendment applies to non-citizens.

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Aug 21, 2015

I am on Bloomberg Law Radio Talking about 2nd Amendment Rights for Non-Citizens

You can listen here now.

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Aug 21, 2015

WSJ Law Blog on Topless Times Square Panhandlers

The WSJ Law Blog Reports on Mayor de Blasio’s suggestion that the Times Square Plaza should be dug up to eliminate the topless panhandlers. I offer some quotes, and the Mayor’s spox replies:

The city would have to meet the strictest of First Amendment standards, South Texas College law professor Josh Blackman predicts. Such scrutiny would require the city to show that its crackdown is both narrowly tailored and advances a compelling government interest.

“Such a decision….would be subject to strict scrutiny, and would be invalidated,” Mr. Blackman writes.

Nothing prevents the city from ticketing beggars who are engaging in actual harassment. But the professor says sweeping actions like reopening the whole plaza to vehicle traffic would be vulnerable to court challenges.

Mr. de Blasio, as WSJ reported, said re-engineering the plaza could reduce the congregation of the square’s high-profile panhandlers, including women who go topless and others who are costumed as children’s characters.

“It’s quite evident this is turning into a business,” he said of the panhandling. “We’ve certainly heard enough reports of how aggressively this business is being pursued. Clearly, a lot of people are very uncomfortable with it, I understand why, and I agree. On a common sense level, this is not appropriate in the middle of a public square.”

The mayor’s comments came as he formed a city task force to look at other ideas to clean up Times Square.

A spokeswoman for the mayor, Karen Hinton, told Law Blog by email that Mr. Blackman is “jumping to the wrong conclusions.” Said Ms. Hinton:

No decision about any of the options has been made. Bringing together the city’s experts on constitutional law, planning, transportation, and law enforcement, the task force will make its recommendations by October 1st.

The mayor has strongly expressed his concern about the constitutional issues and has said there’s no reason to take actions that would only land the city in court over First Amendment rights.

The power of the city to impose restrictions that target toplessness is less clear.

In 1992, the state’s highest court ruled in favor of women who were arrested for going topless in a Rochester public park, saying that restricting women — but not men — from baring their chests discriminates on the basis of sex. But the court said its ruling applied only to women who aren’t engaging in commercial activity.

“[It isn’t clear if topless women asking for money would be commercial,” Mr. Blackman tells Law Blog.

“It sounds like it is commercial,” First Amendment expert and legal blogger Eugene Volokhtold the New York Times. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”

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