Upcoming DOJ Deadlines for US v. Texas, House of Rep. v. Burwell, and Zubik v. Burwell

In the waning days of the Obama Administration, three significant cases were put on hold, giving the Trump Administration an opportunity to weigh in. Those deadlines will occur over the next 10 days.

First, following the 4-4 affirmance in United States v. Texas, the case was remanded back to the Southern District of Texas. On November 18, Texas and the United States government filed a joint motion to stay the merits proceedings until Monday, February 20, 2017. Judge Hanen agreed.

To date, the President has shown that he is very sympathetic to DACA. But much to my surprise, DAPA has not been formally rescinded–an action that would have no immediate effects, because the policy had never gone into effect. Complicating this analysis is the fact that on Friday, DHS Secretrary Kelly released a memoranda concerning immigration enforcement. The policy expressly rescinds all Obama-era policies that conflict with President Trump’s executive order, except DAPA (2014)  and DACA (2012).

However, footnote 1 specifically states that the November 2014 DAPA memorandum “will be address in future guidance.”

If I had to guess, on Monday DOJ will simply ask for more time, in light of the fact that it announced that the DAPA memorandum “will be addressed in future guidance.” There in no sense litigating this issue further if the policy is on the chopping block. Texas will be all too happy to comply. It is unlikely that DHS will announce in a pleading to the court that it is rescinding the policy. That will likely come shortly. In theory at least, Judge Hanen should be willing to dismiss the case on the rescinding of the policy, though I could imagine a circumstance where he asks for a consent decree, whereby the government pledges not to enact a substantially similar policy again in the future. (To make this tangible, Washington would no doubt demand a similar stipulation before voluntarily dismissing its challenge to the executive order, under the likelihood that a similar order could be re-entered in the future).

Second, on December 5, 2016, the D.C. Circuit ordered that House of Representatives v. Burwell be held in abeyance until Tuesday, February 21, 2017. (HHS opposed the motion). The outcome of this case is far more uncertain. As I understand it, the cost-sharing reduction (CSR) payments are to be made on the first of each month. Had the Trump Administration not made the payments on February 1, I would have expected a press storm from the insurance companies, charging that government was trying to destroy Obamacare. There was nothing. Absolute silence in fact. The dog did not bark. This suggests that the payments were made.

Perhaps the Trump Administration, like the Obama Administration before it, has determined that appropriations law is flexible enough to support the payment of the cost-sharing reductions. If that is the case, then the case could a very strange turn. The Trump Justice Department could continue to defend the payments, stating that (1) the House does not have standing and (2)  the payments are lawful. This would create the unlikely scenario where House Republicans are challenging a Republican President in court! That would be something I did not anticipate.

A for more likely scenario is that HHS requests more time to reply, stating that legislative changes to the ACA are afoot. The House of Representatives, more than any other party, would be privy to those developments. There is no sense ruling on a massive separation of powers dispute when (through the reconciliation process) the relevant provision may be rescinded. Not to burst anyone’s bubble, but I expect both parties to request more time. The D.C. Circuit will be all too happy to oblige. And don’t forget the intervenors. They are still lingering, because the court denied their motion to intervene while the stay is in effect. If the stay is extended, the intervenors will likely grouse, but they are still stuck on the outside.

Third, following the remand in Zubik v. Burwell, in several courts of appeals, HHS requested to stay proceedings until Tuesday, February 28. This case is perhaps the most complicated of all three. HHS had requested information about possible ways to reconcile the religious liberty conflicts, while still providing “seamless” access to coverage. Despite receiving thousands of submissions, the Obama administration determined that there is “no feasible approach.”

The government has several conceivable options here. First, it could continue to litigate the case, arguing (as did the Obama administration), that there is no RFRA violation because the accommodation as drafted is the least restrictive alternative. This seems like the most unlikely scenario possible, as the Court’s opinion suggested that it was not the least restrictive alternative. If it was, there would not have been a vacatur-and-remand. Further complicating this posture is that Acting Solicitor General Noel Francisco argued Zubik, so he (and all of his Jones Day colleagues) would likely be walled off from this case as it presses forward.

Second, the government could tell the courts that it needs more time to propose a new rule that provides greater protection for religious freedom. No doubt, the courts of appeals would be all too happy not to hold off on resolving this case. But I suspect this route will give way to vigorous litigation from female employees at religious employers who stand to lose contraceptive coverage. They will no doubt attempt to  intervene. These arguments, I think, are unlikely to succeed. The Supreme Court remanded the case to determine if there was some other way to resolve the dispute. After extensive consideration, the Obama Administration determined that it could not be worked out. This paves the way for the government to attempt a new solution that places greater weight on protecting religious freedom, and which, concomitantly, and makes coverage less “seamless.” Of course, the notion of “seamless” coverage–that SG Verrilli focused on in his briefs–came not from the statute, but from Judge Pillard’s opinion for the D.C. Circuit in the Priests for Life litigation. The ACA is entirely silent about how religious liberty is to be accommodated, so here–especially in light of the Zubik stalemate–the government has latitude to try a new policy.

Third, there is something of a nuclear option. While the Obama administration published its several accommodations and exemptions in the Federal Register, seeking notice and comment, it took a shortcut at the outset: the government adopted the Institute of Medicine’s recommendations of what drugs constitute preventive care in a blog post from August 2011. Yes, literally, government by blog post. The decision to include all FDA-approved contraceptives through the “preventive care” mandate has never gone through the notice-and-comment process. This asterisk on the HHS blog was the only process given to adopt what “preventive care” insurers must offer for women, without additional copays.

Therefore it can be modified in the same ad hoc fashion. The government can simply write the new religious accommodation procedure into the same blog post: any employer with a bona fide religious objection, can seek an exemption from providing any FDA-approved contraceptives on its plan. Then, the government can provide the contraceptive coverage to affected employees through alternative channels. This latter approach could be used to exempt not only the religious non-profits, but also the religious for-profits (such as Hobby Lobby) that are still waiting in the wings.

There is a lot to watch out for over the next 10 days.

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New Essay in Texas Law Review See Also: “The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump”

On Thursday, February 9, the 9th Circuit filed its opinion in Washington v. Trump. Over the next 72-hours–while running back and forth between media hits–I authored a two-part series (Part I and II) on Lawfare (at the invitation of Jack Goldsmith) analyzing the contrived opinion. At the same time, I pitched the Texas Law Review’s online supplement, See Also, on publishing the two-part series into an essay. Remarkably, the editors agreed. In less than 72-hours, we transformed the two-part series into a draft essay. It is now posted in draft form at the Texas Law Review website, as well as on SSRN. Eight days from start to finish. I think this may be a new record.

Here is the abstract:

This essay offers an early critique of the Ninth Circuit’s decision in Washington v. Trump. Despite its well-meaning intentions, the per curiam opinion is, at bottom, a contrived comedy of errors. First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. The panel’s insistence that emergency relief be provided is irreconcilable with its own conclusion that no such emergency exists. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and intricate. While it is true that this approach would not resolve all claims, as Justice Jackson reminded us six decades ago, the conjunction or disjunction between Congress and the Presidency informs the exactness of judicial review. This timeless lesson was apparently lost on the panel, which, third, applied the strictest of scrutiny to assess whether the executive order was justified based on “a real risk” rather than alternative facts. Fourth, I analyze the panel’s refusal to narrow an overbroad injunction. Once again, a study of the underlying statutory scheme could have afforded a plausible method of saving part of the order, while excising the unconstitutional portions.

I will close by critiquing the decision’s treatment of two leading precedents. First, the panel distinguished away with gossamer threads Kleindienst v. Mandel, which for four decades established a presumption of non-reviewability for executive decisions concerning exclusion. Second, the court misread Justice Kennedy’s concurring opinion in Kerry v. Din to establish a principle that courts can assess the President’s policy decisions for “bad faith.” Kennedy’s opinion, like Mandel before it, did no such thing; rather, courts could look only at whether individual consular officers acted in good faith, not whether the policy behind that decision was in bad faith.

Personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.

I welcome any comments. Because this litigation is still in its infancy, I’m certain there will be many more opportunities to write about this issue. Even if the Executive Order is withdrawn, and a new one is issued in its stead, the issues discussed herein will remain extremely relevant.

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Water Rights and the Coase Theorem on Washington Farms

This morning, Marketplace aired a feature that discussed water shortages on Washington farms. Under riparian law in the state, farmers with “junior water rights” can purchase rights from “senior” holders. For some farmers who have “senior” rights, and low-yield crops (such as hay) it may be more profitable to sell their water than to farm their land.

Joe Cook, an environmental economist at the University of Washington, explained how a water market works:

“Some farmers would go to other farmers and say, ‘Hey, are you willing to let me use your water so I can water my vineyard, or my orchard, or a crop that I really can’t let go dry?’”

In other words, the water’s so valuable that farmers with low-value crops could choose to make money by selling their water instead of planting for a season. Right now, those farmers have little incentive to sell their water to other farmers, in part because there’s a complex legal process involved.

This dynamic is a perfect illustration of how the Coase Theorem is supposed to work. In the absence of transaction costs, parties will negotiate in such a way to yield the greatest aggregate benefit. In Washington a vineyard owner with junior rights, who creates profitable wines, can pay a hay farmer with senior rights (and low profits) to not farm, and instead relinquish his water supplies.

Why isn’t this being done now? As Coase would predict, the transaction costs imposed by regulations are too high. As a result, the government is looking to make it easier to exchange water rights:

That’s what Washington officials are trying to fix. Legislators are still working to secure final funding for the plan, but once it’s in place, it could serve as a model for how to make sure water flows toward the highest-value agriculture.

What a perfect articulation of the Coase Theorem. Markets!

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The Difference Between a Bill and a Resolution

Today, President Trump signed H.J.Res.38. The Hill reported in a headline, “Trump signs bill undoing Obama coal mining rule.”
Trump tweeted that headline:

Alas, he did not sign a bill. As the abbreviation H.J.Res. suggests, it was a House Joint Resolution. What is the difference between a bill and a resolution? A bill becomes law when it is passed by both houses, and signed by the President. A resolution is something short of a bill, but must be passed by both houses, and be signed by the President, to take legal effect.

Article I, Section 7, Clause 2 provides the path for a bill to become a law:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

Article I, Section 7, Clause 3, provides a different definition for orders, resolutions, or votes, in general.

3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Even though a Resolution does not become law, in the sense of the bill, it still must be presented to the President for his signature. My understanding is Clause 3 prevents Congress from trying to enact a law, by calling it something else, and not submitting it to the President. No dice.


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ConLaw Class 11 – The Reconstruction Amendments

Class 11 – 2/16/17

The Reconstruction Amendments

  • The Emancipation Proclamation (527 – 529)
  • The Adoption of the Thirteenth and Fourteenth Amendment (767 – 771)
  • Contracting the Privileges or Immunities Clause (771 – 772)
  • Slaughter-House Cases  (Field, J., dissenting) (779 – 786).
  • Bradwell v. Illinois (787  – 791)
  • The Civil Rights Cases (814 – 831).

The lecture notes are here.

The Slaughter-Houses Cases

Here is a wood-cutting of the New Orleans Slaughterhouse.


Bradwell v. Illinois

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.




Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.


The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905


The Civil Rights Cases

The Grand Opera House in New York City, formerly known as Pike’s Opera House, was located on the Northwestf Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.



Maguire’s Opera House, formerly known as San Francisco Hall, was a three-story theater on Washington Street between Kearny and Montgomery in San Francisco.


I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.

This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.


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Prop1 Class 11 – Estates III: Leasehold and Defeasible Estates

Class 11 – 2/16/17

Estates III: Leasehold and Defeasible Estates

  • Leasehold estates, 244
  • Defeasible Estates, 244-247
  • Mahrenholz v. County Board of School Trustees, 248-253
  • Notes, 253-256
  • Maeser School Crisis Over, 256-258
  • Mountain Brow Lodge No. 82 v.  Toscano, 258-263
  • Notes, 263-264
  • Review Problems 1-4, 272-273

The lectures notes are here.

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.


This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.


This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”


This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.



Here is a picture of the Odd Fellows building:



This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.

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My Pro-Se Cert Petition Will Be At #SCOTUS Conference on Friday

In 2011, shortly after I moved to Louisville for my clerkship, I realized the tiny gym at my apartment complex would not suffice. Frustrated, I drove about a mile down Shelbyville Road to the Urban Active Gym, and signed up for a membership. Little did I realize that this spontaneous decision more than five years ago would one day give rise to my very own pro-se cert petition.  Ted Frank of the Center for Class Action Fairness, who first filed my objection many years ago,  discusses the important issues at stake in this case in the Washington Times.

The petition (16-364) will be considered at the conference on Friday. In light of amicus briefs filed by Arizona Attorney General (joined by sixteen other states), the Cato Institute, and Professor Lester Brickman., as well as the call for a response, I am optimistic. But, I realize the overwhelming odds are denial.

When you check the orders list on Tuesday (don’t forget President’s Day!), be sure to look for Blackman v. Gascho. All of the filings are available here.

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Breaking: Texas AG Files Amicus Brief in Support of Federal Government in Washington v. Trump

This morning, the Texas Attorney General filed an amicus brief in support of the federal government in Washington v. Trump. (I reviewed an embargoed copy). The brief echoes several points I made in two-part series on Lawfare (Part I and Part II).

First, citing Justice Jackson’s concurring opinion in Youngstown, the brief posits that we find ourselves in the first tier where the President has maximum authority, because he is acting pursuant to a direct delegation of authority.

The Order falls within the Executive Branch’s strongest area of authority—Youngstown’s first zone of executive action—because it draws support from not only the President’s own foreign-affairs and national-security powers, but also from Congress’s delegated authorization pursuant to its Article I powers over the admission of aliens into the country. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring). The Executive Order, especially given its national-security context, should thus enjoy “the strongest of presumptions and the widest latitude of judicial interpretation.” Id. at 637. After all, “[u]nlike the President and some designated Members of Congress, neither the Members of [the Supreme] Court nor most fed- eral judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).

Second, the brief explains that the Executive Order falls well within the powers Congress delegated to the Executive, even though the panel could not be trifled to cite it.

The panel, however, did not even mention the President’s statutorily delegat- ed power to suspend the entry of aliens (8 U.S.C. § 1182(f)) or to revoke visas (§ 1201(i)). It therefore failed to recognize that the Executive Order falls within Youngstown’s first zone of executive action and should be accorded the strongest presumption of validity.

Third, the brief reads Din and Kerry in a similar fashion as I did, concluding that nonresident aliens have no constitutionality protected right to seek admission.

Rather than accord the Executive’s delegated national-security decision the strongest presumption of validity, the panel found an extraordinary extension of constitutional rights to nonresident aliens who are outside this country and attempting to enter the country. Amicus is aware of no case that extends constitutional rights in anything close to the degree that plaintiffs advocate. The Supreme Court has never held that the Fifth Amendment’s Due Process Clause or the First Amend- ment’s Establishment Clause confer rights on nonresident aliens who are in foreign territory clearly not under the sovereign control of the United States. Nonresident aliens abroad have no constitutional right to seek admission into the country; there- fore, no constitutional claims accrue from a suspension of those aliens’ ability to enter. And statutorily created visas—generally a threshold requirement for being able simply to apply for admission to the country—are inherently not an entitle- ment. Rather, they are granted and held on a permissive, discretionary basis. Con- gress expressly designed visas to be revocable by the Executive without even judi- cial review in all but one instance. 8 U.S.C. § 1201(i). Thus, entry into the coun- try—or revocation of a visa—does not implicate a constitutionally protected inter- est in receiving due process or equal “protection” of visa laws that themselves pro- vide for discretionary revocation.

Texas noted that the analysis would be different for LPRs, and the injunction should be narrowed to that group:

The analysis could be different for certain lawful permanent residents who are returning to the country from abroad, see Landon, 459 U.S. at 33-34, but the Executive Order does not apply to LPRs, see supra p. 5. Even if the Order did apply to LPRs, analysis of this issue as applied to LPRs could not possibly justify a facial in- junction that also applies to non-LPRs.

Fourth, the brief posits that no equal protection concerns are implicated by the Executive Order.

As a threshold matter, the nonresident aliens covered by the Executive Order have no constitutional equal-protection rights against the federal govern- ment. The equal-protection principle recognized by courts under the Fifth Amendment’s Due Process Clause applies to “person[s],” U.S. Const. amend V, “within the territorial jurisdiction,” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). But the Supreme Court has recognized a key distinction between aliens inside ver- sus outside the United States. See Zadvydas, 533 U.S. at 693. And the Court has “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Verdugo-Urquidez, 494 U.S. at 269 (citing Eisentrager, 339 U.S. at 770).

Fifth, the brief contends that the Establishment Clause is not even triggered by the Executive Order.

Plaintiffs’ Establishment Clause argument fails because the Clause does not vest rights extraterritorially in nonresident aliens abroad—for many of the same reasons that due-process or equal-protection rights would not apply to such aliens. See supra p. 23. Amicus is aware of only one court of appeals case to apply Estab- lishment Clause protections extraterritorially in some fashion: Lamont v. Woods, 948 F.2d 825, 843 (2d Cir. 1991). But that case dealt with U.S. citizens’ ability to raise an Establishment Clause challenge to “the appropriation and expenditure of public funds by the United States for the construction, maintenance and operation of foreign religious schools.” Id. at 827.

Even if the Establishment Clause were so broad as to afford its protections to nonresident aliens abroad, there is no Establishment Clause violation here. The Executive Order is religion-neutral, and the Order is not a pretext for religious dis- crimination as explained above. See supra pp. 24-32. On its face, section 5(b) of the Order regarding refugee admission does not “give preference to Christian refugees while disadvantaging Muslim refugees.” TRO Mot. (D.E.3) 7. The Order’s direc- tives on the refugee program after it resumes, for instance, “could be invoked to give preferred refugee status to a Muslim individual in a country that is predomi- nantly Christian.” Louhghalam, 2017 WL 479779, at *5 (slip op. 13).

Finally, you may ask what precisely is Texas’s interest here? Security. And because the state is not able to control immigration enforcement, under Arizona v. U.S., it must rely on the federal government’s help:

Amicus curiae is the State of Texas.1 Like every other State in the Union, ami- cus has a significant interest in protecting its residents’ safety. But the State itself possesses no authority to set the terms and conditions of entry for aliens seeking to enter the United States, or to restrict the entry of such aliens for foreign-affairs, public-safety, or national-security reasons. Instead, the State relies on the federal Executive Branch to carry out that function, pursuant to the laws of Congress. See Arizona v. United States, 132 S. Ct. 2492, 2507 (2012). Congress has delegated to the Executive Branch significant authority to prohibit aliens from entering the country, and the challenged Executive Order is a lawful exercise of that authority. Plaintiffs’ lawsuit presents no basis to enjoin the Executive’s exercise of the power delegated to it by Congress.

The district court’s facial injunction and the panel’s stay decision are an intru- sion into the national-security, foreign-affairs, and immigration powers possessed by the Executive and delegated by Congress. The injunction is contrary to law, and it threatens amicus’s interests by keeping the federal government—under a statu- tory regime crafted by the States’ elected representatives in Congress—from hav- ing the latitude necessary to make policy judgments inherent in this country’s na- ture as a sovereign.

One may have thought that the powerful litigation shop built up by the Texas Attorney General would have nothing to do during the Trump Presidency. Not quite. I do think it is important to stress that Texas in no way challenges state standing and the scope of the nationwide injunction. (Shortsightedly, Washington challenged the scope of the nationwide injunction in Texas v. U.S,. but now relies on the same principle in its own case). The state benefited from both of these doctrines over the past 8 years. I wrote in National Review before the inauguration that conservative states should support liberal efforts to promote state standing and nationwide injunctions. “Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.”

Disclosure: I engaged in some discussions with Texas about the legal issues in the case, but was not involved with the drafting of the brief, nor did I review a copy of it before today.

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