Oct 31, 2014

Obamacare Sponsors Recreate Non-Existent Legislative History

Five members of Congress, who were involved with the enactment of the Affordable Care Act, have published a WaPo Op-Ed accusing the backers of the Halbig challenge of “cherry-picking” the legislative history of the law. The Op-Ed claims that since they were there, they know what is *really* in the law:

For some time, I have been on a Hobby Horse about members of congress filing briefs in court explaining what they (and by implication Congress as a whole) meant when the law was voted on.

I expressed these concerns when Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama (see herehere, and here), and when Senator McConnell intervened in the recess appointment case (here). I noted similar objections when 6 Democratic members of Congress, who were involved in steering the Affordable Care Act through the legislative gauntlet in 2009 and 2010, filed a brief in Halbig v. Sebelius.


Why do I find these briefs so unhelpful? Because Congress’s role in the lawmaking part ends at bicameralism. They have many opportunities to shape the law: (1) Draft a bill, (2) hopefully read it (though that was not done with Obamacare), (3) add whatever legislative history they deem necessary (it isn’t hard), and (4) vote on it. That’s it. Everything that comes after is post-enactment legislative history–the least reliable form of history, which is prone to self-serving statement to support one cause or another. When members of Congress file briefs in this manner, courts should be very skeptical.

This dynamic is heightened in the context of Obamacare for several reasons. The bill was drafted behind closed doors in the Senate. The bill, which no one could have conceivably read (Max Baucus admitted as much), was only a draft. It was not meant to be the final version. Only after Scott Brown won the election in Massachusetts, and the filibuster came back on the table, were the Democrats forced to ram the bill through the House, and send it back to the Senate through the reconciliation process. No conference was held to even add to the legislative history. So, the democratic process suffered with respect to (1) drafting, (2) reading, and (3) legislative history, because health insurance. The only thing we did get, was a bill that passed both houses (kind of) and was sent to the President. And that’s all we get– and all courts have to understand it.

Yet, the Op-Ed professes that their position is correct, because they were there, even though they were there, nothing they said or wrote supports their position.

This interpretation is wrong. As members of Congress who shaped and debated the legislation, we want to set the record straight. … None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.

I can say, with almost absolute certainty, that none of them contemplated this issue at all before they voted on the law. If they had, the language in question–“established by the state”–would have been removed.  Maybe in their heads they had a rough idea of how the law would operate, and didn’t worry about the details, but this isn’t how the rule of law works. This is not how the democratic process works. Laws are based on the text, or legislative history, or some contemporary legislative intent. Laws are not interpreted based on mental ideations of members of Congress, who have make these thoughts known after the law is enacted–and the law is pending before a court challenge.

I’m putting aside the Jonathan Gruber argument for the moment. I will assume good faith, and their understanding at the time was inconsistent with the text.

The Op-Ed goes on to cite a March 2010 “fact sheet” by the House committee that “authored” (huh) the law:

In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government.

Again, I’ll repeat that the House had no deliberations on this provision of the law because of Scott Brown’s elections, which makes this statement some chutzpah. As one member of Congress noted, “We had to take the Senate version of the health care bill. This is not anything we spent time talking about here in the House.” Further, when the ACA was passed, it was expected that all states would participate in the Medicaid expansion, and create exchanges. As we found out later, this wasn’t the case. But at the time, it is entirely unsurprising that members of Congress assumed that all states would create exchanges. The Fact Sheet does not even mention what happens if a state clines to establish an exchange–this is the key issue in Halbig. Jon Adler effectively explains why this “fact sheet” is an entire non-sequitur.

Let’s start with the “fact sheet” linked in the above quote.  This fact sheet is hardly evidence of everything [JB: I think he meant anything]. Yes it notes that there would be federal exchanges, and it notes that there would be tax credits. But it also omits relevant eligibility criteria, such as the income floor for tax credit eligibility, so it is anything but an authoritative account of all the bill’s relevant provisions, and it doesn’t contradict the PPACA’s plain text.

Next (out of order, oddly enough) they turn to the Senate:

On the Senate side, provisions from the bill reported by Sen. Harkin’s Health, Education, Labor and Pensions Committee were combined with provisions from the bill reported by the Finance Committee, of which the current chairman, Sen. Wyden, was a senior member. There, too, the final bill embodied our universal understanding that financial assistance would be available in every state.

Note how they can’t even pretend there is any contemporary legislative history to justify this position–because there isn’t any. This “universal understanding” may no doubt have been in the hearts and minds of members of Congress, but nothing they did in the text or legislative history supports this.

Next, they turn to the CBO:

The respected, nonpartisan Congressional Budget Office came to the same conclusion.

When we asked it to estimate the cost of our legislation, the CBO understood our intent and repeatedly provided fiscal projections based on the availability of financial help in every state and the District. Even though early political opposition to the Affordable Care Act made it apparent that some governors might refuse to directly run their own marketplaces, thereby delegating such administration to the federal government, the CBO’s projections always correctly assumed that financial help would be available to qualifying individuals and families regardless.

Yes. The CBO, as did the members of Congress, assumed all states would participate in the exchanges. But this is no way explains what would happen if states declined. Jon Adler adds:

While reiterating that the authors shared a “universal understanding that financial assistance would be available in every state,” the op-ed fails to acknowledge that one of the authors — Senator Harkin – sponsored a health reform proposal that conditioned tax credits on state cooperation and that the CBO still scored this bill (like the PPACA) on the assumption that tax credits would be available in all fifty states.  In other words, the CBO (like the bill’s authors) assumed all fifty states would cooperate.

Yet, when basing their entire arguments on fanciful notions in their minds that were never reduced to the written or spoken word, they argue that an argument based on the *text of the law they voted on* is “fanciful.”

However, those who brought the recent lawsuits have developed a fanciful notion about Congress’s intentions. They assert that we intended to compel all states to run marketplaces directly by penalizing residents of those states that refused to do so. But the law expressly provides that low- and middle-income Americans and their families will receive financial help to make their coverage more affordable. In an attempt to make their case, the law’s opponents cherry-pick one four-word phrase — “established by the State” — from the formula used to determine how much financial help Americans are eligible to receive and use this phrase to argue that assistance isn’t available to people living in states that decided to use the federal marketplace. But the language on which the law’s opponents rely means no such thing.

So here we are. Universal understandings that no one wrote down should trump “fanciful” citations of the actual text of the law..

A common shibboleth in support of the law, is that it was designed to help poor people, and it would be absurd to do anything that harms poor people, if their states do not cooperate.

The Affordable Care Act was designed to make health-care coverage affordable for all Americans, regardless of the state they live in. Providing financial help to low- and moderate-income Americans was the measure’s key method of making insurance premiums affordable. Without it, millions would remain uninsured, and for them, the new law would be nothing more than an empty, unfulfilled promise. ….

The Affordable Care Act makes financial help available to working Americans in every state. That is the law we intended. That is the law we enacted. That is the law that is covering millions of people through marketplaces. And that is the law that should continue to be in force.

This rationale could be used to justify *anything* about the law. Anything that lowers the cost of insurance will therefore be the purpose of the law. But as I explained in the American Spectator, the Medicaid expansion was designed to punish the poorest citizens of states that do not expand Medicaid. That was how the law was designed. This directly pushes back against any conception that the law may, through its carrot-and-stick approach–harm poor people.

Now, this is not dispositive of how the courts should construe the IRS rule, but it pushes back strenuously against the irresponsible members of Congress who transformed a huge portion of our economy, through dubious means, on a slipshod process, with a draft of the bill no one read. Though Nancy Pelosi was correct in one respect–we have to pass the bill to find out what’s in it.

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Oct 31, 2014

Deeply Rooted Liberty in Americans

I am reading “Bunker Hill: A City, a Siege, a Revolution,” and came across this amazing quotation from General Thomas Gage, Commander of the British Forces in North America, who laid a siege of Boston.

“It was impossible to beat the notion of liberty out of the people as it was rooted in them since childhood.”

I often wonder if the same can be said of other nations, who have been unable to maintain stable democracies, and are prone to never-ending sieges of oppression and tyranny.

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Oct 31, 2014

Report: “Liberal cities seem to have the worst [housing] affordability crises”

The Atlantic discusses a new report from Trulia, suggesting that liberal cities have much worse housing crises than similarly-sized conservative cities.

The line isn’t smooth—and there are exceptions—but the relationship is clear: In general, richer cities have less affordable housing.

But there’s a second reason why San Francisco’s problem is emblematic of a national story. Liberal cities seem to have the worst affordability crises, according to Trulia chief economist Jed Kolko.

In a recent article, Kolko divided the largest cities into 32 “red” metros where Romney got more votes than Obama in 2012 (e.g. Houston [JB: I think they must mean Houston metro area, as Harris County went blue, but if you lump in surrounding areas it would be advantage for Romney], 40 “light-blue” markets where Obama won by fewer than 20 points (e.g. Austin), and 28 “dark-blue” metros where Obama won by more than 20 points (e.g. L.A., SF, NYC). Although all three housing groups faced similar declines in the recession and similar bounce-backs in the recovery, affordability remains a bigger problem in the bluest cities.

“Even after adjusting for differences of income, liberal markets tend to have higher income inequality and worse affordability,” Kolko said.

This graph shows how comparably sized red cities have significantly lower housing prices than their counterpart blue cities.


As a libertarian property scholar–something of an anomaly–I am often frustrated when I try to convey that the liberal policies that make a city look nicer, and stop construction, have a significant deleterious effect on the affordability of housing. And these are the same cities that go to great lengths to make housing more affordable through government programs, when government programs are responsible for making the housing unaffordable on the market.

The Atlantic continues:

Kolko’s theory isn’t an outlier. There is a deep literature tying liberal residents to illiberal housing policies that create affordability crunches for the middle class. In 2010, UCLA economist Matthew Kahn published a study of California cities, which found that liberal metros issued fewer new housing permits. The correlation held over time: As California cities became more liberal, he said, they built fewer homes.

“All homeowners have an incentive to stop new housing,” Kahn told me, “because if developers build too many homes, prices fall, and housing is many families’ main asset. But in cities with many Democrats and Green Party members, environmental concerns might also be a factor. The movement might be too eager to preserve the past.”

When the goal of a zoning system is to avoid any change that may lower housing prices, it is entirely unsurprising that housing prices go up. The cases that find preserving housing values as part of the general welfare seems out of whack, as it harms the general population, except for the people who are already living in an area.

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Oct 31, 2014

SCOTUS Musical Chairs

One fun fact I learned from a recent event at YLS with Justices Thomas, Alito, and Sotomayor–during lunch, the Justices are not seated by seniority, but in the seat of their predecessor. That is, Roberts will sit in the seat of Rehnquist. Alito sits in O’Connor’s seat. Kagan sits in Stevens’s seat. And Sotomayor sits in Souter’s seat. Or at least she is supposed to, as she reflected in this comical exchange with Justice Thomas:

SS: At lunch we have to sit in our previous Justice’s chair. That’s not by seniority. That chair has been sat on by all of the Justices in our lineage. And when someone moves. You see a lot of eyebrows raised.

CT: Why are you sitting there?

SS: I’m sorry. I’ve fallen pray to that. (Mimicking another Justice) What are you doing here Sonia? It can be overwhelming at times.

She later added that “Sometimes the tradition is a little silly.”

Though, Justice Thomas remarked that he does like the tradition. “I like the formality.” But added, “It is a little disconcerting. We are in the same building and we don’t see each other much unless we are sitting or in conference.”

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Oct 31, 2014

Houston’s Lack of Zoning in One Picture

I’ve written at great length about how the City of Houston has no formal zoning code–though it has a strong methods of doing so informally. Today, as I was driving down Dallas Street towards the downtown area, I was struck by what no zoning looks like. I apologize for the click bait, but this it. Less than a mile from skyscrapers are abandoned lots and residential houses.



The towers emerge once you cross the highway.

Here is the Google Map to get a sense of how close it is.


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Oct 31, 2014

Obama’s Midnight Recess Appointees During The Moment Between Sessions

Way back in January I queried whether–if the GOP took the Senate–the Harry Reid could ram through a series of nominations during the lame duck session. Now it seems that that Democrats are gearing up for pushing through a rash of midnight appointees.

“We will definitely move a lot of nominees during the lame duck one way or the other — possibly more if Republicans take the majority,” said a Democratic Senate leadership aide. …

Norm Ornstein, a congressional scholar at the American Enterprise Institute, said, “It would be crazy if [Senate Majority Leader Harry] Reid did not call them back as soon as possible and go into long hours, night and day, to process as many confirmations as he can.” But he cautioned that doing so “will inflame Republicans and drive them absolutely batshit.”

This strategy is looking all the more necessary as Senate Majority Leader Mitch McConnell may possibly deny *every single* Obama nominee a vote during the next two years. Sahil Kapur explores this possibility, quoting Randy Barnett and Roger Pilon, among others.

What if the Senate does not push through the lame duck nominations? Can the President turn to his recess power? No, not the intra-session power that was at issue in Noel Canning. The House will not let the Senate recess, and force it to hold pro forma sessions. What if he relies on the inter-session recess?

Professor Seth Barrett Tillman sent me this note:

The House and Senate must adjourn and recess sine die with the expiry of their last session at the end of any two-year congressional term. Then a new Congress will meet. That recess might last for a moment, and during it the President can make his recess appointments. That’s akin to what Theodore Roosevelt did in 1903, when he made 160 recess appointments during two back-to-back congressional sessions within the same two-year congressional term. Here, in January 2015, the “break” would be between two congresses — so, arguably, Obama’s position in regard to making such recess appointments is stronger than Roosevelt’s was.

See also Seth’s arguments in two papers for the Northwestern Law Review Colloquy, and two replies from Professor Brian Kalt.

Although the Court in Noel Canning rejected the idea of an intra-session break that was only three days long, it did not have the occasion to opine on the inter-session recess. Could the President seize the moment between sessions (if such a moment exists) to appoint judges or executive branch officials? Since this is his last term he won’t need them the latter to be confirmed again. But it would make a mess for judges, whose commission would expire in January 2017, right as a new President is entering Washington.

The next few months could be really interesting. Stay tuned.

Update: Christopher E. Mills writes in with two quotations from Noel Canning that may shed some light on the appropriateness of TR’s last-second appointments.

“Even the Solicitor General, arguing for a broader inter­pretation, acknowledges that there is a lower limit appli­cable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Neither House, during the Session of Con­gress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, §5, cl. 4. … We agree with the Solicitor General that a 3-day recess would be too short.”

“There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt’s appointments during the instantaneous, ‘fictitious’ recess. . . . There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.”

The Court stopped short of saying the fleeting, inter-session recess was unconstitutional, and the SG seemed to agree that it may be too short, though there is no definitive ruling here.

Update 2: On a close read of the transcript, I don’t know that the Solicitor General took any position on whether the three-day limit should apply to the inter-session recess appointments. Here is the relevant exchange between the Solicitor General and Justice Kennedy on p. 11 of the transcript:

GENERAL VERRILLI: I think the ­­ the way we resolve that problem is by looking to the Adjournment Clause. We think, if it’s a break that is sufficiently short, that it wouldn’t require the –­­ wouldn’t require the one House to get the consent of the other, but that’s a de minimis recess, and that’s not a recess in which the President would have authority.

Verrilli’s answer is premised on one House not allowing the other to adjourn during an inter-session recess. The Senate does not need the House’s permission to adjourn between sessions of Congress. Therefore this answer is not responsive to inter-session recesses, even if the Justices’s questions asked about it.

Update 3: Christopher E. Mills notes that in the government’s merits brief, they only seem to focus on the three day floor with respect to intra-session recess, and not inter-session recesses.

The Adjournment Clause makes clear that the taking of a legislative break of three days or less “during the Session of Congress” is still an “adjourn[ment],” Art. I, § 5, Cl. 4, but the Executive has long understood that such short intra-session breaks—which do not genuinely render the Senate unavailable to provide advice and consent—are effectively de minimis and do not trigger the President’s recess-appointment authority. (page 18)

For more than 90 years, the Senate and the Executive have agreed on a functional understanding, under which short intra-session breaks of three or fewer days do not trigger the Recess Appointments Clause, but longer breaks can do so. (page 45)

In fact the SG recognizes that there were many inter-session recesses that were zero days long.

The Senate has had many inter-session re- cesses that were zero, one, or two days long (e.g., in March 1791, 1793, 1797, 1801, 1867, 1877, 1881, 1885, 1897, 1903, 1905, 1909, 1913, 1917, 1921, and 1925; in December 1903 and 1922; in January 1941, 1942, 1980, 1992, and 1996). S. Pub. 112-12, Official Congressional Directory, 112th Congress 522-535 (2011) (Congressional Directory), www.gpo.gov/fdsys/pkg/CDIR-2011-12-01/ pdf/CDIR-2011-12-01.pdf.6

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Oct 31, 2014

Jeopardy! Messes Up Hobby Lobby Answer

Recently, Jeopardy! posed this question:

In 2014 the Supreme Court said that this chain of stores could refuse to pay for employees’ birth control.

The question begs Hobby Lobby. This is not entirely accurate. Of the 20 FDA-approved methods of contraception, Hobby Lobby only objected to four–Plan B, Ella, and two types of IUDs. Hobby Lobby had no problem with the birth control pill. This is a common misconception I clear up whenever I give a talk on Hobby Lobby.



In case you were wondering, here is the list of FDA-approved contraceptives Hobby Lobby covers.



And the products they do object to.




H/T Bob Steel

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Oct 31, 2014

Will the Senate Republicans Try to Repeal Portions of Obamacare With Reconciliation?

Since Chief Justice Roberts saved the Affordable Care Act as a constitutional tax, Senator Mitch McConnell has flirted with the idea of using the reconciliation process to repeal the law (see here and here). This process would only require 51 votes, and bypass the filibuster. (It is fitting that the ACA finally passed the Senate without a filibuster in the same manner). Of course any such bill would be dead on arrival by the White House.

Yet, McConnell continues to float this idea. Whether it is serious or not, should be separated from whether it is even possible.

Sahil Kapur at TPM talks to a former Senate parliamentarian, who suggests that while the entire law cannot be repealed by reconciliation, parts of it affecting the budget can.

One former longtime Senate parliamentarian said a majority leader could make a persuasive case for using reconciliation to repeal core components of Obamacare, many of which have budgetary impacts. That includes the premium tax credits that help lower-income Americans buy insurance. It might even include the individual mandate, given that the Congressional Budget Office has said scrapping the mandate would save money.

“One could argue that a proposal that says no funds shall be used to implement the Affordable Care Act is fit for reconciliation. Doesn’t that save money? That’s certainly a legitimate argument,” said the former parliamentarian, who asked not to be named. “It wouldn’t repeal the ACA but it could starve it to death.”

That sets up tension between the GOP’s establishment wing and the tea party wing. The McConnell-led wing want to repeal smaller items like the medical device tax, which they might have a chance of getting President Obama to sign. Tea party lawmakers want to rile up their base by going big and slashing as much of the law as possible, and daring Obama to veto their bills.

The big question is how far Republican leaders are willing to go, and whether they find the votes in the Senate and House to pass an anti-Obamacare bill and put it on Obama’s desk.

The President’s veto pen will be awfully busy the next two years.


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Oct 30, 2014

Sotomayor: “the Court as an institution was much more important than I was an individual Justice.”

In a famous interview with Jeff Rossen, Chief Justice Roberts explained his view of the Supreme Court as an “institution.” That is, the Court should not only be focused on deciding individual cases, but also view how it fits into the broader scheme of the separation of powers.

“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

It is perhaps this desire to think of the Court as an institution that led the Chief to voting the way he did in NFIB v. Sebelius, and his desire to promote a faux-unanimity in several cases last term.

In particular, Roberts declared, he would make it his priority, as Marshall did, to discourage his colleagues from issuing separate opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

The Chief is not alone with this feeling. In recent remarks at Yale Law School, Justice Sotomayor explained that her greatest surprise upon joining the Court was her recognition of the importance of this institution, as a force greater than herself.

I was surprised by all of this as well. But for me, the tradition had one positive effect. It taught me that the Court as an institution was much more important than I was an individual Justice. That is a really important lesson for Justices to learn and live by. Sometimes the tradition is a little silly.

Although, Justice Sotomayor seems to draw a different conclusion, and is quite more likely than the Chief to issue separate opinions.




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Oct 29, 2014

With State Ebola Quarantines, White House Suddenly Discovers States’ Rights and James Madison

I had to do a serious double-take when I saw White House Press Secretary Josh Earnest (an apt name for a press secretary if there ever was one!) cited James Madison and states rights in response to a question about state ebola quarantines:

“You could take that up with James Madison,” White House press secretary Josh Earnest told reporters inquiring about why there isn’t a sole national standard for isolating people who might have Ebola. “We have a federal system in this country in which states are given significant authority for governing their constituents. That is certainly true when it comes to public safety and public health.”

Huh?????? Surely he can’t mean this. Surely he doesn’t think that matters of health law should remain the provence of the states? Obamacare? Surely this isn’t the same administration that argued in Arizona v. United States that states have no role in ensuring that immigration laws are enforced? Being earnest is important but this is ridiculous.

As the Weekly Standard noted, “Even the Associated Press couldn’t help but point out the hypocrisy. Directly after the Earnest quotation, reporter Josh Lederman wrote:”

That’s ironic, perhaps, coming from an administration that Republicans typically accuse of exceeding its legal authority on issues like immigration, health care and foreign policy.

I look forward to future mentions of James Madison from the White House press room.


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Oct 29, 2014

Talks in Bloomington and Indianapolis

On Thursday 10/30 at noon I will be speaking to the Indiana University at Bloomington Federalist Society Chapter about Hobby Lobby. Professor Dan Conkle will be providing commentary. Later that day at 4:30 I will be speaking about executive power at the Indiana University at Indianapolis Federalist Society Chapter. On Friday at noon, I will be speaking to the Indianapolis Federalist Society Lawyers Chapter about executive power. I hope to see you there!

Bloomington-Flyer IU-Indy

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Oct 29, 2014

Houston Mayor Withdraws Subpoenas to Pastors

This was a wise move.  Here is the Mayor’s statement.

With local pastors standing with her, Mayor Annise Parker has told the City Legal Department to withdraw the subpoenas filed against five local pastors who have identified themselves as the leaders of the petition drive to repeal the Houston Equal Rights Ordinance (HERO).

“This is an issue that has weighed heavily on my mind for the last two weeks,” said Mayor Parker. “Protecting the HERO from being repealed is important to Houston, but I also understand the concerns of the religious community regarding the subpoenas. After two meetings yesterday, I decided that withdrawing the subpoenas is the right thing to do. It addresses the concerns of ministers across the country who viewed the move as overreaching. It is also the right move for our city.

In a breakfast meeting yesterday, Mayor Parker met with local Pastors Rudy Rasmus, Jim Herrington and Chris Seay. She had a second meeting later in the day with National Clergy Council President Rob Schenck, Reverend Pat Mahoney of the Reformed Presbyterian Church, Pastor Myle Crowder from Utah, Pastor David Anderson from Florida, Pastor Sean Sloan from Arkansas and two others.

“These pastors came to me for civil discussions about the issues,” said Parker. They came without political agendas, without hate in their hearts and without any desire to debate the merits of the HERO. They simply wanted to express their passionate and very sincere concerns about the subpoenas. The second meeting group wasn’t from Houston, but they took the Houston approach of civil discourse in presenting their case. We gained an understanding of each other’s positions.”


ADF will probably get attorney’s fees though.

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Oct 29, 2014

Justice Jackson on the “Cult of Libertarian Judicial Activists”

In 1969, four lectures were published in honor of Mr. Justice Jackson by Charles Desmond, Paul Freund, Potter Stewart, and Lord Shawcross. Towards the end of Stewart’s lecture, he quotes Justice Jackson’s remarks from the “last of the Godkin Lectures.” Jackson died in 1954 before he was able to deliver these lectures, but they were published in his book, “The Supreme Court in the American System of Government.” Justice Jackson wrote of a “cult of libertarian judicial activists,” who:

believe that the Court can find in a 4,000-word eighteenth-century document or its nineteenth-century Amendments, or can plausibly supply, some clear bulwark against all dangers and evils that today best us internally. This assumes that the Court will be the dominant factor in shaping the constitutional practice of the future and can and will maintain, not only equality with the elective branches, but a large measure of supremacy and control over them. I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I am one, at the time of the Roosevelt proposal to reorganize the judiciary. But it seems to be a doctrine wholly incompatible with faith in democracy, and in so far as it encourages a belief that the judges may be left to correct the result of public indifference to issues of liberty in choosing Presidents, Senators, and Representatives, it is a vicious teaching.

Stewart adds in closing:

That is forceful language. But the key word, I think, is “faith.” Justice Jackson knew that the Framers had put their ultimate faith in the people, and there, for better or worse, he put his faiht too. He firmly believed that only so long as we remain a free and responsible people can there endure a society to be truly served by the profession he loved so much and the Court he served so well.


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Oct 29, 2014

After She Retires, Justice Sotomayor Will Return to the District Court

Once (and only once) Chief Justice Rehnquist sat by designation on a federal district court. The Fourth Circuit unanimously reversed him. And that was the end of that failed experiment.

One of the greatest attributes Justice Sotomayor brings to the bench is her time at the District Court. During her remarks at Yale Law School, she explained that when retires, she will not ride Circuit, but go back to the District Court. She relayed a conversation she had while at lunch with Chief Justice Roberts and Justice Kagan.

Last year I was having lunch with the Chief and Justice Kagan, and we started talking about how hard our senior justices work in the federal circuits [JB: She couldn't possibly be talking about Justice Stevens who has not heard a single case since he stepped down]. Without thinking about it, when and if I retire, I want to go back to the district court. When asked why, I said why would I go and do what I was doing for however many years it has been. I want to go back to my first love. The district court is a very different and exciting place. For me, it was the formative experience for preparing me for the court.

I spent two years clerking in the district court, and one year on the court of appeals. I can’t stress how valuable my two years in the district court were. In addition to preparing me to handle an appellate court docket, I had a feel for how all aspects of the lower court worked. For reviewing a sentencing appeal, I had sat in on countless sentencings. For dealing with an appeal over an evidentiary issue, I was in court countless times when objections were made and resolved in a manner of seconds. For reviewing a complicated case, I was sure to limit my review to the record, and nothing more–even if the lawyers were not so constrained. This is a skill that some fresh law clerks aren’t so diligent about.

Then, Justice Sotomayor explained why a wise district court judge with the richness of her experiences would more often than not, reach a better conclusion than a circuit judge, or something like that.

I still look at cases a lot like district court judges do. I look at the facts and try to apply the facts to the law. And my colleagues only look at the law, and that is all they–sometimes they are looking at. it is a very different perspective. It is one I will never disavow because it has value. For me, my greatest time was on the district court in terms of preparing me for the Court.

I will note that while Sotomayor said this, both Alito and Thomas were nodding their head in agreement. There is no doubt Sotomayor pays more attention to the facts. I’ve heard that she asks her clerks to read the *entire* record, and this preparation shows during oral arguments, and in her opinions, which are very factually-intensive.

Though, as Paul Clement noted, the Justices really don’t care about the client.

“At the end of the day, they really don’t care about your case or your client,” he said. “They are really using your case as a vehicle to develop a broader rule on an issue of importance, and I think that is something that one always has to keep in mind.”

You are just a vehicle.

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Oct 29, 2014

Prop1 Class 19 – Martial Property III – Community Property

The lecture notes are here. The live chat is here.

This is the section of the Texas code that governs equitable distribution of community property after a divorce:

Sec. 7.001.  GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.

Sec. 7.002.  DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1)  property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2)  property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

(b)  In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:

(1)  property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or

(2)  property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.

(c)  In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

(1)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or

(2)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.

Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:

Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.

When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.

O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.

Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.

Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.

“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.

McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.

“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.

George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.

“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”

The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.

The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.

“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.

In related news, Donald Sterling’s mistress, v. Stiviano, was sued by Shelly Sterling for return of gifts:

He added Stiviano has no defense to Shelly Sterling’s lawsuit because the items Stiviano received from Donald Sterling were community property, and he had no right to give them away.

“We look forward to our March 9th trial before a Los Angeles jury where Shelly is confident that she will be prevail.”

Shelly Sterling’s lawsuit seeks the return of gifts that include a $1.8 million duplex, a Ferrari, two Bentleys and a Range Rover worth more than $500,000.


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Oct 29, 2014

Prop2 Class 19 – Zoning IV

The lecture notes are here. The live chat is here.

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Section 5 of the 14th Amendment provides:

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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

These photographs are courtesy of Hanah Volokh.


Here is a map of the Village of Belle Terre in Long (not Staten) Island. Today, roughly 800 people live in Belle Terre. It is close by to the State University of New York (SUNY) Stony Brook (named because there is a brook with stones on campus). I’ve been there.

View Larger Map

And here is a photograph of a sign welcoming you (as long as you don’t have a roommate  to the Village of Belle Terre (courtesy of Ron Talmo):

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Oct 28, 2014

When Calling Balls And Strikes, Umpires Are Reluctant to Make Calls That Invite Criticism

Forget how Judges–who just call balls and strikes–view criticism of their decisions. An interesting new study, profiled in this NPR piece, shows that baseball umpires are “really reluctant to make calls that invite criticism.”

If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo. Well, if you want to avoid the – say, the public criticism that is associated with making a pivotal call an error, then you may err on the side of preserving the status quo.

What does it mean to preserve the status quo?

Well, so basically umpires are reluctant to make calls that can flip the outcome of the game, change the status quo and have them be responsible for whether the game tips one way or the other. So if calling a strike can tip the game one way, they’re more likely to call a ball. If calling a ball can reverse the momentum in the game, they’re more likely to call a strike.

So if the bases are loaded and there are three balls, an ump is more likely to call a strike than call a ball, and walk in a run.

And this fear of criticism is even greater in high-profile games.

Green and Daniels also find, interestingly, that the higher the profile of the game – the larger the TV audience – the greater the bias because the umpires are thinking – maybe consciously, maybe unconsciously – millions of people are watching me, I hope to God I don’t blow it.

When MLB selects umpires, they focus not on the most accurate umps, but on the most consistent umps.

Well, it turns out that Major League Baseball seems to have its own biases. When Green and Daniels analyzed which umpires get selected to officiate big games, it turns out the league tends to pick umpires who are not the most accurate, but umpires who tend to be the most consistent in their calls. …

It can be hard to figure out, but I think what’s happening here is that Major League Baseball is using consistency presumably as a proxy for accuracy because if the umpire makes the same call over and over again, it could be because Major League Baseball thinks the umpire is being accurate. At the very minimum, of course, being consistent is at least being fair. So if you make the same calls the same way for all teams, presumably you’re being fair.

The article cites as an instance where an ump opened himself up for criticism–the Umpire who called a runner safe–when hew as clearly out–denying Armanda Galarraga of a perfect game in 2010. I blogged about game, and whether the last out means more, here, here, here, here, and here.

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Oct 28, 2014

The Most Academic Supreme Court of All Time. Are we at a “Dangerous Tipping Point”?

During her excellent interview of Justices Thomas, Alito, and Sotomayor, Professor Kate Stith inquired about what she called “the most academic court of all time.”

There are four former professors on the Court–Scalia, Ginsburg, Breyer, and Kagan. By that measure, this is the most academic court of all time. But none of the former professors are Yalies. Are there too many former professors? Are Too many former appeals court juges? Not enough of something else.

Justice Alito deftly dodged the question.

As far as academics go, we are at a dangerous tipping point. They are almost in the majority. Who knows what they will do to us when they are in control. Being a court of appeals judge is perfect preparation for being a Supreme Court Justice.

Justice Thomas payed homage to at least one of the SCOTUS academics:

As far as the makeup of the Court, I don’t feel I am in a better position to say who is qualified. Our colleagues who are academics, who would we replace? I like them all. You don’t have to agree with Justice Ginsburg to know she does fantastic work. When you disagree with her, you know she will force you do to better.


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Oct 27, 2014

Unified Federal Ebola Policy Trumps State Policy

The federal government is (at last) releasing a unified policy to handle ebola infections.  These policies were driven by the goal to not “harm the effort to recruit badly needed medical workers to West Africa.”

The new policy by the Centers for Disease Control and Prevention, worked out by President Obama, top C.D.C. officials and others during a two-hour meeting at the White House on Sunday, requires people who have been in contact with Ebola patients to submit to an in-person checkup and a phone call from a local public health authority.

But unlike in New York and New Jersey, people would not be automatically confined to their homes, a requirement that public health experts had sharply criticized as too onerous.

Although both Governors of New York and New Jersey do not agree with these policies–citing their need to protect their own citizens–they complied.

On Monday evening Mr. Christie accused the C.D.C. of “being behind on this” and said that demands from the public to protect citizens prompted the tougher action in his state.

“What people of this country want is for us to protect, first and foremost, the public safety and public health of our citizens,” Mr. Christie said. But he agreed to release a nurse who had been quarantined in a tent at a hospital so she could travel to Maine, where she lives.

Mr. Cuomo was already criticizing the new guidelines ahead of their formal announcement. “I work with the federal government, but I disagree with the C.D.C.,” the governor told reporters on Monday afternoon. “My No. 1 job is to protect the people of the state of New York, and do what I think is prudent to protect the people of the state of New York.”

Recently other states, including Florida, Illinois, and Georgia have announced policies tougher than the federal standard.

The long-awaited federal guidelines were an effort to bring uniformity to a messy patchwork of responses by states, including Florida, Illinois and, most recently, Georgia, which have all announced tougher policies. But the Centers for Disease Control do not have the power to police internal public health matters, so it is up to the states to carry out the policy, and it is far from clear that they will fall in line.


The CDC seems to accept that states can impose more stringent policies.

Dr. Thomas R. Frieden, the director of the C.D.C., said his agency was talking with states, but he did not say which ones.

“We found that health departments generally do follow C.D.C. guidelines,” he said. “If they wish them to be more stringent, that is within their authority.”

Bloomberg also reports that the White House acknowledged states can’t be forced to comply:

The Obama administration said it can’t compel state and local officials to follow federal guidelines in dealing with Ebola, leading to a patchwork of responses on the return of health-care workers from Africa.

White House press secretary Josh Earnest refused today to say whether New York and New Jersey officials notified federal authorities before mandating 21-day quarantines on doctors and nurses who return after treating patients in the outbreak region. He also declined to say whether President Barack Obama’s new Ebola coordinator, Ron Klain, was involved in discussions with state officials.

“States are given significant authority for governing their constituents,” Earnest said. Even with new guidelines set to be issued by the Centers for Disease Control and Prevention later today, governors and mayors can still “exercise the authority they have.”


While it is absolutely true that the federal government cannot commandeer state employees to implement federal policies–as Justice Stevens pointed out in his Printz dissent–they can institute a unified federal policy that trumps state law. Even if it is only a policy–that was what guided the Obama Administration’s opposition to SB 1070–there is preemption.

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Oct 27, 2014

Talks in Little Rock and Memphis on 3D Printed Guns

On Tuesday, October 28, I will be giving two talks on my paper, “The 1st Amendment, 2nd Amendment, and 3D Printed Guns.” The first will be at noon at the University of Arkansas at Little Rock in the Student Lounge. Professor John DiPippa will provide commentary. The second will be at 5:30 p.m. at the University of Memphis Law School in the Wade Auditorium. If you are in the area, please stop by!3-D Guns Memphis-Flyer

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