Sep 3, 2015

New in Weekly Standard: “The Next Justices: A guide for GOP candidates on how to fill Court vacancies.”

In the Weekly Standard, Randy Barnett and I offer five lessons that should guide the next GOP selection for the Supreme Court. Here is the introduction, and the five lessons:

graphicWhen Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment …

2. Paper trails are an asset, not a disqualification

3. Reject clichéd calls for ‘judicial restraint’

4. Focus on the Constitution, not issues du jour

5. Focus on clauses, not cases

Randy and I offer a lot of different ideas of how best to select judges, and learn from past selections (both the good and the bad). Our sincere hope is that these guidelines elevate the debate over judicial selections from hackneyed cliches to meaningful discourse.


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Sep 3, 2015

Weekly Standard Cover Story: “The Next Justices”

Check out The Weekly Standard for an article authored by Randy Barnett and me, titled, “The Next Justices. Filling Supreme Court vacancies: a guide for GOP candidates.” The article is online now.



I love the cover art. Though I had no hand in designing it, I’ll note the similarity to the graphic for FantasySCOTUS.


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Sep 3, 2015

Re: Cato Amicus In Support of the Little Sisters of the Poor

At the Bill of Health blog, my buddy Greg Lipper has a detailed rejoinder to the amicus brief I filed along with Ilya Shapiro on behalf of the Cato Institute in support of the Little Sisters of the Poor’s cert petition. (I recently became a Cato Adjunct Scholar–this is an unpaid position). Greg and I had an extended twitter debate about this a few weeks ago, so I figured something more formal would follow. Greg did not disappoint–please take a moment and read the post, and then come back. Back already? Ok, let’s start.

Here is how Greg characterizes our argument:

Instead, Cato makes the following argument: (1) in light of King v. Burwell’s statements about agency deference, HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act, and (2) without a religious accommodation, the contraceptive coverage requirement is unenforceable against nonprofit organizations with religious objections.

This is very, very close, but not exactly right–and the subtle difference makes a huge impact on our argument. We don’t argue that “HHS had no authority to offer religious accommodations.” Our position is more elementary, and it focuses on how HHS has exempted some religious organizations, and accommodated others. Allow me to walk you through it.

First, it is important to distinguish the exemption from the accommodation (most people, myself included, had no idea what the difference was when I started working on this case):

In response, the Departments took two decisions to balance religious liberty with their delegated authority to mandate coverage of “preventive care.” First, they automatically exempted certain “religious employer[s]”—limited to houses of worship and their auxiliaries—from the mandate; their employees would not receive contraception coverage. 76 Fed.Reg. 46623. Second—and at issue in this petition—they created an “accommodation” to the mandate for other religious employers. By objecting to the mandate, and providing information about their insurers, the organizations are not required to pay the cost of the objected-to contraceptives, but their employees still receive coverage. The Departments do not claim that either the exemption or the accommodation was compelled by RFRA or the First Amendment. Instead, they claim that 42 U.S.C. § 300gg-13(a)(4), among other related provisions, provides the statutory authority to decide which religious organizations should be exempted, and which should be burdened by the accommodation.

Second, our argument centers around the fact that HHS decided which religious organizations were worthy of the exemption, and which would be burdened by the accommodation (the government concedes that the accommodation does burden, however slightly). This is not the equal protection argument advanced by Judge Leon in the March for Life case, but it is in the same ballpark.

When Congress is silent on how religion should be accommodated, executive-branch agencies do not get carte blanche to pick among religious groups that should be exempted from a mandate that imposes a substantial burden on free exercise, nor can they fashion ad hoc accommodations. Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking interpretive authority to make such profound decisions. “It is especially unlikely that Congress would have delegated this decision to” the Departments, “which ha[ve] no expertise in crafting” religious accommodations “of this sort” without clear statutory guidance. King, 135 S.Ct. at 2489 (citing Gonzales v. Oregon, 546 U.S. 243, 266–267 (2006)).

Third, HHS’s offered the exemption to houses of worship, but not to religious organizations like the Little Sisters because their employees are “less likely” than the former “to share their employer’s . . .  faith.” This is an argle-bargle-jiggery-pokery-apple-sauce cocktail.

Further, the Departments’ justifications for their accommodation strategy reflects their blinkered approach to protecting religious free exercise. The Departments offered the exemption to houses of worship but not associated organizations based solely on the conclusory assertion that employees of the latter are “less likely” than the former “to share their employer’s . . .  faith.” 78 Fed.Reg. 39887. That HHS refused to exempt people who work for the Little Sisters of the Poor—a group of nuns who vow obedience to the Pope!—is a testament to how out-of-their-league the Departments were in evaluating and responding to burdens on religion. The fact that the rulemaking is premised not on health, labor, or financial criteria, but on the Departments’ own subjective determination of which employees more closely adhere to the religious views of their employers, “confirms that the authority claimed by” the Departments “is beyond [their] expertise and [is] incongruous with the [ACA’s] statutory purposes and design.” Gonzales, 546 U.S. at 267.

Based on Gonzales v. Oregon, and more recently King v. Burwell, such a decision is frankly not within the “expertise” of the agencies. It is not a permissible construction of the statute.

So let’s go back to Greg’s initial claim: “HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act.” He adds, “Cato seeks—in the name of religious liberty!—to prevent regulatory agencies from granting accommodations to entities with religious objections to regulations.”

Not at all. HHS can, and should offer accommodations where its actions would violate RFRA. Indeed, they are required to under RFRA. However, agencies cannot take any actions they deem expedient in order to comply with RFRA. Rather, like all administrative action, it must be performed within the agency’s “expertise” and “interpretive authority” delegated by Congress. This was the lesson of King v. Burwell–recall the Court rejected claims that Treasury had authority to interpret a statute about tax credits. As we frame it in the brief:

The Departments’ decision regarding whether and how to offer a religious accommodation is the quintessential “major question” of profound social, “economic and political significance.” Brown & Williamson, 529 U.S. at 1315. Even if the “preventive care” mandate is ambiguous in this regard, the accommodation cannot possibly be a “permissible construction of the statute.” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). “The idea that Congress gave the [Departments] such broad and unusual authority through an implicit delegation in the” broad purposes of the ACA “is not sustainable.” Gonzales, 546 U.S. at 266-67. The accommodation “exceeds the bounds of the permissible.” Barnhart v. Walton, 535 U.S. 212, 218 (2002).

In light of the narrow “breadth of the authority” that Congress has afforded to the Departments over this controversial issue, the Court is not “obliged to defer . . . to the agency’s expansive construction of the statute.” Brown & Williamson, 529 U.S. at 160. Indeed, the Departments lack the “expertise” to make such a decision. King, 135 S.Ct. at 2489 (citing UARG, 134 S.Ct. at 2444. Cf. Gonzales, 546 U.S. at 266-67 (“The structure of the CSA, then, conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise.”).

Under the circumstances, in light of the limited interpretive authority, and the non-existent expertise on religious liberties matters, HHS was limited in what sort of accommodations it could give.

The source of this purported authority is an instruction to interpret what types of “preventive care” must be provided by employers. But this delegation cannot justify an authority to craft exemptions that end up relieving the burden on religious liberty for some organizations and not others. Nor can it justify administrative judgment calls regarding what sorts of accommodations impose “minimal” burdens on the free exercise of religion, 78 Fed.Reg. 39887, or avoid implicating an organization in the commission of sin. These are not matters that are tacitly and cryptically delegated to federal agencies. The Departments’ aggrandizement of their own power in this manner, absent any statutory authorization, conflicts with Congress’s longstanding control over issues of religious conscience.

In effect, they were constrained to create an exemption from the mandate–either by excluding the contraceptives or exempting the burdened religious groups altogether–and not erect the Rube-Goldberg contraption that is the most recent accommodation.

Second, Greg asks, what if we’re right?

First, the obvious question: if Cato is correct that HHS is not entitled to grant religious accommodations to the contraceptive coverage regulations, why would Little Sisters nonetheless be exempt from those regulations on religious grounds? According to Cato, once the HHS accommodation leaves the picture, “Hobby Lobby provides the rule of decision and petitioners must be exempted from the mandate.”

Not so, Greg counters:

The Supreme Court ruled that Hobby Lobby was exempt from covering contraceptives because HHS had already created the nonprofit accommodation and had “provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.” This nonprofit accommodation—the one that Cato says that HHS had no authority to offer—was a less restrictive alternative “that achieve[d] all of the Government’s aims while providing greater respect for religious liberty.”

In other words, the Supreme Court said that Hobby Lobby couldn’t be required to provide contraceptive coverage because the nonprofit accommodation was a less-restrictive alternative. Cato now cites Hobby Lobby for the proposition that an exemption is required, but then assumes away the very basis for the Hobby Lobby decision: the nonprofit accommodation was a less restrictive alternative that would ensure that women don’t lose contraceptive coverage.

The second point Greg makes is one that I fear we won’t agree on, for it rehashes the debate between the majority and the dissent in Wheaton College over what exactly did Hobby Lobby hold.

In her dissent in Wheaton College v. Burwell, Justice Sotomayor was befuddled how the Court granted the stay of the injunction. She explained that only a few days earlier, the Court “described the accommodation as ‘a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives.'” She noted that Justice Alito wrote that the accommodation”constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” At the time, I described her conclusion as “overstated.”

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobbyfeared it might, see 573 U.S., at ___-___, 134 S.Ct., at 2801-2802, 2014 WL 2921709, at *42-43 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

With respect to Greg (and Justice Sotomayor), this is not how I read Hobby Lobby. The Court expressly declined to rule whether the exemption was valid for “all” religious groups.

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40

Indeed, in a footnote, Justice Alito specifically offers a rejoinder to Justice Ginsburg’s dissent.

The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.

As I understand the analysis under RFRA, the question is whether there is a “less restrictive” approach that is available. If the answer is yes–and the burden is substantial–the action violates RFRA. However, by labelling an approach “less restrictive,” that doesn’t mean that such an approach would comply with RFRA in all circumstances, or that the Court has leant its imprimatur to the accommodation. Stated differently, Hobby Lobby did not explain that the accommodation at issue in the Little Sisters petition is valid. I don’t suspect we are going to agree on this point, but I acknowledge that there are diverging perspectives, namely 5-4.

Greg counters. If we get rid of the accommodation, then Hobby Lobby doesn’t provide the “rule of decision.”

If the nonprofit accommodation were no longer available, the Supreme Court would have to go back to square one and consider whether RFRA requires an exemption for objecting employers even if there were no less-restrictive way to ensure that affected women receive contraceptive coverage. Indeed, Hobby Lobby turned on the assumption that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”

Greg has a fair point, but I think it conflates the fact that a least-restrictive means exists, and whether the agency in question has the authority to issue it. We state this point deliberately:

Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking statutory authority to make such profound decisions

But wait, Greg replies, didn’t the Court offer its imprimatur on the accommodation? How can you now claim it is ultra vires?

This issue wasn’t presented to the Court, because it didn’t have to be. The only question was whether a least-restrictive means could be used. The answer is yes. The Court didn’t have to delve into this issue. As Justice Alito noted “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.”

In any event, it is for this reason that Cato requested that the Court consider this additional question. It is preserved in the case (the Little Sisters raised APA claims in their initial complaint), and would warrant further briefing.

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Sep 3, 2015

LA Times Michael Hiltzik Columnist Clarifies, and Doubles Down on “Equal Protection Clause of 5th Amendment” Cheap Shot

In Monday’s Los Angeles Times, columnist Michael Hiltzik wrote a post, criticizing Judge Leon’s decision in the March for Life case. The original version of the story (courtesy of simply noted that Judge Leon found that the mandate was a “violation of the 5th Amendment’s guarantee of equal protection and therefore ‘unconstitutional.'”


This is an accurate assessment of Leon’s opinion.

At some point on Tuesday, Hiltzik modified the online version without any note. The new version (I couldn’t find a cached version) read:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)

Hiltzik took a fair characterization of the opinion and turned it into a cheap shot. As I noted yesterday, although the 5th Amendment does not have an Equal Protection Clause, the Court in Bolling v. Sharpe read it as embracing an equal protection component, or as Hiltzik put it in his initial column a “guarantee.” In any event, I found over 600 federal judges who used the phrase “equal protection clause of the Fifth Amendment.” It isn’t precisely correct, but enough judges use it that I’m not troubled. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits.

Hiltzik and I went back and forth over twitter. At some point yesterday, again without notation, the LA Times modified the article again:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here. The Equal Protection Clause is found in the Fourteenth Amendment, not the Fifth; it’s applied to the federal government by the Fifth, but via that amendment’s Due Process Clause. Shouldn’t a federal judge know this?)


Hiltzik clarifies his remark, but doubles down on the cheap shot. He had it right in the first instance. He was forced to acknowledge that the 5th Amendment embraces the Equal Protection guarantees, but still had to fault the judge for not knowing this–which he certainly did.

The initial characterization was fair. The second characterization was unfair. After it was pointed out that it wasn’t accurate, the third was less unfair, but still a cheap shot.

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Sep 2, 2015

L.A. Times Calls Judge Leon’s Ruling “Sloppy” Because Equal Protection Clause in 14th, not 5th Amendment

Earlier this week I blogged about Judge Leon’s opinion D.D.C. finding that the contraceptive mandate could not be applied to March for Life, a non-religious pro-life group, because it violates Equal Protection. In one of the more uninformed critiques of the opinion, Michael Hiltzik of the Los Angeles Times makes a mistake that shows a dearth of basic constitutional law knowledge:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)

If Hiltzik had read the Supreme Court’s 1954 decision in Bolling v. Sharpe–where the Court found the District of Columbia’s (federal) segregated school system was unconstitutional– or at a minimum Judge Leon’s opinion, he would know what all first-year law students learn–the Supreme Court has found an equal protection component inherent in the 5th Amendment’s Due Process Clause. (Whether this is consistent with original meaning is a far different question). This was how Justice Kennedy in Windsor found that DOMA was inconsistent with equal protection–it was a federal law, so he had to look to the 5th Amendment, not the 14th. Before calling a federal judge sloppy, a Pulitzer-Prize winning columnist should get his facts straight.

H/T Robert Dittmer

Update: Hiltzik tweets back that there is indeed no “equal protection clause of the Fifth Amendment.”

He is right. Bolling stated this clearly:

The Fifth Amendment, which is applicable in the District of Columbia, does not contain and equal protection clause, as does the Fourteenth Amendment, which applies only to the states.

But it is a common enough usage that I’m not troubled. I did a WestLaw search of the AllFeds database for “equal protection clause of the Fifth Amendment.” It pulled up 600 judges who used that exact locution. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits. Here is a sampling after the jump.

Update 2: Further, it is often colloquially said that a state police officer’s search violated the 4th Amendment. This isn’t the case. In fact, the state police officer violate the 4th Amendment, incorporated into the 14th Amendment’s due process clause. Consider how Justice Alito framed the issue in United States v. Windsor:

The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.

United States v. Windsor, 133 S. Ct. 2675, 2706, 186 L. Ed. 2d 808 (2013)
It is the “Equal Protection Clause” that limits federal action, even though it is reverse incorporated into the 5th Amendment.
Judge Leon should have been more precise, but his usage is not out of the norm.


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Sep 2, 2015

Add Thermal Imaging Camera To Your iPhone with $250 Accessory. What about Kyllo?

In Kyllo v. United States (2001), Justice Scalia introduced a test to determine whether the use of a thermal imaging camera, a novel technology that could not be known at the time of the founding, constitutes a search for purposes of the Fourth Amendment.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v.United States267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

In 2001 when this case was decided, the thermal camera was not in common use. However, this has changed. I blogged in 2013 that DARPA was working on shrinking thermal cameras to a handheld device.

Today, the Wall Street Journal reports that you can add a thermal camera to your iPhone or Android with a $250 accessory.

Heat-vision cameras have been used widely in many industries for decades: Soldiers find targets through heat-vision rifle sights, police mount them on helicopters to search for people on the ground and contractors use the sensors to look for cold air seeping into homes. Now you can buy a simple smartphone attachment to reveal the widely varying temperatures of the people and things around you.

The author recommends the Flir One:

The other big difference, one that ultimately makes Flir the better choice for most people, is that the Flir One actually has two cameras on board, a low-resolution traditional one in addition to the thermal. The real-time image on your phone is a composite of the two camera feeds, with high-contrast “edges” from the full-color camera providing much-needed definition to all of the thermal blobs. This is most helpful when you go back to look at your images later. In many cases, you’d otherwise have no clue what you’re looking at. …

But Flir currently has the edge in software. When browsing its in-app gallery of still photos, you can swipe between the full-color image and the thermal one. Seek gives you a live side-by-side view, using the built-in iPhone camera, but the images don’t line up well, and the tools Seek does offer to make use of this don’t work very well. Besides, the full-color images aren’t saved with the thermals.


So, Justice Scalia, is this is “general public use?” Maybe we can tell by how many downloads it gets in the App Store?

We’ve come a long way in the last century, as this German postcard from 1900 illustrates the X-Ray police force!



H/T Adam A.

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Sep 2, 2015

The Non-Non-Delegation Doctrine Cases

In many of the canonical separation of powers cases, the Court seems to recognize that there is a non-delegation doctrine problem lurking in the background, but then goes on to resolve it on different grounds.

First, consider Humphrey’s Executor v. United States (1935). We all study that case for the proposition (contra Miers) that the President does not have absolute removal power over independent officers. But, writing for the Court, Justice Sutherland hints that there could be a problem with Congress creating the “quasi-legislative and quasi-judicial agencies,” but quickly dismisses it:

The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

While the case primarily rejected the President’s power to remove FTC Commissioners, it tacitly upheld the legality of these quasi-legislative and quasi-judicial chimeras. A holding that the latter were unconstitutional would have certainly meant the commissioners were purely-executive, and could be fired by the President.

Second, consider United States v. Curtiss-Wright (1936). In short, Congress passed a resolution that effectively gave the President the authority to decide how to craft a criminal statute that prohibited the sale of arms to countries the President determines:

‘Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.

Pursuant to this authority, President Roosevelt created a proclamation identifying Bolivia and Paraguay as the specified countries.

I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.

Curtiss-Wright challenged the indictment in SDNY, and argued that the President could not prosecute him under the authority of the proclamation, as the joint resolution amounted to an unlawful delegation of the legislative power to the President. The SDNY judge agreed, and dismissed the indictment in part. For reasons I do not entirely understand, the case was appealed directly to the Supreme Court, and skipped the 2nd Circuit.

Writing for the Court, Justice Sutherland acknowledged that this issue is raised by the appeal, and explains that if the matter was of purely domestic law, there would indeed be a non-delegation doctrine problem (recall that he was writing for 8 Justices, Justice McReynolds dissenting).

The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive . . . . Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-making power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?

The Court avoided the issue, finding that the President did not need to rely on any delegation from Congress whatsoever. Rather, the President had the inherent authority pursuant to the Constitution. (The vitality of this holding is in serious doubt following Zivotofsky v. Kerry).

Third, in Hirabayashi v. United States (1943), the defendant asserted that the military curfew–promulgated by military officers acting on congressional statutes–violated the non-delegation doctrine.

The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.

Chief Justice Stone emphatically rejected this argument:

What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution that all legislative power granted “shall be vested in Congress” has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy.

Fourth, INS v. Chadha (1983) considered the constitutionality of the so-called one-house veto. But antecedent to the one house veto, through the Immigration and Nationality Act, Congress delegated to the President the authority to decide not to remove specific individuals. One house of Congress could then override that decision, and force the executive to remove the individual. There are serious non-delegation doctrine problems here. Justice Powell acknowledges this in his concurring opinion:

Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies

Congress is giving a legislative-type authority to the President to make exceptions to statutes. (We are far away from the “prosecutorial discretion” species of non-enforcement of today). Second, Congress has given itself the power to force the President to remove specific individuals, the quintessential executive prosecutorial power. (And, I might add a violation of the Bill of Attainder clause. Did you know that Circuit Judge Anthony M. Kennedy heard this case for the 9th Circuit, and found that the case also raised “serious bill of attainder and equal protection problems.”). The Court resolved Chadha on fairly narrow, bicameralism and presentment grounds, but the non-delegation doctrine was certainly lurking in the backdrop.

Finally, consider Clinton v. City of New York (1998). The line-item veto, much like the statute at issue in Chadha, gave the President the legislative-like power to amend statutes by choosing which ones to enforce. Like in Chadha, Justice Stevens resolves the case on the “narrow ground” based on the “finely wrought” procedure of of bicameralism and presentment. In Chadha, Congress didn’t comply with Art. I, Sec. 7 (only one house voted). In Clinton, the President didn’t comply withArt. I, Sec. 7 (his only options after presentment are to sign or veto–not cancel). Stevens acknowledges, but expressly rejects the non-delegation doctrine issue:

The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179

Justice Scalia’s dissenting opinion (which I go back and forth on) directly acknowledges the non-delegation doctrine.

As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.

Though the non-delegation doctrine is one life support, it isn’t dead. The Court always seems to recognize it, acknowledge it is uncomfortable with it, and then look the other way.

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Sep 2, 2015

Prop2 Class 6 – Deeds & Warranties

Today we will continue our discussion of deeds and warranties.

Finally, we will reference this Texas General Warranty Deed in class. Here is a sample warranty deed from Texas, an earnest money contract.

Today’s lecture notes are here.

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Sep 2, 2015

ConLaw Class 6 – The Executive Power II- Foreign Affairs and War

The lecture notes are here.

The Executive Power II- Foreign Affairs and War

  • Inherent Executive Powers (308).
  • Executive Powers for Foreign Affairs (383-385).
  • Curtiss-Wright (385-390).
  • Dames & Moore v. Regan (392-399).
  • The War Power (411-413).
  • ISIS
  • Practice and Precedent (415-416).
  • Prisoners of War and Civilian Detention (439-440).
  • Korematsu v. United States (454-468)


Curtiss-Wright was a manufacturer of aircrafts and other military equipment, founded in 1929.



This is Curtiss-Wright’s headquarters in Caldwell, New Jersey (circa 1941).


Curtiss-Wright got in trouble by selling weapons to Bolivia during the Chaco War (1932-1935), where Bolivia was fighting against Paraguay.  The Chaco region was thought to contain oil. Bolivia and Paraguay, both poor landlocked countries, had difficulty obtaining arms. This was largely due to the fact that Congress, through a joint resolution, gave President Roosevelt the power to embargo arms shipments to any country engaged in the Chaco war. Curtiss-Wright sent bombers and fighter planes to Bolivia, notwithstanding the embargo, and was indicted.

Here are Paraguayan (not Bolivian) soldiers manning a machine gun during the Chaco war.


Dames & Moore v. Regan

This is Thomas Regan, who was the secretary of the treasury in Dames & Moore v. Regan.


This is the logo for the Dames & Moore Group Company.

Dames-MooreJustice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

robert-jacksonOf course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.


A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Korematsu v. United States

This is a young Fred Korematsu.


This is Fred Korematsu later in life.


This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.


It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

  1. Give advice and instructions on the evacuation.
  2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

  1. Provide temporary residence elsewhere for all Japanese in family groups.
  2. Transport persons and a limited amount of clothing and equipment to their new residence.


Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

Map_of_World_War_II_Japanese_American_internment_campsThe San Francisco Examiner announces the “Ouster of all Japs in California near.”


This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”


This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.


Here are Americans locked up in internment camps.


Another photographed of interned Americans.


Here are Americans being rounded up on busses to the middle of the Utah desert.


Here is Eleanor Roosevelt at an internment camp.


This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.


And here is Fred Korematsu posing with Rosa Parks.


In 1990, Korematsu received a redress letter and a reparations check for his internment.

Korematsu-Fred Korematsu with redress & reparations letter and check 1990

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.


Korematsu passed away in 2005.


The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.


And this is Mutsuye Endo.



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Sep 1, 2015

Replacing A Justice Who Is “Unable to Discharge the Powers and Duties of HIs Office”

In 2004 and 2005, despite his failing health, and inability to attend 44 arguments, Chief Justice Rehnquist refused to retire. Jan Crawford aptly summarized the Chief’s perspective on retirement in Supreme Conflict:

He was not indecisive, but fatalistic— the kind of man who would think, “If I can do my job today, I’m going to do it.” All through June, every weekday, Rehnquist was going to work in his chambers at the Court. That was an entirely different outlook than Rehnquist had once had. Two decades earlier, Rehnquist would shake his head and tell clerks he “never can understand why justices stay so long.” Several of his older law clerks, at their annual reunion months before he learned he had thyroid cancer, reminded Rehnquist that he once was puzzled about why some justices insisted on saying on the Court past their prime. “It turns out you look at it differently when you’re looking at it from this perspective,” he responded.

But what would have happened if Rehnquist became extremely ill–so ill that he could no longer cast votes–but he refused to resign. Or, imagine the year is 2020 or 2024, and an Octogenarian Justice is incapacitated, and unable to perform the duties of his or her office. But, rather than resigning, he or she is hoping to live long enough until the next election, when a President of his or her choosing is able to appoint a replacement. William Brennan tried, but he couldn’t wait out Reagan and Bush 41. Same for Thurgood Marshall.

What would happen? I recall reading that in the waning days of Justice Douglas’s tenure, the other Justices effectively disregarded his presence, and would not let him cast the deciding vote in any case. Would there be any internal mechanism for the other Justices to declare an incapacitated Justice is, to borrow the words of the 25th Amendment, “unable to discharge the powers and duties of his office”? Would this determination then trigger the President’s power to fill the vacancy? I don’t anticipate this happening. Timing a retirement to coincide with a President of your choosing seems to be the norm; but delaying retiring, even you cannot serve as a Justice is wildly inappropriate. In light of the drama that resulted from Rehnquist’s refusal to step down until it was too late, it is worth thinking about.

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Sep 1, 2015

NY Times Public Editor on Justice Thomas Story: “Overall Impression it Left May Well Have Overstated the Case”

Last week I blogged about Adam Liptak’s article about Justices who crib language from briefs. I noted that though the entire piece seemed to focus on Justice Thomas, we didn’t find out till paragraph 15 that Justices Ginsburg and Sotomayor have virtually indistinguishable measures. Orin Kerr made a similar observation.

The Times Public Editor weighs in. First, here is an explanatory email from Liptak.

By five different measures, Justice Thomas wrote majority opinions that shared language with source materials more than his colleagues did. This was true of parties’ briefs, friend-of-the-court briefs and lower-court decisions, according to three studies and related data that considered two separate time periods. That seemed unusual and worth exploring, and it opened a window onto the phenomenon of shared language in judicial decisions.

The explanation for Justice Thomas’s consistently high rates of overlapping language, offered at the beginning of the article, was benign: When he is writing for the court, he concentrates on minor, technical cases in which shared wording is particularly common. His many dissenting and concurring opinions, the article added, were another matter, often making expansive and original contributions to constitutional law.

It is true, as the article noted, that Justice Thomas’s rates of shared language were by some measures only modestly higher than those of some other justices. But they were consistently so. Other measures showed that Justice Thomas in the last decade signed a disproportionate share of individual majority opinions with particularly high levels of overlapping language.

The answer to your question, then, is that the article focused on Justice Thomas because he was the consistent outlier.

The Editor offers a brief reply:

I thought the article’s language was quite careful, and, from what I can tell, accurate. But the overall impression it left may well have overstated the case. Part of that was conveyed by the headline, “Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own,” which, while also accurate, seemed to suggest something close to plagiarism.

The headline and graphic of Thomas–which Liptak (most likely) did not choose–no doubt accentuated the focus on CT. I think the piece could have been improved significantly had there been more than one brief, passing references to other Justices who have similar rates–even if it is in only one study. Reading till paragraph 16 felt like a bait and switch–mention it earlier, and I don’t think I would have minded nearly as much.

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Aug 31, 2015

Granting Exemption to Contraceptive Mandate for Religious Organizations but not Similarly Situated Non-Religious Organizations Violates Equal Protection

In March for Life v. Burwell, Judge Leon (D.D.C.) found that HHS could not enforce the contraceptive mandate against March for Life, a staunchly pro-life group that is not religious. Beyond the conventional RFRA analysis, the court found that HHS lacks a rational basis to exempt religious organizations that oppose abortion, but not similarly situated secular organizations with the same beliefs. This analysis echoes a point we made in the Cato Amicus in support of the Little Sisters of the Poor–that HHS lacks the interpretive authority to pick and choose which religious organizations can receive exemptions from the mandate.

Judge Leon’s analysis, though grounded in equal protection doctrine, reaches a very similar conclusion. Here is the key analysis:

What emerges is a curious rationale indeed. HHS has chosen to protect a class of individuals [Houses of worship only] that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection–and employment relationship based in part on a shared objection to abortifacients–is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious belief, when it actually is protecting a moral philosophy about the sanctity of human life. Where HHS has erred, however, is in assuming that this trait is unique to such organizations [Houses of worship]. It is not.

The court goes on to explain that March for Life, and its employees, share a pro-life philosophy. Indeed, their employees work there to advocate their views.

On the spectrum of “likelihood” that undergirds HHS’s policy decisions, March for Life’s employees are, to put it mildly, “unlikely” to use contraceptives. In this respect, March for Life and exempted religious organizations are not just “similarly situated,” they are identically situated.

The court finds this classification cannot be supported by a rational basis:

HHS has chosen, however, to accommodate this moral philosophy only when it is overtly tied to religious values. HHS provides no principled basis, other than the semantics of religious tolerance, for its distinction. If the purpose of the religious employer exemption is, as HHS states, to respect the anti-abortifacient tenets of an employer relationship, then it makes no rational sense–indeed no sense whatsoever–to deny March for Life that same respect. 

The exact same rationale explains why the Little Sisters of the Poor, and other similarly situated groups, should be exempted from the mandate. As we explain in our amicus:

The Departments justified the religious-employer exemption to the contraceptive mandate on the grounds that “houses of worship and their integrated auxiliaries . . . are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed.Reg. 39887. Other religious associations, like the petitioners, meanwhile, received only the accommodation because their employees “are less likely than individuals in plans of religious employers to share their employer’s . . . faith and objection to contraceptive coverage on religious grounds.”Id. This is the same sort of blinkered distinction the Treasury Department drew in 1977, albeit with a permissible—but congressionally countermanded—interpretation of what a “church” is.

With respect to the contraceptive mandate, the distinction between religious employers was made beyond any permissible scope of the Departments’ interpretive authority and in a manner that unjustifiably intruded onto free exercise. Consider the facts of this case. “Each Little Sister has chosen to follow Jesus Christ by taking lifetime vows to offer the poorest elderly of every race and religion a home where they will be welcomed as if they were Jesus himself, cared for as family, and treated with dignity until God calls them to his home.” Little Sisters Complaint at 14. To that end, the “Little Sisters have vowed obedience to the Pope, and thus obey the ethical teachings of the Catholic Church.” Id. at 15. While the organization has lay employees like any house of worship, the Little Sisters have personally taken an oath that expresses their clear moral opposition to the contraception mandate. In her declaration, Mother Loraine Marie Clare Maguire—the provincial superior of the Little Sisters—explained that the organization “filed a detailed public comment with the government to inform them of our sincere religious objection to incorporating us into their scheme. But the government refused to exempt us.” Supp. Decl. (Nov. 15, 2013), at 17.

The Departments here crudely bifurcated houses of worship and their associates, based on a supposition that people who work for the Little Sisters—an obviously religious group of nuns who have vowed obedience to the Pope!—are less likely than church employees to adhere to the teachings of the Roman Catholic Church. This conclusory assertion serves as a testament to how out of their league the Departments were. Moreover, “[i]t is especially unlikely that Congress would have delegated this decision to” HHS, Labor, and Treasury, “which ha[ve] no expertise in crafting” religious accommodations “of this sort” without any statutory guidance. King, 135 S.Ct. at 2489 (citing Gonzales, 546 U.S. at 266–267).

In the APA context, rather than the equal protection context, the argument is even stronger that HHS acted without authority in deciding which organizations should be exempted from the mandate. As Judge Leon pointed out, HHS based their framing not on religious beliefs, but no opposition to contraceptives. This far broader basis should certainly include the Little Sisters and March for Life.

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Aug 31, 2015

Prop2 Class 5 – Contract of Sales III

Today we will talk about implied warranties of quality, and introduce the concept of the deeds.

The lecture notes are available here.

This story about whether a seller has a duty to disclose that a previous owner of a home died from a drug overdose ties into our lecture from last class. Also this story, explores whether a buyer in New York City can recover a $5 million downpayment for a luxury home.

This article talks about a Pennsylvania case where a buyer seeks to rescind a contract to purchase a house because the seller failed to disclose there was a murder-suicide in the home.


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Aug 31, 2015

ConLaw Class 5 – The Executive Power I – The Appointment and Removal Power

The lecture notes are here.

The Executive Power I – The Appointment and Removal Power

  • The Executive Power – Article II (296-297).
  • Notes (306-308).
  • The “Removal” Power (348-351).
  • Myers v. United States (351-366).
  • Humphrey’s Executor v. United States (366-370).
  • The Appointment Power (334-335).
  • National Labor Relations Board v. Noel Canning

This video from the HBO Miniseries John Adams aptly summarizes the debate in the first Senate about whether Congress could place limitations on the removal power. Note the Senators explain that Adams’s vote only matters in case of a tie. Indeed the vote tied 10-10, and Adams cast the tie breaking vote as President of the Senate.

The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).


This is Justice Taft, who had the second-nicest mustache on the Court.


This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.


This is Justice Louis Brandeis.


Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.


This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.


This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.


This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.

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Aug 30, 2015

The New Republic on “The Rehabilitationists”

Brian Beutler has an article in The New Republic, titled “The Rehabilitationists.” The subheading aptly summarizes the thesis: “How a small band of determined legal academics set out to persuade the Supreme Court to undo the New Deal—and have almost won.” The article focuses primarily on my friend and colleague Randy Barnett, but also highlights other bases in the movement, including the Institute for Justice, the Volokh Conspiracy, and the Federalist Society. It is the last institution–or more precisely how its membership has evolved–that Beutler shines a light on.

The article opens with a flashback of the 2013 Lawyers Convention debate between Barnett and Wilkinson–with a quote from yours truly.

IN NOVEMBER 2013, a who’s who of America’s conservative legal establishment descended on the Mayflower Hotel in Washington, D.C., for an annual meeting of the Federalist Society, the most influential conservative legal organization in the country. Current presidential candidates Scott Walker and Ted Cruz each made appearances, ingratiating themselves with the influence peddlers in attendance. Supreme Court Justice Clarence Thomas was a featured speaker at the event’s black-tie-optional dinner.

One of the biggest stars of the conference, however, was neither a Senate-confirmed official nor an elected politician, but a libertarian law professor at Georgetown named Randy Barnett. This wasn’t Barnett’s first turn as a Federalist Society eminence, but his reception that year was especially rapturous.

“The younger people, the people in law school, they seem to be gravitating toward people like Randy,” said attendee Josh Blackman, an associate law professor at the South Texas College of Law and a close friend of Barnett’s. “When he gets off the stage he’s mobbed. … There’s a crowd of people five or six feet deep surrounding him.”

Barnett had been invited to participate in a lunchtime debate against J. Harvie Wilkinson, a Reagan-appointed judge serving on the Fourth Circuit Court of Appeals, on the topic of whether courts are too deferential to legislatures. The event was sold out.

Thinking back on that day recently, Barnett marveled at his emergence as a celebrity. “One of the leaders of the Federalist Society—one of the senior staff—said clearly I had the room,” Barnett told me. “It wasn’t that I beat J. Harvie Wilkinson in a debate—who knows?—it’s just that the room was with me. The room would not have been with me ten years ago.”

Randy is absolutely right. As Ilya and I tweeted at the time, Wilkinson was booed when he praised the Chief’s vote in NFIB:

What has been the cause of this shift? Beutler writes:

Back then, Barnett was one of a handful of academics on the fringes of conservative legal thought. Today, their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They’re building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.

Beutler focuses on the IJ summer workshop.

With five offices around the country, a legal clinic training students at the University of Chicago Law School, and a staff of nearly 100, the Institute for Justice has become a proving ground for aspiring, ideologically committed lawyers. Every year, the group sends lawyers to law schools around the country to give presentations on public-interest law and recruit students into its ranks. “It’s certainly done with the intent to make sure that libertarian-minded law students know who we are and what we have to offer,” Clark Neily, a senior attorney at the Institute for Justice, said of the group’s outreach. Each summer, a couple dozen clerks join the group in its Beltway headquarters and state offices. From there, these young lawyers typically move on to more traditional clerkships at law firms and federal courts—one former Institute for Justice clerk worked for Chief Justice Roberts from 2008 to 2009—and when the Institute hires new staff attorneys, it often culls from the ranks of these same pupils.
“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

I attended this conference in the summer of 2007, after my first year of law school, and it greatly impacted my thinking about the law. I paid homage to this conference in my article, The Burden of Judging that reviewed books by an unholy trinity of libertarian scholars–Barnett, Neily, and Epstein:

If I may indulge you with a funny, but relevant, anecdote. In July of 2007 after my first year of law school, I attended the IJ Summer workshop. During the intensive program, I participated in a moot court exercise. Clark Neily was sitting as the judge. The case involved a city trying to use the power of eminent domain to seize land to build a football stadium that would be privately owned. Judge Neily pressed me on Kelo and asked me to identify a limiting principle that would control, and explain when the government could and could not take private property for private devel- opment. Flummoxed by constitutional law, I turned to another first-year required class at George Mason University School of Law, Law & Economics. This was clearly a transfer from homeowners to the special-interest football lobby, I thought. To an- swer his question, I said something to the effect of, “courts should scrutinize against rent-seeking.” Neily, no doubt much to his chagrin, replied that “public choice” was not a principle embodied in the Constitution. That thought stayed with me through- out all of law school as a scholar, and ultimately inspired this article.

I think the article accurately captured the shifting tides in the Federalist Society crowd towards the perspective of judicial engagement. It is my distinct sense that people of my generation are much closer to the Volokh-conspiracy wing than the Bork wing.

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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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