Blog

This time in the U.S. Senate.

Max Baucus, who guided the Affordable Care Act through the Senate–and later called its imminent implementation a “train wreck,” will not be running for re-election.

As I discuss in my book, the mentality of “pass it now at any cost” has many implications. Many in the House of Representatives lost their seats because of the ObamaCare vote in 2010. Baucus, who can see the writing on the wall and wisely bows out, is part of the ACA’s continuous fallout.

Update: In his statement commending Baucus, the President said absolutely nothing about Obamacare.

Obama owes Obamacare to Max. It would not have cleared the Senate without his skilled leadership. Now, Baucus has nothing to show for this imminent train wreck.

This dynamic is all-the-more interesting in light of a recent meme that Obama is not good at twisting arms, and demanding payback for handing out favors. From the Times:

After more than four years in the Oval Office, the president has rarely demonstrated an appetite for ruthless politics that instills fear in lawmakers. That raises a broader question: If he cannot translate the support of 90 percent of the public for background checks into a victory on Capitol Hill, what can he expect to accomplish legislatively for his remaining three and a half years in office?

In Moncrieffe v. Holder, Justice Sotomayor consistently uses the term “noncitizen.” Nowhere in her opinion does the word “alien” appear. Justice Alito takes exception to this, and adds in a footnote:

1 “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

In  Mohawk Industries v. Carpenter, as noted Adam Liptak, Justice Sotomayor “marked the first use of the term ‘undocumented immigrant,’” rather than “illegal immigrant,” which “has appeared in a dozen decisions.”

I previously speculated what term the Court would use in Chamber of Commerce v. Whiting. The relevant statute uses the phrase “illegal alien.” During arguments, Justice Sotomayor used the phrase “illegal alien,” and quickly changed to “undocumented alien.”

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

In arguments in Whiting, Justices Scalia and Alito consistently used the phrase “Illegal Alien.”

In a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.”

Justice Thomas, who dissented from the majority opinion by Justice Sotomayor, probably enjoyed this citation in Moncrieffe v. Holder:

I declined to apply Lopez in Carachuri-Rosendo, and I am unwilling to apply it here. Indeed, the Court itself declined to follow the logic of Lopez to its natural end in Carachuri-Rosendo. And, now the majority’s ill-advised approach once again leads to an anomalous result. It is undisputed that, for federal sentencing purposes, Moncrieffe’s offense would constitute a federal felony unless he could prove that he distributed only a small amount of marijuana for no remuneration. Cf. United States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (Sotomayor, J.) (agreeing with the Government that 21 U. S. C. §841(b)(4) is a mitigating exception to the “default provision” under §841(b)(1)(D) and that it need not negate the §841(b)(4) factors to support a sentence under §841(b)(1)(D)).

H/T Mike Sacks

Getting GVR’d (where a cert petition is granted, then immediately vacated and remanded) must be one of the most unsatisfying feelings in all of the federal courts.

Your cert petition is granted….and its gone.

The lecture notes are here and the livechat is here.

Thank you all for a great semester. Today we will go over the sample exam question, the sample answer question, and questions people emailed me in advance. After that, I will take questions, but they must be somewhat focused, and show me that you have already worked through an answer. I will not take “Can you explain this topic…” type questions today.