Jan 1, 2014

“Sotomayor Drops Ball on Obamacare”

No one captions like Drudge. It works on so many levels.


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Jan 1, 2014

DeBlasio’s Dickensian Inaugural Address

Some relevant remarks from Mayor DeBlasio’s inaugural address.

So let me be clear. When I said we would take dead aim at the Tale of Two Cities, I meant it. And we will do it. I will honor the faith and trust you have placed in me. And we will give life to the hope of so many in our city. We will succeed as One City. We know this won’t be easy; It will require all that we can muster. And it won’t be accomplished only by me; It will be accomplished by all of us — those of us here today, and millions of everyday New Yorkers in every corner of our city.

You must continue to make your voices heard. You must be at the center of this debate. And our work begins now. ….

Of course, I know that our progressive vision isn’t universally shared. Some on the far right continue to preach the virtue of trickle-down economics. They believe that the way to move forward is to give more to the most fortunate, and that somehow the benefits will work their way down to everyone else. They sell their approach as the path of “rugged individualism.”

But Fiorello La Guardia — the man I consider to be the greatest Mayor this city has ever known — put it best. He said: “I, too, admire the ‘rugged individual,’ but no ‘rugged individual’ can survive in the midst of collective starvation.”

So please remember: we do not ask more of the wealthy to punish success. We do it to create more success stories.

You know, I didn’t think it was possible for it to be bittersweet on Mayor Bloomberg’s last day in office.

I wanted to go to the inauguration today, but apparently you need a ticket to see the ceremony, and the 1,000 tickets were given away in two hours.

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Jan 1, 2014

What would America look like if all secessionist movements had been successful? 124 States

This map is entirely fanciful, and unconstitutional (states can’t be formed within state boundaries), but it’s fun to ogle at.


Update: And because several people asked, there is a decent argument to be made that West Virginia–formed when the northern lump of Virginia declared statehood after the Commonwealth of Virginia seceded from the Union–is unconstitutional. On point is an article, titled Is West Virginia Unconstitutional?‘, by Vasan Kesavan and Michael Stokes Paulsen. Here is the abstract:

When the Commonwealth of Virginia announced it was seceding from the Union, the northwestern corner of Virginia formed a rump government-in-exile, declared itself the lawful government of Virginia, and gave “Virginia’s” consent to the creation of a new State of West Virginia consisting of essentially the same northwestern corner of old Virginia. Congress and the Lincoln administration recognized the northwestern rump as the legitimate government of Virginia, and voted to admit West Virginia as a State.

Could they do that? This article takes on the odd but amazingly complicated (and occasionally interesting) constitutional question of whether West Virginia is legitimately a State of the Union or is instead an illegal, breakaway province of Virginia. While scarcely a burning legal issue in the twenty-first century, the question of West Virginia’s constitutionality turns out to be more than of just quaint historical interest, but also to say a great deal about textualism and formalism as legitimate modes of constitutional interpretation today.


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Jan 1, 2014

So who is Utah paying $2 Million To Appeal Their SSM Case to the Supreme Court?

There were initial reports that Utah would spend $2 million to appeal their SSM case to the Supreme Court. As Ian Millhiser noted, this dwarfs what Paul Clement charged the states in the Obamacare challenge. Then there was a report that the governor of Utah had not approved of that amount.

In any event, who is helping the Utah AG, such that he thought $2 million was appropriate? Paul Clement? Michael McConnell? Chuck Cooper? Mike Carvin? Someone from Becket or Alliance Defending Freedom? Someone I’ve heard of?

No. Counsel of Record is Monte Neil Stewart of Stewart Taylor & Morris in Boise, Idaho. Stewart is the former U.S. Attorney for Nevada, and President of the Marriage Law Foundation. He clerked for Chief Justice Burger, though I can’t find any cases on Oyez that he argued before the Court. He filed briefs in the District Court and 9th Circuit in the Prop 8 litigation. I found one article he wrote in the Harvard JLPP, but that’s about it.

I don’t want to judge a lawyer I know nothing about, but so far Utah has bungled the entire appeals process in every way imaginable. They didn’t request a stay in their initial motion, and Judge Shelby wouldn’t entertain one at a late juncture.  They appealed to the 10th Circuit before the District Court. They took almost an entire week (!?) to appeal to the Supreme Court. The motion is 25 pages long. Nothing earth-shattering here. And he actually signed his name on the brief in pen, and then scanned it. I don’t think I’ve seen this on a SCOTUS brief before. That motion should have been ready to go on day one.

I hope Monte Stewart brings his A-game if he is actually arguing it before the Court.

I wonder if no one else wanted to take this case? Could it be? Does no one want to be on the losing end of this historic case? Does Clement not even want it? Recall that Chuck Cooper got his tail handed to him during the Perry arguments whenever he was asked to explain the rationales for banning gays from marrying. Using the phrase “responsible procreation” aint gonna cut it at One First Street. Perry was tossed on standing ground. But this time up, the issue is ripe.

Maybe the Court should joint appoint Paul Clement because Paul Clement. That way he can say, “Oh I only took it because the Court wanted me to!”

Update: Michelle Olsen points me to an actual request for proposals from the Utah AG for counsel.


The Office of the Utah Attorney General is accepting qualification and fee proposals for outside counsel to assist with the case of Kitchen et al. v. Herbert et al., case number 13-4178 pending before the U.S. Court of Appeals for the 10th Circuit and potentially the U.S. Supreme Court.

Proposals are due by 5:00 p.m., Mountain Standard Time, on January 7, 2014.  Written proposals shall be submitted to Chief Civil Deputy Brian Tarbet by email to[email protected] or by hand delivery to The Utah Attorney General’s Office, suite 230 in the Utah State Capitol, 350 North State Street, Salt Lake City, Utah.   The attorney(s) submitting is responsible for delivery to Brian Tarbet in the time allotted.

The Opening Brief at the 10th Circuit is due on January 27.

Utah Attorney General Sean Reyes will make the ultimate decision on the selection based on the proposal that is the most advantageous to the State.  The highest qualified attorney(s) that submits a reasonable cost proposal, as determined in the sole discretion of the Utah Attorney General, will be awarded the contract.

Proposals must include:

1.  A statement of qualifications describing the attorney’s appellate experience in the federal courts of appeal, particularly in the U.S. Court of Appeals for the 10th Circuit and U.S. Supreme Court, and expertise in federal constitutional law, preferably the Fourteenth Amendment to the U.S. Constitution and/or in a state’s right to define marriage.

2.  Proposals must include the following guaranteed maximum fee caps: a.  A fee cap for the appeal to the 10th Circuit Court of Appeals. b.  A separate fee cap if an appeal to the U.S Supreme Court is requested.

3.  A list of hourly rates for head counsel and any assistants, support staff and the like that are to be part of the billing.   The selected attorney(s) and staff will be paid the lesser of the hourly rates for work performed or the applicable fee cap.

4.  The selected attorney(s) will be under the oversight and control of the Attorney General.

5.  The selected attorney(s) will be required to execute a contract with the Attorney General.

6.  The contact may be terminated for convenience at the discretion of the Attorney General, with fees for work properly performed paid to the date of termination.  The contract may also be terminated for cause.

7.  A conflict of interest check must be performed.

This is a special procurement process under the emergency provision of the Utah Procurement Code and the administrative rule of the Utah Attorney General.  This is not a Request for Proposal process, but a modified process to meet the emergency conditions and intended to provide as much competition as possible under the circumstances.

If there are any questions, contact Chief Civil Deputy Brian Tarbet, Utah Attorney General’s Office.  No one else in Utah State Government is to be contacted.

This is remarkable–not your average SCOTUS beauty pageant.

These tweets elaborate.


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Jan 1, 2014

Happy New Year! Apparently all the judges decided to issue important rulings the day I was off the grid.

So here’s the roundup.

First, Justice Sotomayor, without referring the matter to the entire Court, stayed the contraceptive mandate in a case from the 10th Circuit, where she is Circuit Justice.

UPON CONSIDERATION of the application of counsel for the applicants, IT IS ORDERED that respondents are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, 42 U. S. C. § 300gg-13(a)(4), and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 a.m.

Before Sotomayor issued her injunction, there was a flurry of activity by Circuit Judges. The 7th Circuit (Posner, Flaum, Hamilton) unanimously denied an injunction. The 6th Circuit (Batchelder and Siler) granted the injunction with Stranch dissenting. The D.C. CIrcuit (Henderson and Brown) granted the injunction, with Tatel dissenting.

Second, Justice Sotomayor did not issue a stay in the Utah SSM case from Utah’s request, but instead asked the challengers to file a response by Friday.

UPDATE 5:14 p.m.  Justice Sonia Sotomayor has asked for a response to the Utah application; it is due by noon on Friday.  There thus will be no action on this application pending that filing.

Third, Justice Sotomayor tore it up in Times Square, where I was enjoyed the New Year.

Fourth, the Chief Justice issued his annual report on the federal judiciary. Adam Liptak (who apparently cannot enjoy his New Years till the Chief issues the report) has a report.

Fifth, a District Judge in New York upheld most of New York’s recently-enacted gun control laws, with the exception of the ludicrous rule that magazines that hold ten rounds can only hold seven bullets.

In a 54-page ruling, Judge Skretny struck down a well-known but troubled portion of the law, which prohibited gun owners from loading more than seven rounds into a magazine. He called the limit “an arbitrary restriction” that violated the Second Amendment.

I’ll have more on this soon.

Busy day!

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Jan 1, 2014

Live From New York, It’s Justice Sotomayor!

And yes, she is doing the Rockettes dance to New York, New York.

Here is my video live report from Times Square.

Update: In case anyone is wondering, I am staying at the Marriott Marquis tonight on the AALS discount rate ($220 a night?!). At 11:45 my parents and I walked outside, watched the countdown, and ran back in at 12:02, and were back in our room by 12:05. It worked like a charm.

Update 2: Another pic from the Daily News.


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