Jan 3, 2014

Richard Fallon Explains Standing In One Page

This handout was distributed at AALS 2014.


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Jan 3, 2014

Solicitor General: “There Is No Employer Mandate”

Talk about NFIB deja vu. I previously blogged about an argument Marty Lederman advanced that has serious shades of NFIB: there is no employer mandate. Employers have a “choice” between providing their employees health insurance, or pay a tax. At the time, I wrote “Do not take Marty’s post lightly (I suspect this argument will find its way into a brief before the Court).”

Well, in the Solicitor General’s brief in the 10th Circuit petition Justice Sotomayor stayed, the government has seemed to adopt Lederman’s argument:

The preventive-services coverage provision in general, and the contraceptive-coverage provision in particular, apply only if an employer offers a group health plan.  Employers, however, are not required to offer group health plans in the first place.  Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, 26 U.S.C. 4980H (Supp. V 2011), but that gives them a “choice” between two legal options: provide a group health plan or risk payment of the tax. Liberty Univ., 733 F.3d at 98; cf. National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2596-2597 (2012).

And yes, they cite NFIB. Pages 2596-297 covers the Chief’s saving construction, and the key representation made by the Government that there is no mandate. Here is the key paragraph:

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 224, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996); see also United States v. La Franca, 282 U.S. 568, 572, 51 S.Ct. 278, 75 L.Ed. 551 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act”). While the individual mandate clearly aims to induce the purchase of health *2597 insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26, 2012).
Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.
The plaintiffs contend that Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—requires reading § 5000A as punishing unlawful conduct, even if that interpretation would render the law unconstitutional. We have rejected a similar argument before. In New York v. United States we examined a statute providing that “ ‘[e]ach State shall be responsible for providing … for the disposal of … low-level radioactive waste.’ ” 505 U.S., at 169, 112 S.Ct. 2408 (quoting 42 U.S.C. § 2021c(a)(1)(A)). A State that shipped its waste to another State was exposed to surcharges by the receiving State, a portion of which would be paid over to the Federal Government. And a State that did not adhere to the statutory scheme faced “[p]enalties for failure to comply,” including increases in the surcharge. § 2021e(e)(2); New York, 505 U.S., at 152–153, 112 S.Ct. 2408. New York urged us to read the statute as a federal command that the state legislature enact legislation to dispose of its waste, which would have violated the Constitution. To avoid that outcome, we interpreted the statute to impose only “a series of incentives” for the State to take responsibility for its waste. We then sustained the charge paid to the Federal Government as an exercise of the taxing power.Id., at 169–174, 112 S.Ct. 2408. We see no insurmountable obstacle to a similar approach here.10

In Unprecedented, I talk about the Solicitor General’s insight in adopting this argument, and the importance of the citation to New York v. United States. It is remarkable how this argument has returned.

Kudos to Marty.

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Jan 3, 2014

(Fake) Scalia v. Posner, Round XX

This fictitious round in our never-ending brawl comes from the pseudonymous “constitutional law professor” named Screwtape who is now blogging at Huffington Post Comedy. This satire (which I find quite weak) illustrates a simulated conversation between Justice Scalia and Satan, with convenient links to things Scalia actually said or did. Here is a bit with Posner:

The Devil: Nice, talk to me about voting.

Scalia: Things moving well. After we gutted the Voting Right Act, some of our friends down south, if you know what I mean, got going passing laws making it harder for, you know, certain people to vote. These laws require hard to get photo ID’s, and they closed the polls during convenient times, all the good stuff.

The Devil: Great, you know how much I hate universal suffrage. Makes me see red.

Scalia: I know, that’s why I threw in that line at the oral argument about voting rights being “racial entitlements.”

The Devil: That was a beautiful touch. You guys are going to keep upholding voter ID laws right. I saw that Judge Posner said he might have been wrong the first time around.

Scalia: Don’t worry about Posner. He may be much smarter than I am but I get to review his decisions.

For some reason, the last line has no links. Scalia actually said the bit about reviewing his decisions during an interview on Fox News Sunday.

SCALIA: He is a court of the appeals judge, isn’t he?
SCALIA: He doesn’t sit in judgment of my opinions as far as I’m concerned.
WALLACE: You sit in judgment of his opinion?
SCALIA: That’s what happens.

And speaking of Fox News is effectively like appearing on HellTV 8 (The “Ocho“). Also, I’m sure the Devil would curse Scalia for all those pro-defendant decisions that keep people out of jail. But whatever, doesn’t fit the satire.

Relatedly, what’s with (presumably) tenured law professors writing (weak) satire under pseudonyms? We are blessed with one of the few professions in the world where we can (generally) speak our minds and are paid for it. There is nothing here that would get any law professor in trouble.

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Jan 3, 2014

I Will Be Presenting at Philadelphia Lawyers Chapter on Monday

I will be giving a talk on Unprecedented at the Philadelphia Federalist Society Chapter on Monday, January 6 at 2014. The event will be the offices of Drinker Biddle & Reath LLP at One Logan Square, 130 North 18th Street, Philadelphia, PA 19103. Registration begins at 5, and the program begins at 5:30 p.m.  Registration information is here.

I hope to see you there. This talk will be updated with some of the recent developments in the contraceptive mandate cases. Also the book will be on sale at a discounted rate, and I will be autographing copies.

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Jan 3, 2014

Bundle of Sticks: You Can Own Your Property But Can’t Rent It

In property, we use the image of the bundle of sticks to explain to students that ownership of something is multi-faceted. The most essential stick is the right to exclude. But a really important (and often understated) stick  is the right to include. Deciding who you can let onto your land, and in what terms, is essential. Usually, a person who owns land in fee simple, can sell it to anyone he chooses, and relatedly can give less than a fee simple to someone else. For example, a leasehold.

But Winona, Minnesota passed an odd law that only allows rental properties to make up 30% of the homes on a given block. If homes on the block are rented before you, then you can’t rent your own land!

Minnesota Public Radio has the story:

The Minnesota Court of Appeals hears arguments today in a case involving the rights of Winona homeowners to rent out their properties.

The city’s rental law allows rental properties to make up only 30 percent of homes on any given block.

It’s a law that Ted and Lauren Dzierzbicki weren’t aware of when they bought a house in Winona in 2007. They planned to have their daughter Jenna live in part of the house while she was a student at Winona State University and rent the rest out to other students. They spent $40,000 to renovate the two-story house.

But when the Dzierzbickis applied for a rental license, the city said the house was ineligible for a permit. The block had already reached its 30 percent limit for rental certificates.

The Dzierzbickis and two other homeowners filed suit against the city in Winona County District Court.

Earlier this year, a district court judge said that law is constitutional. Now, the group of Winona homeowners is appealing that decision, arguing it’s not the city’s job to limit the number of homeowners who want to rent their properties.

Of course, the landmark zoning case, Village of Belle Terre v. Borrass began in a village that tried to ban college students from nearby Stony Brook University from living together. The plaintiffs are being represented by the Institute for Justice.

“Whether or not you’re able to rent out your property to somebody else should not depend on whether or not your neighbor has already rented their property out,” said Anthony Sanders, an attorney with the Institute for Justicerepresenting the Winona homeowners. “We think that we have a very good shot at overturning the district court’s decision to ignore the right of homeowners to rent out their homes and to protect property rights in Minnesota.”

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Jan 3, 2014

Super Storm Hercules in Times Square

Here is a video I took Thursday evening of the blizzard,  named Super Storm Hercules, in Times Square. I suspect this will impact AALS travel plans.

Update: Apparently, the storm was named in honor of late LawProf Ronald Dworkin.



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Jan 3, 2014

District Court in Houston Denies TRO Against Policy Awarding Benefits to Same-Sex Couples

To recap, a state court judge granted a TRO in a case filed by the Harris County GOP. The City of Houston removed the case. And on Thursday, District Judge Lee Rosenthal declined to issue an injunction.

Brian Rogers has the story for the Chronicle.

Now the parties will have to argue whether the case should be returned to state court before the merits are touched.

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Jan 3, 2014

Arapahoe Shooter “Committed suicide when he realized a deputy assigned to the school and a security guard were closing in.”

For some reason, this bit about the shooting at Arapahoe did not make the evening news.

The FBI formed a team to study active shootings after the December 2012 massacre at Sandy Hook Elementary School in Newtown, Conn. Among other initiatives, the agency has adopted an active-shooter training, which was developed at Texas State University after the 1999 Columbine High School killings in Colorado. The program’s core course prepares first responders to isolate, distract and stop active shooters as fast as possible.

According to the new study, patrol officers, who are usually the first on the scene, had to use force to stop the gunman in nearly a third of the attacks.

The new approach proved vital on Dec. 13, 2013, when a heavily armed student carrying a shotgun, machete and three Molotov cocktails stormed into Arapahoe High School in suburban Denver. Police said the gunman, who was looking to harm his debate coach, shot a fellow student but then committed suicide when he realized a deputy assigned to the school and a security guard were closing in.

Arapahoe County Sheriff Grayson Robinson said the suspect stopped firing on others and turned his weapon on himself 80 seconds after entering the school.

“We believe that the response from the school resource officer [who was armed] and from the unarmed school security officer was absolutely critical to the fact we did not have additional injury and or death,” Robinson told reporters.

In other words, an armed guard at the school stopped massive casualties.  What a crazy idea, huh?

CNN had some more details on the “school resource officer,” who was a deputy sheriff.

The rampage might have resulted in many more casualties had it not been for the quick response of a deputy sheriff who was working as a school resource officer at the school, Robinson said.

Once he learned of the threat, he ran — accompanied by an unarmed school security officer and two administrators — from the cafeteria to the library, Robinson said. “It’s a fairly long hallway, but the deputy sheriff got there very quickly.”

The deputy was yelling for people to get down and identified himself as a county deputy sheriff, Robinson said. “We know for a fact that the shooter knew that the deputy was in the immediate area and, while the deputy was containing the shooter, the shooter took his own life.”

He praised the deputy’s response as “a critical element to the shooter’s decision” to kill himself, and lauded his response to hearing gunshots. “He went to the thunder,” he said. “He heard the noise of gunshot and, when many would run away from it, he ran toward it to make other people safe.”

It’s remarkable that neither CNN nor Yahoo wrote the Deputy Sheriff was armed. They stress that the other person was “unarmed.” Why would they write this unless the Deputy was armed. This aspect of the story did not fit the template.

The right-wing Washington Times has no problem with this angle.

The shooter also used a shotgun, the same weapon that Vice President Biden told us we should all have instead of AR-15s (see here, here, and here).

By the way, this headline from Yahoo, “Spike in mass shootings creates demand for different police approach” is inaccurate, though the body of the article is. A mass shooting is defined by 4 or more deaths in a single event. This study focuses on “Active Shooter” situations, defined as “where the primary motive appeared to be mass murder and at least one of the victims was unrelated to the suspect.” These are very, very different things. Dutifully, Think Progress blared the headline, “Mass Shootings are Becoming More Frequent.” Mass shootings, as defined by four or more deaths, are not on the rise, and have remained fairly constant for the last several decades. I will have more on this soon when I post my new article, The Shooting Cycle.

Relatedly, a study by USA Today considers “mass killings,” as opposed to “mass shootings,” that consider death of four or more people by any means, including stabbing, suffocation, strangulation, etc. It is an interesting study.

Anyway, more on this soon.

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