Jan 8, 2014

Ted Cruz Agrees With Me on Reid v. Covert, Missouri v. Holland, and Federalism

Senator Ted Cruz published an essay in the Harvard Law Review forum, on the scope of the treaty power. While much of the article focuses on the upcoming Bond case, Part IV reflects a point I’ve made several times. The Rehnquist Court federalism revolution, continued in several structural opinions from the Roberts Court, makes Missouri v. Holland untenable. Cruz writes:

Part IV applies this Essay’s thesis and considers whether Justice Holmes’s 1920 Missouri v. Holland28 opinion must be overruled. Mis- souri v. Holland has been viewed as the seminal case on the federal government’s treaty power for decades. Many view it as granting the federal government near–carte blanche authority to make and imple- ment treaties. This Essay suggests that Missouri v. Holland can be construed simply as rejecting a facial challenge to a particular treaty, which may have validly covered some subject matter falling within Congress’s Commerce Clause authority. But if Missouri v. Holland cannot be construed in that way, then it should be overruled in light of recent precedents from the Rehnquist Court and Roberts Court that police the boundaries of our constitutional structure. Finally, Part V concludes by applying this Essay’s framework to contend that the Su- preme Court should reverse the Third Circuit’s ruling in Bond and overturn Bond’s federal conviction.

Here is the core of that argument. Both Missouri v. Holland and Reid v. Covert predated the Court’s appreciate of federalism. If we take those structural limits seriously, Missouri v. Holland cannot stand. My point largely echoes Cruz’s.

That said, Missouri v. Holland probably would have to be over- ruled if one believes that Congress lacked the Commerce Clause au- thority to implement the Treaty legislatively. The Necessary and Proper Clause, combined with the Treaty, would not be sufficient to displace state sovereignty under the Tenth Amendment, according to this Essay’s framework. Missouri v. Holland treated the Tenth Amendment as essentially an unenforceable ink blot172 — or rather, an “invisible” ink blot.173 Likewise, the Reid v. Covert plurality distin- guished Missouri v. Holland by citing to the case that perniciously de- clared that the Tenth Amendment was “but a truism.”174 However, the Rehnquist Court’s revitalization of structural constitutional limits to federal authority — in Lopez, Morrison, New York, Printz, and other cases — rejects the view that this Amendment can be read out of the Constitution. The Roberts Court, too, has continued to enforce struc- tural limits on the balance of power between the federal and state gov- ernments.175 These developments may very well render Missouri v. Holland a “doctrinal anachronism” that stare decisis should not save.176

Specifically, here is my discussion of Reid v. Covert.

Indeed, the Reid Court, per Justice Black, made the same point:

There is nothing in Missouri v. Holland, 252 U.S. 416, which is contrary to the position taken here. There, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment, which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government, and theTenth Amendment is no barrier.

That section cited United States v. Darby, which provided the classic bit that the 10th Amendment is nothing but a truism.

Our conclusion is unaffected by the Tenth Amendment. which provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the [p124] States, are reserved to the States respectively, or to the people.

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

This argument reflects the understanding that there is a fundamental difference between provisions of the Bill of Rights (and I would throw in the Reconstruction Amendments) and the structural protections of the Constitution (10th Amendment, Separation of Powers, Federalism). Indeed, most con law classes are divided up between structure and rights.

But this isn’t quite right.

Recently, the Supreme Court emphatically rejected that distinction in Bond v. United States (which was 9-0). Perhaps fittingly, Bond was the very case that teed up the issue of the scope of the treaty power. Justice Kennedy, writing for the unanimous Court, was quite clear that the structural protections of the Constitution are essential to securing individual liberty:

Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

The structural principles secured by the separation of powers protect the individual as well.

Justice Kennedy also articulated that position in his dissent in NFIB, as read from the bench.

This case presents real questions regarding the structure of the Constitution.

Some may think a case concerning constitutional structure with issues concerning checks and balances, separation of powers and federalism is somehow have lesser importance or priority in a case concerning liberties guaranteed in the Bill of Rights or the Civil War Amendments, but structure means liberty. [JB: As read, Justice Kennedy said the word structure, paused for emphasis, means, paused for emphasis, and liberty, pause for emphasis].”

Structure means liberty.

Even Chief Justice Roberts’s handdown in NFIB acknowledged this point.

The limits on government power foremost in many American’s minds are likely to be affirmative restrictions such as contained in the Bill of Rights. These are affirmative restrictions come into play however only where the government possesses authority to act in the first place. And in our federal system, the national government possess only those limited powers the constitution assigns to it.

If no constitutional power authorizes Congress to pass a certain law, that law may not be enacted even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the constitution.

The corpus of our liberty, as understood by the Supreme Court, is not limited to the provisions in the Bill of RIghts. “Structure means liberty.” At the AALS convention, after I told a professor I will be teaching constitutional law, she asked me if I was going to teach structure or rights–I was tempted to ask rhetorically, “what’s the difference?”, but I decided not to.

For those doubting how this plays with the 10th Amendment, Kennedy’s opinion in Bond specifically addressed Darby.

 In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether theTenth Amendment is regarded as simply a “ ‘truism,’ ” New York , supra , at 156 (quoting United States v. Darby , 312 U. S. 100, 124 (1941) ), or whether it has independent force of its own, the result here is the same.

The mere fact that a structural provision is at issue–for example the 10th Amendment, or I would add, the doctrine of enumerated powers (the key issue in NFIB)–does not eliminate the liberty interest at stake.

So which way does this cut? If the principles of Reid are correct, and individual liberty guarantees cannot be infringed by the treaty power, then why should our liberties protected by Federalism be subjected to lesser scrutiny? Does the Missouri v. Holland dictum survive Reid, as amended by the New Federalism?

The holding of Reid v. Covert read in light of the shift from the now-obsolete view of the 10th Amendment to our New Federalism, would seem to subvert, rather than support Missouri v. Holand (Covert subverts!).

Even if Holland was correct when decided, perhaps recent federalism developments have abrogated it.

I address these issues hereherehereherehere, and here.

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Jan 8, 2014

Ted Cruz Doesn’t Need No Dagger Note in the Harvard Law Review

In the essay in the Harvard Law Review Forum, titled Limits on the Treaty Power, he’s just U.S. Senator Ted Cruz. No bio needed.


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Jan 8, 2014

SCOTUSBlog’s New Editorial Policy

Tom Goldstein offers a summary of SCOTUSBlog’s “evolve[d]” editorial policies. The key change (as far as I can tell) is that Goldstein acknowledged that Amy Howe is no longer affiliated with Goldstein & Russell (something I observed last year), but she will not write about any of the cases the firm has involvement in. And, as usual, Lyle remains the “person who has complete independence from the publisher and the Firm – i.e., a person other than the blog staff and Firm staff.”

So at this point, it seems the only connection between SCOTUSBlog and Goldstein & Russell is, well, Goldstein who remains the publisher. Kevin Russell remains listed as a contributor on the masthead (he has not published anything since June 2013).

Here are the changes:

Over time our editorial policies evolve, and we like to be transparent about such evolutions. We have updated our policy on the blog’s editorial independence, particularly regarding the relationship between the blog and my firm, Goldstein & Russell, P.C. The relevant changes appear below the jump.

  • The blog is financially independent from the firm of Goldstein & Russell, P.C. (the Firm).  All of the blog’s salaries and expenses are paid from outside sources other than the Firm (currently Bloomberg Law’s sponsorship of the blog).  Conversely, the blog does not pay any compensation to any attorney or staff member of the Firm.
  • The blog provides comprehensive coverage of all cases heard on the merits at the Supreme Court and all significant petitions for certiorari.  However, to ensure that there are no actual or apparent conflicts of interest or factors that could diminish the blog’s editorial independence, the following rules apply:
    • No person shall have any role in reporting on any case in which he or his firm plays any role, including attorneys of the Firm.
    • With the sole exception noted below, the blog will not report on, comment on, or otherwise promote matters in which the Firm serves as counsel, including (but not limited to) the suggestion that a petition for certiorari filed by the Firm is deserving of review on the merits by the Court or (alternatively) the suggestion that a case in which the firm has filed a brief opposing review is not worthy thereof.
    • Because the blog covers every merits case, it will report on merits cases in which the Firm serves as an attorney to a party.  But all reporting on those cases shall be done by a person who has complete independence from the publisher and the Firm – i.e., a person other than the blog staff and Firm staff.
    • Notwithstanding that Amy Howe no longer has any affiliation with the firm, Amy Howe shall not report on any of the Firm’s cases.

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Jan 8, 2014

LegalZoom to Pull IPO

In February 2012 I blogged that LegalZoom was planning on going public. They filed for a $120 million IPO in May 2012. Now, they have changed plans, and will sell more than $200 million in equity to Permira, a European private equity firm.

“It’s a large capital raise,” LegalZoom chief executive John Suh told Law Blog on Monday night. “Our intention is to notify the SEC that we will be pulling the S-1 prior to the close of the deal. We have not formally pulled it yet.”

The move will make the Permira-backed company the largest LegalZoom stakeholder, according to a joint announcement by LegalZoom and Permira. Mr. Suh declined to say what percentage of the company that stake represents. Other big stakeholders include Polaris Venture Partners, Institutional Venture Partners and Kleiner Perkins Caulfield & Byers.

Why the change? WSJ Law Blog suggests that the time isn’t the “best time for tech startups to go public.”

“It’s a large capital raise,” LegalZoom chief executive John Suh told Law Blog on Monday night. “Our intention is to notify the SEC that we will be pulling the S-1 prior to the close of the deal. We have not formally pulled it yet.”

The move will make the Permira-backed company the largest LegalZoom stakeholder, according to a joint announcement by LegalZoom and Permira. Mr. Suh declined to say what percentage of the company that stake represents. Other big stakeholders include Polaris Venture Partners, Institutional Venture Partners and Kleiner Perkins Caulfield & Byers.

Though this does not seem to foreclose a future IPO.

LegalZoom had also launched a new research and development center in 2013 and rolled out a number of new products that had yet to establish a track record of results, he said. “Being public isn’t the best environment for that,” Mr. Suh said. “It’s very difficult to guess what the renewal rate will be on a product one month after you launch it… What the public really wants is a predictable stream of revenue and profits.”

Does this rule out a subsequent IPO for LegalZoom? With up to $200 million set to come in through the Permira investment, “there is not an imminent need for capital that would cause us to go public in the immediate future,” Mr. Suh said. “It allows us to continue to focus on the innovation of products and services.”

I’m expect critics of LegalZoom’s approach to legal services will take this as a concession that their business model is not working. As I noted last year, in Legal Zoom’s S-1, they acknowledged the lingering concern of UPL suits:


We’ll see.

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Jan 8, 2014

The Creeping Failure of Obamacare to Progressivism

I have previously blogged that one of the biggest impacts of the botched rollout of Obamacare will be a decrease in the faith of people in the power of government to fix things. Even if the website is fixed entirely, the initial impression will last. That origin will taint Obamacare for some time to come, unless it suddenly becomes awesome and makes everyone happy (I’m doubtful).

A report in the New York Times about growing opposition to California’s high speed rail project is evidence of this creep.

Joe Nation, a professor of public policy at Stanford University and a critic of the plan, said Mr. Brown would have to grapple with this decline in support, which he argued reflected voters’ growing doubts about the basic competence of government.

“Obamacare has leached over into this,” Mr. Nation said. “You have people saying, ‘The federal government that can’t build a website — how can we expect them to build a multibillion-dollar train?’ ”

HuffPo even has to concede this point, though it minimizes the impact of Obamacare and blames Republicans instead:

Dearie me! We can’t build trains anymore, because of this one website? If that’s actually true, then why haven’t we simply cancelled the future entirely?

There is a point to be made here. The woes of the online federal health insurance exchange have served, of late, as a reliable political brickbat for Obamacare opponents to wield. But as more and more Americans turn to the web — and their mobile devices in particular — to assist them in the day-to-day task of solving problems, there will be a greater demand for the federal government to get in sync with the modern world.

I think this gets it wrong. This isn’t about conservatives using Obamacare as an argument against progressivism (though this is fair game). This is an argument that Obamacare proves the failures of progressivism.  If we can’t trust the government to build an operational website that three hundred million of Americans *need* on cost, on time, do we trust California to build a massively expensive railroad that very few people will use, on cost, and on time? I have no opinion on the underlying issue of rail in  California, but the lessons learned from Obamacare would, and should color  judgment on any future big government projects.

Losing faith in government may be one of Obamacare’s creeping legacies for progressivism. And that is not necessarily a bad thing.

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Jan 8, 2014

WSJ Law Blog on “The Shooting Cycle”

Jacob Gershman of The Wall Street Journal Law Blog has a feature on The Shooting Cycle, titled “Why Gun-Controllers Lose Ground After Mass Shootings.” Jacob takes note of how over the last twenty years, the aggregate level of support for stricter gun laws has dropped from 64% to 48%. This trend is accentuated by spikes following mass shootings, with a regression to the declining mean. My co-author, the unnamed Yalie, is Shelby Baird.

I discuss the shooting cycle in detail here.


Here are the key quotes:

In “The Shooting Cycle,” a new paper co-authored with a Yale student, South Texas College of Law professor Josh Blackman attempts to explain why gun-control supporters tend to lose ground in the political skirmishing that follows a mass shooting.

He analyzed data from five major polling firms and found that the percentage of Americans in favor of stricter gun support has fallen to 48% in late 2013 from 64% from 1993.

“In other words, after each spike subsides, support for gun control is even lower than it was before the shooting,” he writes. The temporary gains are “powered” by emotions and by their nature fleeting, as views return to normal or “regress to the mean,” he says.

But why, when the dust settles, do gun-control supporters end up with less support for their proposals than existed prior to the event?

Because all too often, according to Mr. Blackman, gun-control supporters aim too high, which only serves to kindle fears that total disarmament is on its way. Citing UCLA law professor and Second Amendment expert Adam Winkler, Mr. Blackman writes that “the fact that ‘[g]uns are permanent in America’ is ‘perhaps the most important’ fact the “gun ban supporters failed to grasp.’”

In the end, Jacob quotes a portion of the paper that focuses on why Manchin-Toomey failed.

Fair enough. But what to make of the failure of more moderate legislative efforts, like the federal Manchin-Toomey bill that Congress shot down last year? After all, Manchin-Toomey chiefly proposed closing a loophole in the requirements for background-checks. It didn’t propose confiscation or, for that matter, requiring gun-owners to register their guns the state.

Writes Mr. Blackman:

When people consider Manchin-Toomey, a universal background check bill that specifically does not provide for registration, they substitute that more difficult-to-assess provision with a simpler one: background checks that lead to registration. Even though they may support background checks in the abstract (as the data supports), they oppose a non-existent bill that does more. Here opponents of the law are being ignorant, and substituting a difficult judgment for an easier judgment.

I should stress that I meant rationally ignorant, in the context of Ilya Somin’s work. Here is the complete paragraph from the paper:

We suspect the theory of political ignorance, combined with the substitution heuristic, are also at play. Kahneman explains that people rely on the substitution heuristic when they are asked to make a tough judgment: “they substitute an evaluation of the evidence, without noticing that the question they answer is not the one they were asked. This process is guaranteed to generate predictions that are systematically biased; they completely ignore regression to the mean.”[1]  To put this into context, when people consider Manchin-Toomey, a universal background check bill that specifically does not provide for registration, they substitute that more difficult-to-assess provision with a simpler one: background checks that lead to registration. Even though they may support background checks in the abstract (as the data supports), they oppose a non-existent bill that does more. Here opponents of the law are being ignorant, and substituting a difficult judgment for an easier judgment. As Professor Ilya Somin explains in his book, Democracy and Political Ignorance: Why Smaller Government Is Smarter, “the main informational barriers to majoritarian control of legislation on specific issues are the facts that (1) much legislation is completely unknown to most citizens and (2) even when this is not the case, the effects of much legislation are often sufficiently complex that voters cannot readily tell whether the legislation in question will advance their values and interests or not.[2] But this theory also only explains part of the defeat of Manchin-Toomey.

[1] Kahneman, Thinking Fast and Slow 188 (2012).

[2] Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter 159-160 (2013).

For most people, it is not worth the time and effort to learn about the specifics of laws. It is much easier to simply substitute a bill that’s easy to understand (registration) from a bill that is hard to understand (Machin-Toomey). “Ignorant” usually carrie a pejorative connotation, which I did not intend (and how the excerpt suggests). But in political theory, rational ignorance is more natural, and not pejorative.

Update: Many thanks to Jacob for tweaking the end of the post.

Writes Mr. Blackman:

When people consider Manchin-Toomey, a universal background check bill that specifically does not provide for registration, they substitute that more difficult-to-assess provision with a simpler one: background checks that lead to registration. Even though they may support background checks in the abstract (as the data supports), they oppose a non-existent bill that does more.

He says “opponents of the law are being ignorant, and substituting a difficult judgment for an easier judgment.” For many people, he says, “it is not worth the time and effort to learn about the specifics of laws.”

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Jan 8, 2014

“Unprecedented” Talk at Philadelphia Federalist Society Lawyers Chapter

On Monday night, I was honored to give a talk to a hearty crowed that braved the Polar Vortex to hear me talk about the constitutional challenge to Obamacare. Thank you to everyone in the Federalist Society Lawyers Chapter for their gracious welcome.

Here is video from the event:

And here are some photos:


Josh Blackman Phila FedSoc 010614 Judd Serotta Phila FedSoc 010614

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Jan 8, 2014

Traveling from Philadelphia to Houston in the Polar Vortex in 18 Hours

Yesterday was one of my more hellacious travel experiences. I woke up around 7 a.m. eastern in Philadelphia. The night before I gave a really fun talk at the Philadelphia Federalist Society Lawyers Chapter. That night, the so-called “polar vortex” had descended on our nation. When I woke up it was 5 degrees, -22 with the windchill. I was in a cab by 8:00 a.m. The 10 second walk from the hotel to the taxi was brutal. I’ve never felt such a strong gust of cold win.

I was at the airport by around 8:30. I was scheduled to take a direct flight on United to Houston that was to leave at 9:30. The night before I received an email saying there would be a delay for an hour because the crew was not there yet. Uh oh I thought. I tracked the inbound flight and it had arrived. But with no crew, what would we do? Shortly after I got to the airport, the flight was delayed an hour till 10:39. They announced that people who missed connections out of Houston were out of luck, because they had no other flights out of Philadelphia till Thursday (!?). That was an omen of things to come. As an aside, the Terminal was absolutely freezing. The cold air coming from the jetways chilled everything. I had to put back on my UnderArmour pants to stay warm. It was not fun.

Around 11:00 we finally boarded. I was sitting cozy in my regular seat, 8c (aisle seat on the left side of the second row facing forward). Baby crying behind me, but no big deal. I was going home, right? No. Around 11:10, the flight attendant announces that the pilots were not there yet, but they would be arriving any minute. I noticed that the cockpit was empty (a metaphor for my entire day, really). By 11:20, flight attendant said again, pilots are on their way. Now I’m getting nervous. 11:30, flight attendant announces that the pilots “timed out” and the flight was cancelled. (Pilots are only allowed to fly a certain number of hours before they need to rest. I guess they took too long, and couldn’t make it).

Now, if you’ve ever been on a flight that’s cancelled, you know the madness. Immediately, 300 people all trying to get home rush the agent at the gate. They are inundated. Then they announce, please go to the ticket counter outside security. I make my way there, and as I’m walking I get an email from United telling me that I have been rebooked–for a flight Thursday through O’Hare (it was Tuesday around noon at this time). Though, as a nice gesture, my leg from ORD to IAH was upgraded to Business Class.

I exited the secure area, and already the line at the ticket counter was 20 people deep. I try to go to the Premier Access line, but they tell me that I have to go to the regular line. This was like Lord of the Flies. Everyone was pushing and shoving. And I knew there were absolutely no flights. Plus every time the door opened to the street (every 10 seconds or so), an arctic blast subsumed the area. Babies were crying, moms were pushing. Travel brings out the worst in everyone. Please try to be kind. Everyone is in a similarly bad situation. Yelling and screaming doesn’t help. The gate agents are really trying their best in a really difficult situation. I assume they were handing out vouchers to spend two nights in Philadelphia, but I had to get home.

So I did what I usually do in these situations. I check other airlines. U.S. Airways had some flights for $1,000 that had 2 stops. Pro-tip. Southwest usually has pretty decent last minute fares. I’ve done this several times before. Once my American flight from Louisville to ORD was cancelled, so I was able to get a not-too-expensive ticket on Southwest to MDW (though that messed up my rental reservation). I’ve also gotten cancelled on US Airways at DCA and was able to go through Union Station to BWI on Southwest. Anyway, I found a single Business Select ticket from PHI to ATL to HOU for $514. Not cheap, but probably less than the cost of spending two nights in Philadelphia. And United would refund my second leg so at worst it may be about $100 or so more. Anyway, I would take a hit, but it was better than spending two days in travel limbo.

But first, I had to get my two checked bags from United. For whatever reason, when I checked my bags in, the agent didn’t give me the tickets. I didn’t think much of it, because I usually never bother with those. But today, it mattered. After waiting about 30 minutes, I was able to find an agent who took my boarding pass. Ten minutes later, he emerged with my two checked bags.

The Southwest flight was scheduled to leave PHI at 5:17. So I walk from Terminal D to E to the Southwest ticket counter, and try to check my bags. At the time it was about 12:45. Apparently, I couldn’t check my bags until four hours before the flight. So I had to wait in the Tundra Terminal for another 30 minutes till I could check my bags, fearing every time the doors opened, where the rush of polar vortex would swirl in. Eventually I was able to check bags.

I went through security, again. Though this time without TSA Pre (I had forgotten to add my known traveller number to my southwest proposal. Hobby only recently got TSA Pre, so I hadn’t needed it). I finally made it through to the terminal around 1:30, so I had about three hours to kill. I splurged on a United Day Pass ($50) to get some rest away from the freezing terminal. Around 4:45 I walk to the Southwest Terminal, and as I’m approaching the gate, I hear the announcement that the flight was delayed an hour from 5:17 till 6:05. Fortunately, my leg from Atlanta was delayed from 8:50 till 9:50 so I should be able to make my connection.

I board the Airtrain flight, and am seated in my cozy seat. Then the flight attendant says something about the toilet (commode in airplane speak). Apparently, it wouldn’t flush. Some sensor went off. “Shit,” I thought. I hear the flight attendant say they need to find a “lavatory truck” to drain it. I asked the flight attendant if she has ever experienced this before. She said no. Apparently they are allowed to fly without functional toilets but they wouldn’t. (The weirdest delay for me was once when the flight attendant call button would not stop dinging–this delayed the flight 2 hours, roughly the length of the flight, so they could stop the dinging). Twenty minutes later, the co-pilot exits the cockpit, puts on a jacket and hat, and goes outside to check on something involving the toilet. He says everything looks ok. Then, the pilot actually goes into the bathroom to test it out. I hear a flush, and he screamed “Whooooo!” We were in business. By 6:42 we were taking off. At this rate, I would land around 8:30 and have plenty of time to make my connection at 9:50, even in the labyrinth that is ATL.

We landed at 8:30 p.m. Plenty of time. We pull to the Jetway, and I’m chomping to get off the plane. I’m waiting for the expected knock on the door, and it opens. But it doesn’t. The jetway was broken. Seriously. I never found out if it was due to the cold, or lack of staff due to the weather. At first the pilot said they may need to pull out and taxi to another gate. I’ve done that before. You can sit on the tarmac for hours! I saw them unloading the bags. At least my bag would make it home to Houston, even if I didn’t. By 8:55, finally I see the Jetway moving towards us. Success. I figured I had about 20 minutes to make it to my gate before we started boarding (in ATL that is not always doable). When I get to the gate, I see the inbound flight sitting there. Phew, I thought just made it. Then I realize that no one had gotten off that plane. Apparently their jetway was broken too.

The flight was then delayed another 30 minutes (forcing me to watch Piers Morgan, a show I’ve never actually voluntarily watched). We finally boarded after 10:00 (apparently Piers Morgan doesn’t like kale). Then we sat on the plane for another 30 minutes. Apparently the airport was so short-staffed that one person was responsible for loading *all* of the bags. The Southwest pilot did some decent standup comedy to keep us entertained (see the Vine). At 10:50, the door was closed. By that point, I was on my last battery (I had gone through all four of mine during the day. Though I did finish all of Clark Neily’s “Terms of Engagement” and Randy’s Barnett’s new afterword of “Restoring the Lost Constitution.”). We would sit at the gate for another 20 minutes, at which point they did the safety demo. 20 minutes later we were cleared for departure and took off at 11:24.

I (finally) touched down in Houston at 12:13 a.m. central time (changed time zones). After another 30 minutes, my bags finally came off the baggage claim. But not yet ready to go home yet. Why? Because I flew United, my car was at Bush Intercontinental Airport (IAH), about 45 minutes away. Southwest flies to Hobby. Fortunately, my amazing girlfriend picked me up. I was home around 1:30. I’ll need to go back to IAH today to get my car.

So from start to finish, it was about an 18 hour travel day.

This morning, I called United and they said they will credit the return leg. I will need to file a report to seek reimbursement for the Southwest Ticket I had to buy. The way I look at it, the $517 I spent was roughly equal to the cost of 2 days of food and hotel in Philadelphia, not to mention the inconvenience. As a Star Alliance Gold member, I hope they agree.

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Jan 8, 2014

Justice Kagan Summoned for Jury Duty Again

She was called in in January 2011 and January 2014. It seems D.C. calls people every two years ago, like clockwork. I’ve only been called once from court in New York, but at the time I was living in Texas.

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