Jan 13, 2014

Senator Mike Lee Compares 80,000 Pages of New Regulations Published in Federal Register with Laws Passed by Congress and Signed by President

Behold my display of the 2013 Federal Register. It contains over 80,000 pages of new rules, regulations, and notices all written and passed by unelected bureaucrats. The small stack of papers on top of the display are the laws passed by elected members of Congress and signed into law by the president.

Behold my display of the 2013 Federal Register. It contains over 80,000 pages of new rules, regulations, and notices all written and passed by unelected bureaucrats. The small stack of papers on top of the display are the laws passed by elected members of Congress and signed into law by the president.

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Jan 13, 2014

Scalia Tells Lawyer To “Crank Up Your Thing.”

This is a notation I’ve never seen before in Law v. Siegel (the other case argued today that no one cares about).

JUSTICE SCALIA: Excuse me. Will you crank up your — your thing? I can’t you hear well enough. That’s good.

I assume the Justice wanted the lawyer to crank up the lectern, so the mic was closer to his mouth.

I think this is Matthew Hellman’s first argument. Congrats!

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Jan 13, 2014

NLRB Noel Canning was NFIB v. Sebelius Redux. Kind of.

I had some serious deja vu today with Noel Canning v. NLRB.

Justice Kennedy asked Solicitor General Don Verrilli for a limiting principle to the President’s exercise of power. He would not give one.

The Solicitor General argued that an exercise of federal power should be read one way under one constitutional provision, but a different way under another provision.

Justices Kagan and Breyer are frustrated with the Solicitor General’s refusal to explain the motivations behind the executives decision to exercise authority.

The Solicitor General finished with a closing statement, urging the Justices that the exercise of federal power should be upheld because it promotes liberty.

Bonus points if you get all the references.

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Jan 13, 2014

Schroedinger’s Senate

My colleague Ilya Shapiro had a timely tweet about the Solicitor General’s representation that the Senate could be in session for purposes of the 20th Amendment, but not in session for purposes of the Recess Appointments Clause.

Kinda like how the ACA is a tax for purposes of the taxing power, but not for purposes of the Anti-Injunction Act. Makes sense, right?


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Jan 13, 2014

SG Verrilli Gives Another Closing Argument About Why Ruling For The President Promotes Liberty

Towards the end of oral arguments in NFIB v. Sebelius, Solicitor General Verrilli gave what I have dubbed a “closing argument.” In short, he argued that to rule in favor of the government, and uphold the ACA, would promote “liberty.”

Here was my take on it in Unprecedented (tl;dr version, not impressed):

After Paul Clement’s allotted time elapsed, the chief justice gave him additional time, something his strict predecessor, Chief Justice Rehn- quist, would never have done. Later, when Roberts also gave Verrilli additional time, following his rough outing, the solicitor general chuckled out loud, joking, “Lucky me. Lucky me.” At last, with three minutes left from his expanded time, the solici- tor general began what has become known as his “closing statement.” (If he had finished when his allotted time was up, he would not have had enough time.)  ….

However, after three days of argument, Verrilli made the unorthodox decision to provide his final thoughts. The justices would let him speak uninterrupted. The solici- tor general, who had been the subject of ridicule on the right and the left, had one final chance to make his case for the Court. Verrilli’s closing statement aimed to encapsulate the wide range of arguments on law, politics, and philosophy that the Court had waded through during the past three roller-coaster days. Interestingly enough, his closing focused on a topic that had been conspicuously absent—liberty. Verrilli had the idea for his closing statement in his head, though it wasn’t prepared. During the three days of argument, something im- portant had been missing from the discussion: namely, the practical consequences for millions of Americans of the law being struck down.

The scope of his closing focused, on all things, “liberty.”

Verrilli reminded the justices that more than one vision of liberty was at issue. “There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.”

In Noel Canning, much like in NFIB, the SG asked the Court for (even) more time to make his closing argument.

GENERAL VERRILLI: Well, I think it, as I said, I think there is an equilibrium here and the 30 days doesn’t fully capture it. And let me just talk about that if I could.



GENERAL VERRILLI: Yes, thank you, Mr. Chief Justice, briefly.

And what was this argument? Liberty!?

The real problem, I would submit here, is that if you go with Respondents on the pro forma issue or under the — on the two underlying issues, the D.C. Circuit ruling, you are really are writing the recess appointment power out of the Constitution, and that’s antithetical to the liberty-enhancing properties of separation of powers that Madison described in Federals 51, because ambitions which counteract ambitions shouldn’t disarm one side. Thank you.

Unfortunately Paul Clement couldn’t jump up and give a rebuttal.

My commentary on Verrilli’s NFIB closing is apt here:

One of the attorneys working on the challenge told me that Verril;i’s closing argument was a “quintessential example of a liberal trying to use terms Justice Kennedy agrees with, by using words like ‘liberty’ and ‘dignity.’ That’s how Kennedy speaks, but not what he means.” He added that Verrilli was also making “a huge strategic mistake because Clement was going to have a rebuttal.” Another lawyer for NFIB told me that “whatever arguments exist in defense of Obamacare, liberty is not high on that list.”

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Jan 13, 2014

Roberts is no Rehnquist on Time

First, unlike Chief Justice Rehnquist (and Kayne West) he let Miguel Estrada “finish.”

One final point that has to do with the Solicitor General’s insistence on the no-business language. Rules 5.1 of the Senate — may I finish?


Yes. MR. ESTRADA: — makes very clear — it’s also in our appendix — that any business may conducted — be conducted at any time, without notice, by unanimous consent. And so that effectively, what we have here is merely an announcement by the Senate that between December 17th and January 23rd, only unanimous consent business would be agreed to.

CHIEF JUSTICE ROBERTS: Thank you, counsel. General Verrilli, 6 minutes.

Then he gave the Solicitor General “a few more minutes.”

JUSTICE BREYER: The question of reports. There were reports, remember? Sorry, I didn’t mean to — your six minutes couldn’t be up already.

CHIEF JUSTICE ROBERTS: Take a few more minutes.


GENERAL VERRILLI: I was thinking the same thing, Your Honor.

And then, he got even more time to make a (gasp) closing argument (like he did in NFIB):

GENERAL VERRILLI: Well, I think it, as I said, I think there is an equilibrium here and the 30 days doesn’t fully capture it. And let me just talk about that if I could.



GENERAL VERRILLI: Yes, thank you, Mr. Chief Justice, briefly. 

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Jan 13, 2014

Miguel Estrada Gives Shot-Out to Journal Clause

One of my favorite obscure provisions of the Constitution got some love today in Noel Canning oral arguments courtesy of Miguel Estrada.

Now, the fundamental problem with the President’s position here is twofold. We have Senate records. There is — the Journal Clause of the Constitution directs each house of the Congress to have a journal of its proceedings. The Journal of the Senate, which is in relevant part printed in our appendix, shows that on each of the disputed dates the Senate was called to order and then adjourned. It is an official record of the Senate.

Followed by the good ‘ol “Rules of Proceedings” clause!

It says the Senate was called to order and then adjourned

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Jan 13, 2014

Founding-Era Dictionaries in Noel Canning

Solicitor Generall Verrilli looked to the 1787-definition of “recess,” which happens to be the same meaning as today.

GENERAL VERRILLI: Well, but the problem with the pro forma sessions, I think, Justice Kennedy, is in thinking about the length of the recess. The recess, we would submit, and this is based on the formal dictionary definition of “recess” at the time of the founding and now, which is “a suspension of business,” the recess was from January 3 when the session started until January 23.

He made the same point later.

GENERAL VERRILLI: No, I don’t think so, because the dictionary definition then and now of recess is a suspension of business. And you could have recesses of that kind, suspensions of business within sessions.

Justice Kagan went back to the Oxford English Dictionary from the time to look up “happens.”

But if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time — so I went back and I looked at the Oxford English Dictionary, and one of the definitions of “happens” there is “chance to be,” essentially the exact same definition that Thomas Jefferson said made this ambiguous. And we would never use “happens” in that way now. If you look at the examples that the Oxford English gives, they’re laughable. Nobody would ever say that now. But it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of happens has, you know, over 200 years lapsed.

And of course Scalia and Breyer had to chime in:

JUSTICE SCALIA: I — I think “happens” continues to mean “chances to be.” We still use it that way. But we only use it that way when it is followed by an infinitive. “I happened to see him,” it means a chance that I saw him. Or — you know, the 9/11, the destruction of the Twin Towers happened to occur on 9/11. But you wouldn’t say — you wouldn’t say it happened on — on 9/13, simply because it continued to be destroyed. I don’t know what the OED examples that Justice Kagan referred to were, but I bet they — they used “happen” followed by an infinitive, and I think we still use it that way.

JUSTICE KAGAN: You know, I don’t remember them exactly. I just remember kind of laughing at them, as things that -­ (Laughter.)

JUSTICE BREYER: Actually, I think I remember what they were -­

JUSTICE KAGAN: — nobody would say -­

JUSTICE BREYER: — and they were 1483 and 1490-something, and then there was an asterisk that said “obsolete.”


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Jan 13, 2014

Breyer and Scalia Somehow Manage to Riff on Substantive Due Process and Dormant Commerce Clause in Noel Canning

Oh Steve and Nino, you rascals you:

Now, how are we supposed to go and say that this thing -­ thousands of people on the recess part — is unconstitutional? I mean, it isn’t unheard of. What about the Due Process Clause? Does that easily cover the language? Substantive due process? What about the Interstate Commerce Clause and the doctrine of, you know, the Implicit Clause there? I mean, it isn’t unheard of that over time language in the Constitution takes on a somewhat different meaning.

JUSTICE SCALIA: The two examples that Justice Breyer gives are examples where we gave it a meaning that was different from what it said. (Laughter.)


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Jan 13, 2014

Somin on The Shooting Cycle and Political Ignorance

Ilya Somin comments on the new article I co-authored with Shelby Baird,  “The Shooting Cycle,” and how shifts in popular opinion track Somin’s theories of political ignorance:

Political ignorance plays an important role in Blackman and Baird’s analysis in three separate ways. First, most people simply don’t think about the problem of mass shootings or are largely unaware of it until some high-profile tragedy occurs. Second, when a tragedy does occur, this leads many to be more supportive of gun control policies, despite the fact that mass shootings are extremely rare, are not increasing, and are highly unlikely to be prevented by the kinds of policies proposed by would-be reformers. Finally, public opinion reverts to the mean in the weeks and months following a tragedy, because voters start to forget about the event and to focus on other issues. As Blackman points out, all of this is very consistent with the model of rational political ignorance outlined in my recent book, Democracy and Political Ignorance. Voters who pay little or not attention to political issues, because it is not rational for them to do so, are easily influenced by high-profile dramatic events, in part because they may not know these events are unusual. Over time, they may also forget about the events, or at least stop thinking about them.

The shooting cycle could, however, be a case where the harmful effects of political ignorance in one area are mitigated by ignorance of another, a phenomenon I discuss in Chapter 2 of my book. Ignorance about the frequency of mass shootings and the likelihood that gun control can prevent them helps lead to spikes in support for gun control in the wake of high-profile shootings. On the other hand, political ignorance also leads voters to forget about or ignore the event after the initial shock begins to wear off. And the forgetting usually happens fast enough to prevent ill-advised “reforms” from being enacted.

But this happy story is probably not the whole truth. If voters were more knowledgeable, they might instead focus their attention on promoting crime control efforts (whether gun control or otherwise), that could reduce far more common ordinary murders. They would also do a better job of discerning which measures are actually effective in achieving that objective and which ones are not. Unfortunately, however, most voters are ignorant even about such basic facts as the reality that crime rates have fallen rather than risen over the last twenty years.

I agree with Ilya’s comments. I would add that if people were attuned to the causes of the overwhelming majority of gun deaths (guns and gangs, not mass shootings, with handguns, not rifles), the focus on gun control efforts would be very different. But ignorance redirects the focus to regulating law-abiding citizens with weapons seldom used in gun deaths.

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Jan 13, 2014

The Recess Appoint Power and “Congressional Intransigence”

In addition to Justice Kagan’s important jurisprudential point about a law’s original purpose (filling vacancies when Congress was unavailable) to it’s new purpose (the President getting around Senate “intransigence,”), she also nailed the weakness of the government’s position concerning the real reason behind the President’s position. And I think Kagan, combined with Alito and Ginsburg, actually shook up the SG, and took him off his talking points.

Here is the exchange.

JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents — and I say this sort of going — going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved? You know, absence in this day and age -­ this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

Verrilli tried to change the topic, and cited Federalist 76 (Hamilton) to discuss concerns about how the “advice and consent” process would be seldom employed.

GENERAL VERRILLI: And that gets to the second point, which is that it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected. If you look at what Hamilton said in Federalist 76 about the advice and consent role of the Senate, he said he thought it would be a power that was rarely exercised and would operate, if at all, invisibly or silently. And in the early days of the Republic, it was — advice and consent was a matter of days.

Of course, as Justice Alito points out, this argument has little to do with the recess appointment power, but is a collateral attack on the entire “advice and consent” doctrine. I don’t think Verrilli wanted to go here, but he was cornered.

JUSTICE ALITO: But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You’re just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those — fill those positions. That’s what you’re arguing. I don’t see what that has to do with whether the Senate is in session.

And now, Verrilli took Kagan’s lead, and cited “intransigence” as a reason to support the President’s position.

GENERAL VERRILLI: Well, I do — I think this — I think the recess power may now act as a safety valve given that intransigence, and that is actually quite consistent


This was a mistake, and I think he went off script here–and RBG called him out on how this was different from the position stated in his brief.

JUSTICE GINSBURG: But it isn’t — it isn’t tied then to the availability of the Congress, availability of the Senate. I think you said throughout your brief that the rationale for the recess power is the President must be able to have the government functioning and staffed even though — although the Senate isn’t — isn’t around. But now the — you seem in your answers to be departing from the Senate not available and making quite another justification for this. The Senate, I think to be candid, the Senate is always available. They can be called back on very short notice. So what is it that’s the constitutional flaw here? It isn’t — it isn’t that the Senate isn’t available. The Senate is available. It can easily be convened.

Verrilli employed a tact I’ve heard him use before when he is in trouble–he takes “half a step back”–and cites Federalist 51 (?!).

GENERAL VERRILLI: So let me take a half a step back, if I could, Justice Ginsburg, and answer that question in this way. You know, perhaps it sounds like this is an aggressive assertion of executive authority, but I’d ask the Court to think back to Federalist 51. And what the Framers were most concerned about was that Congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the Executive, and therefore, the Executive needed to be fortified against those actions by Congress.

You know the SG is in trouble when he responds to a question from Justices Ginsburg  about broad executive power by citing The Federalist.

The Chief continued to pile on the “intransigency” line.

CHIEF JUSTICE ROBERTS: But the compromise they settled on in moving away from that is that the President will nominate and the Senate, if it so chooses, can confirm a nominee. You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the President submits. And it seems to me, following up on Justice Kagan’s point, you’re latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open.

This may have been an intentional departure from the briefs, but it does not seem to have panned out well. Verrilli is usually very careful to stay on script. I can’t quite explain this move.

Later Justice Breyer returned to the important question of what the purpose of the clause is, and noted that there is nothing in the history about this intransigence.

JUSTICE BREYER: I cannot find anything, so far, and I may have missed it — I’m asking — I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, Hamilton says that the way we’re going to appoint people in this country is Congress and the President have to agree. Now, that’s a political problem, not a constitutional problem, that agreement. And it was just as much true of President George Bush, who made six appointments that happened previously, as it is with President Obama, who’s made four. All right? So — so where — and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem. So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?

Justice Kagan continues to impress. Her questions are so sharp and probing. Her simple observation about “intransigence” lured the SG, and got at least four Justices (Alito, Ginsburg, Roberts, and Breyer) to perk up and ask follow-up questions on this point.

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Jan 13, 2014

Kagan on The Recess Appoint Clause’s “Original Purpose” and “New Purpose”

Justice Kagan, with an assist from Justice Breyer, hit the nail on the head in Noel Canning. Justice Breyer asked (over the course of a few pages) why this case was so important. The Solicitor General relayed a story from 1948 where the Secretary of Labor died on the eve of a lengthy congressional recess. Justice Kagan was not impressed with her successor’s answer.

JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents — and I say this sort of going — going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved? You know, absence in this day and age -­ this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

A provision that may have been designed to accommodate vacancies that arise during a lengthy break in Washington, has now been used in recent years to get around a Senate frustrating the President’s appointments (or what some may call “advice and consent.”).

Kagan’s astute comment highlights an important doctrinal point concerning originalism. Focusing on the original understanding of the text of the Constitution–what some call the semantic content–is fixed. Trying to ascertain the purpose, or intent, of those who framed the text, or even the Presidents who acted in a certain manner, is more difficult, because those intents are varied. In the debate between text (meaning) and history (practice), the Court is on much stronger footing relying on the former.

Update: Justice Breyer asks a similar, important question about the conflict between text (meaning) and history (purpose).

Look at the comparatively small practice in that area. Look at the other ways to get around the problem, and then give me another example in the Constitution where you have both language and purpose pointing one place and yet this Court because of practice has come to the opposite conclusion.

After several frustrating answers, Breyer observes that Verrilli doesn’t have an example.

Though, Verrilli’s strongest argument is that the “spirit” of the law supports this interpretation.

JUSTICE GINSBURG: You do have — you do have the one that you relied on in your brief, and this understanding goes back at least to 1823, and the — the Wirt letter, Attorney General Wirt said, on the wording — maybe on the wording, the case is not strong. But the purpose, he said, you would be honoring the letter and defying the spirit. That was the — on the question of the — when the vacancy -­

GENERAL VERRILLI: And we don’t disagree with that. We think it’s just what Wirt said. It’s -­ does no violence to the language and is consistent with the purpose of the — of the clause. And from the -­ from the perspective of the purpose of the clause, the office is equally vacant, whether that vacancy arose the day before or the day after the Senate went into recess. The Senate is equally unavailable to act because they’re dispersed, whether the vacancy arose the day before or the day after. And the public’s need that the office be filled so that the laws can be faithfully executed is the same whether the vacancy arose the day before or the day after.

Update: And later in the argument, Justice Kagan asks Noel (no relation) Francisco about “chucking” practice.

The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.

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Jan 13, 2014

Justice Kennedy asks for a “limiting principle” in Noel Canning

I had a serious case of deja vu when AMK asked Solicitor General Verrilli for a “limiting principle” in the recess appointment. I assure you, the answer had nothing to do with broccoli, but it did concern food–specifically whether the President could make a recess appointment during a “lunch break.” Here is the exchange:

JUSTICE KENNEDY: Well, of course, Justice Ginsburg’s question points out that your argument is, it seems to me, in search of a limiting principle. A lunch break, a one-day break — you’ve — you’ve thought about this — a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us?

Update: And what was Verrilli’s limiting principle? He turned the question on its head, and said the recess-appointment power had to mean something, and that it was up to the President to decide the contours of this authority.

GENERAL VERRILLI: I think there has to be a limit to that point, Justice Kagan, because, after all, what we’re talking about here is a power that the Constitution gives to the President, the power in Article II. And the President has got to make the determination of when there’s a recess.

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Jan 13, 2014

Oh no Justice Sotomayor, we want Congress to take as many recesses as possible

A Congress that never takes a recess, and works every day, would be a bad, bad thing. From Noel Canning:

JUSTICE SOTOMAYOR: But why? You’re making an assumption, which is that the Senate has to take a recess. But the Senate could choose, if it wanted to, and I think there might be some citizens that would encourage it to, to never recess.

GENERAL VERRILLI: Sure. Of course, it could.

JUSTICE SOTOMAYOR: And — and to work every day, which -­


JUSTICE SOTOMAYOR: — lots of people do.

GENERAL VERRILLI: That’s true. They could — they could decide not to take a recess.


To quote Twain, “No man’s life, liberty, or property are safe while the legislature is in session.”

Update: Thankfully,  Justice Kagan reminds us that “there’s no such thing truly as congressional absence anymore.”

You know, absence in this day and age -­this is not the horse and buggy era anymore. There’s no real — there’s no such thing truly as congressional absence anymore.

Update 2: And Noel Francisco describes our Congress aptly, unintentionally.

That’s a consequence of advice and consent. That problem arises not just when the Senate takes breaks, but when the Senate is in session. The senate could show up every day for an hour, sit at their desks, and announce to the President: We’re not going to do anything, no nominations, no legislation, because we don’t like what you’re doing. And by the way, the only reason we’re showing up here at our desks and sitting here for one hour a day is because we don’t want you to be able to make recess appointments. Nobody would claim that the Senate was in recess during those sessions. Well, that is effectively what it was doing here.

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Jan 13, 2014

Noel Canning: Which Prevails Text or History?

In a debate that only a ConLaw nerd can appreciate outside the context of the significance of the recess appointment issue, today’s arguments in NRLB v. Noel Canning kept circling on the question of which is more important: two centuries of practice, or the text of the Constitution. In other words, if the President has been exercising the recess power in the same fashion for two centuries, what to do when the plain text suggests that the Constitution prohibits that long-standing practice.

John Gramlich’s tweet sums it up.

Justice Scalia posed the question.

JUSTICE SCALIA: What do you do when there is a practice that — that flatly contradicts a clear text of the Constitution? Which — which of the two prevails?

GENERAL VERRILLI: Now, I think the practice has to prevail, Your Honor.

Verrilli continued to evade Justice Scalia’s question about text and practice, but it seems clear he focuses on the practice.

GENERAL VERRILLI: No, I am — I am answering. I think I already answered it once, Justice Scalia, but I’ll answer it again. The answer is I think, given this — a practice going back to the founding of the Republic, the practice should be — the practice should govern, but we don’t have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.

Update: This colloquy between SG and Justice Kagan is also fascinating. The SG speaks to a “equilibrium that has emerged” over the last two centuries, and urges the Court to maintain the “status quo”–that is, the practice.

GENERAL VERRILLI: So, what I would say about this, and also to your point, Mr. Chief Justice, is we have, I would submit, a stable equilibrium that has emerged over the course of this country’s history between the two branches. After all, what we are advocating for here is the status quo. It is the equilibrium that has emerged since Congress — since the Senate started taking lengthy intra-session recesses, Presidents started making recess appointments during  those recesses.  That began in the Civil War days. It’s continued to the  present. The President -­

Kagan replies that this is a “really strong argument,” but challenges how the SG accounts for that “equilibrium.”

JUSTICE KAGAN: General, I think that’s a really strong argument, but I have to say I’m not sure it applies consistently throughout each of the three claims that you make. Because if you are going to rely on history and on the development of an equilibrium with respect to what “happens” means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress’s definition of its own power to determine whether they are in recess or not. In other words, your third argument about pro forma sessions, the history is entirely on the Senate’s side, not on your side. And if we’re going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.

Update: Similar question from Justice Sotomayor:

JUSTICE SOTOMAYOR: — let’s go back to the “happenings” words — that is so unambiguous, that they knew it was unambiguous, but 200-year history, starting with President Washington, who filled two vacancies that occurred before the Senate broke, to every — almost every President thereafter has done the same. So why should we conclude that today’s understanding is the same as the understanding of the Founding Fathers? Why don’t we take their unbroken practice as giving us that definition?

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Jan 13, 2014

Unprecedented Talk at Houston Lawyers Federalist Society Chapter

My home-town chapter gave me a warm welcome, as we discussed the intricacies of the leviathan that is Obamacare.

Here is the video:

And here are some photos.


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Jan 13, 2014

The Impending Obamacare Bailout of the Health Insurance Companies

I previously blogged about the likelihood of the President using the so-called “risk corridors” in the Affordable Care Act to bail out the insurance companies who suffer massive losses under Obamacare.

More from the Weekly Standard with some precise numbers, summarizing a post by health wonk Robert Laszewski

Robert Laszewski—a prominent consultant to health insurance companies—recently wrote in a remarkably candid blog post that, while Obamacare is almost certain to cause insurance costs to skyrocket even higher than it already has, “insurers won’t be losing a lot of sleep over it.”  How can this be?  Because insurance companies won’t bear the cost of their own losses—at least not more than about a quarter of them.  The other three-quarters will be borne by American taxpayers.

For some reason, President Obama hasn’t talked about this particular feature of his signature legislation.  Indeed, it’s bad enough that Obamacare is projected by the Congressional Budget Office to funnel $1,071,000,000,000.00 (that’s $1.071 trillion) over the next decade (2014 to 2023) from American taxpayers, through Washington, to health insurance companies.  It’s even worse that Obamacare is trying to coerce Americans into buying those same insurers’ product (although there are escape routes).  It’s almost unbelievable that it will also subsidize those same insurers’ losses.

But that’s exactly what it will do—unless Republicans take action.  As Laszewski explains, Obamacare contains a “Reinsurance Program that caps big claim costs for insurers (individual plans only).”  He writes that “in 2014, 80% of individual costs between $45,000 and $250,000 are paid by the government [read: by taxpayers], for example.”

In other words, insurance purchased through Obamacare’s government-run exchanges isn’t even full-fledged private insurance; rather, it’s a sort of private-public hybrid.  Private insurance companies pay for costs below $45,000, then taxpayers generously pick up the tab—a tab that their president hasn’t ever bothered to tell them he has opened up on their behalf—for four-fifths of the next $200,000-plus worth of costs.  In this way, and so many others, Obamacare takes a major step toward the government monopoly over American medicine (“single payer”) that liberals drool about in their sleep.

Laszewski adds, “The reinsurance program has done and will continue to do what it was intended to do; help attract and keep more carriers in Obamacare than might have otherwise come.”  Thus, Obamacare is being aided by having taxpayers subsidize big insurance companies’ business expenses.  (Who could ever have guessed that big government and big business might be natural allies?)

But, amazingly, it doesn’t stop there.  Laszewski writes that Obamacare also contains a “Risk Corridor Program that limits overall losses for insurers.”  So insurers not only don’t have to pay out all of their costs; they also don’t have to swallow all of their losses.

Laszewski explains that if an insurance company expects its costs in a given year to be X, and those costs end up being more than X plus 2 percent, taxpayers will come to that insurance company’s rescue—thanks to Obamacare.  In fact, once an insurance company covers that initial 2 percent in unexpected costs, taxpayers will cover at least 80 percent of any additional costs the insurer accrues.

Laszewski provides a couple of examples to help illustrate taxpayers’ unwitting generosity toward these “participating health plans” (plans sold through Obamacare’s government-run exchanges):

“[I]f the health plan has costs at 110% of the medical cost target [the costs that the insurer expects to accrue], it will be responsible for only 102.4% of the target (a 2.4% shortfall)—only about a quarter of its losses.

“If the health plan’s medical costs come in at 120% of the expected claim cost target level, the health plan will only be responsible for 104.4% of the target (a 4.4% shortfall)—again only about a quarter of its losses.”

It’s actually only about a fifth in this example, as taxpayers would cover 78 percent of the losses, with the insurer covering just 22 percent.

Importantly, Laszewski (who’s in a position to know) says that “my sense is that health plans, because they are so insulated from big losses, will generally stand pat with their 2014 rate structures for 2015—no matter how bad the early claims experience looks.  I expect that the health insurance industry will be content to give the Obama administration one more chance to reboot Obamacare in the fall of 2014, when the 2015 open enrollment takes place.”

Do you see how pernicious this is? The insurance companies are willing to artificially deflate insurance prices, knowing that they will get bailed out by the feds, and won’t worry about raising them until some point in the future when any efforts to fix the ACA are long gone.

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Jan 13, 2014

Treasury Announces In Blog Post That Volunteer Firefighters Are Not Full-Time Employees For Purposes of Obamacare

A new regulation, announced in a Treasury blog post,  exempts volunteer fire fighter companies from having to provide their employees who work more than 30 hours a week with health insurance under the ACA.

Here is the relevant portion of the post:

Treasury and the IRS issued proposed regulations on the employer shared responsibility provisions (Section 4980H of the Tax Code) in December 2012 and invited public comments.  Numerous comments were received from individuals and local fire and Emergency Medical Service departments that rely on volunteers.  The comments generally suggested that the employer responsibility rules should not count volunteer hours of nominally compensated volunteer firefighters and emergency medical personnel in determining full-time employees (or full-time equivalents).  In addition, Treasury heard from numerous members of Congress who expressed these same concerns on behalf of the volunteer emergency responders in their states and districts.

Treasury and the IRS carefully reviewed these comments and spoke with representatives of volunteer firefighters and volunteer emergency personnel to gain a better understanding of their specific situations.  Treasury and the IRS also reviewed various rules that apply to such volunteer personnel under other laws.  These include the statutory provisions that apply to bona fide volunteers under Section 457(e)(11) of the Tax Code (relating to deferred compensation plans of state and local governments and tax-exempt organizations) and rules governing the treatment of volunteers for purposes of the Federal wage and hour laws.  As a result of that review and analysis, the forthcoming final regulations relating to employer shared responsibility generally will not require volunteer hours of bona fide volunteer firefighters and volunteer emergency medical personnel at governmental or tax-exempt organizations to be counted when determining full-time employees (or full-time equivalents).

H/T RandomlyBob

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Jan 13, 2014

More Questions on SCOTUSBlog’s New Editorial Policy

Last week I blogged about Tom Goldstein’s summary of SCOTUSBlog’s “evolve[d]” editorial policies. In a new post, titled “Policies on editorial independence,” Tom writes:

In response to my last post on policies that keep the blog separate from my firm, we received a few emails helpfully seeking clarification.  Below is a revision to what I previously published.  There is no substantive change, but hopefully the policies are clearer.

The first few parts of the new policy are identical:

  • 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. [This one is identical]
  • 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: [same]
    • 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. [same]

But the last three bullets have change.

  • The blog staff will note Firm merits cases only when required  to provide comprehensive coverage – for example, describing an order granting certiorari and furnishing basic details about the case – but will not otherwise comment, report, or pass judgment on the cases.

I’m not exactly sure if I understand this one. Does “Firm merits case” include cases in which the Firm works on a Cert Petition? In other words, will the site disclose a case in which it works on a petition for certiorari? Is there a difference between how merit cases and petitions are treated?

The next part is even more confusing.

  •  The blog will not suggest that a petition for certiorari filed by the Firm is deserving of review on the merits by the Court or (alternatively) suggest that a case in which the firm has filed a brief opposing review is not worthy thereof.  The blog will note petitions in which the Firm is among the counsel to the petitioner or respondent in its “Petitions to Watch” and “Petition of the Day” features (so as not to inadvertently disadvantage either party to the litigation), but it will clearly state that such a listing occurs without regard to the likelihood that certiorari will be granted.  The only exception is the extremely rare petition in which the Firm is among the counsel the respondent but does not appear on the briefs in the case.  In that rare instance, because the Firm is opposing review, no advantage can be created when the petition is listed.

Huh? So SCOTUSBlog will not list a petition the firm worked on in Petitions to Watch to “suggest . . . [it] is deserving of review on the merits,” but SCOTUSBlog *will* list a petition the firm worked in Petitions to Watch on “without regard to the likelihood that certiorari will be granted.” Am I reading that right? If I’m not, please correct me.

In fact, based on the last round of editorial independence bullets, Jacob Berlove (the 3-time reigning Chief Justice of FantasySCOTUS) commented that SCOTUSBlog would never list any of their petitions:

The biggest change seems to be that instead of listing petitions to watch that the firm is involved with, without regard to the likeliness of the case being granted, those petitions won’t be listed at all. This change is quite unfortunate.

Read what the last policy stated:

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.

In the old new policy, Goldstein wrote 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.” I think Jacob read that correctly: NONE of the petitions the firm works on would be listed.

Now, in the new new policy, I think that they will *all* be listed and “will clearly state that such a listing occurs without regard to the likelihood that certiorari will be granted.” Am I reading this right? If I’m not, I welcome comments below. That would seem to be a “substantive change.”

Next, I don’t see how the last bullet is consistent with what was written above.

The policy of not noting new Supreme Court filings by the lawyers who work on the blog and the clinics with which they are affiliated is long-established and remains in effect.

Is this separate and apart from the Petitions to Watch? As I read the previous bullet, petitions the firm works on will be listed in Petitions to Watch. I’m not sure what this means. Is there significance to the phrase “not noting new Supreme Court filings.” Does this mean that the petition will be listed, but there will be no notification when the brief is electronically filed with the Court (in the technical sense)?

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