Feb 28, 2014

Tennessee Law Review Symposium on Second Amendment

On Saturday, March 1, I will be speaking at a symposium of the Tennesee Law Review on the next frontiers of the Second Amendment. I will be talking about the First Amendment, Second Amendment, and 3D Guns.

Here is the overview and schedule of the event.

Symposium: New Frontiers in the Second Amendment

In the wake of the Supreme Court’s recognition of personal Second Amendment rights in Heller and McDonald,as well as the recent national debates over gun control, questions have arisen as to exactly what rights the Second Amendment protects and what rights it ought to protect.

The Tennessee Law Review Symposium will include papers and presentations from varied viewpoints discussing the following topics:

· The nature and extent of possible Second Amendment protection of the right to carry firearms.
· The categories and types of weapons that may carry Second Amendment protection.
· The existence, extent, and scope of penumbral, unenumerated Second Amendment rights, such as the purchasing and transportation of firearms; the purchasing, possession, and transportation of ammunition; and protections for firearm-related locations such as firing ranges and gunsmith shops.
· The extent to which “chilling-effect” doctrine may apply to Second Amendment rights, including potential constitutional limitations on the taxing of firearms and ammunition.
· The validity or invalidity of gun ownership restrictions based on an individual’s status as a felon in light of the proliferation of regulatory crimes designated as felonies.
· The extent to which the Second Amendment sheds light on other constitutional rights, enumerated or unenumerated.

Cottone and Reynolds*
State Regulation and the Second Amendment
O’Shea* and Halbrook*
The Second Amendment in the Academy
Wolitz,* Reynolds, Denning, Kopel, O’Shea, Pratt, and Blackman
Defining the Reach of Heller and McDonald: Second Amendment Penumbra and First Amendment Corollaries
Kopel,* Pratt,* Denning,* and Blackman*


Perhaps most importantly, during my trip I learned that the Sun Sphere from the 1982 World’s Fair is in fact real, and it is not full of wigs.


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Feb 28, 2014

Kmiec For Congress Now Accepting Donations Without Any Disclosures (Update)

I’m not an expert on campaign finance laws, but I’m pretty sure someone running for Congress is required to obtain a whole host of information about the donor, including who they work for, and provide special language about the compliance of the donation. None of this information appears on Doug Kmiec’s campaign page, which is seeking donations of $35, $50, $100, $201.40, $500, $1776, $2014, and $2600. As far as I can tell, contributions can be made by foreign nationals, corporations, or anyone else. And the page requesting credit card information does not ask for any of the required information. The payment page is hosted by FirstData, which does not appear to be a program set up for campaign donations, but rather regular commercial transactions.

I should note that one of Kmiec’s planks indirectly criticizes Citizens United.

The Supreme Court deserves our respect when it honors the Constitution, but not when it finds it easier to fabricate gun and corporate rights than to respect life and democracy.

Screen shots are below.




 Update: The campaign page has been updated, and seems to request hosts of information, though it is not a form that allows you to submit information. It is just listed as text.

Brad Smith offers this commment:

This has now been corrected on their page. But in doing so, they’ve added this:

“We do not accept corporate monies, even as they have been erroneously permitted by a slight majority of the Supreme Court in citizens United overruling close to 100 years of precedent.”

Here, they share many common misconceptions of Citizens United v. FEC. “Corporate monies” may not be contributed candidate campaigns. And if by “precedent” they mean Supreme Court precedent, the oldest case overruled by Citizens United was Austin v. Michigan Chamber of Commerce, a case from 1990. 20 years of precedent isn’t, in most people’s books, even close to 100 years of precedent. Austin itself did not explicitly overrule, but is widely understood as disharmonious with earlier Supreme Court decisions, including Buckley v. Valeo (1976, Congress may not limit campaign expenditures) and First National Bank of Boston v. Bellotti (1978, right to make expenditures extends to corporations in initiative campaign).

It is also ironic that these plucky volunteers think this is a big deal, since they live in California where corporate contributions ARE allowed in state races.

Beyond that, I note that the campaign prides itself on being an “all-volunteer” effort and notes that it has no salaried personnel. That should be a source of pride. Unfortunately, in today’s world of campaign finance regulation, it is also pretty difficult to do, which is why you make mistakes like not requesting legally required information.

As an admirer of Doug Kmiec, I wish them luck. I suspect that by the end of the campaign these doughty volunteers will have concluded, as so many similarly situated, idealistic efforts before them have, that the campaign finance regulation they think they like now is really part of the problem, not the solution, and part of what prevents, not facilitates, campaigns like this one.

Here is a screenshot:


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Feb 28, 2014

Constitutional Places: Katzenbach v. McClung

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.



And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.

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Feb 28, 2014

Can Congress Create Standing For Member of Congress to Sue Executive For Not Enforcing The Law

Senator Rand Paul has proposed the “Constitutional Check and Balance Act,” which would “authorizes members of Congress to take the administration to federal court if the president, or any other executive branch official, directs federal agencies to not enforce a provision of law.” A similar provision has been introduced in the House.

Here is the text of the act:

8 dent or any other official in the executive branch of the
9 Federal Government issues a memorandum or other writ-
10 ten statement directing any official in the executive branch
11 to not enforce a provision of law, a Member of Congress
12 who meets the requirement described in subsection (b)
13 may bring an action for declaratory or injunctive relief in
14 an appropriate United States district court to compel such
15 official to enforce the provision of law.
17 ment described in this subsection with respect to a provi-
18 sion of law is that the Member of Congress cast a recorded
19 vote on final passage of the version of the bill or joint
20 resolution that enacted the provision into law.

In other words, anyone who voted for the law could sue to make sure that it is enforced.

I wonder whether this may have article III problems if it creates standing in the absence of an injury in fact. This was a similar issue to the one the Court punted when it did not resolve First American Financial v. Edwards (Eugene Volokh has a post on a similar case pending now).

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Feb 28, 2014

Was Federalism Just a Way Station in Windsor?

In a new article, Neil Seigel contends that federalism in Windsor was just a “Bickelian devices for managing the processes of constitutional change.” In other words, this does not portend an actual, and important doctrinal change in Windsor. Here is the abstract:

This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law. Like some commentators, Roberts construed the Court’s emphasis on what might be called “extraordinary” evidence of animus as not impugning the authority of states to ban same-sex marriage. The Article shows that such a reading can account for much of the Court’s language, but not for the opinion as a whole given the Court’s emphasis on DOMA’s purposes, effects, and social meanings — none of which seem limited to DOMA.Justice Scalia read the majority opinion as turning on what might be called “ordinary” evidence of animus. On that interpretation, which many commentators endorse, only a desire to harm same-sex couples can explain denying them the same dignity that opposite-sex couples enjoy by being able to marry. This Article shows that such a reading has force, but that there are limits to its explanatory power given the Court’s emphasis on DOMA’s interference with state decisions to allow same-sex marriage. The opinion resists any dispositive interpretation; it preserves a Delphic obscurity.This Article seeks to understand why the Court’s opinion is written that way by examining its most puzzling aspects: its invocation of state control over domestic relations to qualify its embrace of the equal dignity of same-sex couples; its selective use of state developments in the service of living constitutionalism; and its novel, unnecessary use of the breadth of a federal law as evidence of animus. The Article reads Windsor as an exemplar of a phenomenon that is easily overlooked or misunderstood, but that becomes apparent once doctrine is understood dynamically rather than statically. Windsor is what judicial opinions may look like in times of transition, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such periods, federalism rhetoric — like manipulating the tiers of scrutiny and the justiciability doctrines — may be used as a way station toward a particular later resolution.

For reasons I’ve explained elsewhere, I think the arc of federalism jurisprudence in Justice Kennedy’s opinions from Romer to Lawrence to Windsor (and Bond and a few others) is quite significant. Federalism is not just a means, but a means to an important ends of protecting liberty.

Siegel takes the opposite position:

The Windsor Court’s various invocations of federalism are not attributable simply to Justice Kennedy’s idiosyncratic ways of expressing his commitment to limited federal power and to residual state authority, or to his potential ambivalence about same-sex marriage. Indeed, the voting alignment in Hollingsworth v. Perry37 raises the possibility that Kennedy is no longer the median Justice regarding the constitutional rights of same-sex couples. Rather, the Windsor Court’s uses of federalism rhetoric are probably best understood as reflecting a statesmanlike effort to encourage but not to coerce for the time being—to allow continued deliberation and litigation over same-sex marriage in the states, and to move that deliberation toward greater equality for same-sex couples and their children. The Court’s use of federalism rhetoric as a way station thus shares certain similarities with its failure faithfully to apply the tiers of scrutiny in select equal protection cases and its manipulation of justiciability doctrines.38 As just noted, the Windsor majority itself implausibly declared that Section 3 of DOMA flunked rational basis review. And as explored below,39 certain Justices in the Windsor majority may have responded to prudential concerns in Hollingsworth. The phenomenon identified by this Article is limited neither to Windsor nor to federalism. As the Court is discovering, however, the federalism approach may result in a stronger nudge.

Eventually, I will have the time to finish my article on Kenendy, Windsor, and Federalism. I am somewhat eager to incorporate Bond into the opinion.

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Feb 28, 2014

The Relevance of Members of Congress Submitting Amicus BRiefs

In the past, I have questioned the significance of briefs authored by members of Congress, who drawing on their experience in the legislative process, try to tell courts what the law really means. I think these briefs are not particularly helpful. These types of briefs are not submitted by scholars who closely inspected the record, or experts who have views on the law, but instead by the architects of a law. While this group is certainly qualified to discuss the record, they submit the brief because of the gravitas of their role in the legislature. In other words, the not-too-subtle hint to the court is that our vision of the history is the best because we were there.

That should be true in the abstract, except when you consider the circumstances in which the brief is filed. It is not filed by all 535 members of Congress, nor is it filed by even the members of Congress who voted for the law. It is usually field by a handful of vocal legislators who likely were instrumental in the law being passed. It is entirely conceivable that the views they hold, and write in the brief, represents those of everyone who voted for the law, or maybe even everyone in Congress. But I am doubtful. Congress is a they, not an it.

Putting aside Justice Scalia’s noteworthy rejection of legislative history, it is fairly accepted in legislation circles that post-enactment legislative history is the worst. Why? Because members of Congress after a law is passed are no longer constrained by the legislative bargain. They can say whatever they want, whether or not that idea was expressed during the debate, or whether that idea would have perhaps spiked the legislative bargain. I talk about some of those concepts in this article.

So even if members of Congress are making post-enactment statements about the legislative record, and are citing accurately to the record (I have no reason to think they are not), the context and nature of the arguments, and the principles they give to Congress as aw hole, are shaded by the very post-enactment sentiments that renders post-enactment history inherently unreliable. That’s not to say the arguments are wrong. Rather, I think members of congress, seeking to persuade a court to rule a certain way, can rely on individualistic understandings of what happened, rather than the broader collective will.

I expressed these concerns when Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama (see herehere, and here), and when Senator McConnell intervened in the recess appointment case (here). I noted similar objections when 6 Democratic members of Congress, who were involved in steering the Affordable Care Act through the legislative gauntlet in 2009 and 2010, filed a brief in Halbig v. Sebelius.

 Si Lazarus of the Constitutional Accountability Center (who co-authored the Halbig brief I mentioned) penned a reply to my post. I really don’t have any issue with the merits of Si’s post. Our disagreement focuses on the relevance of the brief itself, not the actual content of the brief, which I can assume are accurate recitals of the record, though I haven’t studied the legislative record for the Halbig issue closely enough. My main objection is to the broader issue of members of Congress filing these legislative briefs, and assessing what weight they carry. (Not a big point of disagreement, but if HHS is spending money without a grant of power from congress, this would be ultra vires, and thus unconstitutional)

Si takes issue with the fact that I called the signatories of his brief “opportunistic” (Senators Baucus, Harkin, and Reid, and Representatives Levin (MI), Miller (CA), Pelosi (CA), and Waxman (CA))

In a post on his blog yesterday,  Josh Blackman impugns (as  “opportunistic”) the motivation and appropriateness of an amici curiae brief recently filed by CAC on behalf of key congressional architects of the Affordable Care Act.  Blackman makes several wild swings, so wide of the mark as to require a brief corrective response.

I was not calling the counsel at CAC opportunistic. I respect their work, though I may not always agree with it. My comments were directed at the members of Congress who helped steer the ACA though.

Let me put this bluntly, as someone who has studied the legislative process leading up to the passage of the ACA closer than  just about anyone else. The entire nature of passing this law was opportunistic. The bill was drafted behind closed doors, and only released in its final version shortly before the Christmas Eve vote, which passed on a straight party line vote. After the Scott Brown election, the Democrats relied on a bizarre version of the budget reconciliation process to make changes to the ACA, without subjecting it to the Senate filibuster. Drafting errors such as the one in Halbig were likely supposed to be fixed during the reconciliation process, but this never happened. There were lots of things that didn’t get fixed. As one member of Congress noted, “We had to take the Senate version of the health care bill. This is not anything we spent time talking about here in the House.”

In particular, former-Speaker Pelosi is ripe for these charges of opportunism. Her get-it-done-at-any-cost philosophy should estop her from being any type of spokesperson for the tenor of the Congress, and what they were trying to achieve. Her goal was to pass something, anything, and worry about the consequences later. Her statements support this.

When someone asked if the law was constitutional she asked, “Are you kidding?” On this point, Democrats owe a special debt to Si Lazarus, Caroline Frederickson, and a few others, as they drafted the only Senate constitutional findings added to the ACA (note they focused on the commerce power, not the taxing power). The House made absolutely no findings on the constitutionality of the law. No hearings were held until a year after the law was enacted. Yet, in May 2012, when asked for her forecast for the vote of the Supreme Court, Pelosi said “Nobody was frivolous with the Constitution and the health of the American people in writing the bill.” Similarly, Secretary Sebelius said “Congress carefully weighed its authority in writing the law.”

As for whether Pelosi actually knew about the provision in Halbig, I am very doubtful. Recall she said, “We have to pass the bill so that you can find out what is in it, away from the fog of controversy.” Even though she later claimed that she read the entire 2,700 page bill.

I could go on and on about the hubris with which this law was enacted. Remember “deem and pass” (what the Washington Post dubbed “procedural sleight of hand”)?

If there was some equitable cause of action that merged estoppel and chuztaph, this would enjoin Pelosi from opining on any aspect of the legislative process, and constitutionality of the ACA. As I wrote in my previous point, Pelosi is estopped from commenting on the constitutionality of the ACA.

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Feb 27, 2014

The Impact of Secret Camera in the Courtroom on Actual Cameras in the Courtroom

By now you’ve heard the news. A protestor managed to smuggle a camera into the Supreme Court chamber on at least two occasions, October 8, 2013 (for McCutcheon) and on Wednesday, February 26, 2014. Julie Silverbrook and I figured this out by pouring over the grainy footage like it was the Zapruder film. Victoria Kwan put us to shame, matching the transcripts, line-by-line.

So what do we make of this event? Well, at first blush, I think this will give the Justices even more pause about allowing cameras into the Court. Think of all the times that Code Pink has disrupted Senate or House hearings. The fact that C-SPAN cameras are present no doubt exacerbate the incentives to make a ruckus. If cameras were present in the Court, there would be more incentives for protestors to act up. Though, Adam Liptak noted that “There was no reaction from the justices.”

Also, the fact that this grainy footage made it onto cable news, and even local news channels, cannot reassure the Justices who are skittish about being skewered in the media.

Now, I am not asserting that these are valid, or legitimate reasons why the Justices should refuse cameras. Rather, I suspect that this incident may harden their hearts.

This will be a topic of conversation at the next conference.

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Feb 27, 2014

Constitutional Faces: Secret Video From Inside the Supreme Court

This video, from user SCOTUSpwned, seems to have been taken on October 8, during Oral Argument in McCutcheon v. FEC. You can see the protestor stand up and shout out that Citizens United must be overturned. Holy cow. There are other videos that were recorded from the Court here.



And here is the protestor rising.


The last time we had pictures from inside the Supreme Court was from 1937 (via Sonja West).

From left to right, the Justices would be:

Owen Roberts, Pierce Butler, Louis Brandeis, Willis Van Devanter,, CJ Charles Evan Hughes, empty seat (McReynolds), George Sutherland, Harlan Fiske Stone, Benjamin Cardozo (Junior Justice).

From left to right: Owen Roberts, Pierce Butler, Louis Brandeis, Willis Van Devanter,, CJ Charles Evan Hughes, empty seat (McReynolds), George Sutherland, Harlan Fiske Stone, Benjamin Cardozo (Junior Justice).

Here is the complete Court in 1937, following Justice Van Devanter’s reti

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Feb 27, 2014

The Inefficiency of Volunteering

A few years ago, I had a conversation with an english literature professor, who had signed up for a program where he would build homes for poor people in Africa (I can’t recall which country). I asked him if he had any experience in construction. He said no. Neither did any of the dozen students he was bringing with him. I asked him how much he was paying for this trip. It was somewhere in the neighborhood of $5,000 (I can’t recall the exact amount). He insisted that the trip also included an excursion to the safari. Of course.

Then I posed the hard question to him. Wouldn’t it be more efficient to just give the $5,000 to someone in that village, who was skilled in construction, and could build it himself. That would no doubt result in better structure, provide employments for the people living there, and eliminate the deadweight losses of flying a gangly liberal arts professor halfway across the world. He became outraged and indignant. How dare I question the abilities of someone who couldn’t hammer a nail being able to build sustainable homes in Africa.

Then I really hit him hard. I said the reason why you are going is not, primarily to help the people but to gratify some internal desire to help others. Those are not always the same thing. If your goal was to help these people, I said, you would mail a check to a reputable charity. Instead, you want to make yourself feel better, by going there, witnessing how horrible these people live, updating your facebook profile picture, then chill at a safari resort and fly back home. He scoffed at me. But on some level, he knew I was right.

Volunteering can be very inefficient. The resources spent on this trip could be used to help many more people.

A recent piece on Medium edifies my sentiments.

In high school, I travelled to Tanzania as part of a school trip. There were 14 white girls, 1 black girl who, to her frustration, was called white by almost everyone we met in Tanzania, and a few teachers/chaperones. $3000 bought us a week at an orphanage, a half built library, and a few pickup soccer games, followed by a week long safari.

Our mission while at the orphanage was to build a library. Turns out that we, a group of highly educated private boarding school students were so bad at the most basic construction work that each night the men had to take down the structurally unsound bricks we had laid and rebuild the structure so that, when we woke up in the morning, we would be unaware of our failure. It is likely that this was a daily ritual. Us mixing cement and laying bricks for 6+ hours, them undoing our work after the sun set, re-laying the bricks, and then acting as if nothing had happened so that the cycle could continue.

Basically, we failed at the sole purpose of our being there. It would have been more cost effective, stimulative of the local economy, and efficient for the orphanage to take our money and hire locals to do the work, but there we were trying to build straight walls without a level.

The Onion parodied this dynamic, with the awesome headline, “6-Day Visit To Rural African Village Completely Changes Woman’s Facebook Profile Picture.”

Calling the experience “completely transformative,” local 22-year-old Angela Fisher told reporters Tuesday that her six-day visit to the rural Malawian village of Neno has completely changed her profile picture on Facebook. “As soon as I walked into that dusty, remote town and the smiling children started coming up to me, I just knew my Facebook profile photo would change forever,” said Fisher, noting that she realized early in her nearly weeklong visit just how narrow and unworldly her previous Facebook profile photos had been. “I don’t think my profile photo will ever be the same, not after the experience of taking such incredible pictures with my arms around those small African children’s shoulders. Honestly, I can’t even imagine going back to my old Facebook photo of my roommate and I at an outdoor concert.” Since returning, Fisher said she has been encouraging every one of her friends to visit Africa, promising that it would change their Facebook profile photos as well.

When celebrities travel abroad to help in these circumstances, they serve a valuable role in drawing attention to the plight of others. But when a bunch of college students, and their erudite professor, do it, it is primarily for self-gratification.

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Feb 27, 2014

ConLaw – NFIB v. Sebelius (“Obamacare”)

The lecture notes are here. The live chat is here.

National Federation of Independent Business v. Sebelius (“Obamacare”)

  • Enumerated Powers and Federalism (597-598).
  • NFIB v. Sebelius (683-711).
  • NFIB Notes (711-715).

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Feb 27, 2014

I was interviewed by Houston Public Radio about Allen Stanford Ponzi Scheme Case at SCOTUS

Apparently, being a constitutional law professor qualifies me to talk about a “covered security.” From my interview on KUHF Houston Public Radio:

Stanford’s victims have long argued that R. Allen Stanford could not have carried out his fraud without the help of a network of outside companies. But they ran up against a wall when trying to obtain relief in federal court. Josh Blackman teaches constitutional law at South Texas College of Law.

“The main problem was the securities which Stanford was selling them were not actually real securities. They were fake. They were fictional. The federal law would not permit the recovery for these fictional securities. They only permit recovery for actual covered securities.”

I also pre-taped a session on Houston Matters for Houston Public Radio about the Texas Same-Sex Marriage case. It should run today at noon.


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Feb 27, 2014

Would a ban on Kosher Slaughter Be Constitutional, and Valid Under RFRA?

In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law.  As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.

Would this law be permissible in the United States, both in terms of the First Amendment and RFRA (I’m not asking whether it would ever be passed). I don’t think this would automatically fall under Church of Lukumi Babalu, as such a law was actually intended to protect animals, and not to punish a specific religion. Would a state law eliminating the ability to produce kosher meat place a “substantial burden” on faith? I’m inclined to say yes, though I’m sure opponents would say that kosher meat could be imported from out of state.

As the United States grapples with the extent of the Religious Freedoms Restorations Act in cases like Hobby Lobby, I suspect the conflict between religious beliefs and the mandates of the state will continue to crashing into each other.

Cross-Posted at Law & Liberty

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Feb 27, 2014

Google, Represented by Katyal, Filed Emergency Motion Under Seal Seeking Stay of 9th Circuit’s Gag Order

Wow. Judge Kozinksi’s opinion order Google to take down the “Innocence of Muslims” video has a bizarre backstory. The Hollywood Reporter has the story. Apparently on February 19, the 9th Circuit (before the opinion issued) ordered Google to take down all copies if “Innocence of Muslims,” along with an gag order, filed under seal, requiring the parties not to talk about it.


Here is the intro of Katyal’s brief:

The Court yesterday issued an unprecedented sealed order directing that Defendant-Appellee Google Inc. take down the video “Innocence of Muslims” “from YouTube.com and from any other platforms under Google’s control and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court further directed that defendants take these steps within 24 hours and that they were not permitted to disclose the Order until the ii merits opinion issues in this case. As explained below, defendants (and the public) will suffer irreparable harm to their First Amendment and other constitutional freedoms if defendants are not granted a stay pending their contemplated petition for rehearing en banc.

Katyal describes the sequence of events:

1 EMERGENCY MOTION Appellees Google Inc. and YouTube, LLC (Google) move for an order to temporarily stay the Court’s February 19, 2014, order in this matter. Appellees request that the Court’s ord er be stayed until 5:00 p.m. on Tuesday, February 25, 2014, so as to allow them to prepare a petition for rehearing en banc of the Court’s order (and accompanying motion for a stay pending en banc review). At present, Google and YouTube are endeavoring to comply with the Court’s Order, but they strongly believe this Court should issue an immediate administrative stay of the Order. In support of its motion, Google states: 1. This case was filed in the District Court on September 26, 2012, and was argued on June 26, 2013. The panel that heard the case has not yet issued an opinion deciding it on the merits. Yet at 5:46 p.m. yesterday, counsel for the Defendants received a two-paragraph order from the Court directing that Google “shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court’s order further directed that Google must comply with in 24 hours of the Order ’s issuance— in other words, by 5:46 p.m. today

Katyal asked for a stay to permit Google to seek en banc review.

2 takedown process, until the opinion in this case issues.” Consistent with the intense secrecy surrounding the Order , it was not entered on the Court’s docket. 3. This Court should enter a short administrative stay to permit Google time to prepare a petition for rehearing en banc. A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic , and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested . …

This is, in short, a stunning order, both as a matter of substance and procedure.

The 9th Circuit denied this motion.

What a bizarre posture! Kudos to the speedy briefing by Katyal and counsel.

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Feb 26, 2014

Protestor Protests Citizens United In Supreme Court

Marcia Coyle has the story!

After Carter Phillips of Sidley Austin finished his argument in Octane Fitness v. Icon Health & Fitness and moved away from the lectern for his opponent’s rebuttal, a young man in suit and tie stood in the center aisle at the back of the courtroom and shouted:

“Money is not speech. Corporations are not people. Overturn Citizens United.”

Supreme Court police officers, who stand with watchful eyes in the courtroom, quickly moved to the rear, restrained the protester, and removed him from the courtroom. Noah Newkirk of Los Angeles later was charged with violating Title 40, section 6134: making “a harangue or oration, or utter[ing] loud threatening or abusive language in the Supreme Court Building.”

Some justices seemed momentarily startled by the outburst. But without skipping a beat, the chief justice informed Rudolph Telscher of Harness Dickey in St. Louis that he had three minutes remaining, and the composed Telscher launched into his rebuttal.

And Art Lien has the sketch.



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Feb 26, 2014

Prop1 Class 12: Estates III: Leasehold and Defeasible Estates

The lectures notes are here. The live chat is here.

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.


This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.


This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”


This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.





Here is a picture of the Odd Fellows building:



This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.

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Feb 26, 2014

I am quoted in Houston Chronicle on Texas Same-Sex Marriage Ruling

Tony Freemantle and Brian Rogers report in the chronicle on today’s decision from San Antonio finding Texas’s ban on same-sex marriage violates the Constitution. I am quoted here:

Constitutional scholar Josh Blackman said Wednesday’s ruling would likely join the torrent of other recent courts decisions about same-sex marriage on their way to the U.S. Supreme Court for a final decision.

“The Supreme Court will have to resolve this,” said Blackman, a professor at Houston’s South Texas College of Law. “They’ll have the one from Utah, the one from Virginia, Texas, there’s a bunch of them. They’ll take them all at once.”

Blackman said politicians in Texas will likely try to get an expedited hearing in front of the appeals court at the next level, the 5th Circuit Court of Appeals in New Orleans.

Even if that happens, Blackman said, the decision will ultimately be decided by the nine Supreme Court justices in Washington.

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Feb 26, 2014

How Does Texas Same-Sex Marriage Ruling Impact Texas Same-Sex Divorce Case Pending Before Texas Supreme Court?

In November 2013, the Texas Supreme Court heard oral arguments in case that challenged whether a Texas court could grant a divorce to a same-sex couple, even though Texas’s Constitution did not permit the recognition of such a union. I blogged about that case here and here. That case, still awaiting decision, implicates another pending case in federal court in Houston about Mayor Parker’s decision to award benefits to same-sex couples, notwithstanding the Texas’s Constitution ban on that recognition (see here and here).

Today, a District Court in San Antonio ruled that Texas’s ban on same-sex marriage is unconstitutional, but stayed his ruling.

So, how does this ruling affect both the Texas Supreme Court case, and the Houston case. The Houston case, would almost certainly find persuasive the ruling from San Antonio, in finding that the Texas ban on SSM is unconstitutional. But, is the Texas Supreme Court so bound? Wouldn’t that create an odd split if a federal district court rule one way, and the state court ruled another. I suspect the Justices in Austin may have been aware of this ruling. Stay tuned.

In any event, both Rick Perry and Greg Abbott have announced they will appeal. Wendy Davis, your move (Update: It seems she already told Abbott to stop defending the law).

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Feb 26, 2014

Rand Paul on “A New Republican Party”

Senator Rand Paul gave the keynote address at the Harris County GOP Lincoln-Reagan dinner a few weeks ago. I was struck by how candid he was about how the GOP must reinvent itself if it wants to remain relevant. He garnered some boos by calling for the Republican part to expand its base, by taking different positions on immigration, criminal law, and other social issues. Paul spoke directly to the fact that libertarians must reach out to minority groups, many of whom have long since been ignored and abandoned by the right. Specifically, all of these positions must move in a more libertarian direction. This seems to be Paul’s standard stump speech now, in what seems to be an inevitable march towards 2016.

Paul made similar comments to Glenn Beck recently:

“I think Republicans will not win again in my lifetime…unless they become a new GOP, a new Republican Party. It has to be a transformation. Not just a little tweaking at the edges.” …

Republicans haven’t gone to African Americans or to Hispanics and said, ‘You know what? The War on Drugs, big government, has had a racial outcome. It’s disproportionately affected the poor, and the black and the brown among us. We need to have better criminal justice.’ That message will resonate. Republicans haven’t been bringing that message.”

In the Daily Beast, Nick Gillespie writes about Paul’s libertarian tone.

Since assuming office over the initial objections of the senior senator from Kentucky, Senate Minority Leader Mitch McConnell in 2010, Rand Paul has injected an unmistakably libertarian element into national politics. He’s called for major, across-the-board cuts to federal spending, pushed back against the Great American War Machine, and punked the D.C. establishment’s love of drone attacks and secret surveillance in a kidney-busting, 13-hour filibuster that set Twitter afire like a Miley Cyrus twerkathon. …

Unlike most of his Republican colleagues, Paul has also shown an interest in reaching out to minorities, especially by championing sentencing reform as it relates to the all-too-bipartisan War on Drugs (Vice President Joe Biden who created the drug czar’s office as a senator, still railsagainst pot as a “gateway drug”). …

Paul recognizes that the way forward on the national stage is not to get hung up on social issues (marriage equality, abortion, immigration) that act as dog whistles for the party faithful but do little to address widespread concerns about the size, scope, and competence of government

He elaborated on the diversity point as well.

“There is a struggle going on within the Republican Party,” he said, Politico reported. “It’s not new and I’m not ashamed of it. I’m proud of the fact that there is a struggle. And I will struggle to make the Republican Party a different party, a bigger party, a more diverse party and a party that can win national elections again.”

Rand Paul is even speak before the NAACP.
Stay tuned.

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Feb 26, 2014

Authors of Obamacare Submit Brief Telling D.C. Circuit What Obamcare Means

In Halbig v. Sebelius–a case that considers whether the Obamacare exchanges operated by the federal government can provide subsidies–seven members of Congress submitted an amicus brief telling the D.C. Circuit what the law really means. Senators Baucus, Harkin, and Reid, and Representatives Levin (MI), Miller (CA), Pelosi (CA), and Waxman (CA) insist that congress never intended to limit subsidies to state-run exchanges.

Amici are members of Congress who led the enactment of the Patient Protection and Affordable Care Act and members of state legislatures who served during the period when their governments were de- ciding whether to create their own Health Benefit Exchanges (“Exchanges”) under the Act. Thus, amici are particularly well-suited to provide the Court with back- ground on the text, structure, and history of the statute and the manner in which it was intended to operate. Indeed, because amici include both members of Congress and state legislatures, amici have unique knowledge on an issue at the core of this case: whether the purpose of the statute’s provision for tax credits and subsidies was to induce states to set up their own Health Benefit Exchanges, under penalty of withdrawal of those credits and subsidies if States chose to allow the federal gov- ernment to operate Exchanges in their stead.

In the past, I have been very skeptical, and quite critical of the value of a brief submitted by members of Congress to courts to explain what a statute they passed means (see here, here, and here for comments concerning efforts by Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama, which considered the constitutionality of the NDAA, and also here).  In short, the legislative power granted in Article I stops at bicameralism and presentment. A law should be judged based on what is in the law (and, if necessary legislative history and other contemporaneous statements). I find it bordering on opportunistic for members of Congress and the Senate to submit post-enactment self-serving arguments to a court, and expect a court to give it any more weight than a run-of-the mill amicus. This doubt is heightened when the constitutionality of a law turns on a pivotal phrase in the law. Does anyone think that those submitting a brief will view the law in a way other than constitutional.

These concerns are amplified by a factor of a million when talking about Obamacare, for several reasons particular to the passage of this bill. First, I am almost positive that not a single signatory of this brief actually read the key provision at issue in Halbig, amidst the 3,000 page bill. Second, even if any Senators had read it, at the time they expected it to be fixed during reconciliation. I doubt any of the members of the Senate thought it significant enough to fix prior to the pivotal December 24, 2009 vote. But of course, in light of the Scott Brown election, and the House having to pass the law without the benefit of any meaningful reconciliation process, this fix was out the window. Third, even if any of the signatories read this provision, and were aware of the drafting error, I am positive none considered the possibility that the law could have been ultra vires. And, don’t forget that Nancy Pelosi replied “Are you serious?” when someone asked what the constitutionality authority was for the mandate. Pelosi is estopped from commenting on the constitutionality of the ACA.

The argument focuses broadly on the purpose of the law, and how the members of Congress viewed that purpose.

Based on their experiences, amici know that the core purpose of the ACA is to achieve universal health care coverage and that the provision of tax credits and subsidies to low- and middle-income Ameri- cans is indispensable to achieving that purpose.

Even more strange, the Amici fault the challengers for relying on the text of the statute to impute an intent to Congress!

Because the textual basis for this argument is so weak (Appellants isolate a four-word phrase in one provision rather than considering the statute as a whole), they impute to Congress—in effect, to congressional amici themselves—the purpose of having structured the statute so that tax credits would be available only on state-run Exchanges, as a means of encouraging States to set up their own Exchanges. This objective, they claim, was so important that it over- rode Congress’s core purpose of broadening access to health insurance.

Imagine that, relying on the text of a statute to figure out what Congress meant.  Who needs to rely on text when the authors of a law can submit a brief to the court telling them what they really meant.

This brief remind me efforts by Congress in United States v. Lopez to change the legislative history of the Gun-Free School Zone Act–after it was struck down by the 5th Circuit on 9/14/93–to add a jurisdictional hook of how it has a substantial effect on interstate commerce. On September 13, 1994, President Clinton  During oral arguments in Lopez, the Solicitor General conceded that “[n]either the statute nor [the Gun Free School Zone Act of 1990’s] legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.”

Chief Justice Rehnquist dismissed the relevance of this post-enactment history, by a different Congress, through the signature of a different President.

We note that on September 13, 1994, President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103–322, 108 Stat. 1796. Section 320904 of that Act, id., at 2125, amends § 922(q) to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce. The Government does not rely upon these subsequent findings as a substitute for the absence of findings in the first instance. Tr. of Oral Arg. 25 (“[W]e’re not relying on them in the strict sense of the word, but we think that at a very minimum they indicate that reasons can be identified for why Congress wanted to regulate this particular activity”).

Such post-enactment history should be irrelevant. At least a modified statute would have the benefit of bicameralism and presentment. Unlike a self-serving brief signed by 6 members of Congress.

Cross-Posted at Law & Liberty.

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Feb 26, 2014

A Conspiracy Against Obamacare in Houston With Ilya Somin

On Thursday at 11:00 a.m. at the South Texas College of Law in Houston, Ilya Somin will be giving a talk on “A Conspiracy Against Obamacare.” I will be offering commentary on the talk. At 5:00, Somin will be speaking at the University of Houston Law Center. If you are in the area, please stop by!


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