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The Wall Street Journal published an Op-Ed co-authored by Ilya Shapiro and me on our amicus brief in King v. Burwell. In honor of the 800th anniversary of Magna Carta, and the fact that the lead Plaintiff is named “King,” we struck a fitting rule of law theme. It is titled, “A Litmus Test for ObamaCare and the Rule of Law.” The Op-Ed discusses the many ways that the ACA has been modified, delayed, and suspended, at a whim.

Here is the opening:

This spring will mark the 800th anniversary of the signing of the Magna Carta, the landmark agreement by King John of England at Runnymede ceding certain rights to rebel barons. Liberty will have another chance to shine on Wednesday when the Supreme Court hears a case with momentous implications about another sort of executive power. In this instance, though, it is the rebels who have the royal name: King v. Burwell raises questions about how President Obama has enforced the ObamaCare law—or, more precisely, modified, delayed and suspended it.

This case isn’t about statutory interpretation, but the rule of law itself:

Executive lawmaking of this sort poses a severe threat to the separation-of-powers principles enumerated in the Constitution. The president has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.

King, which the Supreme Court is expected to decide in June, is thus about much more than interpreting statutory language or evaluating the “deference” that judges owe bureaucrats. It isn’t a technical debate over the finer points of administrative law; it is an existential one about the rule of law itself.

And the conclusion:

Chief Justice John Roberts was correct in 2012 when he wrote in the NFIB v. Sebelius decision that it isn’t the court’s role to “express any opinion on the wisdom of the Affordable Care Act.”

But he also correctly noted “the Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.” The court’s duty is to be a bulwark against arbitrary rule.

This is especially true in disputes between the political branches; the judiciary thus provides the ultimate safeguard of the separation of powers. Or, as Justice Robert Jackson put it in the famousYoungstown case of 1952 that rebuked President Truman ’s unilateral seizure of steel mills: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

The president has shown deliberate indifference toward the plain text of the law. The Supreme Court must strike down the IRS rule and confirm the principle that, like King John at Runnymede, all political leaders are bound by the rule of law.

 

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).

Today I testified before the House Judiciary Committee on the Constitutionality of DAPA. You can download my testimony here or on Scribd. During the hearing, I was given five minutes for opening remarks. Afterwards, over the next 3 hours, members of both parties peppered the panel with questions. Most of the questions were focused on Professor Stephen Legomsky, the minority witness. It was a very rewarding, and enjoyable experience, and I’m very proud that I could discuss the Constitution, and cite Federalist No. 51 before the House of Representatives.  I’ll have some more thoughts on the merits in a subsequent post.

C-SPAN has video of the entire hearing here. I have clipped a few highlights.

Here is my five-minute opening statement. My parents, who travelled from New York for the hearing, got a special shout-out.

Second, I explain that many law professors who support DAPA argue that the DOJ did not go far enough, and they should have offered deferred action to the parents of the Dreamers.

Third, I reiterate the point made in Noel Canning that gridlock does not license the President to transcend the executive powers. I also discuss the Arizona v. United States decision, and stress that Justice Kennedy’s opinion turns on “individualized” discretion.

Fourth, I explain how the Heckler v. Cheney standard closely tracks the Take Care Clause Analysis, and that Judge Hanen showed his hand on how he would rule.

Fifth, my longest exchange of the day was with Rep. Poe (R-TX), who first gave very nice praise to the South Texas College of Law, and Dean Gerald Treece. Then, he asked me what would happen if future Presidents declined to enforce the law. I explained that this is already happening, as the President has delayed Obamacare’s mandates severla times. Poe replied, “When I ask you what time it was, you built me a watch.” I’ll take the compliment, sir.

Sixth, I explained that the *only* examples of DACA denials the DOJ could cite, outside of categorical denials, involved those who were engaged in gang activity, or fraud in previous applications. (You can see my mom sitting behind Prof. Legomsky).

Seventh, I discuss how Congress has acquiesced to much narrower versions of deferred action.

Eighth, my final colloquy with Rep. De Santis focuses on how the Congress can check the Presidency with the power of the purse.

Here are some photos:

 

 

Today at 10:15 I will be testifying before the House Judiciary Committee on the constitutionality of DAPA. You can download my testimony here. The event will be on C-SPAN.org.

After Justice Scalia’s dissent in Kansas v. Nebraska, the ALI may deem fit to convert his Ex-Offico Membership into just Ex.

I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Sec- ond): Its Misleading Quality and a Proposal for Its Amelio- ration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTICE THOMAS notes, post, at 8 (opinion concurring in part and dissenting in part), it constitutes a “‘novel extension’” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, with- out further inquiry, that a Restatement provision describes rather than revises current law.

Here is the section from Justice Thomas’s dissent about the Restatement:

This Court, however, has never before relied on §39 nor adopted its proposed theory of disgorgement. And for good reason: It lacks support in the law. One reviewer of §39 has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008). And few courts have ever relied on §39. The sheer novelty of this proposed remedy counsels against applying it here.

Your turn ALI.

Will Baude previously commented on the value of even more Restatements.