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In March for Life v. Burwell, Judge Leon (D.D.C.) found that HHS could not enforce the contraceptive mandate against March for Life, a staunchly pro-life group that is not religious. Beyond the conventional RFRA analysis, the court found that HHS lacks a rational basis to exempt religious organizations that oppose abortion, but not similarly situated secular organizations with the same beliefs. This analysis echoes a point we made in the Cato Amicus in support of the Little Sisters of the Poor–that HHS lacks the interpretive authority to pick and choose which religious organizations can receive exemptions from the mandate.

Judge Leon’s analysis, though grounded in equal protection doctrine, reaches a very similar conclusion. Here is the key analysis:

What emerges is a curious rationale indeed. HHS has chosen to protect a class of individuals [Houses of worship only] that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection–and employment relationship based in part on a shared objection to abortifacients–is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious belief, when it actually is protecting a moral philosophy about the sanctity of human life. Where HHS has erred, however, is in assuming that this trait is unique to such organizations [Houses of worship]. It is not.

The court goes on to explain that March for Life, and its employees, share a pro-life philosophy. Indeed, their employees work there to advocate their views.

On the spectrum of “likelihood” that undergirds HHS’s policy decisions, March for Life’s employees are, to put it mildly, “unlikely” to use contraceptives. In this respect, March for Life and exempted religious organizations are not just “similarly situated,” they are identically situated.

The court finds this classification cannot be supported by a rational basis:

HHS has chosen, however, to accommodate this moral philosophy only when it is overtly tied to religious values. HHS provides no principled basis, other than the semantics of religious tolerance, for its distinction. If the purpose of the religious employer exemption is, as HHS states, to respect the anti-abortifacient tenets of an employer relationship, then it makes no rational sense–indeed no sense whatsoever–to deny March for Life that same respect. 

The exact same rationale explains why the Little Sisters of the Poor, and other similarly situated groups, should be exempted from the mandate. As we explain in our amicus:

The Departments justified the religious-employer exemption to the contraceptive mandate on the grounds that “houses of worship and their integrated auxiliaries . . . are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed.Reg. 39887. Other religious associations, like the petitioners, meanwhile, received only the accommodation because their employees “are less likely than individuals in plans of religious employers to share their employer’s . . . faith and objection to contraceptive coverage on religious grounds.”Id. This is the same sort of blinkered distinction the Treasury Department drew in 1977, albeit with a permissible—but congressionally countermanded—interpretation of what a “church” is.

With respect to the contraceptive mandate, the distinction between religious employers was made beyond any permissible scope of the Departments’ interpretive authority and in a manner that unjustifiably intruded onto free exercise. Consider the facts of this case. “Each Little Sister has chosen to follow Jesus Christ by taking lifetime vows to offer the poorest elderly of every race and religion a home where they will be welcomed as if they were Jesus himself, cared for as family, and treated with dignity until God calls them to his home.” Little Sisters Complaint at 14. To that end, the “Little Sisters have vowed obedience to the Pope, and thus obey the ethical teachings of the Catholic Church.” Id. at 15. While the organization has lay employees like any house of worship, the Little Sisters have personally taken an oath that expresses their clear moral opposition to the contraception mandate. In her declaration, Mother Loraine Marie Clare Maguire—the provincial superior of the Little Sisters—explained that the organization “filed a detailed public comment with the government to inform them of our sincere religious objection to incorporating us into their scheme. But the government refused to exempt us.” Supp. Decl. (Nov. 15, 2013), at 17.

The Departments here crudely bifurcated houses of worship and their associates, based on a supposition that people who work for the Little Sisters—an obviously religious group of nuns who have vowed obedience to the Pope!—are less likely than church employees to adhere to the teachings of the Roman Catholic Church. This conclusory assertion serves as a testament to how out of their league the Departments were. Moreover, “[i]t is especially unlikely that Congress would have delegated this decision to” HHS, Labor, and Treasury, “which ha[ve] no expertise in crafting” religious accommodations “of this sort” without any statutory guidance. King, 135 S.Ct. at 2489 (citing Gonzales, 546 U.S. at 266–267).

In the APA context, rather than the equal protection context, the argument is even stronger that HHS acted without authority in deciding which organizations should be exempted from the mandate. As Judge Leon pointed out, HHS based their framing not on religious beliefs, but no opposition to contraceptives. This far broader basis should certainly include the Little Sisters and March for Life.

Today we will talk about implied warranties of quality, and introduce the concept of the deeds.

The lecture notes are available here.

This story about whether a seller has a duty to disclose that a previous owner of a home died from a drug overdose ties into our lecture from last class. Also this story, explores whether a buyer in New York City can recover a $5 million downpayment for a luxury home.

This article talks about a Pennsylvania case where a buyer seeks to rescind a contract to purchase a house because the seller failed to disclose there was a murder-suicide in the home.

 

The lecture notes are here.

The Executive Power I – The Appointment and Removal Power

• The Executive Power – Article II (296-297).
• Notes (306-308).
• The “Removal” Power (348-351).
• Myers v. United States (351-366).
• Humphrey’s Executor v. United States (366-370).
• The Appointment Power (334-335).
• National Labor Relations Board v. Noel Canning

This video from the HBO Miniseries John Adams aptly summarizes the debate in the first Senate about whether Congress could place limitations on the removal power. Note the Senators explain that Adams’s vote only matters in case of a tie. Indeed the vote tied 10-10, and Adams cast the tie breaking vote as President of the Senate.

The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).

This is Justice Taft, who had the second-nicest mustache on the Court.

This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.

This is Justice Louis Brandeis.

Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.

This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.

This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.

This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.

Brian Beutler has an article in The New Republic, titled “The Rehabilitationists.” The subheading aptly summarizes the thesis: “How a small band of determined legal academics set out to persuade the Supreme Court to undo the New Deal—and have almost won.” The article focuses primarily on my friend and colleague Randy Barnett, but also highlights other bases in the movement, including the Institute for Justice, the Volokh Conspiracy, and the Federalist Society. It is the last institution–or more precisely how its membership has evolved–that Beutler shines a light on.

The article opens with a flashback of the 2013 Lawyers Convention debate between Barnett and Wilkinson–with a quote from yours truly.

IN NOVEMBER 2013, a who’s who of America’s conservative legal establishment descended on the Mayflower Hotel in Washington, D.C., for an annual meeting of the Federalist Society, the most influential conservative legal organization in the country. Current presidential candidates Scott Walker and Ted Cruz each made appearances, ingratiating themselves with the influence peddlers in attendance. Supreme Court Justice Clarence Thomas was a featured speaker at the event’s black-tie-optional dinner.

One of the biggest stars of the conference, however, was neither a Senate-confirmed official nor an elected politician, but a libertarian law professor at Georgetown named Randy Barnett. This wasn’t Barnett’s first turn as a Federalist Society eminence, but his reception that year was especially rapturous.

“The younger people, the people in law school, they seem to be gravitating toward people like Randy,” said attendee Josh Blackman, an associate law professor at the South Texas College of Law and a close friend of Barnett’s. “When he gets off the stage he’s mobbed. … There’s a crowd of people five or six feet deep surrounding him.”

Barnett had been invited to participate in a lunchtime debate against J. Harvie Wilkinson, a Reagan-appointed judge serving on the Fourth Circuit Court of Appeals, on the topic of whether courts are too deferential to legislatures. The event was sold out.

Thinking back on that day recently, Barnett marveled at his emergence as a celebrity. “One of the leaders of the Federalist Society—one of the senior staff—said clearly I had the room,” Barnett told me. “It wasn’t that I beat J. Harvie Wilkinson in a debate—who knows?—it’s just that the room was with me. The room would not have been with me ten years ago.”

Randy is absolutely right. As Ilya and I tweeted at the time, Wilkinson was booed when he praised the Chief’s vote in NFIB:

Wilkinson: The CJ vote in NFIB was “courageous and correct” (boos) #FedSoc2013

— Josh Blackman (@JoshMBlackman) November 16, 2013

Wilkinson: Roberts vote on Obamacare “courageous and correct.” (Crowd hisses/boos) I’m so glad he wasn’t elevated to Sup Ct. #FedSoc2013 — Ilya Shapiro (@ishapiro) November 16, 2013

What has been the cause of this shift? Beutler writes:

Back then, Barnett was one of a handful of academics on the fringes of conservative legal thought. Today, their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They’re building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.

Beutler focuses on the IJ summer workshop.

With five offices around the country, a legal clinic training students at the University of Chicago Law School, and a staff of nearly 100, the Institute for Justice has become a proving ground for aspiring, ideologically committed lawyers. Every year, the group sends lawyers to law schools around the country to give presentations on public-interest law and recruit students into its ranks. “It’s certainly done with the intent to make sure that libertarian-minded law students know who we are and what we have to offer,” Clark Neily, a senior attorney at the Institute for Justice, said of the group’s outreach. Each summer, a couple dozen clerks join the group in its Beltway headquarters and state offices. From there, these young lawyers typically move on to more traditional clerkships at law firms and federal courts—one former Institute for Justice clerk worked for Chief Justice Roberts from 2008 to 2009—and when the Institute hires new staff attorneys, it often culls from the ranks of these same pupils.
“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

I attended this conference in the summer of 2007, after my first year of law school, and it greatly impacted my thinking about the law. I paid homage to this conference in my article, The Burden of Judging that reviewed books by an unholy trinity of libertarian scholars–Barnett, Neily, and Epstein:

If I may indulge you with a funny, but relevant, anecdote. In July of 2007 after my first year of law school, I attended the IJ Summer workshop. During the intensive program, I participated in a moot court exercise. Clark Neily was sitting as the judge. The case involved a city trying to use the power of eminent domain to seize land to build a football stadium that would be privately owned. Judge Neily pressed me on Kelo and asked me to identify a limiting principle that would control, and explain when the government could and could not take private property for private devel- opment. Flummoxed by constitutional law, I turned to another first-year required class at George Mason University School of Law, Law & Economics. This was clearly a transfer from homeowners to the special-interest football lobby, I thought. To an- swer his question, I said something to the effect of, “courts should scrutinize against rent-seeking.” Neily, no doubt much to his chagrin, replied that “public choice” was not a principle embodied in the Constitution. That thought stayed with me through- out all of law school as a scholar, and ultimately inspired this article.

I think the article accurately captured the shifting tides in the Federalist Society crowd towards the perspective of judicial engagement. It is my distinct sense that people of my generation are much closer to the Volokh-conspiracy wing than the Bork wing.

Today the D.C. Circuit upheld the constitutionality of the ban on protesting in the Supreme Court plaza. In doing so, Judge Srinivasan cited Justice Breyer’s statement about closing the door (remember that?):

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” Id. at 183. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

The court also cited Williams-Yulee, citing the interest in “assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure” as a reason why the ban could survive scrutiny.

Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court’s actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure. The Supreme Court recently, in its just-completed Term, strongly reinforced the latter interest’s vitality, along with the government’s considerable latitude to secure its realization even through speech-restrictive measures. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015). The statute’s reasonableness is reinforced by the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the Court’s plaza. We therefore uphold the statute’s constitutionality.

What a curious application of Williams-Yulee.