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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Rubio Endorses Constitutional Convention to “get term limits on members of Congress or the judiciary”

December 31st, 2015

Marco Rubio caused a stir on Wednesday when he announced his support for a constitutional convention:

“One of the things I’m going to do on my first day is office is I will put the prestige and power of the presidency behind a constitutional convention of the states. You know why? Because that is the only way that we are ever going to get term limits on members of Congress or the judiciary and that is the only way we are ever going to get a balanced-budget amendment.”

But lost among the coverage is his endorsement of an idea Ted Cruz backed–eliminating life-tenure for Article III judges. Cruz proposed retention elections. Term limits is a much more moderate proposal.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here, here, here, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.

Disclosure: I advise the Rand Paul campaign.

 

My Publications, Speaking, Commentary, Litigation, and other Accomplishments in 2015

December 31st, 2015

I regularly updated my CV with my latest accomplishments. Here are my new additions in 2015.

Published Articles

  1. State Judicial Sovereignty, 2016 Illinois Law Review __ (Forthcoming 2016).
  2. Collective Liberty, 67 Hastings Law Journal __ (Forthcoming 2016).
  3. Popular Constitutionalism After Kelo, 23 George Mason Law Review ___ (Forthcoming 2016).
  4. The Process of Marriage Equality, 42 Hastings Constitutional Law Quarterly __ (Forthcoming 2016).
  5. Immigration Inside The Law, 55 Washburn Law Journal ___ (Forthcoming 2016).
  6. The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Georgetown Law Journal Online 96 (2015).
  7. The Constitutionality of DAPA Part II: Faithfully Executing The Law, 19 Texas Review of Law & Politics 215 (2015).

Visit my SSRN page to view all of my works.

 

Book Chapters

 

Academic Presentations

  1. “Collective Liberty,” Loyola Chicago Constitutional Law Colloquium, November 6, 2015.
  2. The Roberts Court at 10, Southeastern Association of Law Schools Annual Conference, July 28, 2015.
  3. King v. Burwell, Southeastern Association of Law Schools Annual Conference, July 27, 2015.
  4. “Collective Liberty,” Floyd Abrams Freedom of Expression Scholars Conference, at Yale Law School, May 1, 2015.
  5. “Popular Constitutionalism After Kelo,” AALS Annual Meeting, Hot Topic Program, January 4, 2015 (Audio and video here).
  6. “Gridlock and Executive Power,” Federalist Society Faculty Conference, Young Legal Scholars Panel, January 4, 2015 (Audio here).

 

Testimony

  • Testified Before United States House of Representatives Judiciary Committee – Hearing on Unconstitutionality of President Obama’s Executive Overreach on Immigration, February 25, 2015 (Photos and Videos here).

 

Other Presentations

  1. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” University of Nebraska Federalist Society Chapter, November 19, 2015.
  2. Debate on the Constitutionality of DAPA, Columbia Law School, November 11, 2015 (Video).
  3. “Debate on the Constitutionality of DAPA,” Brooklyn Law School, November 10, 2015 (Video).
  4. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” John Marshall Law School Federalist Society Chapter, November 5, 2015.
  5. Debate on the Constitutionality of DAPA, University of Chicago Federalist Society Chapter, November 5, 2015 (Audio and Video).
  6. Georgia State Federalist Society Chapter, October 29, 2015 (Video).
  7. Selecting the Next Justice, Chicago Federalist Society Chapter, October 15, 2015 (Video).
  8. Selecting the Next Justice, New Jersey Federalist Society Lawyer’s Chapter, October 6, 2015 (Video).
  9. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Rutgers Federalist Society, October 6, 2015 (Video).
  10. “The Constitutionality of DAPA,” NYU Federalist Society Chapter, October 6, 2015, with Adam Cox (Audio).
  11. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Philadelphia Federalist Society Lawyer’s Chapter, October 5, 2015 (Video).
  12. Debate on the Constitutionality of DAPA, Drexel University Federalist Society Chapter, October 5, 2015 (Video).
  13. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” University of Texas, Austin, Federalist Society Chapter, October 1, 2015.
  14. Supreme Court Roundup, South Texas College of Law Federalist Society, September 29, 2015 (Video).
  15. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” George Washington University Federalist Society Chapter, September 17, 2015 (Audio).
  16. Debate on the Constitutionality of DAPA with Stephen Vladeck, American University Federalist Society Chapter, September 16, 2015 (Audio and Video).
  17. Supreme Court Term Roundup, Houston Federalist Society Chapter, August 4, 2015.
  18. Supreme Court Term Roundup, Colorado Federalist Society Chapter, July 13, 2015.
  19. Religious Liberty after Same-Sex Marriage, Puget Sound Federal Society Lawyers Chapter,  June 22, 2015.
  20. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Birmingham Federalist Society Chapter, May 28, 2015 (Video here).
  21. “Magna Carta and the Constitution,” Galveston County Bar Association Law Day, May 7, 2015 (Video here).
  22. “Gridlock and Executive Power,” Texas Tech Federalist Society Chapter, April 15, 2015 (Video here).
  23. The Constitutional Challenge to Obamacare, Stetson University Law School Federalist Society Chapter,  April 13, 2015 (Video here).
  24. Keynote at Austin County Peace Officers 2015 Annual Awards Banquet, April 10, 2015 (Video here).
  25. “Borderline Executive Action: Is President Obama’s Immigration Action Constitutional?,” Rutgers-Newark Federalist Society Chapter, April 1, 2015 (Video here).
  26. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” NYU Federalist Society Chapter, April 2, 2015 (Audio here).
  27. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Brooklyn Law School Federalist Society Chapter, April 2, 2015 (Audio here).
  28. “ISIS, Immigration, and Obamacare,” New Jersey Federalist Society Chapter, April 1, 2015 (Audio here).
  29. “Borderline Executive Action: Is President Obama’s Immigration Action Constitutional?,” Rutgers-Newark Federalist Society Chapter, April 1, 2015 (Video here).
  30. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Creighton University Federalist Society Chapter, March 19, 2015 (Audio here).
  31. “Hobby Lobby, Obamacare, and Religious Liberty,” University of Nebraska Federalist Society Chapter, March 18, 2015 (Video).
  32. “What Happens if Data is Speech?,” Northwestern University Federalist Society Chapter, March 17, 2015 (Audio and video).
  33. “Gridlock and Executive Power,” University of Michigan Federalist Society Chapter, March 16, 2015 (Audio here).
  34. “Gridlock and Executive Power,” Loyola University New Orleans College of Law Federalist Society Chapter, March 11, 2015 (Audio here).
  35. “Gridlock and Executive Power,” Gridlock and Executive Power, Tulane Law School Federalist Society Chapter, March 11, 2015 (Audio here).
  36. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Phoenix Lawyers Federalist Society Chapter, March 2, 2015 (Video here).
  37. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” University of Arizona Federalist Society Chapter, March 2, 2015 (Audio and video here).
  38. “Religion in the Courts: Hobby Lobby, Chic-Fil-A, and Gay Wedding Cakes,” American Cases & Talmudic Law, Jewish Ethics Institute, February 26, 2015 (audio here).
  39. “The Constitutionality of the President’s Executive Actions on Immigration,” John Marshall Law School Federalist Society Chapter, February 19, 2015 (audio here).
  40. “What Happens if Data is Speech?,” University of Illinois Federalist Society Chapter, February 19, 2015 (audio and video here).
  41. “Gridlock and Executive Power,” Loyola Law School, Chicago Federalist Society Chapter, February 18, 2015 (audio here).
  42. “Gridlock and Executive Power,” Northern Kentucky University Federalist Society Chapter, February 11, 2015 (audio here).
  43. “Supreme Court Roundup,” University of Kentucky Federalist Society Chapter, February 11, 2015 (video here).
  44. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Southwestern Law School Federalist Society Chapter, February 2, 2015 (video here).

 

Commentary

  1. “Justice Thomas: Second Amendment Is Not a ‘Second-Class Right,’” National Review, December 8 2015.
  2. “The Supreme Court Should Hurry Up and Wait on Immigration,” The Federalist, November 24, 2015. (Reprint, Commentary).
  3. “What Next Year’s Attack on Obamacare Will Look Like,” The Daily Beast, September 29, 2015 (with Ilya Shapiro).
  4. “The Next Justices: A guide for GOP candidates on how to fill Court vacancies,” The Weekly Standard, September 14, 2015 (with Randy E. Barnett) (PDF).
  5. “How King v. Burwell Will Save the Little Sisters of the Poor,” National Review, July 17, 2015.
  6. “Chief Justice Roberts’s Once Again Saves The ACA with the “Obamacare Canon,” CaseText, June 26, 2015.
  7. “Roberts rewrites Obamacare, again: Opposing view,” USA Today, June 25, 2015.
  8. “President Obama and arguments about pending Supreme Court cases,” National Constitution Center – Constitution Daily, June 17, 2015 (Cross-Posted at Yahoo! News).
  9. “The Legality of Executive Action after King v. Burwell,” Engage, June 8, 2015.
  10. “Halting Obama’s Immigration End-Run Around Congress,” National Review, May 28, 2015.
  11. “Is Indiana Protecting Discrimination?,” National Review, March 30, 2015.
  12. “Obama: Giving Immigrants Work Permits Is Vital for National Security,” National Review, March 24, 2015.
  13. “The President Cannot Bypass the Courts,” National Review, March 19, 2015.
  14. “Federalism Will Sink, Not Save, Obamacare,” National Review, March 10, 2015.
  15. “A Litmus Test for ObamaCare and the Rule of Law,” The Wall Street Journal, February 27, 2015 (with Ilya Shapiro) (Excerpt).
  16. Obama’s ‘Complete Abdication’ of the Law, National Review, February 18, 2015.

 

Media

  1. Cited in Government Can’t Censor Digital Expression Just Because Someone Somewhere Might Use It for Unlawful Purposes, Cato At Liberty (December 21, 2015)
  2. Quoted in Lincoln Caplan, “Rhetoric and Law: The double life of Richard Posner, America’s most contentious legal reformer,” Harvard Magazine (January 2016).
  3. Interviewed on KTSA Newsradio San Antonio for segment on Texas “One Person, One Vote” case, December 7, 2015
  4. Cited in America’s Most-Cited Jurist Hates Words And History, The Federalist (December 2, 2015).
  5. Cited in Obama immigration legacy could hang on 30-day extension, Politico (November 23, 2015).
  6. Guest on ALEC HHS Task Force Conference Call on the Affordable Care Act update (November 17, 2015).
  7. Quoted in The Clock Is Ticking On DAPA, And Only The Supreme Court Can Save, Huffington Post (November 12, 2015).
  8. Guest on PBS News Hour for segment on immigration, the Supreme Court, and the 2016 election (November 11, 2015) (Video).
  9. Quoted in “Is It Too Late for Obama On Immigration Reform?” PBS Frontline (November 11, 2015) (Segment).
  10. Quoted in “U.S. justices’ 2007 climate change ruling looms over immigration case,” Reuters (November 11, 2015).
  11. Quoted in “A Ruling Against the Obama Administration on Immigration,” The Atlantic (November 10, 2015).
  12. Quoted in “Obama’s Unilateral Presidency Faces Full Court Press,” Investors Business Daily (November 10, 2015).
  13. Quoted in Charlie Savage, Power Wars: Inside Obama’s Post-9/11 Presidency (2015) (excerpt).
  14. Appeared on a National Public Radio’s All Things Considered, Stalled Legal Process Threatens Obama’s Executive Actions On Immigration (October 28, 2015).
  15. Quoted in “Aging Supreme Court energizes Republicans more than Democrats in 2016 race,” USA Today (October 25, 2015) (Excerpts).
  16. Quoted in “Texas launches new ACA legal attack,” Modern Healthcare (October 22, 2015).
  17. Quoted in “Obama loses another round in House Republicans’ ACA lawsuit,” Modern Healthcare (October 20, 2015) (Excerpts).
  18. Quoted in “Fate of Obama’s landmark immigration order in doubt,” The Houston Chronicle (October 14, 2015) (Excerpts).
  19. Quoted in “Obama Executive Action Deadline Approaches As Federal Court Mulls Legality Of Deferred Deportation Expansion,” International Business Times (October 14, 2015).
  20. Quoted in “In Courts, Running Out the Clock on Obama Immigration Plan,” The New York Times, Page A1 (October 14, 2015) (PDF).
  21. Cited in, “Supreme Court Inadvertently Announces Argument Date in Voting Case,” National Law Journal (October 5, 2015).
  22. Quoted in “Supreme Court Justices Get More Liberal As They Get Older,” FiveThirtyEight (October 5, 2015).
  23. Cited in, “Supreme Court Prepares to Take On Politically Charged Cases,” The New York Times (October 4, 2015).
  24. Quoted in “A Chief Justice Without a Friend,” The New York Times (October 1, 2015).
  25. Guest on National Constitution Center “We the People” Podcast (October 1, 2015) (Audio here and here).
  26. Quoted in “What Boehner’s exit means for the ongoing Obamacare battles,” Modern Healthcare (September 30, 2015).
  27. Guest on Federalist Society Teleforum on Texas RFRA (September 30, 2015).
  28. Quoted in “Legal fight over Obama’s immigration orders may outlast his presidency,” CNN.com (September 29, 2015).
  29. Quoted in “Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself,” TPM (September 28, 2015).
  30. Quoted in “Justice Alito Critiques Supreme Court Colleagues,” Legal Times (September 21, 2015).
  31. Quoted in “Alito Says He’s Startled by White House Assertions of Executive Power,” WSJ Law Blog (September 21, 2015).
  32. Guest on the Dan Caplis Show to discuss “The Next Justices,” 710 KNUS Denver (September 21, 2015) (Audio here).
  33. Quoted in “Obama administration likely to appeal preliminary ACA ruling,” Modern Healthcare (September 10, 2015).
  34. Cited in “EPA carries on Obama’s contempt for rule of law,” The Washington Examiner (August 31, 2015).
  35. Quoted in “The Rehabilitationists,” The New Republic (August 30, 2015).
  36. Cited in “Dissenter blasts Posner’s Internet research in inmate’s suit over acid reflux treatment,” ABA Journal, August, 20, 2015.
  37. Interviewed on Cato Daily Podcast to discuss amicus brief in Little Sisters of the Poor v. Burwell (Page, Podcast, Audio)
  38. Guest on Bloomberg Law Radio, “Rights of Non-Citizens Under Second Amendment,” Bloomberg Radio, August 21, 2015 (audio here).
  39. Quoted in Are Topless Times Square Panhandlers Covered by the First Amendment?, WSJ Law Blog, August 21, 2015.
  40. Quoted in Math Professor–and Sock Possessor–Seeks Cover from SCOTUS Again, Bloomberg BNA US Law Week Blog, August, 20, 2015.
  41. Guest on Liberty Watch Radio, KVOI 1030 AM, Tucson, Arizona, August 9, 2015 (Audio).
  42. Quoted in, “Law Professors React to The ‘Shocking’ News About Atticus Finch,” The National Law Journal, 6/27/15 (Excerpts).
  43. Quoted in “Justice Kennedy Likens Gay Marriage Opposition to Flag Burning Case: Opponents Will Dissipate in ‘Two or Three Months,’” The Christian Post (July 16, 2015).
  44. Quoted in “Obama’s immigration orders face dim outlook at federal court,” The Hill (July 10, 2015).
  45. Cited in “Johnson, immigration brass ordered to Texas court,” Politico (July 7, 2015).
  46. Quoted in “Supreme Sequel,” CQ Weekly (July 6, 2015) (PDF).
  47. Quoted in “House GOP and White House Trade Shots Over Obamacare,” WSJ Law Blog (July  2, 2015).
  48. Guest on Houston Matters on Houston Public Radio to discuss Supreme Court term (July 1, 2015) (Excerpts, Audio).
  49. Quoted in “Same-sex couples are entitled to equal treatment, even in Texas,” Slate (June 30, 2015).
  50. Quoted in “The end of Texas’ affirmative action policy?,” The Houston Chronicle (June 30, 2015).
  51. Quoted in “U.S. Supreme Court to hear UT admissions case for second time,” The Houston Chronicle (June 29, 2015).
  52. Quoted in “Obama defies federal judge, fails to rescind wrongly issued amnesties,” The Washington Times (June 29, 2015).
  53. Quoted in “Texas clerks may cite religion to resist same-sex marriages. But the marriages will go on,” Vox (June 29, 2015).
  54. Guest on Huffington Post Live to discuss Supreme Court rulings (June 29, 2015).
  55. Quoted in “John Roberts to America: I’m in Charge Here,” The New Republic (June 27, 2015).
  56. Quoted in “More legal challenges ahead for Obamacare,” USA Today (June 25, 2015).
  57. Quoted in “Roberts saves Obamacare for 2nd time; Scalia chides: ‘Words have no meaning’,” Washington Times (June 25, 2015).
  58. Quoted in “King ruling dims hopes of crippling the ACA through the courts,” Modern Healthcare (June 25, 2015).
  59. Quoted in “Supreme Court upholds subsidies in King v. Burwell,” Modern Healthcare (June 25, 2015).
  60. Quoted in “In Obamacare Rematch, Verrilli Prevails Again,” Wall Street Journal Law Blog (June 25, 2015).
  61. Guest on Federalist Society Podcast on King v. Burwell (June 25, 2015) (Audio).
  62. Quoted in “Other Legal Challenges to Health Overhaul Remain,” Associated Press (June 25, 2015).
  63. Quoted in “La Corte Suprema mantiene los subsidios de Obamacare a seis millones de personas,” Univision (June 25, 2015).
  64. Quoted in “ACA lawsuits from right may continue even if challengers win King v. Burwell,” Modern Health Care (June 25, 2015).
  65. Quoted in “What Happens If the Supreme Court Guts Obamacare?,” New York Magazine  (June 24, 2015).
  66. Quoted in “The New Conservative Plan To Make A Supreme Court Case Gutting Obamacare Even Worse,” Think Progress (June 23, 2015).
  67. Quoted in “State GOP Leaders Press Congress to Revamp Health Care Law,” Wall Street Journal (June 19, 2015).
  68. Quoted in, “The Government Has No Backup Plan If Court Rules Against Obamacare,” Bloomberg (June 17, 2015).
  69. Quoted in, “All Rise for Chief Justice Robot,” Ozy (June 7, 2015) (excerpt).
  70. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on campus free speech, May 29, 2015 (Audio here).
  71. Interviewed on KTSA Newsradio San Antonio for segment on Texas “One Person, One Vote” case, May 26, 2014
  72. Interviewed on 88.7 KUHF Houston Public Radio for segment on Defense Distributed v. U.S. Department of State, May 6, 2015
  73. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on Voter ID Case, May 6, 2015.
  74. Quoted in Fox News Article on 3D-Printed Guns Constitutional Challenge, May 6, 2015.
  75. Interviewed on ABC TV affiliate KTRK Houston for feature on First Amendment on 6:30 news, May 4, 2015.
  76. Quoted in Why it’s legal to fire someone for being gay in 28 states, Vox, April 22, 2015.
  77. Quoted in Bloomberg BNA Law Week, “Obama Administration Gets Pass On Immigration Program, For Now,” April 14, 2015 (Excerpts, PDF).
  78. Quoted in National Law Journal article on Texas immigration appeals, April 8, 2015 (Excerpts).
  79. Guest on PrimeTime to discuss Indiana Religious Freedom Law, Korean Radio Station in Seoul, South Korea, April 8, 2015 (Clip).
  80. Guest on African American Conservatives Radio to discuss Indiana RFRA, April 6, 2015.
  81. Quoted in “Indiana Gov. Mike Pence approves limited LGBT protections in religious freedom law,” Vox, April 2, 2015.
  82. Quoted in “Things you haven’t considered about Indiana’s religious freedom law,” CNN.com, April 1, 2015.
  83. Quotes in “Arkansas Governor Wants Religious Freedom Bill Closer to Federal Law,” Reason.com, April 1, 2015.
  84. Quoted in “Indiana Law: Sorting Fact From Fiction From Politics,” NPR, April 1, 2015.
  85. Quoted in “Conservatives Push Back Against Indiana Boycotters, But Is It Enough?,” Bloomberg Politics, April 1, 2015.
  86. Quoted in “Indiana Governor Wants to Clarify Religious Freedom Law,” The Wall Street Journal, April 1, 2015.
  87. Guest on John Gibson Show to discuss Indiana Religious Freedom Law, Fox News Radio, April 1, 2015 (Audio here).
  88. Guest on David Medeira Show to discuss Indiana Religious Freedom Law, 94.3 FM Scranton, April 1, 2015 (Audio here).
  89. Quoted in “How Indiana’s religious freedom law sparked a battle over LGBT rights,” Vox, March 31, 2015.
  90. Guest on “Laura Ingraham Radio Show” to discuss Indiana Religious Freedom Law, March 30, 2015.
  91. Quoted in “Obama attacks Indiana religious freedom law, but backed Illinois bill as state senator,” The Washington Times, March 30, 2015.
  92. Quoted in “The Economics of Religious Freedom Bills,” The Atlantic, March 27, 2015.
  93. Quoted in “Did Anthony Kennedy Just Show His Hand On The Obamacare Subsidies Case?” The Daily Caller, March 23, 2015.
  94. Quoted in “Justice Kennedy’s Comments Stir the Tea Leaves on Obamacare,” Bloomberg Politics, March 23, 2015.
  95. Featured on Mark Levin Show, for discussion of “The President Cannot Bypass the Courts,” March 19, 2015 (audio here).
  96. Quoted in “Lawsuit by luxury condo owners targets senior living facility developer,” The Houston Chronicle, March 18, 2015 (excerpt).
  97. Quoted in “White House makes aggressive legal push on immigration,” The Hill, March 15, 2015.
  98. Quoted in “Obamacare’s Chances Of Survival Are Looking Better And Better,” ESPN FiveThirtyEight, March 6, 2015.
  99. Quoted in “A Supreme Court Rematch for a Lawyer Targeting the Health Care Act,” The New York Times,” March 4, 2015 (Excerpt, PDF).
  100. Quoted in “Even The Algorithms Think Obamacare’s Survival Is A Tossup“, ESPN FiveThirtyEight, March 4, 2015.
  101. Quoted in “Lawyer Put Health Act in Peril By Pointing Out 4 Little Words,” The New York Times, March 2, 2015.
  102. Quoted in “Previewing The Supreme Court’s Abercrombie & Fitch Case,” ESPN FiveThirty Eight, February 25, 2015.
  103. Quoted in “A federal judge put the brakes on Obama’s immigration actions,” Vox.com, February 18, 2015.
  104. Guest on Mike Gallagher Show to discuss executive action on immigration, February 18, 2015 (Audio here).
  105. Quoted in “The one sentence you need to read to understand the big new court battle over immigration,” Vox.com, February 17, 2015.
  106. Guest on Inside Story on Al Jazeera America to discuss executive action on immigration, February 17, 2015 (Segment).
  107. Quoted in article about challenge to President’s immigration executive action, La demanda contra el decreto de inmigración de Obama, La Voz de Houston (Feb. 5, 2015).
  108. Quoted in “Obama amnesty lawsuit cites variety of arguments — some of them wild,” The Washington Times, February 1, 2015.
  109. Selected as “Brief of the Week” in National Law Journal for Amicus Brief to Supreme Court in King v. Burwell, Brief of the Week: The Affordable Care Act and ‘Executive Lawmaking,’ January 13, 2015 (PDF).
  110. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on Texas Same-Sex Marriage, January 9, 2015.
  111. Interviewed on ABC TV affiliate KTRK Houston for feature on Texas Same-Sex Marriage  on 6:30 news, January 5, 2015.

 

Litigation

 

 

My New Six-Monitor Display and the Evolution of My Workstations

December 30th, 2015

Since April 2014, my workstation at home has used five monitors. While working on Unprecedented, I have actually found myself one screen short. Often I have to have open at the same time three chapters, plus several reference materials. So, in the next evolution of my workstation, I added a sixth monitor via USB Display Link. I was able to put it on a rolling file cabinet, so it fits low enough to below the monitor furthest to the left, but high enough to be at eye level.

monitors

Here is my setup from April 2014. I had four 24″ HD LED flat-panels, mounted on two Dual-Monitor Desk Mounts. I rotated the one on the right, as it makes reading cases and document easier. And no, the palm trees are not native to Houston, but they make for a nice backdrop.

20140405_131751

From December 2012, during a brief period I kept two MacBook Pros rocking, and I added (yet another) monitor.

In case you are wondering, each screen has a dedicated function. My MacBook Pro screen is always trained on my gmail. The screen furthest to the left holds my Tweetdeck and Instant Messaging. The next screen to the right holds whatever document, or documents I am reading. The main screen in the middle contains whatever I am typing. The screen furthest to the right contains my Google Reader. My old Macbook Pro is used for ancillary stuff or testing things, and sometimes I will play a video or something on my Nexus 7 Tablet.

2012-12-27_12-20-52_202

From August 2012, when I moved to Houston, still with three monitors:

 

Here is my three-monitor display, which I had from June 2010, back in Johnstown, PA until 2012. Note that I still had paper. I’ve gone completely paperless, and it is amazing. Also, since then I’ve gotten rid of my Blackberry, and Google Reader is no longer with us.

On my laptop screen, I keep my e-mail window open. On the far left monitor, I have Pandora open (playing some catchy Lady GaGa song), Tweetdeck (featuring 2 twitter accounts and facebook), and Adium Chat. In the middle monitor I have Microsoft Word open (working on an Op-Ed for McDonald v. Chicago). On the monitor on the right, I have Google Chrome open (tuned to Google Reader). And, my blackberry keeps me posted with text messages and BBM (blackberry messenger for those uninitiated).

ConLaw Final Exam Question #2: Can the Governor of Texas require Syrian refugees to take a loyalty oath?

December 30th, 2015

I wrote my second constitutional law question before the mass killing in San Bernadino, although it became especially salient afterwards. The crux of the question is that the FBI has warned that other Syrian refugees may be planning a terrorist attack. The Governor of Texas issues an executive order, stating that any refugee from certain countries, who applies for public assistance in Texas, is required to take a loyalty oath. The Governor also prohibits state officials from cooperating with federal officials who are resettling refugees. There are federalism and free-exercise clause issues buried in there as well.

Instructions: Recent terrorist attacks in Europe by members of a group known as ISIS have raised fears that terrorists could sneak into the United States by posing as refugees fleeing from Syria. The Governor of Texas has taken a series of actions in response to this perceived threat. You are a law clerk in the Texas Attorney General’s Office, and are asked to prepare a memorandum of no more than 1,000 words addressing five questions concerning this timely issue.

—

It is January 2016. Hundreds of thousands of refugees are fleeing from Syria to escape oppression by a terrorist group known as ISIS. The President of the United States has already promised to accept many of these refugees, including one thousand who were to be resettled throughout Texas. The Governor of Texas, fearing that terrorists may enter the state while posing as refugees, issues Executive Order #1:

 “No funding shall be available for local officials that facilitate the resettlement of any Syrian refugees in Texas.”

The impact of the executive order is clear—state officials at all levels of Texas government were denied any money to assist the federal government with integrating Syrian refugees into communities in Texas. Under state law, it is illegal for an official to spend money where there has not been a valid appropriation of funds.

The United States Congress strongly opposes Executive Order #1 and enacts the Syrian Refugee Act:

 “In jurisdictions that receive Federal financial assistance, the chief law enforcement officer (CLEO) shall cooperate with federal agents for the resettlement of Syrian refugees in their jurisdiction. Jurisdictions that refuse to cooperate with reasonable requests from federal agents shall lose 10% of all federal financial assistance.”

The President promptly signs the Act into law.

Every jurisdiction in Texas receives at least some Federal financial assistance. The Sheriff of Harris County, Texas announces that he and his officers will disregard Executive Order #1, and comply with the Syrian Refugee Act. The Governor files suit in state court, seeking an injunction to force the Sheriff to comply with Executive Order #1. The Governor contends that the Sherriff lacks the funding to assist federal agents, and is violating state law. The Sheriff counterclaims that Executive Order #1 is unconstitutional in light of the Syrian Refugee Act.

The following week, the FBI makes a series of arrests of Syrian refugees in Garland, Texas, who were planning a terrorist attack on behalf of ISIS. Fortunately, the arrests were made before anyone was hurt, but the people of Texas were shaken. The FBI warns that there may be other refugees planning such attacks.

The Governor, fearing that refugees from certain countries may engage in terroristic activities, issues Executive Order #2:

“As Governor, I find that refugees from certain nations are more likely to pose a terroristic threat to the people of Texas. As Governor, I have a solemn duty to protect the safety of the people of Texas. All refugees from Afghanistan, Algeria, Egypt, Iran, Iraq, Kuwait, Lebanon, Libya, Morocco, Syria, or Turkey, who apply for state public assistance, shall be required to take a loyalty oath to the U.S. Constitution and renounce allegiance to the terrorist organization ISIS.”

A Syrian refugee, recently resettled in Bastrop County, Texas, applies for public housing. The clerk insists that he first take the loyalty oath and renounce allegiance to ISIS before being offered this form of state public assistance. The refugee refuses, so the clerk denies his application.

The refugee then files suit, charging that the oath requirement violates his rights under the equal protection clause and the free exercise clause. (He does not bring any other claims under federal or state law).

—

In a memorandum for the Attorney General of no more than 1,000 words, please address the following five questions.

  1. Was Executive Order #1 constitutional? Specifically, can a state prohibit its officials from assisting federal officials who are resettling refugees. (For purposes of this question, do not consider the impact of the Syrian Refugee Act).
  1. Was the Syrian Refugee Act a valid exercise of Congress’s enumerated powers?
  1. Did Executive Order #2 violate the Fourteenth Amendment’s equal protection clause?
  1. Did Executive Order #2 violate the First Amendment’s free exercise clause?
  1. It is often said that in times of war, the laws fall silent. But the counter-argument is that in times of war, the laws may not keep us safe. Discuss whether racial or religious classifications can be constitutionally justified when there is a credible threat that certain groups may pose a significant threat to public safety.

Breaking: Texas Files Brief in Opposition to Certiorari in Immigration Case #SCOTUS

December 29th, 2015

You can download it here. Here is the summary of the argument:

The Executive Branch unilaterally created a pro- gram that will grant “lawful presence” and eligibility for a host of benefits to over four million aliens present in this country unlawfully. This program, which is called DAPA, goes far beyond prioritizing which aliens to re- move.

The district court entered a preliminary injunction of DAPA under the Administrative Procedure Act, and the court of appeals affirmed. Both courts explained that the injunction does not require the Executive to remove any alien and does not impair the Executive’s ability to prioritize aliens for removal. Indeed, on the same day it announced DAPA, the Executive issued a separate memorandum defining categories of aliens prioritized for removal. This lawsuit has never chal- lenged that separate memorandum.

The questions presented are:

1.a. Whether at least one respondent has standing to challenge DAPA.

1.b. Whether DAPA is unreviewable under the Ad- ministrative Procedure Act.

2. Whether DAPA is contrary to law or violates the Constitution.

3. Whether DAPA was subject to the Administrative Procedure Act’s notice-and-comment requirement.

Here is Texas’s argument about why certiorari is unimportant. These echo themes that Ilya Shapiro and I address about why the Court need not rush the case:

Petitioners rely almost exclusively on DAPA’s “great and immediate significance.” Pet. 35; see Pet. 33- 34. This argument contradicts petitioners’ own charac- terization of DAPA as a general statement of policy, which merely advises the public of the Secretary of Homeland Security’s tentative intentions. Pet. 29. If that characterization were accurate, further review would be unwarranted: An interlocutory decision that creates no splits does not merit review simply because it temporarily halts the implementation of a tentative policy statement that has no legal significance.

In reality, of course, DAPA is a significant and im- mediate change in immigration law and policy. But this only highlights the breadth of petitioners’ theory of Ex- ecutive power. According to petitioners, this crucial pol- icy shift (1) does not affect respondents enough to cre- ate a case or controversy, (2) cannot be reviewed by any court, (3) falls within the Executive’s unbridled discre- tion, and (4) did not even require notice-and-comment procedure to implement. That is a remarkable claim.

This particular assertion of unilateral Executive power occurred in the immigration context. But if peti- tioners’ arguments are accepted, there is nothing stop- ping this Executive or future Executives from invoking resource constraints to declare conduct lawful in other areas—such as environmental, tax, criminal, campaign- finance, and civil-rights laws. Pet. App. 328a.

Petitioners urge a view of Executive power that is manifestly contrary to our separation of powers. Certi- orari is therefore unwarranted. But if the case merits review, it is to affirm the injunction of DAPA and thereby ensure the proper functioning of the adminis- trative state, maintain the separation of powers, and reject petitioners’ sweeping assertion of Executive au- thority.