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Breaking: Divided Panel of D.C. Circuit Orders Response in House of Representatives v. Burwell

December 29th, 2016

Last night I blogged about the proposed intervenors’ emergency motion to suspend the abeyance to consider their motion to intervene. The House of Representatives (unsurprisingly) opposed. The Justice Department took no position. Now they’ll need to.

This morning at 9:49 AM ET, a divided panel of the D.C. Circuit (Tatel and Srinivasan) ordered both parties to file a response by January 6. The proposed intervenors can file a reply by January 11. Presumably, any resolution will come before the inauguration.  Judge Henderson dissented, and would have denied the emergency motion.

This order puts the Justice Department in an odd posture. As a matter of institutional policy, the Department in comparable cases tends to oppose motions to intervene–they can handle their own business. For example, in U.S. v. Texas, the DOJ opposed a motion to intervene by would-be beneficiaries of DAPA. The 5th Circuit overruled Judge Hanen, and held they could intervene. They were also permitted argument time at the Supreme Court. (It was not helpful to the government’s case). But here, the political appointees in the Justice Department may have a vested stake in the survival of Obamacare, so would be inclined to let Andy Pincus represent their interests going forward. Till January 6.

Presidential Insulation in the White House Garden

December 29th, 2016

Yesterday I blogged about a species of presidential maladministration I referred to as presidential insulation, which occurs an outgoing president takes executive action to prevent the incoming administration from reversing his polices. After writing the post, I thought of another example of presidential insulation–though it isn’t really by the President.

In October, Politico reported that the First Lady was taking steps to prevent a future administration from getting rid of her White House garden.:

First lady Michelle Obama is making sure that whoever inhabits the White House next doesn’t rip out her iconic vegetable garden — at least not without a big fuss.

On Wednesday afternoon, Obama unveiled a much bigger version of the garden, which uses cement, stone and steel to make it a more permanent fixture on the South Lawn. The updates are seen not just as preserving Obama’s garden — recognized globally as a symbol of local food — but also as a way to dissuade, say, a President Donald Trump from scrapping it the way Ronald Reagan tore out Jimmy Carter’s solar panels after he moved into the White House.

“I take great pride in knowing that this little garden will live on as a symbol of the hopes and dreams we all hold of growing a healthier nation for our children,” Obama said in an emotional speech Wednesday afternoon as she dedicated the garden before an audience of advocates, food industry leaders and others who have helped with Let’s Move!, her signature childhood obesity campaign.

“I am hopeful that future first families will cherish this garden like we have,” she added.

With all the uncertainty, however, it’s clear that the latest iteration of the first lady’s vegetable garden is built to last. Sawdust pathways have been widened and replaced with blue stone. The garden features a large new, stone-paved seating area and a prominent archway, cemented into the lawn.

Underneath, a large paving stone carries an inscription: “WHITE HOUSE KITCHEN GARDEN, established in 2009 by First Lady Michelle Obama with the hope of growing a healthier nation for our children.” …

The White House noted that the new structures incorporate both wood, chosen for “durability,” and steel — “combined to make the elements stronger bonded together than when they stand alone.” The wood includes pine and walnut harvested from the estates of founding fathers Thomas Jefferson, James Madison, James Monroe and the birthplace of Martin Luther King Jr.

The first lady literally cemented her signature garden to prevent the next administration from uprooting it. Of course, all cement can be removed.

During a background briefing on the garden changes, White House officials were peppered with questions about whether the preservation actually prevents a future president from removing the legacy plot.

The short answer is no. “It is up to the next administration how they would like to manage the garden,” a White House official said, declining to answer the question directly. “The National Park Service will continue to maintain it.”

None of these changes, however, preclude the next administration from nixing the garden. It is the president’s home and he or she can do whatever the first family wishes, in consultation with the Secret Service, the National Park Service and the U.S. Commission of Fine Arts — and plenty of changes have been made over the years.

But historians like Pliska are quick to note that even in an intensely polarized political era, it’s actually exceedingly rare for a president to make a political statement with a change to the White House grounds. The removal of Carter’s solar panels stands out as a glaring example — and even then, they were removed quietly.

But this form of insulation makes it tougher to get rid of:

Neither presidential candidate, nor their spouses, have offered any indication of their intentions about the garden.

“If Trump were elected president, he’d probably dig up Michelle Obama’s vegetable garden in favor of a putting green,” joked a recent piece in the Miami New Times.

“I think people would be really upset,” said Marta McDowell, a landscape historian who recently wrote a book on White House gardens. She called Obama’s preservation plan “brilliant,” adding, “If it were taken out, it would truly just be a political statement.”

Before the election, President Obama apparently took that threat to heart, telling a talk radio show that he’s worried Trump would dig up Michelle’s garden.

Indeed, after the election, the New York Post reported that Michelle pushed her husband to issue an executive order to preserve her garden.

But she’s not stopping there — wielding the power she has over the president to ensure the Kitchen Garden is a permanent part of the White House.

“She is pressing him to pass an executive order to maintain the garden after they leave the White House,” a source told The Post.

Alas, even if true, what executive action giveth, it can taketh away. NY Mag opined:

Of course, even if the President did issue such an order, Trump could overturn it. So the only thing standing in the way of the garden’s destruction is some steel and the inevitable PR hit that would follow. Another thing working against the garden is that Trump eats like a 15-year-old. Unless someone quickly figures out a way to grow onion rings and burnt steaks, the president-elect is unlikely to feel much allegiance.

Ann Coulter offered the President-elect this advice:

Three Panels at AALS

December 29th, 2016

I will be speaking at three panels at the AALS annual meeting in San Francisco next week.

First, on 1/5 at 8:30 a.m., I am speaking on the “Hot Topic” program about federal power over immigration. When we submitted this proposal, we anticipated a different set of questions would be in play two weeks before the inauguration. Now, the panel is even more timely. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Jennifer M. Chacon, University of California, Irvine School of Law
Speaker: Jill E. Family, Widener University Commonwealth Law School
Speaker: Anil Kalhan, Drexel University Thomas R. Kline School of Law
Moderator and Speaker: Ilya Somin, Antonin Scalia Law School at George Mason University

Second, fifteen minutes later at 10:30 a.m. (I’ll have to hustle across the street!) I am presenting Presidential Maladministration at the Federalist Society Annual Faculty Conference’s Works-in-Progress panel. There will be a stellar group of scholars presenting here:

Josh Blackman, South Texas College of Law Houston: “Presidential Maladministration”
Enrique Guerra-Pujol, University of Central Florida: “Probabilistic Interpretation”
Jennifer Mascott, Georgetown University Law Center: “Who are Officers of the United States?”
Jonathan Mitchell, Stanford Law School: “The Writ of Erasure Fallacy in American Jurisprudence”
William Nancarrow, Curry College: ‘What Was All the Fuss About?: The Real Reason for Popular Anger at
the Courts during the “Lochner Era”‘
Ilya Somin, George Mason University Antonin Scalia Law School: “The Original Scope of State and Federal Power Over Immigration”
Lee J. Strang, University of Toledo College of Law: “Aretaic Originalism: Originalism’s Promise and Limits”
Moderator: Caleb E. Nelson, University of Virginia School of Law

Third, on January 6 at 8:30 a.m., I am speaking on another “Hot Topic” panel, titled “New Frontiers in Reproductive Rights and Justice.” My remarks will focus mostly on the aftermath of Zubik, and how the Trump administration will handle the contraception mandate. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Khiara M. Bridges, Boston University School of Law
Speaker: Melissa E. Murray, University of California, Berkeley School of Law
Moderator: Kate Shaw, Benjamin N. Cardozo School of Law
Speaker: Neil S. Siegel, Duke University School of Law
Speaker: Reva B. Siegel, Yale Law School

If you are in San Francisco, I hope to see you!

 

 

Proposed Intervenors in House of Representatives v. Burwell file Emergency Motion to Suspend Abeyance

December 28th, 2016

Last week, I blogged about a last-ditch effort by two ACA-enrollees to intervene in the House v. Burwell litigation. Both the House of Representatives and the Obama administration filed motions on December 23, stating that the D.C. Circuit’s order to hold in abeyance precluded resolution of the motion to intervene.

On Tuesday, the proposed intervenors–represented by Mayer Brown–filed an emergency motion to suspend abeyance for limited purpose of adjudicating the motion to intervene. Here is the crux of their position:

To avoid irreparable prejudice to the interests of Intervenor- Movants, this Court should partially suspend the abeyance and set a brief- ing schedule on the motion to intervene that would permit the Court to rule on that motion prior to the Presidential transition. Because the Executive Branch and the House in their respective December 23 filings have already expressed their views on responding to the motion, and relatively little time remains before joint action by the House and the new Admin- istration to dismiss or otherwise settle this appeal could well moot the Motion to Intervene, Intervenor-Movants urge the Court to set the briefing schedule now, without awaiting further submissions from those parties.

If Intervenor-Movants’ motion is not resolved by this Court prior to January 20, there is a significant risk that the new Administration and the House could act jointly to dismiss the appeal*—which would allow the District Court’s injunction to take effect, triggering the significant harm to Intervenor-Movants described in the motion to intervene.

The movants call the House’s request for additional time “disingenuous.”

The House’s suggestion that resolution of the motion await the new Administration is thus quite disingenuous: the prospect of collusion between the House and the new Administration to permit the District Court’s injunction to take effect is precisely why Intervenor-Movants have asked to represent their own interests before this Court. Delaying action on the motion until after the change in Administrations would permit the very harm that the mo- tion seeks to prevent. If Intervenor-Movants are permitted to join this case, then the House and the new Administration will not be able to settle this case in a manner that employs the Judicial Power to undermine the interests of Intervenor-Movants, and the millions of other Americans who rely upon the Affordable Care Act’s healthcare exchanges for subsidized health insurance—by allowing the District Court’s order to take effect without review by this Court.

On one day’s notice, the House of Representatives filed an opposition to the motion to suspend abeyance. (The Justice Department announced that it did “not plan to file a substantive response to the intervention motion at this time unless requested to do so by the Court.”). The House makes five primary arguments.

First, the movants waited far too long to move to intervene, and even longer to file this emergency motion. The elected was settled nearly two months ago. The motion, they argue, should be denied on this basis alone.

Second, echoing a point I made in my previous post, the CSR payments are made to insurers, not the insured.

In other words, the unsubstantiated and utterly speculative outcome that Movants claim to fear – namely, that settlement negotiations between the parties will lead to reinstatement of the injunction with no alternative in place – would not actually harm Movants, because their statutory rights to receive cost-sharing reductions from insurers would remain fully enforceable.

The movants counter that if the payments are halted, their insurers can cancel their policies under an arrangement reached with CMS. The House responds that these concerns are speculative.

In their Intervention Motion, Movants also claim to fear that their 2017 policies could be “terminated” because the Center for Medicare and Medicaid Services (“CMS”) has allegedly agreed to permit insurers to “seek to leave the exchange mid-year should the House of Representatives prevail in this lawsuit.” Intervention Mot. at 13. As shown by the plain language of the agreement they cite (id. at 13 n.6), however, their concern is baseless. The cited agreement merely reflects CMS’s acknowledgement that an insurer “could have cause to terminate” its participation in the CMS Data Services Hub, “subject to applicable state and federal law,” if the “assumption that … CSRs [i.e., Cost-sharing Reductions] will be available to qualifying Enrollees” during 2017 “ceases to be valid.”

Third, the House contends that the movants’ entire argument is based on a “speculative chain of causation” that cannot even be redressed by intervention.

If, as Movants posit, the incoming Administration intended to halt cost-sharing funding to insurers forthwith – a highly improbable claim for which Movants cite no evidence – intervention would do nothing to prevent that, because the new Administration would have ample authority to take that step without regard to the pendency of this case. This appeal provides no vehicle for Movants to attempt to compel the new Administration to make cost- sharing payments to insurers over its objection, because the only claim at issue here is the House’s claim that such payments are precluded, not that they are compelled.

Reiterating a point I made in my previous post, this suit is likely but a prelude to a suit by AHIP.

Indeed, Movants admit that a separate lawsuit would be required if such a claim were to be asserted. See Intervention Mot. at 5 n.4.

Footnote 4 teases out what would happen if the administration interpreted the ACA to preclude the payments of the cost sharing reimbursements:

The President could direct the relevant agencies to interpret Section 1324 not to provide a permanent appropriation for the cost-sharing reimbursement payments. That too would render this case moot, although it might give rise to another lawsuit challenging the new interpretation of Section 1324.

It “might” huh? This intervention is but a mere prelude to a future suit by AHIP, seeking a TRO to prevent the stoppage of the CSR payments.

Fourth, the House asserts that a potential settlement, far from “collusi[ve]” is “highly favored.”

The mere fact that the parties may reach a settlement does not constitute an “emergency” and, therefore, cannot be considered grounds for granting Movants’ motion.

Fifth, even if the Trump Administration reverses the Obama administration’s position, seeking intervention now–before the inauguration–is premature.

Even if Movants are correct that the incoming Administration will shift its legal position, it makes no sense for the parties to respond to the Intervention Motion at this time. Until the new Administration has taken office and determined its position, there is no basis for concluding that it will not adequately represents Movants’ interests, and the current Administration is obviously in no position to address that question. Accordingly, delaying responsive briefing on the Intervention Motion is eminently reasonable and serves to prevent unnecessary and inefficient expenditure of valuable public resources that would result from the premature briefing and judicial consideration of this motion.

This last-ditch litigation is entirely understandable. The insurance companies and Obamacare beneficiaries are panicked that the election will upset the status quo. They will use all tools in their disposal to try to maintain their rents. This emergency motion, however, is not the proper vehicle to accomplish these goals. They should have thought about this suit before the order to hold in abeyance was entered on December 5. The House filed their motion to hold in abeyance on November 21. The proposed intervenors should have sought extraordinary relief at that time, when the government’s response was due. Not an entire month later.

Everyone knew such a motion to hold in abeyance was coming. There was no mystery. At 2:00 AM ET on November 9 (before Clinton even conceded), I wrote:

Third, House of Representatives v. Burwell, which is pending before the D.C. Circuit, may also come off the docket. A Trump Administration will simply decline to make these illegal payments.

One day later at National Review, I wrote how the litigation will likely wind down, and private insurers will have to litigate the cessation of payments.

Fifth, the case of House of Representatives v. Burwell will draw to a premature close. The Obama administration has made payments to insurance companies that Congress never appropriated. Speakers John Boehner and Paul Ryan have pursued litigation to challenge the legality of these payments. Once the Trump administration halts the subsidies, the case will be dismissed. Insurance companies will still be free to bring private causes of action against the government, but the House’s litigation will wind down.

The likely truth is that the intervenors probably didn’t think of this idea quickly enough, so they filed this 11th-hour challenge.

The D.C. Circuit should not reward such truancy. Putting aside all of the merits, this suit fails on the doctrine of laches.

On Way Out the Door, Obama Administration Denies Constitutional Rights of “Mentally Defective”

December 28th, 2016

Unable to legislate new restrictions on what kind of arms can be sold, the Obama administration has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).

On December 19, 2016, the Social Security Administration (SSA) finalized new regulations that will create a process for transferring the records of those who seek a “representative payee” (legal proxy) under the Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights.  The SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional. Nor does the rule attempt to make that connection.

In July, for the first time ever, Cato’s Center for Constitutional Studies, with the help of Ilya Shapiro, Gregory Wallace, and me, filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction. Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague. Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.

The final rule only pays lip serve to these serious constitutional concerns.

The rule cites Heller’s “mentally ill” dicta without any further analysis. As we reply in our comment, this doesn’t cut it:

The government should not attempt to graft its capacious and vague definition of “mentally defective” onto Heller’s dicta. Doubtless, the Court did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) under the federal mental health prohibitor. For example, an agoraphobic person may have a fear of crowded Social Security offices, and request a representative-payee. The person may have complete control over her affairs, and have no impairment of her ability of self-defense. But due to specific conditions, she benefits from having a person appointed to handle disability payments. There is no reason to bar this person from owning a firearm.

What about due process? The disabled can only seek relief after their name is transmitted to DOJ for inclusion in the NICS.

An individual can request relief any time after the adjudication is final but we cannot delay fulfilling our obligations under the NIAA to provide relevant records to the Attorney General while the person decides whether to request relief.

And how long will that relief process take?

We will work in good faith to respond to all requests for relief promptly and within the 365-day period. . . .  f we fail to resolve an application for relief within that period for any reason, including a lack of appropriated funds, we will be deemed to have denied the relief request without cause. In accordance with the NIAA, judicial review of any petition brought under this paragraph (d) shall be de novo.

A year before you can go to federal court to vindicate your rights?! And who bears the burden during the proceedings? The person whose rights were violated:

It is generally appropriate under the law to place the burden of production and proof on the proponent of an order. In this case, that means the person who applies for relief must demonstrate his or her entitlement to relief, and there is no indication in the NIAA or any other provision of law that Congress intended to alter that normal rule.

No, people do not bear the burden to defend their own constitutional rights. But no worries, the rule states, because SSA is not denying anyone their constitutional rights:

While the rule addresses reporting requirements, it is the Federal Gun Control Act, not the Social Security Act, that governs when a person can possess a firearm.

At bottom, here’s the dirty secret: this entire rule is premised on SSA’s interpretation of a never-published DOJ guidance document. We discuss this ruse in our comment:

The NPRM triggers reporting to the NICS based on the finding that a claimant who has been found disabled under one of the listed mental impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.00 et seq., requires a representative payee. Under 42 U.S.C. § 405(j)(1), however, payments to a representative payee are (1) discretionary when the agency “determines that the interest of any individual under this chapter would be served thereby . . . regardless of the legal competency or incompetency of the individual” and (2) required when the agency determines that “such a payment would serve the interest of the individual because the individual also has an alcoholism or drug addiction condition (as determined by the Commissioner) and the individual is incapable of managing such benefits.” Since the proposed rule triggers reporting to the NICS in cases of mental disability other than alcoholism or drug addition, the discretionary standard applies. That standard explicitly disclaims any necessary relationship between appointment of a representative payee and a beneficiary’s mental incompetency.11

To solve this problem, the “guidance” fabricates a link between the the ATF regulation, and the rulemaking. In January 2013—as part of his post-Sandy Hook executive actions— President Obama directed the Justice Department to “issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS.”12 Three years later, this Justice Department “guidance” documents celebrates its regulatory cotillion through footnote 10 of the Notice of Proposed Rulemaking. For the very first time, the public learned that in March 2013, DOJ distributed a document titled “Guidance to Agencies Regarding Submission of Relevant Federal Records to the NICS.” The “guidance” specifically states that a person who “lack[s] the mental capacity to contract or manage his own affairs” includes someone who received an “agency designations of representative or alternate payees for program beneficiaries.” The “guidance” conveniently defines the broader category of being unable to manage affairs, at the narrow, precise level of specificity of SSA’s authority: Designating a representative payee. Without this “guidance,” the NPRM would lack statutory authority. The “guidance” purports to create a connection where there is none. But this administrative sleight of hand will not save the NPRM, because SSA receives no deference in interpreting statutes and regulations that are entrusted to another agency to implement.

Even under Auer, courts owe SSA no deference in interpreting guidance issued by other agencies:

It is certainly true that under Auer v. Robbins, agencies interpreting their own regulations are entitled to deference—even if the “guidance” document is not produced until the course of litigation.13 But here, SSA is not interpreting its own regulations; it isn’t even interpreting another agency’s regulations. The basis of the entire NPRM is DOJ’s 2013 unpublished “guidance.” SSA cannot claim any deference by interpreting another agency’s informal guidance document or regulations. There is no indication that Congress intended SSA to have any role in deciding who would be “mentally defective” for purposes of a gun-control law. The rulemaking is “procedurally defective” ab initio, for it lacks any “reasoned explanation” for how SSA has the authority, expertise, or qualifications to interpret the DOJ regulation, and make determinations that raise serious Second Amendment and due process concerns.14

This rulemaking is nothing more than a “rope-a-dope.” Commenters and litigants will launch a myriad of constitutional challenges against a deficient rule and SSA will deflect, arguing that the correct target is the Justice Department (which is not a party to this rulemaking). But in truth, the government has it backwards: it’s “dope-a-rope.” SSA is entitled to no deference in its interpretation of BAFTE’s 2014 regulation, informed by the DOJ “guidance.”

The publication date of December 19 is no coincidence. The rule goes into effect on January 18, two days before the inauguration. The Trump Administration cannot halt the effective-date of the rule, but it can withdraw the DOJ guidance document. At that point, there is no defense available for the rule.

Additionally, this is a prime candidate for disapproval under the Congressional Review Act. Additionally, the proposed rule notes that several subsidiary issues must be submitted for future rule-making. I suspect those rule-makings will never happen.