Day: March 1, 2017

Explaining the Commandeering Doctrine on Fox Business Network

On Friday, February 24, I was a guest on Making Money with Charles Payne on the Fox Business Network to discuss sanctuary cities. I don’t think I gave the host the answer he was looking for. He asked me how could it be that the Mayor of San Francisco could resist the President with respect to enforcing federal policy. I explained the doctrine of commandeering, citing Justice Scalia’s opinion in Printz, and gave the example of local sheriffs refusing to enforce federal gun control laws. I hope I got through to a few people in the audience–federalism exists, even if it serves liberal goals.


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Government by Blog Post: Even after Withdrawn “Dear Colleague” Letter, G.G. Relies on Title IX FAQs

In its letter urging the Court to resolve Gloucester County v. GG on the merits, the ACLU notes that even though the “Dear Colleague” letter has been withdrawn, the Department of Education’s website still hosts “several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity.”

2 The Department of Education has also not withdrawn several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity. See e.g., OCR, Questions & Answers on Title IX and Sexual Violence (Apr. 29, 2014), (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation); OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), (“Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”).

We have seen this argument before. In an ill-fated attempt to stop the removal of a DACA recipient, an all-start team of lawyers actually cited a Department of Homeland Security FAQ document as proof that their client indeed had lawful presence–even though Secretary Napolitano’s 2012 Memorandum made no reference to “lawful presence.”

As I noted in my article, Government by Blog Post, D.D.C. held that agencies cannot rely on FAQs as the source of legal authority:

A sole FAQ by itself cannot be the source of legal authority. In a different case, a federal court ruled that the CMS could not rely on an FAQ on their blog (FAQ 33) as the basis to support its modification of the method used for calculating hospital-specific supplemental Medicaid payment limits. The court found that because FAQ 33 was the “sole authority” for the government’s decision, it must be set aside as unlawful.

In any event, I suspect the two cited FAQs will now be promptly deleted as they are inconsistent with the agency’s latest position.

As Petitioner notes, the fact that these informal documents can be posted and withdrawn with the click of a mouse is further reason not to afford them Auer deference.

The fact that a new administration could unilaterally rescind the Ferg-Cadima letter underscores why it should not have received “controlling” deference in the first place.

Stay tuned.

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May Sittings at #SCOTUS

Gloucester County urged the Court to delay arguing the case, to permit the Solicitor General to file a brief. The petitioner’s letter states:

Argument should be postponed until at least the April sitting.

“At least the April sitting,” suggests that the argument could be pushed back further, if needed.

In almost every term, the Court ceases hearing cases in April, but in three cases over the last quarter-century the Court has held a May argument. I researched this issue in the run-up to United States v. Texas.

Here are the three cases:

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn’t be so rushed:
In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that “the High Court agreed to hear the case unusually quickly.”

I am not versed with the history of this case, but a footnote in the Petitioner’s reply brief states:

Independent Counsel contends that this Court should deny certiorari to speed the conclusion of his investigations. It appears, however, that his investigations will not end until long after this Court, if it determines to review this case, decides it. Petitioners would not object to expedited treatment for this case.

I think this uber-expedited argument may have something to do with the now-defunct Independent Counsel statute.

Another option would be to hold a special August or September sitting, like the Court did with Citizens United. This issue will be driven entirely by what the Justices want to do. In any event, whether the case is argued in April, May, or August, Justice Gorsuch will be on the bench.

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Miguel Estrada Trolls Chief Justice Roberts and Senator Minority Leader Schumer on the same day

Miguel Estrada proved his mettle today. In the morning, during the closing moments of arguments in Coventry Health Care of Mo. v. Nevils, he trolled the Chief Justice about his saving construction in NFIB v. Sebelius.

In the afternoon, he rebuffed reports that he was in contention for the Solicitor General seat with glaring dig at Chuck Schumer:

If Miguel tweaks Trump’s speech over dinner, he will have hit all three branches in 24 hours!


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Instant Analysis of Oral Arguments in Pidgeon v. Turner

Yesterday I provided a brief overview of Pidgeon v. Turner, which was argued this morning before the Texas Supreme Court. (I won’t repeat the facts here). Justice Willett did not participate in arguments, but he will take part in the decision, according to CJ Hecht. (It may come as a surprise to my friends outside Texas, but our high court has more than one Justice–indeed several of them are also on Twitter).

I live-tweeted the argument, and include all of my tweets here. I will blog more about this case in due time.

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On the 10th Day, with no Fanfare, President Trump Signs Social-Security Disapproval Resolution

I’ve written at some length about the congressional-review act disapproval resolution of an Obama-administration regulation that would have denied the right to acquire firearms to certain people on disability, who requested a representative to manage their payments.

The resolution passed the House on 2/2/17 and passed the Senate on 2/15/17. It was presented to the President on 2/16/17. I had been expecting at some point over the past week for the President to hold a ostentatious signing statement. But one never came. In fact, he signed it on the 10th day, without any public ceremony.  Meanwhile, he held several other signing ceremonies.

Why was this resolution signed so quietly? A few theories jump to mind. Despite Trump’s steadfast defense of the Second Amendment, he supported the “no buy” list, which would deny people on terrorist watch lists (based only on a suspicion) the ability to acquire firearms. This was patently unconstitutional, in violation of both the 2nd Amendment, as well as the Due Process Clause. The NRA and the ACLU were on the same page here. Perhaps Trump thinks people with disabilities, who need representative payees, should not be trusted with firearms.  Or maybe he didn’t like the optics of the signing ceremony, which would have involved NRA members and people with disabilities.

It’s strange that no ceremony was held, but signed the resolution was. Now the Social Security Administration is forever disabled from regulating in this, or a similar area. Such is the risk of rushing out a midnight regulation.

One final note about the timing.  Article I, Section 7, Clause 2 provides that if “any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law.” Although Article I, Section 7, Clause 3 provides that a “Resolution,” must be “presented to the President” after the “Concurrence of the Senate and House of Representatives,” it isn’t entirely clear from the Text of the Constitution that Resolutions also take effect if not returned within ten Days.

I checked with Mike Stern, who is an expert on all things procedural. He located a 1989 OLC Opinion signed by Doug Kmiec, which suggests that the President also has ten days to sign the resolution, or during the same period veto it. It doesn’t answer the question of whether the resolution takes effect, even in the absence of the signature, but the import of the opinion is that it would. I did this research in advance, because I suspected Trump wouldn’t sign it, at all.


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