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I discuss Judge Watson’s decision that converted his temporary restraining order into a preliminary injunction in this Twitter moment.

Hawaii v. Trump – Preliminary Injunction

Almost instinctively, I refer to the cost-sharing reduction litigation as House of Representatives v. Burwell, but indeed it is now House of Representatives v. Price. The GOP-controlled House has a still-pending lawsuit against the GOP-confirmed Secretary of HHS over the payment of subsidies to insurance companies. As I noted shortly after the AHCA died stillborn, the House litigation is on hold till May 22. At that point, the House will have to decide if it will (a) continue the litigation, (b) dismiss the litigation and let President Trump make the same illegal payments President Obama made, or (c) appropriate the funding for the CSR payments. Oh the choices!

Last night, I appeared (ever-so-briefly) on the CNBC Nightly Business Report. From 30 minutes in the chair, the producers found about 7 seconds of content, which is par for the course. Starting at 1:13:

I am quoted more at length in this article:

The big question is what happens now?

“Now we are in the Trump administration and as best as I can tell, these payments are still being made,” said Joshua Blackman, associate professor of constitutional law at South Texas College of Law in Houston, and author of “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

“This puts the Republicans in a very strange spot, as they are making the same illegal payments that they were saying the Obama administration was making,” said Blackman, who also serves as an adjunct scholar with the conservative Cato Institute.

I was also asked about the risk corridor litigation–don’t forget that is still live:

A federal claims court judge ruled in favor of insurers in one of the lawsuits last month. The court award would now be paid out of the federal judgment fund for legal claims.

“But there is already movement afoot amongst Republicans to amend the judgment fund, saying ‘we don’t want companies getting this money that was never appropriated,'” explained Blackman.

“That is to say, if Congress never agreed to fund something and the government then defaults on that debt, you can’t get it through this judgment fund.”

In Politico, Josh Gerstein writes:

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.

There is another possible, procedural reason.

The district court in Hawaii issued a Temporary Restraining Order (TRO). Currently the parties are litigating how to convert the TRO into a Preliminary Injunction (PI). As a general rule, TROs cannot be appealed–appellate review is extremely narrow. For reasons I explained here, the 9th Circuit in Washington v. Trump ignored that rule. In any event, it is not in the government’s interest to appeal a TRO, as–traditionally at least–it bears a much higher burden than if it is appealing a PI. (There is a reason the Obama Administration did not seek a stay from the Supreme Court when the 5th Circuit denied a stay in the challenge to DAPA). Further, the District Court in Hawaii issued a very broad injunction, that even enjoined internal-looking aspects of the order, such as instructions to the Secretary of State to research other countries to add to the vetting list. The government has asked the court to narrow its scope. There is every reason to solidify the scope of the preliminary injunction before going up to the 9th Circuit. Indeed, if this is the case that goes up to the Supreme Court, I would much rather go up on a PI than a TRO.

In contrast, the federal district court in Maryland (almost certainly) issued a preliminary injunction. I hedge a bit because the court was cagey about the precise relief it was entering. However, the analysis itself suggests that the PI framework was being applied.

For example, on page 18, the court states:

To obtain a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest.

On page 39:

While Plaintiffs would likely face irreparable harm in the absence of an injunction, Defendants are not directly harmed by a preliminary injunction preventing them from enforcing an Executive Order likely to be found unconstitutional.

The government’s brief treats the opinion as a preliminary injunction, which I think is right.

Here, the government has promptly appealed the preliminary injunction, but has not appealed the TRO–the scope of which may be narrowed when it is converted to a PI.

As a result, when faced with a choice of appealing the temporary restraining order in Hawaii, which the government is trying to convert to a narrow preliminary injunction, or appeal a narrow preliminary injunction in IRAP, the prudent choice would be to focus on the latter.

I have no inside knowledge, and this is a non-cynical reason to explain the different litigation postures.

Class 20 – 3/28/17

Economic Liberty II

• West Coast Hotel v. Parrish (897 – 901)
• United States v. Carolene Products (901 – 905)
• John Hart Ely, Democracy and Distrust Excerpt (906)
• Lee Optical of Oklahoma v. Williamson (910 – 915)
• Williamson v. Lee Optical of Oklahoma (916 – 917)
• Milnot Company v. Richardson (918 – 921)

The class notes are here.

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.

United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

 

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).

Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Williamson v. Lee Optical

Here is how a lensometer works.

In January 2016, Speaker Paul Ryan offered these remarks after enrolling the bill to repeal the Affordable Care Act through the budget reconciliation process:

“This is the closest that we have come to repealing Obamacare. And now we are sending that repeal to the president’s desk. And we have now shown that with a Republican president, there is a clear path to repealing Obamacare without 60 votes in the United States Senate. We are confronting the president with the hard, honest truth. Obamacare does not work. It has to go.

“Higher premiums, fewer choices, restricted access—these are not signs of success. These are signs of failure. And the American people deserve better.

“So we are asking the president to reverse course. Don’t give Washington bureaucrats more control over our health care. Put patients in control. Put them back in charge. If there is one story that is being told here today, it is this: the idea that Obamacare is the law of the land for a long time is a myth. We will see this law either collapse under its own weight, or we will see this law, in the next session of Congress as we’re proving here today, be repealed and signed and replaced by a Republican president.

 

The idea that #Obamacare is the law of the land for a long time is a myth. https://t.co/4y1309OXGm pic.twitter.com/B8u3I76cX4

— Paul Ryan (@SpeakerRyan) January 8, 2016

On Friday, after the decision to pull the vote on the American Health Care Act, Speaker Ryan offered these remarks:

SPEAKER PAUL RYAN: I don’t know what else to say other than Obamacare is the law of the land. It’s going to remain the law of the land until it’s replaced. We did not have quite the votes to replace this law. And so, yeah, we’re going to be living with Obamacare for the foreseeable future. I don’t know how long it will take us to replace this law.

My worry is, Obamacare is going to be getting even worse. Actually, I think we were probably doing the Democrats a favor. I think we were doing the architects of Obamacare a favor by passing this law before it gets even worse. Well, I guess that favor is not going to be given to them and it’s going to get worse.

So, I don’t think the architects of Obamacare, I’m sure they may be pleased right now, but when they see how bad this thing gets, based on all the projections we’re being told by the plans that are participating in Obamacare, I don’t think they are going to like that either.

Of course, the phrase “law of the land” stretches all the way back to Magna Carta.

No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.