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Hawaii v. Trump’s nationwide injunction not only barred the provisions of the revised order concerning the issuance of visas, and the denial of entry, but also halted provisions that instructed the Secretaries of State and Homeland Security to undertake a review of other nations that may be subject to heightened vetting.

The Trump Administration argued that the injunction was overbroad because plaintiffs cannot assert standing to challenge “internal-facing” aspects of the executive order. This argument was premised on the fact that one of the plaintiffs, Dr. Elshikh, could only assert an injury because his Syrian mother-in-law was not yet denied a visa. Therefore, any possible injury was not yet ripe.

The district court rejected the argument that the claim is not yet ripe (pp. 25-26):

The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’—a Syrian national who lacks a visa—from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145.

The Government’s premise is not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶ 88–90; Elshikh Decl. ¶¶ 1, 3.10 These alleged injuries have already occurred and will continue to occur once the Executive Order is implemented and enforced—the injuries are not contingent ones.

I understood this passage to suggest that the provisions that could affect his mother-in-law inflicted an injury, even though she might ultimately receive a visa through the waiver program. Thus, the claim is ripe. This discussion seemed wrong, in my mind, but utterly unremarkable.

Hawaii’s response reads this discussion in a much broader way.

Now Defendants urge for the third time (Opp. 19) that Dr. Elshikh’s standing is entirely derivative of the harms to his “mother-in-law.” For the third time, Defendants must be told that “is not true.” Op. 26; Dkt. 228, at 6. “Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status.” Op. 26.

I pause to note, again, that the court’s analysis on p. 25-26 concerned ripeness, not standing. Though the inquiries are related, they are not the same.

Hawaii’s discussion proceeds to bleed this expanded notion of standing into the Establishment Clause analysis:

And contrary to Defendants’ representation (Opp. 18), those alleged harms are not limited to “the suspension-of-entry provision” in Section 2. Dr. Elshikh’s declaration discusses at length the harms inflicted by “the Executive Order” as a whole and “the message” in “convey[s]” to him, his family, and his mosque. Op. 24; see, e.g., Dkt. 66-1 ¶ 4 (describing “knowledge” that the government would “discriminate” based on “religious beliefs”); id. ¶ 7 (referring to the impression that the Order “targets Muslim citizens because of their religious views”). The complaint, moreover, states that “Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order are intended to disfavor Islam.” SAC ¶ 107; see also id. ¶ 90.

Note that all of the above citations come from the complaint. Though they were quoted in the decision, the court did not adopt those findings. Here is the key conclusion:

Defendants assert that they cannot see how the Order’s various refugee provisions and its “internal-facing” requirements “could have injured” Dr. Elshikh. Opp. 20, 25-26. But Dr. Elshikh’s claim is that all of these provisions are part of the President’s policy of discrimination, and all of them convey the message that Muslims are outsiders and threats to national security.

This is the crux of the argument. Because Dr. Elshikh perceives a “message” from the entire executive order that “Muslims are outsiders and threats to national security,” there is now standing to raise Establishment Clause challenges to the entire order–even the “internal-facing” aspects that cannot have any possible impact on anyone (until adopted).

That is unquestionably sufficient to establish an Establishment Clause injury. See Catholic League for Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (en banc) (holding that “adherents to a religion have standing to challenge an official condemnation by their government of their religious views”). Defendants may attempt to refute Plaintiffs’ claims about purpose and the message conveyed, but that is their defense on the merits, not a basis for denying Dr. Elshikh standing to raise the claim.

This claim sounds in Mike Dorf’s “structural” theory of the Establishment Clause. That is, Trump’s sectarian purpose is no longer a necessary condition to enjoin the order, because of how the order is perceived by Muslim-Americans–even as applied to internal-facing actions that will not directly impact anyone.

I’ll call this the “snowflake” theory of standing: the order can be challenged as unconstitutional because of how it makes you feel. Even if the internal review policy is designed to focus on immigration policies for countries that are not predominantly Muslim, because of the “message” it conveys, the review is unconstitutional. This “snowflake” theory of standing melts on the closest of inspection. Far beyond the level of scrutiny established in McCreary, now courts can literally ask people how they feel–even if the law lacks a sectarian purpose–and use those sentiments to enjoin an otherwise lawful action. Again, this inquiry is different from asking if a reasonable, objective observer would see the action as an establishment of religion under McCreary. Rather, the question is whether the order–even if it otherwise passes the Lemon test–makes Dr. Elshikh, or another Muslim-American perhaps, perceives a discriminatory message.

There is a perversity to this strand of reasoning, which was highlighted by EDVA’s decision in Sarsour v. Trump. By preventing the Secretary of State from undertaking a review of how to transform our immigration policy–even in response to judicial orders–the court has “effectively disqualified him from exercising his lawful presidential authority.” In other words, the President can’t even attempt to cure the “forever taint” because his administration is enjoined from considering the issue.  Perpetually, so long as people perceive the President’s actions as having an anti-Muslim animus, the President is permanently disabled–even if the action itself has nothing to do with religion.

And by no means is this limited to the President’s immigration actions. This “snowflake” theory of standing would allow people to raise claims to challenge a whole host of actions that are traditionally beyond the cognizance of federal courts. As I noted on Politico:

Imagine if Trump were to announce that he wants to conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus toward women, by citing the president’s infamous rapport with Billy Bush on “Access Hollywood”? Nothing Trump can do would ever eliminate that taint.

The basis for this injunction is not only nationwide, but also omnipresent–nothing can be done to escape it in all aspects of the President’s administration.

Last night I tweeted a moment about Sarsour v. Trump, a decision from EDVA that upheld the President’s immigration order. For those unfamiliar, with Twitter, a “moment” is a collection of tweets. You can read them here.

Instant Analysis: Sarsour v. Trump (EDVA)

Judge Gorsuch’s confirmation hearing was scheduled to begin on Monday, March 20, at 11:00 a.m. On Friday, March 17, one of Gorsuch’s former students at the University of Colorado, Jennifer R. Sisk, sent a letter to the Senate Judiciary Committee. I do not recall seeing anything about the letter during the weekend. On Sunday evening–the eve of the hearing–the National Employment Lawyers Association posted a copy of the letter online. The organization also posted an email exchange between Sisk and the administration, anonymous affidavit from a student who made similar accusations.

A few hours later, at 12:15 AM, hours before Judge Gorsuch’s confirmation hearing began, Arnie Seipel and Nina Totenberg published a bombshell headline on NPR.com.

The story reported:

 “A former law student of Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, alleges that in a course she took from Gorsuch at the University of Colorado Law School last year, the judge told his class that employers, specifically law firms, should ask women seeking jobs about their plans for having children and implied that women manipulate companies starting in the interview stage to extract maternity benefits.”

In an interview with NPR, Sisk says she wrote the letter “so that the proper questions could be asked during his confirmation hearings,” which begin Monday before the Senate Judiciary Committee. Other students in the class have not come forward publicly.

There is no indication in the story that the authors attempted to corroborate Sisk’s statement with any other students in Professor Gorsuch’s class. NPR (for fairly obvious reasons) did not reference the anonymous affidavit. There is only one reference to a statement from the Trump Administration:

Ron Bonjean, a spokesman for the Trump administration working on the Gorsuch nomination, noted that the judge had consistently gotten among the highest student ratings at the law school.

Granted, reaching out to students hours before the confirmation hearing would have been difficult. But this was not a new story. The author acknowledges that the allegations have been floating around since January.

Sisk raised these concerns publicly in a posting on Facebook in late January, shortly after Gorsuch was nominated by Trump to the high court.

Yet, there was another student who had already come forward. In a letter dated March 19, 2017 (I don’t know what time it was submitted), Will Hauptman, another student in the same class, wrote to “refute [Sisk’s] letter’s veracity.” It is unclear if Seipel and Totenberg were aware of Hauptman’s letter when their story went to press, but by 9:15, the NPR story was updated with five additional paragraphs, buried towards the bottom.

Another student who took the class is disputing this characterization. Will Hauptman, a current law student at the University of Colorado, wrote a letter to the Senate Judiciary Committee with his account on Sunday.

“Although Judge Gorsuch did discuss some of the topics mentioned in the letter, he did not do so in the manner described,” Hauptman writes.

He continued, “The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time. The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group.”

…

In refuting this account, Hauptman writes to the committee that if Gorsuch had made such comments, “I would remember—the statements would have greatly upset me.”

At 10:10, another update was made. The fourth paragraph now asserts up front that there is a contrary opinion:

Other students in the class have not come forward publicly.

Another student in the class has disputed the account in another letter to the committee.

These two sentences, back-to-back, are jarring.

The update also includes a reference to another letter from 11 former female clerks of Judge Gorsuch.

A group of 11 female former law clerks for Gorsuch have also submitted a letter to the committee in support of the nominee.

“We each have lived long enough and worked long enough to know gender discrimination when we see it. Some of us have experienced it professionally on occasion,” they write. “When we collectively say that Judge Gorsuch treats and values women fairly and without preference or prejudice based on their gender, we do not say that in a vacuum. We say it with the perspective of those who know that unfortunately, even in 2017, female lawyers are not always treated as equals.”

The letter goes on to detail how the former clerks say Gorsuch mentored them in their careers. “The judge has spoken of the struggles of working attorneys to juggle family with work obligations; not once have we heard him intimate that those struggles are, or should be, shouldered by one gender alone,” they write.

At 11:25, the article was updated again, and the third and fourth paragraphs were modified:

Other students in the class have not come forward publicly.

Another student in the class has disputed the account in another letter to the committee, and several women who worked for Gorsuch as law clerks have stepped forward in his defense.

There is also a quote from Judge Gorusch’s former clerk, Jane Nitze, who went on to clerk for Justice Sotomayor, and work in the Obama administration.

When she heard these allegations, former Gorsuch law clerk Jamie [sic] Nitze told NPR, “I didn’t know whether to laugh or cry.” Nitze clerked for Gorsuch in 2008-2009, and was one of the 11 former female clerks to sign on to the letter sent to the Senate Judiciary Committee on Monday.

In a statement, Nitze says, in part, “the Judge is usually the first person I go to for career advice. And the first words he has for me when I do are: ‘What can I do to help you?’ The suggestion that he ‘discounts the worth of working females’ is patently absurd.”

At 12:55 p.m., the story was updated again, with a new, far more accurate, headline.

Still, this headline does not acknowledge the contrary statements by Hauptman, who was also in the class.

The revised article also includes an editor’s note (presumably not from Seipel and Totenberg).

Editors’ note 12:55 p.m. ET: Since this story was first published, we have added material from another former student and former law clerks of Gorsuch, as well as more information about Jennifer Sisk’s political affiliations.

Now, the third paragraph highlights Sisks’s Democratic bona fides:

Sisk, once a staffer for former Democratic Sen. Mark Udall of Colorado and the Interior Department during the Obama administration, told NPR that she wrote the letter “so that the proper questions could be asked during his confirmation hearings,” which begin Monday before the Senate Judiciary Committee.

Another student in the class has disputed the account in a letter to the committee, and several women who worked for Gorsuch as law clerks have stepped forward in his defense.

NPR could have located all of this new information before running their bombshell story ten hours before the confirmation hearing would begin. Yet, the article had an impact. During his opening statement on the first day of the hearing, Senator Dick Durbin flagged the letter to Gorsuch, and said “Tomorrow we’ll get to the bottom of it, I hope.”

Over the next 24 hours, a number of Gorsuch’s former students disputed Sisk’s recollection.

CNN later reported that the University of Colorado never notified Judge Gorusch about Sisks’s complaint.

The University of Colorado Law School did not inform Supreme Court nominee Neil Gorsuch of a complaint filed against him last year for his conduct in a class he teaches, the law school dean said Monday. . . .

“In late April and May 2016, law school administrators met with the student to address her concerns and told her the matter would be raised with Judge Gorsuch after grades were submitted for the spring semester,” Dean S. James Anaya said in a statement. “At the end of June, the law school had a transition of deans and, regrettably, preceding that change, no member of the law school administration spoke to Judge Gorsuch about the student’s concern. We apologize to the student who expressed the concern and to Judge Gorsuch for not bringing this matter to his attention last summer.”

This is another statement NPR should have obtained from the Univeristy before running the story. It’s no wonder Judge Gorsuch’s vetting team wasn’t prepared–they were not made aware of it till the eve of the hearing.

During the second day of the hearing, Senator Dick Durbin asked Gorsuch to address Sisk’s letter. He responded, in part:

“The problem is this: Suppose an older partner, woman at the firm that you’re interviewing at, asks you if you intend to become pregnant soon. Your choice as a young person [is] you can say yes, tell the truth…. And not get the job and not be able to pay your debts. You can lie, maybe get the job…That’s a choice, too, that’s a hard choice. You can push back in some way, shape or form. And we talk about the pros and the cons in a Socratic dialogue so they can think through for themselves how they might answer that very difficult question. And senator, I do ask for a show of hands, not about the question you asked, but about the following question and I ask it of everybody: ‘How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning.’ And I am shocked every year, senator, how many young women raise their hand. It’s disturbing to me.  I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. At age 20 she had to wait for a year to take the bar. I knew it happened with Justice [Sandra Day] O’Connor, couldn’t get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that.

After that refutation, the story seemed to vanish.

On a personal note, this episode illustrates one of the reasons why I record all of my lectures. For sure, it is a public service for my students, and other students who watch my videos. There is a selfish motive, however. If ever a student accuses me of saying something improper, my first response is “Show me the tape.” As this episode illustrates, students can hear the same lecture, and take home very different messages. This is true for all lectures, but especially for those discussions that touch on sensitive topics. YouTube allows all lectures to be replayed, in context.

Update: Judge Gorsuch’s class discussion was premised on Problem 15-1 of “Ethical Problems in the Practice of Law” (3rd Edition) by Lisa G. Lerman and Phil G. Schrag (I used an earlier version of this text when I took legal ethics).

What will you say?

Since his inauguration, President Trump repeated over and over again that he had considered doing nothing on Obamacare, and would simply let the law implode. Now that AHCA is dead, Trump has turned back to his initial sentiment. Whether the ACA was in fact unraveling, or not, when Trump took office is a matter of debate. What is beyond debate, however, is that Trump can accelerate that unraveling. Last night, Trump told the Washington Post that “The best thing politically is to let Obamacare explode.”

This is not a passive process, as Trump can take a series of actions, or abstain from acting, to hasten the law’s demise. Andy M. Slavitt, who served as the Obama Administration’s CMS Chief referred to the President’s prediction as a “a self-fulfilling prophecy.” He added, “That’s like inheriting an overseas war, and deciding you let your own soldiers get killed because you didn’t elect to enter that war.”

How can Trump “let Obamacare explode” to spur Congress to take action?

First, the House of Representative’s challenge to the payment of cost-sharing reductions returns to the fore. Last month, HHS and the House jointly moved to stay proceedings in the D.C. Circuit until May 22, 2017, “to allow time for a resolution that would obviate the need for judicial determination of this appeal, including potential legislative action.” The D.C. Circuit granted that motion. As far as I can tell, the Trump Administration has continued making the payments to the insurance companies since January. I could not find any proof of these payments, though here the dog didn’t bark: if the insurers were getting stiffed, they would be screaming bloody murder. However, if Donald seeks to hasten the unraveling of Obamacare, he could simply direct his Secretary to halt the illegal payments. Margot Sanger-Katz predicts the outcome of that change:

Without the subsidies, all the insurers will lose some money, and many smaller carriers will face bankruptcy. If Mr. Trump does not fight the court case, the Obamacare markets in most states will unravel quickly, leaving millions without insurance options on his watch. Many of the beneficiaries are Trump voters.

Second, Trump could terminate illegal subsidies being provided to members of Congress and their staff. I discussed this strategy on NRO before the inauguration:

. As a result of Grassley’s amendment, members of Congress and their staffers, unlike all other federal workers, would no longer be eligible for the generous Federal Employees Health Benefits Plan (FEHBP). Under FEHBP, the government pays approximately 75 percent of an employee’s annual premium. This annual tax-free contribution of between $5,000 and $2,000 was far more generous than the income-adjusted subsidies available on HealthCare.gov. Indeed, many well-compensated congressional employees—starting with a family of four that earns more than $100,000 a year — would be ineligible for any subsidies on the exchange. Under Grassley’s plan, they would now be put in the same position as other Americans who had to pay the full cost of their insurance, without any governmental assistance.

The Grassley amendment was extremely unpopular on Capitol Hill . . . . However, as the movement to repeal and replace Obamacare grew during July and August, the House GOP leadership abandoned any efforts to modify the ACA, short of total repeal. Where Congress would not act, President Obama did so unilaterally. The Office of Personnel Management (OPM) announced that members of Congress and their staff would be able to purchase health insurance on the District of Columbia’s Small Business Health Options Program, known as the D.C. SHOP exchange. The ACA authorized these new SHOP exchanges to offer a health-insurance marketplace for workers at small businesses with fewer than 50 employees.

At President Obama’s direction, OPM determined that after a congressional employee enrolled on the District of Columbia’s SHOP Exchange, the government could then provide the same 75 percent contribution that was offered under the FEHBP. Thus, there would be no meaningful disruption in benefits for Hill staffers. This is a benefit that no one else on the SHOP exchange would be eligible for. Notwithstanding the Grassley amendment, which expressly sought to put congressional employees on the same footing as all other Americans on the exchanges, now congressional employees would be in the exact same position as they were before the enactment of the ACA. The OPM fix was a blatantly illegal effort to bypass an unpopular law.

Senator Ron Johnson (R., Wis.) challenged the legality of the OPM rule in 2014. “OPM exceeded its statutory jurisdiction and legal authority,” he wrote in the Wall Street Journal. “In directing OPM to do so, President Obama once again chose political expediency instead of faithfully executing the law — even one of his own making.” Article II imposes on the president a duty to “take care that the laws be faithfully executed.” Alas, the federal court dismissed Johnson’s suit, finding that the senator was not injured by the payment of additional subsidies. (Indeed, most of President Obama’s illegal executive actions were shielded in court because parties were not injured and therefore lacked “standing” to challenge them.”)

But now there’s a new sheriff in town. With the stroke of a pen, President Trump can direct his Secretary of the Office of Personnel Management to rescind the old policy: Eliminate all special subsidies for members of Congress and their staff, and force them to buy insurance on HealthCare.gov like all other Americans. But this deal would not be so simple.

This change would not make Obamacare “explode,” but it would blow up the coverage of the people in the best position to effect legislative change. Payback for not supporting the bill?

These first two items, though they would accelerate the unraveling of the ACA, are also legal. Indeed, taking these steps would restore the rule of law, and the President’s duty of faithful execution. I am not confident that such motivations matter to the current administration, but I can hope.

The third approach to make Obamacare “explode” would be illegal–suspend enforcement of the individual mandate and Essential Health Benefit requirements. In short, these actions were purportedly part of the vaunted “Phase 2” of the repeal-and-replace strategy. I discussed these options here:

First, Secretary Sebelius suspended both the individual and employer mandates for millions of Americans and businesses. These actions were completely illegal, and amounted to a failure to faithfully executive the law. Secretary Price could now do the same, on a much larger scale. Everyone who asserts a hardship because of the rising costs of health insurance could now be granted an exemption. Only fools would pay the penalty! Efforts to challenge Sebelius’s suspensions have failed in court. Under these precedents, it is unlikely anyone would have standing to stop Price’s changes. Frankly, I am not too concerned about these actions, because Phase 1 (AHCA) would repeal both mandates in full, so there is little reason to employ further executive action on this front. So those mandates are out.

…

There is a much more potent approach: Price can do what Sebelius did before, and simply decline to enforce the mandates. The if-you-like-your-plan-you-can-keep-you-plan administrative fix allowed insurance companies to continue selling otherwise void plans, that do not cover EHB. How? HHS simply announced that it would never make the finding that non-compliant plans are being offered. As I discuss in Unraveled, this decision was completely illegal.

…

By never making the determination that non-compliant plans were being offered, HHS effectively suspended the EHB mandate. It was entirely illegal. (See Nick Bagley’s analysis in the New England Journal of Medicine). West Virginia challenged this action in court. The D.C. Circuit dismissed the case on standing grounds, finding that the state suffered no injury. Like with many of President Obama’s benevolent suspensions that alleviated burdens, courts found no standing.

Alas, using this precedent, Secretary Price can likewise decline to enforce the EHBs–but to a much greater extent. Instead of allowing old, non-grandfathered plans to be sold, the Trump Administration can tell insurance companies that they can sell entirely new thrifty plans that do not cover all EHBs. Why? There is a hardship due to the lack of plans on the exchanges, and HHS determined that selling additional plans are essential as a transitional policy to stabilize markets. Whatever.

Don’t forget: West Virginia’s petition for certiorari is currently pending before the Court, and after a call for a response, the SG filed a BIO  (I think this is the first brief the Trump Administration has filed in support of Obamacare). The case should be up for conference in about three weeks or so. Perversely, a ruling for West Virginia here would enable other liberal states to stop Trump’s executive action with respect to the ACA. More generally, it would bolster the notion of state standing–the virtues of which California and Washington have recently re-discovered. This could gin up four votes for cert that were lacking before. One caveat: Price’s executive action would only work in the states that decline to enforce their own markets. Most liberal states, which enforce their own markets, would not be injured by this change. Perversely, the states most likely to disfavor the policy would be least able to challenge it in court.

Michael Cannon offers a few other lawful steps the President could employ:

End Obamacare’s illegal “reinsurance” payments.

The Government Accountability Office found that the Obama administration illegally diverted additional billions of dollars in “reinsurance” payments from the Treasury to private insurance companies. Trump should immediately stop the diversion of those funds and demand that insurers repay the more than $3 billion in unlawful payments they have received.

Block Big Insurance’s “risk-corridor” raid on the Treasury.

The Obama administration tried to circumvent a statutory cap on “risk-corridor” payments to private insurance companies by offering to settle lawsuits filed by the insurers. Trump should immediately announce that his administration will not settle but will instead vigorously defend taxpayers’ interests in all such lawsuits.

There is a lot President Trump can due to hasten Obamacare’s explosion. This is not a passive process. Each of these actions would destabilize markets, but would force Congress back to the table to negotiate.

Writing two books about the Affordable Care Act has given me a sense of perspective. Day-to-day events concerning the law tend not to phase me, as I attempt to keep my eyes on the big picture. Today’s events, however, will ultimately be an entire chapter in my next book.

Rather than offering my commentary–I am still not quite sure what this means and where it leads–in this post, I will compile a number of the play-by-play accounts that were published hours after Speaker Ryan announced that there would be no vote.

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